IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.587 of 2004 1. UNION OF INDIA through General Manager, North-Eastern Railway, Gorkhpur, represented by Mr. M.R. Beg Presenting Officer, North East Railway, Gorakhpur. Resident of Mohalla – Khunipur, P.S. – Kotwali, District – Gorakhpur (U.P.). 2. The Union of India through General Manager, East Central Railway, Hajipur represented by Sri Rajendra Kumar Rajak, Deputy Chief Personal Officer/HRD. ……….. Opposite Parties – Appellants. Versus 1. PREMA DEVI, W/O Late Vijai Kumar Yadav @ Ratan Yadav. 2. Punnu Kumar, Minor son of Vijai Kumar Yadav @ Ratan Yadav aged about 13 years. 3. Papuni Kumari, minor daughter of Late Vijay Kumar Yadav @ Ratan Yadav aged about 11 years. 4. Rupesh Kumar, minor Son of Late Vijay Kumar Yadav @ Ratan Yadav, aged about 9 years. All minors are under the guardianship of Prema Devi their mother, natural guardian and next friend. All residents of Mohalla – Dawan Tola, Ward No. 3 Khagaria Municipality P.O. + P.S. + District – Khagaria. ………………………… Claimants – Opposite Parties Ist Set. 5. The Officer of the New India Assurance Company Ltd. 17A, Co-operage Road, Bombay. 6. The Branch Manager, New India Assurance Company Ltd. Kpasia Chowk, Begusarai. 7. Sri Yadu Nandan Yadav, Son of Sri Matho Prasad Yadav, Rasthriya Janta Dal Leader, Resident of Mohalla – Baluwahi, Ward No. 17, Old Registry Office, At P.O. + P.S. and District – Khagaria. …………… Opposite Parties – Opposite Parties..2nd Set. ----------- For the Appellant :- Mr. Ashok Kumar Keshari. 17/ 20.08.2010 Heard learned counsel for the parties. 2. This miscellaneous appeal is directed against the order dated 29.10.2004 passed by the District & Sessions Judge – cum – Chairman, Motor Vehicle Claims Tribunal, Khagaria in Claim Case No. 07 of 2004 by which he has granted interim compensation under Section 2 140 of the Motor Vehicles Act to the tune of Rs.25,000/- on the principle of no fault liability. However, held that Rs.12,500/- out of the said amount of Rs.25,000/- would be paid by the insurer New India Insurance Company and rest Rs.12,500/- would be paid by the Railway to the Opposite Party No. 1 and 2 with interest of 6% per annum from 24.06.2004 till the date of payment with a direction to pay within two months failing which they will be liable to pay panel interest @ 9% per annum as the railway is also a joint tort feasor under the no fault liability. 3. The appellant is the railways. However, the case of the claimant the heir of the victim, Late Vijay Kumar Yadav @ Ratan Lal driver of truck no. BR 34/2269 is that the truck met with the accident on collision with a train bearing no. 4084 down at unmanned gate no. 24A. The accident was reported by the driver of the train making out a case that in spite of the effort by the driver of the train the collision could not be avoided as the speed of the train was 75 Kms per hour. 4. On the claim petition by the claimant the heirs of driver of the truck, the notice issued to the owner and the Insurance Company but the railway did not appear even 3 after notice served and so the impugned order has been passed. 5. Learned counsel for the appellant, however, contended that the accident took place in the year 1993 and the claim case was filed in the year 2004 though earlier a claim case filed bearing Claim Case No. 17 of 1993 was dismissed for default. The railway was not made party in the said earlier Claim Case No. 17 of 1993. The case was placed before the Lok Adalat where the matter was settled in terms of a compensation of Rs.90,000/- subject to condition that the driver must have a license. However, since the driving license was in the name of Ratan Lal where as the deceased was Vijay Kumar Yadav and in claim petition the deceased was named as Vijay Kumar Yadav @ Ratan Lal and hence the Lok Adalat withdrew the order granting compensation worth Rs.90,000/- and the case was sent to the court concerned for adjudication. Subsequently on 21.08.2001 the case was dismissed for default and subsequently in 2004 on 24th June, 2004 another claim case was filed which bears this Claim Case No. 07 of 2004 i.e. after 29 months of the disposal of earlier Claim Case on 4 21.08.2001. The fresh Claim Case No. 07 of 2004 filed in which the Insurance Company appeared and took objection but Railways did not file any written statement. The impugned order has been passed which is under challenge. The plea taken by claimant that since accident took place by collision of bus with train and hence claimant is liable to realize claim from Railway, Motor Vehicle Tribunal has no jurisdiction to realize the claim from Railways as railway does not come under the definition of Motor Vehicle and claim is barred by limitation. 6. The fact as submitted not in dispute and by the said impugned order the Tribunal held that there is no bar in filing fresh application even if a petition under Section 166 is dismissed in default and even accident of collision between train and Bus comes within jurisdiction of Motor Accident Claim Tribunal under Motor Vehicle Act and claim is not barred by limitation as 166 (3) the limitation clause has been deleted. 7. The Learned Counsel for appellant has raised several issues and challenged the order on several grounds since the Railway was not made a party in earlier 5 case filed by claimant boy Case No. 17 of 1993 and the 17 of 1993 once decided in Lok Adalat though the said order subsequently recalled and sent to court for adjudication before the case was dismissed in default and hence it is submitted that the subsequent case filed for same relief after the dismissal of claim petition on default is hit by waiver estoppel and res judicata. The Learned counsel for appellant further contended that the occurrence took place in 1993 the Railway was not made party in petition filed in 1993 and subsequent petition filed in 2004 hence the subsequent case filed against is barred by limitation and further contended that under Section 166(3) of the Motor Vehicles Act the period for limitation was six months and Tribunal had only power to condone delay in filing the claim petition for delay in filing petition only for further period of six months but since the same having been repealed and the repeal has been interpreted to have applicable will retrospective effect but applying the general law of limitation the claim is money claim and hence the limitation is for 3 years from the date of occurrence whereas the claim case filed impleading Railways as in the year 2004 after three years. 6 8. It is further contended that train does not come under the definition of Motor Vehicle and hence will not come within the ambit of Motor Vehicles Act and there is certain precaution to driver of Motor Vehicle and any negligence in crossing the unmanned railway crossing is an offence and hence it is the driver of the Motor Vehicle who can be held as negligent and no material to suggest the negligence by railways and railway cannot be a joint tort feasor and relied upon a decision reported in 1997 (8) SCC 6831 as well as 2002(2) PLJR 139. 9. Hence on the respective submission of the parties the question for consideration whether the claim of the claimant is barred by the waiver, estoppel, barred by res judicata, barred by limitation and whether the railway is liable to pay the compensation to the victim for composite or contributory negligence and for no fault liability. 10. Fact is admitted that the accident took place by collision of truck and train at an unmanned railway crossing and a claim petition was filed being Claim Case No. 17 of 1993 in which railway was not made a party and the said claim petition was placed before Lok Adalat 7 when it was disposed with Claim of Rs.90,000/- subject to condition that driver should be a licensed driver but later the said conditional order was withdrawn a case was sent from Lok Adalat to regular court i.e. before Tribunal for disposal. Subsequently after dismissal of the case for default fresh claim filed adding railways as party. 11. The first points raised that Railway was not made party in earlier proceeding filed for claim of compensation bearing Claim Case No. 17/93 which was dismissed for default. This case filed on same ground instead of filing a restoration petition and hence raised the point that this case is hit by waiver, estoppel and res judicata. However the principle of waiver and estoppel are applicable with regard to the conduct of the party or if the party taking a contradictory stand then by his conduct it may presume to estoppel to have waived his right. However, it has been submitted that since the case 17/93 was filed and was sent to Lok Adalat and at the Lok Adalat an order was passed on compromise for an award of Rs.90,000/- to claimant to be paid by insurance subject to condition that the driver has valid license but however subsequently the said order was withdrawn by the Lok 8 Adalat itself and hence the party came to the original petition that the case have not been decided as order was withdrawn by Lok Adalat and case was sent to the court for final adjudication. Subsequently case was dismissed in default without adjudication. However, the plea of waiver and estoppel has been taken for first time in appeal against interim order passed under Section 140 of the Motor Vehicles Act. There is no foundation fact except that claimant filed which was dismissed and conduct of the claimant is not as such to have waived petition earlier nor have taken a contradictory stand to infer either waiver or estoppel against the Railways. The order passed by Lok Adalat was subsequently withdrawn and the party was placed in original position as no order has been passed and the same was dismissed for default and hence fresh filing a petition will neither attract waiver nor estoppel against the claimant. 12. The next question for consideration is whether the subsequent suit is barred by res judicata. However, this point also not raised before the Tribunal and being raised for the first time in miscellaneous appeal against the interim order under Section 140 of the Motor Vehicles 9 Act. However, Section 11 of the Code of Civil Procedure enshrined the principles of res judicata “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”. However, the res judicata is applicable when the matter in issue has been finally decided between the parties by a court competent to try. However, whatever decided by the Lok Adalat was withdrawn when Railways was not a party and hence it cannot be said that the matter was finally decided between the party. Hence, I find and hold that the principle of res judicata is not applicable in the facts and circumstances of the case. 13. However the occurrence took place in 1993 and claim petition filed but was dismissed for default and the fresh petition filed and in such connection question of limitation have been raised however at the time of 10 accident there was limitation of six month as per 166(3) and Tribunal had power to condone delay for a further period of delay of only six months but in 1994 the 166 (3) deleted and Supreme Court i.e. interpreted the said deletion to the effect that now there is no limitation in Motor Vehicle Claims before Tribunal and further held the effect of deletion of 166(3) amounts to deletion with retrospective effect. 14. Learned counsel for the appellant, however, contended even if the special law of limitation has been deleted it can well be inferred that the general law of limitation will be applicable and in that case a limitation of three years can be deemed to be validly applicable. However, in AIR 1996 SC 2155 (Dhannalal Vs. D.P. Vijayvargiya & Ors.) while holding that the law is effective with retrospective effect the Supreme Court has considered that the Parliament from time to time has introduced amendments in the old Act as well as in the new Act in order to protect the interest of the victims of the accidents and their heirs if the victims die. The deletion of sub-section (3) from Section 166 should be given full effect so that the object of deletion of said 11 Section by the Parliament is not defeated. If a victim of the accident of heirs of the deceased victim can prefer claim for compensation although not being preferred earlier because of the expiry of the period of limitation prescribed, how the victim or the heirs of the deceased shall be in a worse position if the question of condonation of delay of filing the claim petition is pending either before the Tribunal, High Court or the Supreme Court. The matter will be different if any claimant having filed a petition for claim beyond time which has been rejected by the Tribunal or the High Court, the claimant does not challenge the same and allows the said judicial order to be come final, the Amending Act shall be of no help to such claimant. The reason being that a judicial order on such petition of claim was barred by limitation has attained finality. But that principle will not govern cases where the dispute as to whether petition for claim having been filed beyond the period of twelve months from the date of the accident is pending consideration either before the Tribunal, High Court or Supreme Court, in such cases, the benefit of the amendment of sub-section (3) of Section 166 should be extended and hence the 12 amendment as interpreted by the High Court not applicable and if in the facts and circumstance when the victim heirs of the deceased even could not get the benefits of the legislation even the no fault liability and hence the Tribunal having considered giving the benefit to the claimant whereas the law for the benefits of the claimant and the law should be interpreted for the benefit of the claimant hence the limitation will not be applicable in claim under Motor Vehicles Act. This view also supported in decision reported in 2003 (7) SCC 713 to held no limitation as in fact and circumstance the occurrence took place in 1989 and the claim petition filed in 1995 was held not barred by limitation. 15. Learned counsel for the appellant, however, contended that the driving license has not been proved and not established and even the driving license is not in the name of Ratan Lal and not in the name of deceased Vijay Kumar Yadav and hence contended that it is forged and fabricated. However, the claim has been granted under Section 140 of the Motor Vehicles Act which is no fault liability and the fault is not required to be looked into even over the no fault liability and the license at this 13 stage is not relevant. 16. The next question train being not a motor vehicle is held to pay however, the accident took place by the collision by the truck and the train and the victim died has not been disputed. It is true that Section 2(28) defines the motor vehicle and it has been mentioned that the train will not include a vehicle running upon the fixed rail or a vehicle of special type adopted for use only in a factory or in any other closed premises and hence as per the definition of Section 2(28) the train does not come under the definition of Motor Vehicles Act. Section 131 of the Motor Vehicles Act also casts duty on the driver to Motor Vehicle to take certain precautions at unguarded railway level crossings 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 gate and even Section 161 of the Railway Act provides that non observance or negligently crossing the unmanned railway crossing is punishable with imprisonment and hence it can well be said that it cast a duty on the driver of the motor vehicle to observe these rules. However, non observance of these rules will render the driver of the 14 vehicle negligent but in decision reported in 1997 (8) SCC 683 (Union of India Vs. United India Insurance Company Ltd.) relied upon by the respondent it has been held in case of collision of a train with a bus the railway can also be joint tort feasor and in the facts and circumstances of the case reported in decision 1997 (8) SCC 683 (Union of India Vs. United India Insurance Co. Ltd. & Ors.) it has been held that in absence of the signboard and other such the railway can be held negligent and further there is only a common law duty to stop, see and hear and find out if any train was coming and, there, under the facts and circumstances held that the law is well settled that the claimant can sue the railway to enforce either or both types of the duty i.e. under the common law duty as well as duty under the statutes. The claim can be for breach of common law duty or statutory duty or for either of the breach and held that the common duty of the railway to take in the volume of traffic at the unmanned level crossing and to take adequate step such as to be update to prevent the accident and take notice of the fact that the railway has applicable of mind to these issues. In decision reported in 2002 (2) PLJR 139 (Union 15 of India Vs. Bhagwati Prasad (deceased) & Ors.) where it has been held if there has been a collision between the motor vehicle and railway train then application for compensation can be made before the Tribunal not only against the owner, driver or insurer of the motor vehicle but also against the railway administration and it has also been held that the claim for compensation is maintainable before the Tribunal against Railway or even other persons or agencies which are held to be guilty of composite and contributory negligence or are joint tort feasor, and if the same arose out of the use of the motor vehicle and it has further been held and the Tribunal and the High Court were right in holding that an award could be passed against the railways if its held negligence in relation to the same accident was also proved and relying upon a decision reported in 1997 (8) SCC page 683 it has been held at page 142… “the crucial expression conferring upon the claims Tribunal constituted under the Motor Vehicles Act is the accident arising out of the use of motor vehicle, and therefore, if there has been a collision between the motor vehicle and railway train then all those persons insured or died could make application for 16 compensation before the claims Tribunal not only against the owner, driver or insurer of the motor vehicle but also against the railway administration. Once such an application is held to be maintainable and the Tribunal entertains such an application, if in course of inquiry the Tribunal comes to be a finding that it is the joint tort feasor connected with the accident who was responsible and not the owner or driver or the motor vehicle then the Tribunal cannot be held to be denuded of its jurisdiction which it has initially. 17. Hence from the decision reported above, it can well be held that the railway can be fastened with the liability of paying the claim even if it does not come under the definition of the motor vehicle and the objection raised about the jurisdiction of the Tribunal to pass order against the railway is not sustainable in view of the decisions reported in 1997 (8) SCC 683 and reported in 2002 (2) PLJR 139 (supra) and the Tribunal having taken into consideration the fact that since the accident took place due to the collision between the bus and the train and both the vehicle are the joint tort feasor and moreover the order has been passed under Section 140 which is a no 17 fault liability is sustainable and whether the driver had a license or not is not subject matter to be looked into at this stage. 18. Learned counsel for the appellant, however, has relied upon a decision reported in 1994 (1) PLJR 607 (Dilip Kumar Saha Vs. Smt. Runnu Sarkar & Another) and held that in case of any liability it is the Insurance Company which has to pay the ad interim and it is not the Railway. However, the insurer has taken the liability of the owner and the insurer pay on behalf of the liability of the owner, however, when the liability has been fixed on the owner then it is incumbent on the Insurance Company to pay the liability of the owner but the insurance company is not liable to pay the liability of railways and hence is not liable to pay for the liability fixed on railways. 19. However, having regard to the facts and circumstances since it is a matter of composite negligence and the railway has been found to have been a joint tort feasor, but the Insurance Company who has taken the liability of the owner ought pay the amount for the liability of the owner but insurance cannot be fastened 18 with liability of the railways as he is not insurer of the railway and hence the Insurance Company under the facts and circumstances cannot pay for the composite negligence of railway as the joint tort feasor and hence I do not find any merit in this appeal. 20. Hence, this miscellaneous appeal is dismissed. Kundan (Gopal Prasad, J.)