IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. (1) A.O. No. 223/2005 The Oriental Insurance Company Ltd. .. Appellant. Versus Daulat Ram and 5 others .. Respondents. Mr. V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Learned counsel for the appellant. Mr. S.K. Mandal, Advocate for respondents 1 to 4. Mr. Manav Sharma, learned counsel for respondent No.5. None has appeared on behalf of respondent No. 6. (2) A.O. No. 176/2005 Daulat Ram and 3 others . .. Appellants. Versus The Oriental Insurance Company and 2 others .. Respondents. Mr. S.K. Mandal, Advocate for the appellants. Mr.V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Advocate for the respondent No.1. Mr. Manav Sharma, Advocate for respondent No.3. None has appeared on behalf of respondent No.2. (3) A.O. No. 455 of 2005 The Oriental Insurance Company Ltd. .. Appellant. Versus Channu Charls and 3 others .. Respondents. Mr. V.K. Kohli, Senior Advocate, assisted by Mr. I.P. Kohli, Counsel for the appellant. Mr. G.C. Lakhchaura, counsel for the respondents/claimants. None has appeared for respondent No. 4. Dated: August 06, 2008 Hon’ble B.C. Kandpal, J. All the three appeals, under Section 173 of the Motor Vehicles Act, 1988, arise out of the same accident and similar controversy is there, therefore these appeals are being decided by this common judgment. 2- A.O. No.223/2005 and A.O. No. 176/2005 have been preferred against the judgment and award dated 11-3-2005, passed by Motor Accident Claims 2 Tribunal/Addl. District Judge/ III F.T.C., Udham Singh Nagar, in MACT Case No. 19 of 2002, whereby the tribunal has awarded a sum of Rs. 1,77,000/- as compensation along with interest @ 6% per annum from 22.1.2002 to the actual date of payment payable by Oriental Insurance Company in lieu of death of Mukesh Kumar in an accident. 3- A.O. No. 455 of 2005 has been preferred against the judgment and award dated 1-7-2005, passed by Motor Accident Claims Tribunal/ Addl. District Judge/III F.T.C., Udham Singh Nagar, in MACT Case No. 219 of 2001, whereby the tribunal awarded a sum of Rs. 2,06,000/- as compensation against the Oriental Insurance Company, in lieu of death of Naresh Charan in a motor accident. The Tribunal also directed that the claimants have already received Rs. 1,64,000/- from the opposite party, hence the balance sum of Rs. 42,000/- will be paid with interest @ 6% per annum from the date of filing the petition till the date of actual payment. The Tribunal also directed that if the compensation is not paid within two months, the interest shall be payable @9% per annum from the date of filing the petition till the date of actual payment. 4- The relevant facts of the case are that on 16- 10-2001 at about 2 P.M. Mukesh Kumar Tamta driver of Tata 407, DL 1-B-0772 was carrying the truck from Bazpur to Dhansara. In the way there is unmanned railway crossing, when the driver was driving the said truck in a high speed it dashed with the train going from Gularbhoj to Bazpur, and the driver Mukesh Kumar as well as its conductor Naresh Charan died at the spot. The report of the accident was lodged at P.S. Bazpur on 16- 10-2001 itself. 3 5- According to the claimants there was neither any sign-board nor speed breakers near railway crossing. The driver of the Train also did not give whistle and the accident occurred due to the negligence of Railway Department. Therefore, the dependents of the deceased driver and conductor have preferred claim petitions. 6- The Opposite Party, owner of the offending truck contested the petitions by filing his written statement. And alleged that deceased Mukesh Kumar was working with him temporarily and he used to pay Rs. 2,000/- as per month’s salary to him. He also alleged that notice was not given to him by the claimants. He also alleged that the truck in question was insured with Oriental Insurance Company. The owner of the vehicle also alleged that there was no signboard on the unmanned railway crossing. The driver of the train also did not give whistle hence the accident was caused due to the negligence of railway department. 7- The Oriental Insurance Company also filed written statement and contended that the petitions were not maintainable and the tribunal has no right to hear the same. The accident had occurred due to the own negligence of the truck driver. The driver had also no valid driving license. 8- The Opposite Party Divisional Manager, Eastern (Railway Division), Ijjatnagar, Bareilly, U.P. also contested the claim petitions by filing written statement and denied the allegations made in the claim petitions. According to him there was no fault on Railway Department. The Engine was coming giving whistle but the truck driver tried to cross the road. The Engine 4 driver tried to avoid the accident but due to own negligence of the driver of the truck in question the accident not be stopped. Provisions of Section 183 and 184 of the Motor Vehicle Act were breached, therefore the Railway Administration and its employees are not liable to pay any compensation and the petitions are liable to be dismissed. 9- The learned Tribunal, on the pleadings of parties, framed relevant issues in both the claim petitions. Thereafter parties adduced evidence in support of their case. Thereafter the Tribunal on hearing learned counsel for the parties and considering the evidence on record allowed the claim petitions against the Oriental Insurance Company for compensation. 10- Feeling aggrieved the Oriental Insurance Company has preferred A.O. Nos. 223/2005 and A.O. No. 455/2005 whereas A.O. No. 176/2005 has been preferred by the claimants/ dependents of the deceased driver of the offending truck for enhancement. 11- I have heard learned counsel for the parties and perused the material on record. 12- First of all I take up the A.O. No. 223/2005, filed by the Oriental Insurance Company against the judgment and award awarding compensation in lieu of death of the driver of the offending Truck. The learned counsel for the appellant/Oriental Insurance Company has submitted that the accident had taken place due to the negligence of deceased driver himself, hence the award against the Insurance Company is wholly illegal and unjustified, as the driver is not the third party. He has further submitted that even under Section 140 of the 5 Motor Vehicles Act for ‘no fault liability’ the insurance company cannot be saddled with amount of compensation, as the risk of driver is not covered under policy of insurance. In support of his contentions learned counsel has submitted before me the following rulings:- 1- 2007 (2) TAC 414 (S.C.) Oriental Insurance Company Limited Vs. Meena Variyal and others. 2- 2005 (1) TAC 994 (1) TAC 994 (Kant.) Appaji and another Vs. M. Krishna and another. 3- (2003) 6 Supreme Court Cases 137, Tamil Nadu State Transport Corporation, Tanjore Vs. Natarajan and others. 13- I have gone through the aforesaid rulings cited by learned counsel for the appellant. 14- In the case of Oriental Insurance Company Limited Vs. Meena Variyal and others, mentioned at serial No.1 above, the Hon’ble Apex Court has held that – “in case where a person is not ‘third party’ within the meaning of Act, insurer cannot be made automatically liable. 15- In the ‘Appaji’ case (supra) mentioned at serial No.2, this point was considered ‘whether claim application for death of person who himself was responsible for the accident is maintainable U/S 163-A of the Act and it was held that no claim is maintainable. 16- In the case law mentioned at serial No.3, ‘Tamil Nadu State Transport’ case, the Hon’ble Apex Court has held as under:- 6 “The claimant himself was a driver of the corporation bus and was found negligent to the extent of 50% for causing the accident. Therefore, the Corporation as an employer could not be held to be vicariously liable for the negligence of the claimant himself. The claimant had exercised the option of approaching the Claims Tribunal under the MV Act against the owner and insurer of the private bus. He did not file any claim under the WC Act against the employer. Since the Corporation was not at fault and the accident was caused because of the contributory negligence of the drivers of both the buses, the Corporation could not be held to be liable under the provisions of MV Act. It was not a claim based on “no fault liability”. 17- The Hon’ble Apex Court in the above cited case has held liable the insurance company of the private bus due to 50% negligence on the part of driver of the private bus involved in the accident and for other 50% the Corporation under whom the claimant was working as a driver was not held liable due to own negligence of the driver/claimant under the Motor Vehicles Act. 18- Therefore, from above rulings it is quite clear that the compensation cannot be awarded to the claimants who are the legal heirs of the deceased driver for his own negligence as the driver is not covered under the ‘third party risk’. Therefore, in view of the dictum of the Hon’ble Apex Court as well as in view of the peculiar circumstances of the present case it can be reasonably concluded that the accident took place on account of rash and negligence on the part of the deceased driver. This is not disputed fact that the place of the accident is the unmanned railway crossing, where the driver of the 7 truck wanted to use the same at the time when the train was coming through unmanned barrier. 19- It would be pertinent to quote the provision of Section 131 of the Motor Vehicles Act, which reads as follows:- “Duty of the driver to take certain precautions at unguarded railway level crossings- Every driver of a motor vehicle at the approach of any unguarded railway level crossing shall cause the vehicle to stop and the driver of the vehicle shall cause the conductor or cleaner or attendant or any other person in the vehicle to walk up to the level crossing and ensure that no train or trolley is approaching from either side and then pilot the motor vehicle across such level crossing, and where no conductor or cleaner or attendant or any other person is available in the vehicle, the driver of the vehicle shall get down from the vehicle himself to ensure that no train or trolley is approaching from either side before the railway track is crossed.” 20- The aforesaid provision, thus, clearly says that what precautions are to be observed by the driver while crossing the unmanned railway crossing. In view of the dictum of ‘res ipsa loquitor’, the evidence available on record clearly indicates that the driver did not care to see that the train is approaching towards the unmanned railway barrier at the time of the accident. Had the driver been vigilant and could have observed that the train is approaching towards the unmanned railway crossing, he would not have been so hasty in crossing the railway barrier at the time of the accident. The haste on the part of the deceased driver is indicative of this factor that the driver while crossing the unmanned railway barrier did 8 not observe the precautions envisaged under Section 131 of the Motor Vehicles Act. The tribunal in recording its finding has also come to the conclusion that the accident took place on account of rash and negligence of the deceased driver. Even then the tribunal has fixed the liability on the insurance company to pay the amount of compensation which in any case does not appear to be reasonable. The driver himself was rash and negligent in causing this accident. Therefore, to my mind in view of the dictum of the Hon’ble Apex Court, as has discussed by me in the earlier paragraphs, it can be safely observed that the claimants are not entitled to any compensation to be paid by the insurance company. 21- Learned counsel for the respondent/claimants has argued before me that the accident took place while the vehicle was in use, therefore, it is immaterial that the driver of the bus was rash and negligent at the time of the accident. He has thus submitted that the tribunal has rightly awarded the compensation in this case. In support of his contention he has cited before me the following rulings:- 1- 2000(2) TAC 213 (SC), Smt. Rita Devi and others Vs. New India Assurance Co. Ltd. and another. 2- AIR 1991 Supreme Court 1769, Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More. 22- I fail to appreciate the argument advanced by the learned counsel for the respondents/claimants. It is not disputed that the vehicle was in use at the time of the accident, but the question to be determined in this case is that the deceased driver was himself rash and negligent on account of which this accident took place. 9 The rulings cited by learned counsel for the respondents/ claimants do not apply to the facts of the present case. 23- I am thus of the definite opinion that the claimants cannot be awarded compensation on account of the rash and negligence on the part of the deceased driver. 24- For the reasons recorded above, the appeal preferred by the Oriental Insurance Company is liable to be allowed. 25- So far as the appeal preferred by the respondents/ claimants (A.O.No.176/2005) for enhancement is concerned, in view of the finding recorded above, the same is liable to be dismissed. 26- As regards the third A.O. No. 455/2005, the same is also liable to be dismissed. The deceased in this petition was the conductor Naresh Charan. As held earlier by me the accident was the result of rash and negligence of the driver of the offending truck, the conductor had no fault in causing the accident. Therefore. the legal heirs of deceased Naresh Charan are entitled to get compensation from the Insurance Company as his death in the said accident is admitted and the vehicle involved in the accident was insured with the Oriental Insurance Company and its driver had valid driving license. I do not find any illegality and impropriety in the impugned judgment and award given by the learned Tribunal in this case. Therefore, this appeal is liable to be dismissed. 27- In view of above discussion the A.O. No. 223/2005 is allowed and the impugned judgment and 10 award dated 11-3-2005 passed in MACT Case No. 19/2002 is set aside. Consequently the claim petition filed by the claimant/respondents fails and is dismissed. 28- The A.O. No. 176/2005, preferred by claimants/respondents (legal heirs of deceased driver) is dismissed. 29- The A.O. No. 455/2005, preferred by Oriental Insurance Company against the judgment and award dated 1-7-2005, passed in MACT 219/2001 is also dismissed. 30- The statutory amount deposited with this Court be remitted to the Tribunal concerned. In case if the appellant/insurance company has deposited any sum apart of the statutory amount with the Tribunal concerned pertaining to the claim in lieu of deceased driver, he is permitted to withdraw the same. 31- Let a copy of this judgment be placed in the files of A.O. No. 176/2005 and A.O. No. 455/2005. (B.C. Kandpal, J.) ISB 11 IN THE HIGH COURT