UNION OF INDIA Vs. SATISH KUMAR

JUDGEMENT

(1.) The order passed in this appeal shall also govern the disposal of M.A. Nos. 497/99, 463/99 and 412/99 as these appeals arise out of the same accident which took place on 4th May, 1992. M.A. Nos. 496 and 497 of 1999 have been filed by the Union of India against the awards passed in Claim Case Nos. 30/94 and 31/94 and M.A. Nos. 463/99 and 412/99 have been filed by Oriental Insurance Company against the same very awards passed in the aforesaid claim cases on 5-1-1999.

(2.) Two claim petitions were filed. Claim Petition No. 30/94 was filed by claimants legal representatives of deceased Sukesh Verma, namely, Smt. Pushpabai, Mohit and Anju, being widow, son and daughter respectively of deceased Sukesh Verma. Sukesh was driving the motor cycle involved in the accident in question. The Pillion rider on the motor cycle at the time of accident was Dashrath who also died in the accident along with Sukesh. The claimants legal representatives of Dashrath, namely, Chandrakala, Ku. Anita, Ku. Durga and Krishnakumar, being widow, daughters and son respectively of dashrath filed Claim Petition No. 31/94.

(3.) The accident of the motor cycle with train took place at an unmanned railway crossing. At that time no watchman was present over the railway crossing nor any gate was put by the railways on the said level crossing. The train in question i.e. Patna Express dashed against the motor-cycle. Both the riders died on the spot. The owner of the motor-cycle was respondent No. 1 Satish Kumar. The deceased persons were going on motor cycle bearing registration number M.K.D. 2803. They were coming back from their agriculture field and were going towards Malkapur. According to the claimants the motor-cycle was stopped as one engine was passing through the crossing. When the engine passed motor-cycle was started and effort was made to cross, but at that time without blowing whistle Patna Express came from other side. As no whistle was blown by the driver of the train, the train could not be noticed which dashed against the motor-cycle. The claimants contended that it was the negligence of the railway department. The motor-cycle was insured with Oriental Insurance Company. The claimants of deceased Sukesh prayed for passing an award in the sum of Rs. 4,95,000/- along with interest. The railways, in the reply to the claim petition, denied its liability and contended that the deceased had not observed the rules of unmanned level crossing and was involved in the mishap due to failure of his vehicle's brake. It was submitted that whistle was blown but still the deceased tried to cross. It was further submitted that liability, if any, was that of the insurance company and not of the railways.