K. Pushpavathi and Another vs K. Bharat Bhushanam Naidu and Another

B.S.A. Swamy, J.—The question that arises for consideration in this LPA would be whether the Motor Accidents Claims Tribunal

constituted u/s 110 of the Motor Vehicles Act, 1939 (for short ""the old Act"") is having jurisdiction to entertain a claim by the injuired person, when

the vehicle in which he was travelling met with an accident at an un-manned railway crossing by hitting the passing train.

The facts are not in dispute. The tractor in which the son of the claimants was travelling, involved in the accident on 30-11-1986 at an un-

manned railway crossing at Kongaravaripalle, by hitting the passing rail engine and the victim died on the spot. Thereafter, the claimants filed a

claim petition before the Tribunal u/s 92-A of the old Act i.e., under no fault liability, claiming an amount of Rs. 15,000/- as compensation. But the

Tribunal as well as this Court, dismissed the claim petition on the ground of jurisdiction, by relying on a judgment of this Court reported in Union of

India v. Bhimeswara Reddy 1988 (1) ALT 769, wherein the learned single Judge relied on a Division Bench of this Court in The Oriental Fire and

General Insurance Company Ltd. and Another Vs. Union of India (UOI), .

As far as the judgment of the Division Bench of this Court in O.F, & G. Insurance Company''s case (supra) is concerned, we have carefully

examined the facts. That case had arisen under Workmen''s Compensation Act and the question that arose before the Division Bench was,

whether the jurisdiction of the civil Court is barred in view of Section 110-F of the old Act. Their Lordships of this Court, have taken the view that

the Tribunal u/s 110-F of the old Act is constituted to adjudicate upon claims for compensation in respect of accidents involving the death of or

bodily injury to, persons arising out ofthe use of motor vehicles, against the owners or the drivers of the motor vehicles or the insurer of the motor

vehicle. Their Lordships further proceeded and observed, ""to accept the contention of the learned Counsel for the respondent that it would include

claims against all persons would lead, in our view, to consequences which were never contemplated by the framers of the Motor Vehicles Act."" In

support of this view, they have given illustrations by stating that the owners of the buildings or the owners of the trees cannot be made liable to pay

compensation to the victims, even though they are travelling in the motor vehicle. But regarding the principle, their Lordships held that ""In our view,

the claims referred to in Section 110 are applicable only to cases of claims against the owners or the drivers of the motor vehicles or the insurer as

the case may be and not as against strangers. The proper forum for adjudicating the claim against the stranger is a civil Court. The jurisdiction of

the civil Court is not in our view barred by Section 110-F of the Act."" In paragraph 11 of the said judgment, their Lordships noticed that as the

accident took place on 20-1-1962, and the Tribunal was constituted for the first time on 23-5-1963 and since there was no Tribunal as on the

date of the accident or on the date when the claim was made, it was held that the injured persons or the legal representatives of the deceased could

seek redressal in a civil Court and the provisions u/s 110 of the Act are not applicable. From the above it is seen that the principle laid down in this

case s that no claim petition is maintainable u/s 110 of the old Act against strangers even though the accident occurred out of the use of a motor

vehicle in public way.

Following the above judgment of the Division Bench of this Court, His Lordship Justice K. Ramaswamy, as he then was, in Bhimeswar Reddy''s

case (supra) held that ""The Act was intended to apply in respect of the accident occurred out of the use of a motor vehicle in a public way. There

appears to be that the Act was not intended to apply for the accidents occurred incidentally with the railway administration as well"". His Lordship

further held that ""The reason is that as stated earlier, if it is extended, it travels beyond the bounds of the purpose for which the special procedure is

created under the Act and the Tribunal constituted, and even every cause of action other than the injuries sustained in an accident occurred when

the Motor Vehicle is used, can be lugged within the claims arising under the Act. That does not appear to be the intendment of the Act."" In this

case also, the accident had taken place at un-manned railway crossing between Nandyal and Panyam Railway Station.

But a Division Bench of the Gujarat High Court in Ahmedabad Municipal Transport Service and Another Vs. Manekben and Others, , while

holding the driver guilty for rash and negligent driving, by placing reliance on the judgment of the Apex Court in S.N. Hussain Vs. The State of

Andhra Pradesh, , wherein their Lordships of the Apex Court considered whether the driver of the vehicle has committed an offence u/s 304-A of

IPC i.e., indulged in rash and negligent driving, observed that the driver of the vehicle therein did not halt the bus at the eastern side bus stand even

though he was requested by the bus passengers not to start the bus as the train was approaching, ut on the other hand, he recklessly and wantonly

without taking any care whatsoever, rushed towards the railway crossing and tried to enter the same when the on-coming train had already come

on the spot and he dashed it with such a tremendous speed that the engine and the first bogie behind it got derailed and the engine capsized

resulting in the tragic death of all the three members of the crew. Thus, their Lordships held that the driver of the bus can be said to be clearly guilty

of gross rashness and negligence when he drove the offending bus at the relevant time. Having taken the said view, their Lordships held that the

claim petition for compensation by the legal representatives of the injured persons is maintainable before the Tribunal.

In fact, the Full Bench of the Punjab and Haryana High Court in Rajpal Singh Vs. The Union of India and Others, went a little ahead and held

that the Tribunal under the Motor Vehicles Act can entertain an application for compensation in respect of third parties also. In that case, the claim

petition was filed against the railway authorities. The facts in that case reveal that the claimant along with one Vasdev Bajaj on 23-6-1979 was

returned from Panchkula to Chandigarh in a car driven by him, at about 1-30 a.m. When he was crossing gate No. 121 on Panchkula-Zirakpur

Road, a railway train struck against his car. Their Lordships of the Punjab and Haryana High Court having surveyed the entire case, but have taken

the view that the Motor Accidents Claims Tribunal can entertain the claim for compensation not only against the owner, driver and insurer, but also

on the third parties (i.e.,) Railway authorities in that case.

A Division Bench of the Kerala High Court in Oriental Insurance Company Limited Vs. Lakshmykutty Amma and Others, Sreedevi and Others

and Sudhakumary and Others, held that when a motor vehicle is hit by a train at an un-manned level crossing, the Tribunal is having jurisdiction to

entertain the claim against Railways (i.e.,) third parties.

The matter was set at rest by the Apex Court in Union of India (UOI) Vs. United India Insurance Co. Ltd. and Others, . In this case, one of the

questions that arose for consideration was whether the Motor Accidents Claims Tribunal has got jurisdiction u/s 110(1) of the Old Act,

(corresponding to Sections 165(1) and 168(1) of 1988 Act), to adjudicate the claims against the railway administration, when a motor vehicle is hit

by a train at level crossing, in addition to insurer, owner and driver. The issue was answered in favour of the claimants. In paragraph Nos. 44 and

45 of the judgment, their Lordships observed that words ''asking out of the use of the vehicle'' occurring in Section 110(1) is not in any manner

controlled by Section 110-B, and those words have to be given a wider meaning. At paragraph 46, their Lordships further held that ""compensation

is maintainable before the Tribunal against other persons or agencies which are held to be guilty of composite negligence or are joint tortfeasors,

and if arising out of use of the 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.

In arriving at the above conclusion, their Lordships of the Apex Court placed reliance on a judgment of the Australian High Court in

Government Insurance Office of New South Wales v. R.J. Green and Lloyed Private Limited 1967 ACJ 329 and the observations of Barwick CJ.

In coming to the above conclusion their Lordships also referred to the observations of the Windeyer, J, in the same case, which are to the following

effect:

.....no sound reason was given for restricting the phrase, ''the use of a motor vehicle'' in this way. The only limitation upon it.....that I can see is that

the injury must be one in any way a consequence of a use of the vehicles as a motor vehicle.

Their Lordships of the Apex Court in the above decision, took note of the judgments of the A.P. High Court in Bhimeswara Reddy''s case

(supra) and O.F & G. Insurance Company''s case (supra) and opined that the view taken by this Court is by way of an obiter, but however held

that the general and broad observations made in these two cases that in no circumstances a claim can be tried by the Claims Tribunal against the

persons/agencies not referred to in the second part of Section 110-B, as not correct.

In the case on hand, it is not in dispute that the vehicle in which the deceased travelled is insured with 2nd respondent -Corporation and the

claim petition was filed under no fault liability against the insurer and the driver. As stated supra, the claims ""arising out of the use of the vehicle in a

public way"" gives raise to a claim for the affected parties, if the vehicle is involved in an accident resulting either in death or sufferance of bodily

injuries against the insurer as well as the owners of the vehicle. Admittedly that was done in this case.

In view of the above discussion, we are of the opinion that the appellant is perfectly justified in filing the claim petition and the Tribunal has

jurisdiction to entertain the same. Hence, the order dated 25-1-1990 passed in MVOP No. 348 of 1988 by the additional District Judge-cum-

Motor Accidents Claims Tribunal, Tirupathi, as confirmed by the learned single Judge in CMA No. 153 of 1990 dated 27-9-1996 are set aside

and the matter is remanded back to the Motor Accidents Claims Tribunal, Tirupathi to entertain the claim application.

During the hearing of this case, it came to light that the claimants in this case filed another petition in OP No. 349 of 1988 claiming

compensation u/s 168 of the Act and the same is stayed by this Court. Since this LPA is disposed, the Court below, is directed to club both the

OPs, and dispose them on merits after giving opportunity to both the parties.

Since the OPs were of the year 1988, the Court below shall dispose of the same as expeditiously as possible, at any rate within three months

from the date of receipt of a copy of this Court.

Accordingly the LPA is allowed as indicated above. No costs.