Negligence and jurisdiction issues in Motor Accident Claims, establishing liability under the Motor Vehicles Act.

1. The appellants / claimants have preferred the present appeal against the award dated 8.8.2002 passed by the Third Additional Motor Accident Claims Tribunal, Satna in C.T.No.16 of 1999 whereby, the claim application under S.166 of the Motor Vehicles Act was dismissed by the Tribunal.

2. The facts of the case in short are that the appellants have filed an application under S.166 of the Motor Vehicles Act , 1988 before the Tribunal that on 29.11.1996 at about 8.00 to 9.00 p.m the deceased Brijnandan Singh was returning in his tractor from Mandi at Satna to his Village Ramsthan (Police Station Kolgawan, District Satna) after selling of the grains and purchasing some other articles. The deceased Brijnandan Singh was the owner of the Tractor No.MP19 - A 0075 along with trolley No.MP19 - A 0076 which was being driven by Ram Shiromani Tiwari, the respondent no.1. When the vehicle reached at the railway gate Biruhali the gate was open. The respondent no.4 who was responsible to close the gate on arrival of the train did not close the gate and therefore, when the tractor and trolley was on the railway track a railway engine of a Goods train dashed the tractor and trolley causing death of the deceased Brijnandan Singh and 2-3 others. The applicants have moved an application for compensation of Rs.5 lacs against all of the respondents.

3. The respondents no.1 and 2 in their written statement have denied the negligence of the respondent no.1 and it was pleaded that the accident took place due to sole negligence of the respondent no.4 who did not close the railway crossing gate at the time when the Goods train was passing. In the alternate, it was pleaded that the tractor and trolley was insured with the respondent no.3 and therefore, it is the liability of the respondent no.3 to pay the compensation, if required.

4. The respondent no.3 in its written statement denied the allegations of the compensation application. It was pleaded that the concerned tractor and trolley was not insured by the respondent no.3. However, when photo copy of the cover note was produced before the Tribunal, learned counsel for the respondent no.3, has accepted it and it was marked as the document Ex.D / 1. No other plea was taken by the Insurance Company.

5. The respondent no.4 has denied all the averments of the application filed by the claimants and a specific plea was taken that according to the provisions of S.122, S.147, S.149 of the Railways Act the deceased was himself responsible for the accident. The deceased opened the railway gate by taking a key from the respondent no.4 and tried to cross the tractor and trolley on the railway crossing that resulted in an accident due to his own overt act. The respondent no.4 had closed the gate soon before the arrival of the Goods train but it was forcefully opened by the deceased and his companions. In the alternate, it was pleaded that the Motor Accident Claims Tribunal has no jurisdiction to try the claim application.

6. The respondent no.5 has also submitted the written statement of the similar nature as submitted by the respondent no.4 and prayed that the Tribunal has no jurisdiction to decide the case.

7. The Presiding Officer of the Motor Accident Claims Tribunal has framed seven issues relating to negligence, computation of compensation, liability of the respondents, violation of policy conditions, jurisdiction of the Tribunal and for relief and costs. After, recording the evidence of the parties, the application was dismissed on the groun