AMRITA DEVI Vs. S K SRIVASTAVA

JUDGEMENT

(1.) This first appeal from order has been preferred against the order dated 30.3.1982 passed by the Motor Accidents Claims Tribunal (V Additional District Judge), Lucknow, dismissing the claim petition preferred by the appellant holding that it was legally not maintainable.

(2.) The facts giving rise to the claim petition are that one Mohan Singh Yadav, the deceased husband of appellant No. 1, was travelling by a motor cycle as pillion rider and was going from the Mall to Malihabad on 11.3.1979. At about 5.30 p.m., he met with an accident at Malihabad Railway Crossing receiving injury by the railway collapsible gate as a result of which he died. The motor cycle bearing registration No. JKB 6426 was being driven by S.K. Srivastava. S.K. Srivastava disputed the claim on the ground that he was not responsible for the accident and also for the reason that as a pillion rider, the deceased had not taken the required protection by putting on protective head-gear. His case was that due to sudden fall of the crossbar at the time he was negotiating the railway line, the accident occurred and the injuries were sustained by the deceased as well as by S.K. Srivastava. A plea of non-joinder of parties was also raised. So far railway administration is concerned, it contested the claim on the ground that the accident had occurred due to negligence of the motor cycle driver and on the ground that no claim could be preferred against the railway administration before the Tribunal under the Motor Vehicles Act. The insurance company also resisted the claim and it was pleaded that the risk of the pillion rider was not covered under Section 95 of the Motor Vehicles Act, 1939. In all 14 issues were framed by the Tribunal on the basis of the different pleas raised by the parties. The Tribunal, however, decided the case on the basis of the findings recorded on issue Nos. 8, 11 and 14 as 'preliminary causes' which read as follows:

(3.) After quoting the above-noted three issues in the order, the learned presiding officer of the Tribunal observed that no oral evidence was adduced on the three issues indicated above by the parties. A reference in this connection has also been made to paper No. C-47. It may be noted that in the claim petition S.K. Srivastava was the opposite party No. 1, the General Manager, Northern Railway, was opposite party No. 2 and the opposite party No. 3 was United India Fire and Genl. Ins. Co. Ltd. In paras 16 and 17 of the written statement filed by opposite party No. 3, it is pleaded that the minor children detailed in para 7 of the petition have not been impleaded as claimants or respondents; as such the claimant was not entitled to claim any compensation on their behalf under the law. The Tribunal decided the issue against the claimant and in favour of respondents holding that the claim was not legally maintainable. The Tribunal while deciding issue No. 11 held that in case the accident occurred due to negligence of the railway administration, the claim petition shall not lie before the Motor Accidents Claims Tribunal constituted under the Motor Vehicles Act. It was also found that the General Manager, Northern Railway, Baroda House, New Delhi, not being a juristic person, the claim was not maintainable since Union of India was not impleaded as party. First of all, it may be seen as to whether a claim petition would lie before the Tribunal where an accident occurs out of the use of the motor vehicle on account of some negligence of outside agency, as the Railways in the present case. In this connection, it may be observed that in cases where it is found by the Tribunal that the accident was caused only due to negligence of the outside agency and not by the driver of the motor vehicle, in that case alone the Tribunal shall cease to have any jurisdiction to grant any relief to the claimant. Where the claim is preferred only against an outside agency then too, the claim petition would not be maintainable. But in the present case, the Tribunal proceeded to decide the matter on the basis that the accident occurred due to fall of crossbar of the Railways at the railway crossing but without going into the question about the negligence of the motor cycle driver. It was necessary for the Tribunal to have tried all the issues together including the issue relating to negligence of the parties. After the trial, if it was found that there was negligence on the part of the outside agency alone, then the prayer for the award of compensation could be turned down. But where it is found to be a case of contributory negligence or composite negligence or even a slight negligence on the part of the motor cycle driver, the claim petition would be maintainable before the Claims Tribunal. We are supported by a Full Bench decision of our own court on the above proposition in Union of India v. Sushila Devi 1990 ACJ 1 (Allahabad).