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MV O.P.54 of 2013 dt:07.06.2019 1
BEFORE THE CHAIRMAN,MACT-CUM- XII ADDL. DISTRICT JUDGE;
VIKARABAD, RANGAREDDY DISTRICT.
PRESENT; SRI K. MURALI MOHAN, XII Addl. District & Sessions Judge, Vikarabad, Rangareddy District.
DATED THIS 7TH DAY OF JUNE, 2019.
MV. O.P.No. 54 of 2013
BETWEEN:-
1. B.Narsimha Reddy S/o.B.Ram Reddy, aged 65 years, occ: agriculture,
2. B.Padmamma W/o.B.Narsimha Reddy, aged about 60 years, occ: house hold,
Both R/o.Madanpally village, Vikarabad Mandal, Ranga Reddy District. …Petitioners
And
1. General Manager, Reliance General Insurance Co. Ltd. 4th floor, Sagar plaza, 4-1-327 to 337, Abids Road, Hyderabad.
2. General Manager, South Central Railways, Railway Nilayam, Secunderabad.
...Respondents
This petition is coming on this day for hearing before me in the presence of Sri G.Lava Kumar, advocate for the petitioners and of Sri A.Padma Reddy, Advocate for Respondent No.1 and of Sri K.Paramananda Rao, Advocate for Respondent No.2 and upon hearing on both sides and upon perusal of the record, this Court made the following:-
A W A R D
1.This claim application is filed U/s.166 of Motor Vehicle Act 1988 (in short M.V.
Act) by the parents of deceased B.Venkat Reddy claiming compensation of
Rs.22,00,000/- on account of his death in a motor accident, when hit by train.
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2. The petitioner No.1 is father, petitioner No.2 is mother of the of deceased
B.Venkat Reddy.
3.The provenance of the case facts are that on 13.03.2011 at 5-30 pm., the deceased along with his wife and two daughters were proceeding in his Verna car bearing No. AP 28 DE 8518 from Vikarabad to his farm house at Mamdanpally village. Deceased B.Venkat Reddy was driving the Car. While they were crossing the unmanned railway gate crossing, at gate No.8, Mamdanpally their Car was dashed by the Pune passenger train No.57548 at which was coming from
Zaheerabad side, due to hit the Car was completely damaged and the son of the deceased Venkat Reddy, his wife and children were died with injuries in the accident.
4.In this regard a case in Cr. No.15/2011 for the offence U/s.338, 304-A, 337
I.P.C. was registered by the Railway Police, Vikarabad.
5.It is further submitted in the claim petition that, deceased B.Venkat Reddy was practicing Advocate and while practicing he purchased Ac.5-00 guntas of farmhouse at Mamdanpally village, Nawabpet Mandal, worth of Rs.35,00,000/- constructed residential house bearing No. 4-2-978, 4-2-979 in a plinth area of 159.44 square yards comparing of Three floors situated at Ramaiahguda Road, Vikarabad
Municipality worth of Rs.40,00,000/- and also purchased 200 Square yards in
Venkateshwara Nagar Colony situated at Yennepally, Vikarabad Municipality worth of Rs.10,00,000/- and also purchased 266 Square yards situated at Saketh Nagar,
Vikarabad Municipality worth of Rs.15,00,000/-. The deceased son of the petitioners has acquired the above properties out of the earnings in Advocate
Profession. He was having number of civil and criminal cases in his hand in
Vikarabad Court apart from the above he was also having Rs.20,00,000/- of LIC policies and postal LIC polices of Rs.5,00,000/- on his name and in the name of his
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MV O.P.54 of 2013 dt:07.06.2019 3 family members. He was also having Verna car AP 28 DE 8518 in his name. The petitioner’s son has also purchased Ac.1-34 guntas ofland in Mominpet village and
Mandal. All the above properties acquired by B.Venkat Reddy (deceased) are out of earning from Advocate profession.
6.The petitioners further submitted that the petitioners son B.Venkat Reddy (deceased) obtained loan of Rs.5,00,000/- from Andhra Bank, Vikarabad Branch on 23.04.2010 for purchase of Verna Car bearing No. AP 28 DE 8518 and the same was insured with respondent No.1 with policy No.1815702311003624 on 29.06.2010 to 28.06.2011, the above policy was in force on the date of incident. Thus they claim total compensation of Rs.22,00,000/- against respondents No.1 and 2 i.e.
insurance company and General Manager, South Central Railways, Secunderabad.
7.The respondent No.1 filed Counter by denying the allegations leveled in the petition and contended that the incident was occurred due to gross violation of traffic rules and negligence of the deceased himself but the petitioners traversed the facts and description of the accident. The Railway Police, Vikarabad registered a case in
Cr. No.15/2011 against the deceased himself as he was responsible for the accident and the said accident comes under Indian Railways Act as Vikarabad Railway
Police registered a case against the deceased, but petitioners filed the present petition under M.V. Act and same is not maintainable under M.V. Act. It is also contended that the deceased is not at all a third party to the policy issued by the respondent, the policy issued by the respondent No.1 to indemnify the liability if any of the insured subject to the terms and conditions, and insured cannot claim any compensation against his own. The petitioners are claiming that, they are the legal representatives of the deceased, after the death of the deceased and they become party to the policy contract as legal representatives, hence the petitioners cannot claim any compensation against Respondent No.1 Company.
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8.The respondent No.2 filed their Counter by denying allegations of petition and contended that at the said unmanned level crossing gate (i) the Road sign warning boards are available, (ii) Whistle boards are available, (iii) speed breakers are available, (iii) clear visible curve and level crossing was also clear to loco crew, (iv) visibility of train engine drive is also very clear and (v) check rail clearance also found clear. The respondent No.2 has taken all the statutory precautions to be followed at the unmanned level crossing, as stipulated by rules. The damaged car windows have been noticed that they were pasted with dark sun film sticker, which have obstructed clear view and windows were in closed condition which might have not allowed hearing of the train whistle. The alleged accident was occurred due to the carelessness and rash driving of road user without observing the norms at the unmanned level crossing.
9.Respondent No.2 further submitted that it is not financially feasible to convert all the unmanned level crossings into manned ones, with gates, as stated by the claimants, as it involves huge expenditure to public exchequer. Depending on the destiny of the road traffic at a particular unmanned level crossing and based no other stipulated parameters the Government will undertake conversion of unmanned level crossing as manned level crossing by putting a gate. It is also contended that the accident was occurred due to carelessness and rash driving of the road user without observing the norms at the unmanned level crossing. The enquiry of the alleged accident, conducted by the committee consisting of three officers of the railway administration of the 2nd respondent, after examining all the relevant railway staff’s depositions as well as documentary evidence, have come to the conclusion that the deceased driver of Hunday Verna Car bearing No. AP DE 8518 as well as co-passenger suddenly cross unmanned level crossing No.8 without observing the level crossing as well as road traffic rules, resulted this accident. The committee
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MV O.P.54 of 2013 dt:07.06.2019 5 also visited the L.C.Gate and observed the safety aspects such as gradient, visibility warning road for road users, whistling boards for railway driver are available as per norms and the road is having speed brakes either side and also found even after disaster also railway staff have taken immediate relief measures as per rules hence no liability on the part of the railways in connection with this accident, and prayed to dismiss the petition.
10.On the strength of the above pleadings, my learned predecessor in office framed the following issues for trial:-
Issues:
i) Whether the accident dt. 13-03-2011 was due to rash and negligent driving of the Railway train bearing No. 57548 by its driver ?
ii) Whether the petitioners are entitled for compensation, if so, to what amount and from whom ?
iii) To what relief?
11.During the course of trial, on behalf of the petitioners, the 1st petitioner
B.Narsimha Reddy is examined as PW.1 and eye witness one M.Narsimlu is examined as PW.2 and Exs.A.1 to A.20 are marked.
Ex.A1 is C.C. of Registered sale deed doc. No.2081/08, dt:25.04.2008. Ex.A2 is C.C. of Registered sale deed doc. No.2079/08, dt:25.04.2008. Ex.A3 is C.C. of
Registered sale deed doc. No.2080/08, dt:25.04.2008. Ex.A4: C.C. of Registered sale deed doc. No.2113/08, dt:28.04.2008. Ex.A5 is C.C. of Registered sale deed doc. No.2114/08, dt:28.04.2008. Ex.A6 is C.C. of Registered sale deed doc.
No.3436/10, dt:17.08.2010. Ex.A7 is C.C. of Registered sale deed doc. No.3186/09,
dt:14.09.2009. Ex.A8 is C.C. of Registered sale deed doc. No.4091/2006,
dt:31.07.2006. Ex.A9 is C.C. of Registered sale deed doc. No.445/04,
dt:27.02.2004. Ex.A10 is C.C. of Registered sale deed doc. No.1235/08,
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dt:21.05.2004. Ex.A11 is C.C. of Registered sale deed doc. No.3918/10,
dt:04.10.2010. Ex.A12 is C.C. of Registered sale deed doc. No.2252/05,
dt:19.07.2005. Ex.A13 is C.C. of pahani for the year 2011-12. Ex.A14 is C.C. of
award passed by Lok Adalath in O.S. No.207/12. Ex.A15 is Original pattadar pass book. Ex.A16 is Original title deed. Ex.A17 is Original DVD of the place of the incident. Ex.A18 are the Copies of the Income Tax assessment of PW.1’s son for the years 2002-2003, 2003-2004, 2004-2005, 2005-2006, 2007-2008. Ex.A19 is
F.I.R. Ex.A20 is the rue extract of the driving license of the deceased along with laminated copy.
12.On going through Issues No.1 to 3 this Court is of the opinion that issue No.1 required to be recasted with some modifications since it is not the plea of either party with regard to the driver of train but it is the only fact as issue that there is negligence on the part of the Railway Department in arranging unmanned level crossing at place of incident. Hence issue No. (i) is amended as under.
Issue No. (i).: Whether the accident dated 13.03.2011 was due to negligence on the part of the Department of respondent No.2?
Since the evidence of both parties was adduced sufficiently by touching the above issue there is no necessity to recall any of the witness on the said aspect and it is not required to adduce any evidence since the said aspect was already covered in detail by both sides. After recasting the Issue No.(i), the issues No.1 to 3 will be reads as under:
Issues:
(i) Whether the accident dated 13.03.2011 was due to negligence on the part of the Department of respondent No.2?
(ii) Whether the petitioners are entitled for compensation, if so, to what amount and from whom ?
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(iii) To what relief?
The learned counsel for the respondent No.2 submitted that the Tribunal has no jurisdiction to entertain the petition and relied on judgment of the Hon’ble
Supreme Court between: Union of India Vs. Bhagwati Prasad reported in AIR
Supreme Court 2002 page 1301.
The learned counsel for the petitioners also relied on the same judgment. In this judgment it was held by the Hon’ble Apex Court that:
“if claimants have sustained injuries in an accident arising out of the use of a Motor
Vehicle then the Tribunal will have the jurisdiction to entertain application for claim not only against the owner or insurer of the vehicle but also against any other vehicle which came in collision, and in the case in hand, against the Railway Administration.”
The learned counsel for the Respondents also relied on the above judgment.
In view of the above judgment it is clear that the Tribunal has jurisdiction to entertain the petition, when motor vehicle and train both involved in the accident.
13. Issue No.(i) : Whether the accident dated 13.03.2011 was due to negligence on the part of the Department of respondent No.2?
It is the contention of the learned counsel for the petitioner that the deceased
B.Venkat Reddy who was practicing Advocate at Vikarabad died in the ghastly accident on 13.03.2011 while he was proceeding in Verna car bearing No. AP 28
DE 8518 by driving the Car along with his wife and two daughters when they reached unmanned Railway Gate in order to go to their farm house, the passenger train No.57548 which was coming from Zaheerabad side, hit the front side of Verna
Car and the Car hit the gate stone erected by the Railway Department by the side of unmanned Railway Gate in the accident the son of the petitioners Venkat Reddy, his daughters namely Harshitha and Sreehitha died on the spot and his wife namely
Vijayasree died on 18.03.2011. The accident was occurred only due to the negligence of respondent No.2 and one cannot notice the coming train at the
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MV O.P.54 of 2013 dt:07.06.2019 8 unmanned railway gate since there is curve and the place where the unmanned level crossing was arranged is not suitable for the same. Hence respondent No.2 who is responsible for the death of the deceased and his family members is liable to pay the compensation to the petitioners. It is further argued that the deceased
Venkat Reddy purchased a new Verna Car Verna Car bearing No. AP DE 8518 by obtaining loan of Rs.5,00,000/- from Andhra Bank, Vikarabad and the vehicle was insured with respondent No.1 and the incident was occurred within one year from the date of purchase of the vehicle and the Verna Car was completely damaged in the incident and the entire care became scrap. Though the Verna Car bearing No.
AP DE 8518 was insured with respondent No.1 and policy is in force and the deceased was having valid driving license. Hence respondents No.1 and 2 are jointly and severally liable to pay the entire compensation amount of Rs.22,00,000/-.
14.The learned counsel for respondents argued that there is negligence on the part of the respondent No.2 and the evidence of RWs 1 to 9 clearly shows that there is no negligence on the part of Respondent No.2 South Central Railway. Hence respondents are not liable to pay any amount.
15.In support of this claim PWs 1 and 2 are examined. PWs 1 and 2 deposed that the deceased used to visit the farm house at Mamdanpally regularly, as the said farm house is 6 Kms. away from his residential house in Vikarabad. On that day in the evening hours the deceased, his wife and his two daughters Harshitha and
Sreehitha and maid servant were going to farm house in his Verna Car bearing No.
AP DE 8518 and the deceased was driving the vehicle. His wife, children and maid servant were sitting at back side of the car. When they reached the unmanned railway gate No.8 near Mamdanpally (which is by the side of the farm house of deceased Venkat Reddy) the passenger train bearing No.57548 which was coming from Zaheerabad side, hit the front side of the Verna Car and the Car hit the guard
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MV O.P.54 of 2013 dt:07.06.2019 9 stone erected by the railway department by the side of the unmanned railway gate.
In the said accident deceased, his two daughters died on the spot and his wife died in the hospital. Deceased B.Venkat Reddy was holding valid car driving license issued by the RTA, Ranga Reddy District and the same is in force as on the date of incident. The unmanned railway gate is located on U shape village road and there are big name plate boards on either side of the railway gate and very high bushes were existing on either side of the unmanned railway gate and not visible to see coming train as on the date of incident. One cannot notice or see a train coming at unmanned railway gate, because of the location of the railway gate and its surrounds. The unmanned railway gate is situated at about two furlongs away from
Vikarabad to Sadashivapet R & B Road, after Mamdanpally, village. The evidence of PWs 1 and 2 further reveals that deceased B.Venkat Reddy was driving the vehicle very slow and one Auto bearing No. AP 28 W 9104 belongs to M.Narsimulu (PW.2) of Mamdanpally village was moving in front of his vehicle. The said
Narsimulu (PW.2) was carrying manure bags in his Auto to the farm house of deceased Venkat Reddy, the above Auto crossed the railway gate and deceased vehicle was following the Auto of PW.2, in the meantime the train bearing No.57548 passenger train was coming from Zaheerabad as not even given the vigils at the gate. The railway department has formed the unmanned railway gate No.8 between
Vikarabad and Sadashivpet road without proper precautions. The accident was occurred only due to negligence of the respondent No.2, South Central Railway.
16.In their cross examination PWs 1 and 2 deposed that the petitioners have not issued any notice to the railways i.e. respondent No.2 before filing the present application. Deceased Venkat Reddy was owner of Verna Car bearing No. AP DE 8518 and insurance policy was in his name. The railway police of Vikarabad registered a case pertaining to this accident. PWs 1 and 2 denied the suggestion that death of the deceased Venkat Reddy was due to negligence of himself and not
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MV O.P.54 of 2013 dt:07.06.2019 10 due to the negligence of the Railways as such the respondent No.2 railway is not liable to pay any compensation to them and the documents marked as Ex.A18 have been fabricated for the purpose of this case. PWs 1 and 2 also denied the suggestion that since deceased himself was the owner and driver of the Verna Car bearing No. AP DE 8518 they have not entitled for any compensation under the policy from respondent No.1.
17.For respondents, RWs 1 to 9 were examined. With regard to the incident it is not in dispute that while the deceased Venkat Reddy along with his wife and two daughters and maid servant were proceeding in his Verna Car bearing No. AP DE 8518 in the evening hours of 13.03.2011 while proceeding towards his farm house at Mamdanpally and when they reached unmanned railway gate No.8, the Pune passenger train No.57548 which was coming from Zaheerabad side dashed Verna
Car of the petitioners’ son at about 5.30 pm. After hitting the same the Car hit the
Guard stone erected by the Railway Department by side of the unmanned railway gate. In the said accident the son of the petitioners viz. Venkat Reddy and his two daughters Harshitha and Sreehitha died on the spot and his wife viz. Vijayasree died on the hospital on 18.03.2011. There is no dispute with regard to the incident of hitting of train and car and death of the son of the petitioners B.Venkat Reddy and his wife and children. In the incident Car was completely damaged and became scrap. Since the facts that death of the son of the petitioners was due to hit by the train of respondent No.2 at unmanned railway, gate No.8 were not in dispute and the same were admitted by the respondents. As per Section 58 of Indian Evidence
Act admitted facts need not be proved. Therefore the factum of accident and the death of the son of the petitioners due to hit by train to the Verna Car of the deceased on 13.03.2011 at 5-30 pm. is sufficiently proved.
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MV O.P.54 of 2013 dt:07.06.2019 11
Now the question before this Court is whether there is any negligence on the part of the respondent No.2 in the accident. It is the contention of the petitioners that the place where the unmanned railway gate was arranged by the respondent
No.2 is not suitable, since there is a curve and the train which was coming on the track is not visible to the public on the road while travelling and there were bushes at unmanned railway gate and railway department was negligent in maintaining the same and bushes were not removed from time to time. Because of all these lapses the train was not visible to the son of the petitioners while driving Car. Therefore respondent No.2 Railway is responsible for the accident due to their negligence.
The same was denied by the respondent No.2.
18.For respondent No.2, RWs 2 to 9 were examined. It is just and proper to examine the evidence of RWs 2 to 9 carefully. RW.2 is Loco Pilot of Southern
Central Railway, Secunderabad Division who deposed that at the time of the accident he was in train No.57548, Pune to Hyderabad Passenger Train. According to him at gate No.8, while approaching unmanned level crossing there was right hand curve and himself and Loco Pilot K.Narayana have blown horn.
19.In his cross examination RW.2 deposed that there is a right hand curve at a distance of 400 meters from unmanned railway gate. According to him he witnessed the said Car at a distance of 20 to 30 meters and witnessed when it dashed the engine. RW.2 denied the suggestion that at the time of the incident the loco pilot was driving the train at speed of 100 Kms. per hour which is more than permitted speed and responsible for the accident.
20.RW.3 K.Narayana.R, Loco Pilot was the driver of the train at the time of the incident deposed that at gate No.8 near Kilo meter number 10/7-6 between
Sadashivpet Road Station and Vikarabad Railway Station around 4-40 pm. There are bushes generally grown up at unmanned railway gate and they were removed.
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But he has no idea when they were removed. According to RW.3 their department used to maintain register with the details of grown up bushes and when were they removed. Such register was not filed into Court by the respondent No.2.
21.RW.4 M.Rayappa, Senior Section Engineer/Permanent way/Vikarabad of
Southern Central Railway, Secunderabad deposed that on information about the incident he proceeded to the spot on motorcycle and observed the damaged Car lying on the left side of the track and the dead body of the deceased. According to
RW.4 necessary boards were affixed by the department at place of incident.
22.In his cross examination RW.4 deposed that he does not know whether the driver of the train gave the warning vigil at that time when the deceased was passed to the unmanned railway gate in his car. According to RW.4 he inspected the place of unmanned railway crossing gate knowing the speed breakers on the road and signed boards etc., but no such report is filed into Court. RW.4 admitted that he did not produce such inspection report prepared by him. RW.4 admitted that he did not take the help of mediators while preparing the said inspection report. According to
RW.4 there was a curve on the railway track at distance of 162 meters from the unmanned railway crossing gate. RW.4 does not know the speed of train at the time of incident driven by the Loco Pilot. According to RW.4 from the curve to unmanned railway gate it will reach within one or 1 ½ minute time. RW.4 further deposed that after this incident the unmanned railway crossing gate No.8 was converted into manned gate. RW.4 denied the suggestion that since there is defect at unmanned railway crossing gate No.8, their department converted the same into a manned gate.
23.RW.5 K.Srisailam, Senior section engineer of Zaheerabad of South Central
Railway, Secunderabad Division deposed that he got information about the incident
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MV O.P.54 of 2013 dt:07.06.2019 13 and inspected track, road condition and level crossing gate premises and found everything was normal. There were warning boards at that place.
24.In his cross examination RW.5 deposed that 40 minutes after the accident he reached the spot. RW.5 deposed that he did not take help the mediators while preparing the inspection report and he did not submit the same into Court.
According to him there was a curve on the railway track at distance of 162 meters from the unmanned railway crossing gate. RW.5 also admitted that the unmanned railway crossing gate was converted into manned gate and RW.5 denied that since there is defect at unmanned railway crossing gate the department arranged the manned gate.
25.RW.6 Abdul Matheen is Sub-Inspector/Railway Protection Force/Vikarabad of
South Central Railway, Secunderabad Division who deposed that on 13.03.2011 at 5-00 pm. on information he reached the spot by 5-50 pm. and found damaged Car and the dead body of the deceased at unmanned level crossing gate No.8. He interacted with the public and opened that accident was occurred due to negligence of the deceased.
In his cross examination RW.6 deposed that he cannot say the names of the persons who were interacted by him. PW.6 admitted that the said Car was with the glasses fitted by its company.
26.RW.7 G.Gunabooshana Rao, Passenger guard, South Central Railway,
Secunderabad deposed that on 13.03.2011 on duty in train No.57548 Purna to
Hyderabad passenger when the train was approached to unmanned level crossing gate, the Loco Pilot has blown born of the Car driven by the deceased hit to the train engine and Car was dragged for about 50 meters and the driver of the Car died on
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MV O.P.54 of 2013 dt:07.06.2019 14 the spot. RW.7 went to the place level crossing and observed the place found no bushes and observed the boards.
27.In his cross examination RW.7 deposed that the distance between unmanned railway gate, gate No.8 and the curve on Sadashivpet to Vikarabad is about 50 to 100 meters. The railway department did not hold any panchanama on the date of the accident in this case at unmanned railway gate No.8. He cannot say the time to reach unmanned railway gate which is 50 to 100 meters distance from the curve on the road side of railway track. He came to know about the manner of the incident through Loco Pilot.
28.RW.8 Baban is working as Khalasi Helper in South Central Railway at
Zaheerabad deposed that stop board, speed braker board, whistle board and road sign boards were erected to unmanned level crossing gate No.8 on 10.03.2011.
In his cross examination RW.8 deposed that he was present in the court hall while RW.7 was giving evidence before this Tribunal.
29.RW.9 Kuruturi John Chakravarthy, Senior section engineer, permanent way
Zaheerabad deposed that the unmanned railway level crossing was overhauled on 12.02.2010. The census at this gate done between 21.07.2009 to 27.07.2009. The train vehicle units and road vehicle units were 1296 and 72 respectively. The visibility for road users on Vikarabad End was more than 1000 meters and Parli end (Sadashivpet) is about 650. The criteria in vogue for converting unmanned railway level crossing gate to manner railway level crossing gate/elimination, the train vehicle units should be more than 3000. Hence this gate was unmanned.
In his cross examination RW.9 deposed that he did not file any record to show that there is no previous history of any accident at gate No.8 and they have not filed
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MV O.P.54 of 2013 dt:07.06.2019 15 any register to show that the visibility for road users on Vikarabad was more than 1000 meters and on Parly end (Sadashivpeta) is above 650 meters. RW.9 denied suggestion that there are no rules to arrange unmanned railway gate when there is a curve. According to RW.9 one or two minutes will take to reach from a distance of 600 meters to the unmanned railway gate. The witness again says it takes 5 minutes. RW.9 admitted that as after the accident the gate number 8 was converted into manned gate.
30.The learned counsel for the respondent No.2 argued that from the evidence of
RWs 2 to 9 it is clear that there is no negligence on the part of the respondent No.2.
For contra it is argued by the learned counsel for the petitioners that since RWs 2 to 9 belongs to the department of respondent No.2 Railway they gave self serving statements and they are interested witnesses of their department.
31.The learned counsel for petitioners draw the attention of this Court to the evidence of RW.4. In his evidence RW.4 deposed that there is a curve on the railway track at distance of 162 meters from the unmanned railway crossing gate.
According to him train will reach from curve to unmanned railway within one or 1 ½ minute time. RW.4 is Senior section engineer, permanent way to Vikarabad, South
Central Railway. The said version of RW.4 was also supported by RW.5
K.Srisailam, Senior section engineer, Permanent way, Zaheerabad to South central railway who visited the place of the incident and inspected the same and corroborated the version of RW.4.
32.It is pertinent to note that RWs 4 and 5 Senior section engineer, permanent way to Vikarabad and Senior section engineer, Permanent way to Zaheerabad who inspected the gate No.8 to place of occurrence and submitted their inspection report to the concerned. Admittedly no such inspection report is produced before this
Court. However, in their cross examination PWs 4 and 5 categorically deposed that
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MV O.P.54 of 2013 dt:07.06.2019 16 there is a curve on the railway track at a distance of 162 meters from the unmanned railway crossing gate. RWs 4 and 5 further admitted that the train reached to their curve to unmanned railway gate within one or 1 ½ minute time. According to RW.7 the distance between unmanned railway gate No.8 and the curve on Sadashivapet road to Vikarabad is about was approximately 50 to 100 meters. RW.7 failed to state approximate reaching time of the train to the unmanned railway gate from the curve which is at a distance of 50 to 100 meters. According to RW.2 the curve was at a distance of 400 meters. However, RWs 4 and 5 who inspected the gate No.8 and who are working as Senior section engineers permanent way of Vikarabad and
Zaheerabad are the right persons to depose with regard to the curve at the track. It is admitted fact that there was a curve at unmanned crossing gate No.8. However, there is variation with regard to the distance of the said curve. From the evidence of
RWs 4, 5 and 7 the distance of the curve is 50 to 162 meters from the unmanned railway gate No.8. According to RW.7 and RWs 2 and 3 the speed of the train is below 90 Kmph. Therefore it is clear that even if it is considered that the version of
RW.7 that the train was moving at speed of 70 Kmph it will not take one minute to reach the railway gate No.8 at distance of 162 maters. The train will reach within fraction of seconds.
33.It is also elicited in the evidence of RW.7 that there is a curve at Sadashivpet to Vikarabad at a distance of 50 to 100 meters. When there is curve at gate on the railway track and the curve on the road the visibility of the train to the travelers on the road will be very less. From the facts elicited in the cross examination of RWs 2 to 9 it is apparent that the gate No.8 unmanned railway level crossing gate No.8 was arranged in the place which is not suitable one. Admittedly no panchanama was conducted by the railway authorities or railway police. RWs 4 and 6 though inspected gate No.8 and the surrounds no mediators were secured by them and no panchanama was conducted in the presence of independent mediators to show that
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MV O.P.54 of 2013 dt:07.06.2019 17 all precautions and were taken by the railway department at the place of incident at gate No.8 and to show that all necessary boards were arranged. No records and no photographs were produced by the respondents to show that sufficient sign boards and speed brakers were affixed and bushes were removed from time to time.
34.Without conducting any panchanama and without producing inspection report
before this Court the oral evidence of RWs 2 to 9 can’t be accepted. Mere
producing Exs.B2 and B3 extract of tools and plan register and extract on daily material transaction register will not serve any purpose without any specific evidence about arrange of the same at scene by the time of incident. Mere issuance of any material to the concerned section is not sufficient to establish that all the required sign boards were erected at gate No.8. When the inspection was conducted by PWs 4 and 5 immediately after the incident at gate No.8 unmanned level crossing railway gate No.8, what prevented the respondent No.2 from producing said inspection report before this Court. Why respondent No.2 did not produce any photographs with regard to the precautions taken by them. All these omissions are creating doubt and clearly shows that there is negligence on the part of the respondent No.2 in arranging the unmanned level crossing at that place and also in maintaining the same.
35.The learned counsel for the petitioners relied on between: Yatayhat Nigam,
Udaipur Vs. Union of India, the Hon’ble High Court of Rajasthan reported in AIR (RAJ)-1983-0-17.
36.The learned counsel for the petitioners argued that the above referred case is also with similar facts where a bus while proceeding at public level crossing there was road of S like bend and the unmanned level crossing with no gate, no chain barrier, no watchman was there. Big trees were there and nobody approached the level crossing if train could not be seen and when the bus was crossing level
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MV O.P.54 of 2013 dt:07.06.2019 18 crossing track the goods train dashed the bus. The bus was damaged and body was smashed and the damage of the bus was direct result of the negligence of the railway administration and suit filed for damage caused to the bus. In this matter the
Hon’ble High Court of Rajasthan held in the above judgment at para 6 that:
“The learned District Judge made a wrong approach while considering the implied and inherent duty of the Railway Administration in regard to level crossing when he said that the obstructions were not created by the Railway Administration and that it was not under obligation to remove them. There was an obligation on the part of the Railway
Administration to ensure that wherever the Railway passes over a thoroughfare, adequate warning should be given to the public of the passing of the trains so that accidents may be avoided. The duty in this respect, though not statutory is implied and inherent in the functions to be discharged by the Railway Administration in the matter of running their trains. In this case the Railway Administration did not take adequate steps to warn the public of approaching trains. The Railway Administration failed to take steps by providing for chains or bars or gate. No person was employed as a watchman to warn the user of the road regarding approaching of the trains on the track of the level crossing.
This amounted to negligence on the part of the Railway Administration.”
37.The above observation made by the Hon’ble High Court of Rajasthan is very much relevant in the present case in hand. Accordingly in the present case also there is evidence that there were bushes at unmanned Railway gate No.8 but the respondent No.2 failed to establish that the bushes were removed by the time of the incident. In this judgment Hon’ble High Court of Rajasthan further observed that there were hedge and trees and which were shielded coming of the Railway from the persons coming on the way. The question of contributory negligence was ruled out by the Hon’ble High Court by referring the judgment of Swarna Lata’s case (AIR 1963 Assam 117) and Ramesh vs. Union of India (AIR 1965 pat 167) it was held that in the accident the first duty was cast on the railway authority to arrange for the safety of passers and that it would be obvious duty of Railway Administration to take adequate steps either to fix a gate or chain or to post a man to warn the drivers of vehicles of an approaching train.
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As per Section 13 of Indian Railway Act the Railway Administration is required to arrange boundary marks, fences ete.
38.The above judgment is very much relevant in the present case in hand. As held in the above judgment the Railway Administration has failed to take any reasonable steps and precautions in the case in hand to prevent the accident. The evidence of PW.2 who is eye witness to the incident who proceeded in his Auto just head of the Car of the deceased who was transporting manure bags from the farm house of the deceased in the Auto, as per the directions of the deceased. PW.2 deposed that there were bushes at the unmanned railway gate at that time and there were no boards and unmanned railway gate is located as U shape road and the train is not visible to the person who was crossing. PW.2 further deposed that the bushes were removed by the railway department subsequent to the incident and signal boards were erected. Subsequently the railway gate was also constructed after this incident. PWs 1 and 2 deposed that the deceased used to visit to the farm house regularly, as the said farm house is 6 Kms. away from his residential house in
Vikarabad.
39.The deceased, his wife and his two daughters Harshitha and Sreehitha and made servant were going to farm house in the evening hours in his Verna Car bearing No. AP DE 8518 and the deceased was driving the vehicle and his wife sitting by the side of children and made servant were sitting in the car. When they reached the unmanned railway gate the passenger train bearing No.57548 which was coming from Zaheerabad side, hit the front side of the Verna Car and the Car hit the guard stone erected by the railway department by side of the unmanned railway gate. In the said accident deceased, his two daughters died on the spot and his wife died in the hospital. In the cross examination of PWs 1 and 2 nothing was elicited to doubt their testimony. The presence of bushes and absence of sign
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MV O.P.54 of 2013 dt:07.06.2019 20 boards which was deposed by PW.2 was not denied by the respondents in cross examination of PW.2.
Therefore for all the above reasons it is clear that petitioners established that there is negligence on the part of the respondent No.2 and the incident was occurred due to negligence of respondent No.2. Hence point is answered against the respondent No.2.
40.Issue No.(ii): Whether the petitioners are entitled for compensation, if so, to what amount and from whom ?
This is the case of the petitioners that in the incident the son of the petitioners died along with his children and wife. The incident was occurred when the deceased was travelling in Verna car bearing No. AP 28 DE 8518 and hit by the passenger train. The Car was completely damaged. The damage of the Car is not in dispute by the respondents. The Car became scrap. RW.1 Assistant Manager-
Legal in Reliance General Insurance Company deposed that Insurance Company is not liable to pay the compensation due to the death of the insured, since the accident was occurred when driven by the owner himself and the deceased is not third party to the policy. Hence claim of the petitioners is not maintainable and liable to be dismissed.
41.It is true that the deceased is not a third party to the policy and the Insurance
Company is not liable to pay the compensation amount. However, as per Ex.B1 policy, the policy covers the ‘own damage’. The Verna car bearing No. AP 28 DE 8518 as per insured’s declared value is Rs.8,23,300/-. As per the policy the value of the vehicle was Rs.8,23,300/-, the premium was paid for own damage. In view of the complete damage of the vehicle since the vehicle turned into scrap, the respondent No.1 Insurance Company is liable to pay the own damage of the vehicle
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MV O.P.54 of 2013 dt:07.06.2019 21 though not responsible for the payment of compensation on account of death of son of the petitioners. The learned counsel for the petitioners and respondent No.1 both relied on judgment of Hon’ble Supreme Court reported in AIR 2004 (SC)-2004- 4767 between: Dhanraj vs. New India Assurance Co. Ltd., in which the Hon’ble
Supreme Court unable to accept the contention that premium paid under the head of ‘own damage’ is for covering liability towards personal injury. The premium under the head of own damage is not for the injury to the person of the owner. The above judgment is against the case of the petitioners and in favour of respondent No.1.
Thus the Insurance Company Respondent No.1 is not liable to pay any compensation and accident of death of owner of Verna Car.
42.It is not in dispute that the policy was in force by that time. It is also not in dispute that the Car is new one. RW.1 deposed that he does not know whether the crime Car was hypothecated to Andhra Bank, Vikarabad. According to PW.1 he paid hypothecation amount of Rs.5,00,000/- to Andhra Bank and produced the receipt. The respondent No.1 is liable to pay own damage of Verna car bearing No.
AP 28 DE 8518. The accident was occurred on 13.03.2011 within 9 months after the purchase of the vehicle. After deducting depreciation if any the respondent No.1 is liable to pay the value of the Car i.e. own damage of Verna car bearing No. AP 28
DE 8518. Hence the petitioners are entitled for the value of Car i.e. Rs.8,00,000/- from Respondent No.1 under the head of own damage. However, the respondent
No.1 cannot be made liable for the payment of compensation on account of death of owner of the Car.
43.Liability:
Coming to the liability of the respondent No.2 since the incident was occurred due to negligence on the part of respondent No.2 Administration. Respondent No.2
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Railway Administration is liable to pay the compensation to the petitioners, who are dependants.
Multiplicand:
The deceased was practicing Advocate. Exs.A1 to A14 were filed to show that deceased acquired various properties during his life time. Ex.A18 Income tax returns till the assessment year 2007-08 shows that the annual gross income of the deceased B.Venkat Reddy was Rs.2,47,970/-.
44.It is not in dispute that deceased B.Venkat Reddy was practicing Advocate at
Vikarabad. PW.1 deposed that their son was earning Rs.50,000/- per month. No latest income tax returns were produced by the petitioners. Therefore from advocate profession the monthly income of the deceased can be taken as
Rs.20,000/- per month. Though the deceased is also having agricultural lands there is no evidence in proof of the income arrived from the said lands. Hence the annual income on agriculture as a whole can be taken at average of Rs.12,000/- PA from all sources. Thus his monthly income would be Rs.20,000 + 1000 = 21,000.
45.The deceased B.Venkat Reddy is having wife and children. The petitioners are parents of the deceased. It is elicited from the evidence and submitted by the learned counsel for the petitioners during the arguments that the 1st petitioner who is father of the deceased is a retired teacher and getting pension. From this it is clear that the petitioners are not solely dependents on their deceased son. The deceased is having responsibility to maintain his wife and children till their death in the incident.
46.Hence it is clear that though the deceased was earning Rs.21,000/- PM his contribution to his deceased parents will be less. The 1/4th income of the deceased
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MV O.P.54 of 2013 dt:07.06.2019 23 has to be deducted towards his personal expenses. Accordingly the proportionate income from the deceased is required to be deducted towards his contribution to his family unit consisting of his wife and two daughters. After deducting the same the contribution of the deceased to his parents i.e. petitioners herein would be 1/4th of his total income. Hence contribution of the deceased to his parents would be 1/4th of his income. Hence the annual income of the deceased would be Rs.21,000/- X 12 i.e. Rs.2,52,000/-, out of which the contribution of the deceased to his parents would be 1/4th out of said Rs.2,52,000/- which comes to Rs.63,000/-. Hence Rs.63,000/- is the multiplicand.
Multiplier:
47.As per the judgment of Hon’ble Supreme Court reported in Sarala Varma Vs.
Delhi Transport Corporation 2009 ACJ 1298 the multiplier has to be taken basing on the age of the deceased. As per Postmortem report so also the Inquest report and DL, the age of the deceased was 38 years. Hence the appropriate multiplier applicable is ‘15’.
Quantum:
48.When the annual contribution of the income of the deceased to the petitioners is multiplied with the multiplier 15, it would be Rs.63,000/- X 15 = Rs.9,45,000/-.
Hence Rs.9,45,000/- is awarded as compensation to the petitioners under the head of loss of dependency.
49.As per the judgment of theHon’ble Supreme Court in National Insurance
Company Ltd. Vs. Pranay Sethi and others reported in 2017 (3) GLH 536, the petitioners are entitled for consortium, loss of estate, funeral expenses etc. In view of the above judgment under these heads, an amount of Rs.45,000/- is awarded for
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MV O.P.54 of 2013 dt:07.06.2019 24 loss of estate, funeral expenses and loss of love and affection which may be sufficient. Hence on account of death of their son B.Venkat Reddy the petitioners are entitled for compensation amount of Rs.9,90,000/- from the respondent No.2.
The petitioners are also entitled for the value of the damage of Verna car bearing
No. AP 28 DE 8518 for an amount of Rs.8,00,000/- from the respondent No.1. In total the petitioners are entitled for total compensation of Rs.17,90,000/- from the respondents No.1 and 2.
Hence issue No.(ii) is decided accordingly.
50.Issue No. (iii): To what relief?
In view of the findings in issues No. (i) and (ii) as discussed above the petitioners are entitled for total compensation of Rs.17,90,000/- from the respondents. However the Respondent No.1 is entitled for the value of the damage to the Car only since deceased/owner of the Car was not third party. The petitioners shall pay the court fee which was exempted.
51.In the result,
(i) This petition is partly allowed with costs in favour of the petitioners against the respondents No.1 and 2 awarding total compensation amount of Rs.17,90,000/- (Rupees Seventeen lakhs and Ninety Thousand only) to the petitioners with interest @ 7.5 % p.a. from the date of presentation of the petition till the date of realization.
(ii) The liability of the 1st respondent is to the extent of Rs.8,00,000/- from and out of the above compensation amount with the above interest and proportionate costs. .
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MV O.P.54 of 2013 dt:07.06.2019 25
(iii) Respondent No.2 is liable to pay an amount of Rs.9,90,000/- out of the above compensation amount with above interest and proportionate costs.
(iv) The respondents No.1 and 2 shall deposit their respective shares within one month from the date of this order.
(v) On such deposit the 1st petitioner, who is pensioner is entitled for an amount of Rs.7,00,000/- towards his share. The remaining amount of Rs.10,90,000/- shall be the share of petitioner No.2 with entire interest and costs.
(vi) Out of his share of Rs.7,00,000/- the 1st petitioner is entitled to withdraw an amount of Rs.4,00,000/- and remaining amount of Rs.3,00,000/- shall be kept in
FDR for a period of two years.
(vii) Out of her share of Rs.10,90,000/- the petitioner No.2 is entitled to withdraw an amount of Rs.4,00,000/- with entire interest and costs and remaining amount of Rs.6,90,000/- shall be kept in FDR for a period of two years.
(viii) The rest of the claim is dismissed.
(ix) Advocate fee is fixed at Rs.1,500/-.
Part of judgment is directly typed to my dictation and part of judgment is
dictated to the Personal Assistant, transcribed by him corrected and pronounced by
me in open court on this 7 th day of June, 2019.
CHAIRMAN
MACT-CUM-XII ADDL.DISTRICT JUDGE,
VIKARABAD.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PETITIONERS; FOR RESPONDENTS
PW.1 B.Narsimha ReddyRW.1 U.Bharani Kumar
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PW.2 M.NarsimluRW.2 Pradeep Kumar dutta RW.3 K.Narayana R. RW.4 M.Rayappa RW.5 K.Srisailam RW.6 Abdul Matheen RW.7 G.Gunabooshana Rao RW.8 Mohd.Baban RW.9 Karuturi John Chakravarthy
EXHIBITS MARKED.
FOR PETITIONERS:
Ex.A1: C.C. of Registered sale deed doc. No.2081/08, dt:25.04.2008 Ex.A2: C.C. of Registered sale deed doc. No.2079/08, dt:25.04.2008 Ex.A3: C.C. of Registered sale deed doc. No.2080/08, dt:25.04.2008 Ex.A4: C.C. of Registered sale deed doc. No.2113/08, dt:28.04.2008 Ex.A5: C.C. of Registered sale deed doc. No.2114/08, dt:28.04.2008 Ex.A6: C.C. of Registered sale deed doc. No.3436/10, dt:17.08.2010 Ex.A7: C.C. of Registered sale deed doc. No.3186/09, dt:14.09.2009 Ex.A8: C.C. of Registered sale deed doc. No.4091/2006, dt:31.07.2006 Ex.A9: C.C. of Registered sale deed doc. No.445/04, dt:27.02.2004 Ex.A10: C.C. of Registered sale deed doc. No.1235/08, dt:21.05.2004 Ex.A11: C.C. of Registered sale deed doc. No.3918/10, dt:04.10.2010 Ex.A12: C.C. of Registered sale deed doc. No.2252/05, dt:19.07.2005 Ex.A13: C.C. of pahani for the year 2011-12 Ex.A14: C.C. of award passed by Lok Adalath in O.S. No.207/12 Ex.A15: Original pattadar pass book Ex.A16: Original title deed Ex.A17: Original DVD of the place of the incident Ex.A18: Copies of the Income Tax assessment of PW.1’s son for the years 2002-2003, 2003-2004, 2004-2005, 2005-2006, 2007-2008. Ex.A19: F.I.R. Ex.A20: True extract of the driving license of the deceased along with laminated copy.
FOR RESPONDENTS:
Ex.B1: Insurance policy Ex.B2: True extract of the tools and plants register maintained at Railway Department for stores Ex.B3: True extract of the relevant page of the register in Daily material transaction register.
CHAIRMAN
MACT-CUM-XII ADDL.DISTRICT JUDGE,
VIKARABAD.
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MV O.P.54 of 2013 dt:07.06.2019 27