# Union of India v. Shiv Nath Singh & Ors

- **Citation:** (2013) 3 ILRA 1442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-23
- **Case number:** First Appeal From Order No. 1376 of 2010
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-v-shiv-nath-singh-ors-42722
- **Pages:** 7

## Headnote

Motor Vehicle Act 1988-Section 163-A-Claim
petition-accident took place on collusion
between train and motor vehicle-accident
Tribunal fastened liability of 40% upon
railway-argument that railway is not motor
vehicle-accident
claim
tribunal-no
jurisdiction-held-misconceived-various
reason
disclosed-claim
petition
-held
maintainable appeal dismissed.
Held: Para-19
In the present case, it was the specific case
of the respondents-claimants, which has also
not been disputed by the present appellant,
that there were sufficient pleadings before
the Tribunal that there was negligence on
the part of driver of the motor vehicle as well
as railway administration and the learned
Tribunal has come to conclusion that there
was negligence on the part of Railway
Administration as well as driver of the motor
vehicle and the train, as such, I am of the
view that in view of the law laid down by the
Apex Court in the case of Union of India Vs.
Bhagwari Prasad and Others (supra) the
claim petition filed by the claimants was fully
maintainable.

Case
Law
discussed:
3 All] Union of India Vs. Shiv Nath Singh & Ors.
1443
(2012) 4 SCC 552; (2004) 5 SCC 385; 2002(2)
T.A.C. 1 (S.C.); Claim Petition No. 44/2008.

## Text

1442 INDIAN LAW REPORTS ALLAHABAD SERIES
by Counsel for the culprit, and the risk of
being disbelieved, acts as a deterrent."

18. The next contention of learned
counsel for appellant is that the victim was
in the school at the time of alleged incident
as she was studying in class-7th in Tikari
Babaganj Purva Madhyamik Vidyalaya.
The principal of the said school, D.W.1
proved the attendance register and as per
attendance register victim was present in the
school on the date and time of the alleged
occurrence and as such the said incident is
not possible.

19. D.W.1, who proved the attendance
register is the principal of the school and not
the class teacher of the said school. From his
evidence it is not clear that class teacher at
the relevant time of the class Sri Sheetla Bux,
who is alive and still working in the school
and why he was not produced as witness to
prove the attendance of the victim. As per
evidence of D.W.1 he has given evidence
only on the basis of entry in the attendance
register and he has no personal knowledge of
the presence of the victim on the said date
and time. From the perusal of the photostat
copy of the said attendance register it is clear
that all entries were filled up simultaneously
and the evidence of defence not clearly
proves that the victim was not present at the
place of incident and in fact she was in her
school. The defence totally failed to prove
that the victim was present in the school. The
entries in the attendance register is not
reliable and best witness who has personal
knowledge of the presence of the victim in
the school was not produced, thus, from the
above discussion, I do not find any force in
the said argument of the appellant counsel.

20. From the above discussion it is
quite clear that the appeal lacks merit and is
liable to be dismissed. It is accordingly
dismissed.

21. Let lower courts record along
with a copy of this judgment be send for
compliance and necessary action.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2013

BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.

First Appeal From Order No. 1376 of 2010

Union of India
 ...Appellant
Versus
Shiv Nath Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sri Brijesh Kumar Shukla

Counsel for the Respondents:
Sri R.B. Verma
Motor Vehicle Act 1988-Section 163-A-Claim
petition-accident took place on collusion
between train and motor vehicle-accident
Tribunal fastened liability of 40% upon
railway-argument that railway is not motor
vehicle-accident
claim
tribunal-no
jurisdiction-held-misconceived-various
reason
disclosed-claim
petition
-held
maintainable appeal dismissed.
Held: Para-19
In the present case, it was the specific case
of the respondents-claimants, which has also
not been disputed by the present appellant,
that there were sufficient pleadings before
the Tribunal that there was negligence on
the part of driver of the motor vehicle as well
as railway administration and the learned
Tribunal has come to conclusion that there
was negligence on the part of Railway
Administration as well as driver of the motor
vehicle and the train, as such, I am of the
view that in view of the law laid down by the
Apex Court in the case of Union of India Vs.
Bhagwari Prasad and Others (supra) the
claim petition filed by the claimants was fully
maintainable.

Case
Law
discussed:
3 All] Union of India Vs. Shiv Nath Singh & Ors.
1443
(2012) 4 SCC 552; (2004) 5 SCC 385; 2002(2)
T.A.C. 1 (S.C.); Claim Petition No. 44/2008.

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Heard Mr. Brijesh Kumar Shukla,
learned counsel for appellant as well as Mr.
R.B. Verma, learned counsel for respondent
nos. 1 to 3 and perused the record.

2. No one has appeared on behalf of
respondent no. 4-owner of the vehicle.

3. This first appeal from order has been
filed under Section 173 of Motor Vehicles
Act, 1988 (for short 'the Act') against the
judgment and order dated 31.8.2010 passed
by the Motor Accident Claims Tribunal in
Claim Petition No. 44/2008 (Shiv Nath
Singh & Others Vs. Ram Charan Singh and
Others) whereby 40% liability to pay
compensation of the awarded amount has
been fastened on the appellant.

4. Learned counsel for appellant
submitted that the alleged accident had
taken place between a motor vehicle i.e.
Jeep bearing Registration No. UP 50B/6586 and a train carrying passenger.
The deceased was a passenger in the
motor vehicle who had died due to the
said accident.

5. It is submitted that the claim
petition filed under Section 163-A of the
Act against the appellant-Indian Railways
was not maintainable as Section 163-A of
the Act clearly provides that the owner of
the motor vehicle or the authorized
insurer
shall
be
liable
to
pay
compensation, in case of death or
permanent disability due to the accident
arising out of 'the use of motor vehicle' to
the legal heirs or victim as the case may
be.

6. Submission is that the claim
petition filed under Section 163-A of the
Act which is meant for no fault liability
relates to the use of motor vehicle only.
The definition of motor vehicle has been
provided under definition clause under
Section 2 of the Act and it does not
include railways.

7. It is submitted that the learned
Tribunal has failed to consider the
aforesaid legal issue while deciding the
claim petition and has wrongly awarded
the compensation in favour of the
claimants and against the appellant.

8. In support of his submissions, Mr.
Brijesh Kumar Shukla, learned counsel
for appellant has relied on the judgment
of the Apex Court in the case of Surender
Kumar Arora & another Vs. Dr. Manoj
Bisla & others; (2012) 4 SCC 552,
particularly paragraph 10, wherein it has
been observed as under:

"10. In our view the issue that we
have raised for our consideration is
squarely covered by the decision of this
Court in Oriental Insurance Co. Ltd. Vs.
Meena Variyal, 2007 ACJ 1284 (SC). In
the said decision the Court stated (SCC
pp. 445-46, para 27):

"....Therefore, the victim of an
accident or his dependents have an option
either to proceed under Section 166 of the
Act or under Section 163-A of the Act.
Once they approach the Tribunal under
Section 166 of the Act, they have
necessarily to take upon themselves the
burden of establishing the negligence of
the driver or owner of the vehicle
concerned. But if they proceed under
Section
163-A
of
the
Act,
the
compensation will be awarded in terms of
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
the Schedule without calling upon the
victim or his dependents to establish any
negligence or default on the part of the
owner of the vehicle or the driver of the
vehicle."

9. He has also relied on the judgment
of the Apex Court in the case of Deepal
Girishbhai Soni and Others Vs. United
India Insurance Company Ltd. Baroda;
(2004) 5 SCC 385, particularly paragraph
57, wherein it has been observed as under:

"57. We, therefore, are of the opinion
that
the
remedy
for
payment
of
compensation both under Sections 163-A
and 166 being final and independent of
each other as statutorily provided, a
claimant cannot pursue his remedies
thereunder simultaneously. One, thus,
must opt/elect to go either for a
proceeding under Section 163-A or under
Section 166 of the Act, but not under
both."

10. Learned counsel for appellant
also
submitted
that
there
was
no
negligence on the part of the appellant as
all precautionary measures were taken by
the appellant. The alleged accident had
taken place near village Piparidih, district
Mau at railway crossing no. 6 at KM
79/6-7 on 12.10.2007 at 14:55 hours
between
Piparidh-Dulhpur
Railway
Station at an unmanned railway crossing.

11. It is submitted that the negligence
was solely on the part of the driver of the
motor vehicle and the appellant cannot be
held liable to pay compensation, however,
the Tribunal has wrongly held 40% liability
on
the
present
appellant
to
pay
compensation which has been determined to
the tune of Rs. 3,21,500/- along with 9%
interest in case of default.

12.

Learned
counsel
for
respondents-claimants, on the other hand,
submitted that the claim petition filed
under Section 163-A of the Act was fully
maintainable. It is submitted that in the
case of claim petition filed under Section
163-A of the Act, the claimants are not
required to plead or establish that the
death or permanent disability in respect of
which claim has been made was due to
any wrongful act or neglect or default of
the owner of the vehicle or vehicles
concerned or any other person. It is also
submitted that as held by the Apex Court
in the case of Union of India Vs.
Bhagwati Prasad and Others; 2002 (2)
T.A.C. 1 (S.C.) the claim petition filed
under Motor Vehicles Act involving
accident by motor vehicle with railway
train is fully maintainable. The claim
petition against the Indian Railways was
as such maintainable.

13.

I
have
considered
the
submissions made by the parties' counsel
and gone through the record.

14.

The
sole
question
for
consideration before this Court is whether
the claim petition filed under Section 163A of the Act involving accident by a
motor vehicle with a train wherein the
deceased being passenger of motor
vehicle was maintainable against the
Railway Administration or not.

15. From perusal of the impugned
judgment, it is evident that it was the case of
the claimants that the alleged accident had
taken place at an unmanned railway
crossing between Piparidih-Dulhpur railway
station on 12.10.2007 at 14:55 hours in
which the deceased Lalsa Devi aged about
48 years had sustained injuries and died. It
was specifically pleaded in the claim
3 All] Union of India Vs. Shiv Nath Singh & Ors.
1445
petition that the said accident had taken
place due to negligence on the part of the
driver of motor vehicle as well as the
employees of railway administration.

16. It has been held by the Apex
Court in the case of Union of India Vs.
Bhagwati Prasad and Others (supra) that
once it is established that the accident had
taken place involving a motor vehicle and
a train the Motor Accident Claims
Tribunal has the jurisdiction to entertain
the claim petition. Even if at a later stage
it is established that there is negligence of
other joint tort-feasor and not negligence
of motor vehicle in accident, the claim
petition would be maintainable. If the
claim has been filed due to sustained
injuries or death in an accident arising out
of the use of motor vehicle then the
Tribunal will have the jurisdiction to
entertain the application for claim not
only against owner or insurer of vehicle
but
also
against
the
Railway
Administration. Relevant paragraphs 3 &
4 of the judgment on reproduction read as
under:

"3.
On
account
of
the
rapid
development of road transport and increase
in number of Motor Vehicles on the road the
incidence of road accidents by Motor
Vehicles having increased enormously the
Motor Vehicles Act enacted by the
Parliament was amended and the provisions
were inserted for payment of compensation
in certain cases of accidents without proof or
fault or negligence on the part of the driver of
the vehicle. The claim for compensation in
respect of the accidents involving death or
bodily injury to persons arising out of the use
of Motor Vehicles as well as the insurance of
the Motor Vehicles against the third party
risk and the liability of the insurer are
contained in Chapter VIII of the Motor
Vehicles Act. The State Government has
been empowered under Section 110(1) of the
Act to constitute one or more Motor Vehicles
Accidents Claim Tribunals by notification in
the Official Gazette. Section 110-A provides
for filing an application for compensation
and Section 110-B is the power of the
Claims Tribunal to pass an award on
receiving an application for compensation
made under sub-section (A) of Section 110.
The procedure and powers of the Claims
Tribunal are enumerated in Section 110-C of
the Act. It is not necessary for adjudicating
the point in issue to examine and notice any
other provision of the Act. In the case of
Union of India vs. United India Insurance
Company
(supra)
applications
for
compensation had been filed either by the
injured passengers or the dependent of the
deceased passengers travelling in the ill-fated
Motor Vehicle both against the insurer of the
Motor Vehicle as well as against the Railway
Administration and one of the contention
which had been raised before this Court by
the Railway Administration was whether a
claim for compensation would at all be
maintainable before the Tribunal against
other persons or agencies which are held to
be guilty of composite negligence or are joint
tort-feasors, and if the same arose out of the
use of the Motor Vehicle. On consideration
of different provisions of the Motor Vehicles
Act this Court ultimately came to hold that,
"We hold that the claim for compensation is
maintainable before the Tribunal against
other persons or agencies which are held to
be guilty of composite negligence or are joint
tort-feasors, and if arising out of use of the
motor vehicle. We hold that the Tribunal and
the High Court were right in holding that an
award could be passed against the Railways
if its negligence in relation to the same
accident was also proved." The Court also
came to hold that the views expressed by
Gauhati, Orissa, and Madras High Courts to
the effect that no award can be passed against
1446 INDIAN LAW REPORTS ALLAHABAD SERIES
others except the owner/driver or insurer of
the motor vehicle are not correct, and on the
other hand the view taken by the Allahabad,
Punjab and Haryana, Gujarat, Kerala and
Rajasthan High Courts to the effect that the
claim lies before the Tribunal even against
another joint tort-feasor connected with the
same accident or against whom composite
negligence is alleged. We are in respectful
agreement with the aforesaid conclusion of
the Court in the aforesaid case. Having said
so it was further held that if it is ultimately
found that there is no negligence on the part
of the driver of the vehicle or there is no
defect in the vehicle but the accident is only
due to the sole negligence of other
parties/agencies then on that finding the
claim would go out of Section 110 of the Act
because the case would become exclusive
negligence of Railways and again if the
accident had arisen only on account of the
negligence of persons other than the driver/
owner of the motor vehicle the claim would
not be maintainable before the Tribunal. It is
this observation of the Court in the aforesaid
case which is strongly relied upon by Mrs.
Indira Sawhney , the learned counsel
appearing for the Railway Administration
and it is this observation with which the two
learned Judges hearing the appeal did not
prima facie agree with for which the
reference has been made to this larger Bench.
The question that arises for consideration,
therefore, is whether an application filed
before a Claims Tribunal for compensation
in respect of accidents involving the death or
bodily injury to persons arising out of the use
of Motor Vehicle and the claim is made both
against the insurer, owner and driver of the
motor vehicle as well as the other joint tortfeasors, if a finding on hearing is reached that
it is solely the negligence of the joint tortfeasor and not the driver of the Motor
Vehicle then would the Tribunal loose the
jurisdiction to award compensation against
the joint tort-feasor. It is not disputed, and as
has been already held by this court in the
case of Union of India vs. United India
Insurance Co. Ltd.(supra) that a claim for
compensation on account of the accident
arising out of the use of a Motor Vehicle
could be filed before a Tribunal constituted
under the Motor Vehicles Act not only
against the owner or insurer of the Motor
Vehicle but also against another joint tortfeasor connected with the accident or against
whom composite negligence is alleged. A
combined reading of Section 110, 110-A,
which deal with the Constitution of one or
more Motor Accidents Claims Tribunal and
application for compensation arising out of
an accident, as specified in sub-section (1) of
Section 110 unequivocally indicates that
Claims Tribunal would have the jurisdiction
to entertain application for compensation
both by the persons injured or legal
representatives of the deceased when the
accident arose out of the use of Motor
Vehicle. The crucial expression conferring
jurisdiction upon the Claims Tribunal
constituted under the Motor Vehicles Act is
the accident arising out of use of Motor
Vehicle, and therefore, if there has been a
collision between the Motor Vehicle and
Railway train then all those persons injured
or died could
make application for
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 enquiry the Tribunal comes to a
finding that it is the other joint tort-feasor
connected with the accident who was
responsible and not the owner or driver of the
Motor Vehicle then the Tribunal cannot be
held to be denuded of its jurisdiction which it
had initially. In other words, in such a case
also the Motor Vehicle Claims Tribunal
3 All] Union of India Vs. Shiv Nath Singh & Ors.
1447
would be entitled to award compensation
against the other joint tort-feasor, and in the
case in hand, it would be fully justified to
award compensation against the Railway
Administration if ultimately it is held that it
was the sole negligence on the part of the
Railway Administration. To denude the
Tribunal of its jurisdiction on a finding that
the driver of the Motor Vehicle was not
negligent, would cause undue hardship to
every claimant and we see no justification to
interpret the provisions of the Act in that
manner. The jurisdiction of the Tribunal to
entertain application for compensation flows
from the provisions contained in Section
110-A read with sub-section (1) of Section
110. Once the jurisdiction is invoked and is
exercised the said jurisdiction cannot be
divested of on any subsequent finding about
the negligence of the tort-feasor concerned. It
would be immaterial if the finding is arrived
at that it is only other joint tort-feasor who
was negligent in causing accident and not the
driver of the Motor Vehicle. In our
considered opinion the jurisdiction of the
Tribunal to entertain application for claim of
compensation in respect of an accident
arising out of the use of Motor Vehicle
depends essentially on the fact whether there
had been any use of Motor Vehicle and once
that is established the Tribunal's jurisdiction
cannot be held to be ousted on a finding
being arrived at at a later point of time that it
is the negligence of the other joint tort-feasor
and not the negligence of the Motor Vehicle
in question. We are therefore, of the
considered opinion that the conclusion of the
Court in the case of Union of India vs.
United India Insurance Co. Ltd. (supra) to
the effect-

"It is ultimately found that there is no
negligence on the part of the driver of the
vehicle or there is no defect in the vehicle but
the accident is only due to the sole
negligence of the other parties/agenncies,
then on that finding, the claim would go out
of Section 110(1) of the Act because the case
would then become one of the exclusive
negligence of Railways. Again if the accident
had arisen only on account of the negligence
of persons other than the driver/owner of the
motor vehicle, the claim would not be
maintainable before the Tribunal" is not
correct in law and to that extent the aforesaid
decision must be held to have not been
correctly decided.

4. In the aforesaid premises, we do
not find any infirmity with the impugned
judgment of the Division Bench of
Allahabad
High
Court
requiring
interference of this Court. These appeals
fail and are dismissed."

17. The provision of Section 163-A of
the Act is a special provision as to payment
of compensation on structured formula basis.
In the claim petition filed under Section 163A of the Act the claimant is not required to
establish wrongful act or neglect or default of
the owner of a vehicle or vehicles concerned
or of any other person. It is meant for such
cases where there is no sufficient evidence to
establish the negligence on the part of the
offending vehicle. The provision is meant for
above such cases where the accident due to
which permanent disability or death occurred
is ascertained, however, there is no sufficient
evidence to establish the wrongful act or
neglect or default of the motor vehicle
involved.

18. Bare reading of Section 163-A
of the Act makes the above points very
much clear. Section 163-A of the Act for
convenience is reproduced below:

"163-A. Special provisions as to
payment of compensation on structured
1448 INDIAN LAW REPORTS ALLAHABAD SERIES
formula basis.-(1) Notwithstanding anything
contained in this Act or in any other law for
the time being in force or instrument having
the force of law, the owner of the motor
vehicle or the authorised insurer shall be liable
to pay in the case of death or permanent
disablement due to accident arising out of the
use of motor vehicle, compensation, as
indicated in the Second Schedule, to the legal
heirs or the victim, as the case may.

Explanation.-For the purposes of this subsection, "permanent disability" shall have the
same meaning and extent as in the Workmen's
Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation
under sub-section (1), the claimant shall
not be required to plead or establish that
the death or permanent disablement in
respect of which the claim has been made
was due to any wrongful act or neglect or
default of the owner of the vehicle or
vehicles concerned or of any other person.

(3) The Central Government may,
keeping in view the cost of living by
notification in the official Gazette, from
time to time amend the Second Schedule."

19. In the present case, it was the specific
case of the respondents-claimants, which has
also not been disputed by the present appellant,
that there were sufficient pleadings before the
Tribunal that there was negligence on the part
of driver of the motor vehicle as well as railway
administration and the learned Tribunal has
come to conclusion that there was negligence
on the part of Railway Administration as well
as driver of the motor vehicle and the train, as
such, I am of the view that in view of the law
laid down by the Apex Court in the case of
Union of India Vs. Bhagwari Prasad and
Others (supra) the claim petition filed by the
claimants was fully maintainable.

20. So far as the judgments relied by
learned
counsel
for
appellants
is
concerned, they do not relate to the
question involved in the present appeal, as
such, they are of no help to the appellants.

21. The appeal as such having no
force is dismissed.

22. The judgment dated 31.8.2010
passed by the Motor Accident Claims
Tribunal in Claim Petition No. 44/2008 (Shiv
Nath Singh & Others Vs. Ram Charan Singh
and Others) is affirmed. The appellant shall
comply the judgment of the learned Tribunal
and pay the compensation as awarded by the
learned Tribunal.

23. It is informed by learned counsel
for appellant that the liability to pay
compensation as fastened by the learned
Tribunal on the present appellant was
only to the tune of 40% of the awarded
amount i.e. 3,21,500/-. The entire amount
has been deposited before the Tribunal.

24. The amount so deposited shall be
released in favour of the respondentsclaimants.

25. The statutory amount deposited
before this Court at the time of filing of the
appeal shall be remitted back to the Tribunal
forthwith for the aforesaid purpose.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.10.2013

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Writ Petition No.1516 (M/S) of 2006

Smt. Sahnaz Parveen

 ...Petitioner