JYOTIBEN GORDHANBHAI DABHI vs NILESH GOPAL PARMAR
- Court
- Gujarat High Court
C/FA/4447/2009 CAV JUDGMENT DATED: 22/10/2026
(GJHC240399532009)
Reserved On : 30/09/2026
Pronounced On : 22/10/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4447 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
=====================================================
Approved for Reporting Yes No
Yes
=====================================================
JYOTIBEN GORDHANBHAI DABHI & ORS.
Versus
NILESH GOPAL PARMAR & ANR.
=====================================================
Appearance:
MR ANAND B GOGIA(5849) for the Appellant(s) No. 1,2,3,4,5
MR BB GOGIA(5851) for the Appellant(s) No. 1,2,3,4,5
MR RB GOGIA(5850) for the Appellant(s) No. 1,2,3,4,5
MR KM PARIKH(575) for the Defendant(s) No. 2
MS ARCHANA U AMIN(2462) assisted by MR. MANISH
MALAVIYA for the Defendant(s) No. 1
=====================================================
CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. The appeal under Section 173 of the Motor Vehicles
Act, 1988 (hereinafter referred to as the ‘MV Act’) is directed
against the judgment and order dated 25.08.2009 passed in
MACP No.170 of 2003, by the Learned Motor Accident Claim
Tribunal (Aux.) at Morbi, by which the claimant’s claim petition
under Section 166 of the ‘MV Act’ came to be dismissed.
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2. The briefly stated facts of the case are that, on
27.08.2003, the deceased - Bachubhai Dabhi riding with auto
rickshaw No. G.T.F -9969, at around 11:30 a.m., was trying to
cross the unmanned railway level crossing at crossing No.21C on
the Morbi Rafaleshwar road, whereby railway track was cutting
the road, was dashed by the Railway Train No.9502. The auto
rickshaw was dragged, and ultimately, the driver of the auto
rickshaw - Bachubhai Dabhi, died.
2.1 P.W.I. Shri Kundanlal Gulyani, registered the FIR
against the deceased with Morbi Taluka Police Station vide CR
No. I - 155 of 2003 on same day.
2.2 In the factual background, claimant No. 1 being
widow of the deceased and claimant Nos.2 to 6 children of the
deceased, claimed the compensation under Section 166 of the
'MV Act' against the owner of the auto rickshaw and Railway
Administration - Union of India in the tune of Rs.7,43,000/- with
interests and cost.
2.3 The learned Tribunal, after framing the issues at
Exhibit-22, believed that the claimants have failed to prove any
of the issues in the affirmative. Thus, while answering the issues
in negative, dismissed the claim petition. The main finding of the
learned Tribunal based upon the evidence led before it, shows
that the deceased himself was wholly negligent in crossing the
unmanned railway level crossing in breach of the Railways Act,
1989 (hereinafter referred to as the ‘Railways Act’) as well as
provision of the 'MV Act', and therefore, the Union of India is not
liable to pay any compensation. The owner was also not held
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liable to pay compensation on the ground that the claimant
failed to prove that the opponent No.2 was the owner of the
vehicle and as RTO book of the auto rickshaw is not produced on
record to prove that.
2.4 Being aggrieved, the appeal is filed.
3. Heard learned advocate Mr. Anand B. Gogia
appearing for the appellants and learned advocate Ms. Archana
U. Amin assisted by learned advocate Mr. Manish Malaviya
representing the respondent - Railway Administration - Union of
India.
4. Learned advocate Mr. Anand B. Gogia assailing the
impugned judgment and order, mainly submitted that the
learned Tribunal has committed serious and manifest error in
fastening the total liability upon the deceased to cause the road
accident.
4.1 He would submit that the deceased was riding the
auto rickshaw to attend the folk fair, which was organized one
kilometre away from the railway level crossing No.21C. The
deceased was, thus, required to cross the unmanned railway
crossing No.21C, which cuts the road leading to the folk fair
place.
4.2 He would submit that the learned Tribunal was
required to apply the Principle of common law liability. He
further submitted that the railway route from Morbi to
Rafaleshwar is a busy route. Apart from the Railway Train
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No.9502, several other railway trains are passing through this
railway route and yet, the cutting road was kept with unmanned
railway level crossing in breach of Section 13 of the ‘Railways
Act’. Thus, it is a fit case to apply the common law of negligence.
4.3 He further submitted that the learned Tribunal
committed manifest error in not considering the negligence on
part of the railway Train Driver, i.e. loco pilot, who was expected
to take precaution while passing through a busy area.
4.4 He would further submit that the evidence on record
indicates that there is no sign board or any other board, which
can inform the passerby about the unmanned railway crossing.
4.5 He would further submit that according to the
evidence on record, around the unmanned railway level crossing,
many bushes and trees also existed and which also reduced the
vision. He would submit that in such event, Railway train
passing through railway track in absence of any signals or
blowing the horns, etc., and cause accident, is fully liable to pay
compensation. Further, as such Railway Train cannot pass
through an unmanned railway level crossing, endangering the
human lives.
4.6 Learned advocate Mr. Anand B. Gogia would further
submit that the learned Tribunal erroneously relied upon the
evidence of complainant – Mr. Kundanlal Gulyani, who after
filing the affidavit-in-chief, did not come forward to be offered for
cross-examination. Therefore, his evidence was of no use and
yet, the learned Tribunal has taken assistance from the said
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evidence to believe that the deceased was solely negligent in
causing the accident.
4.7 Lastly, learned advocate Mr. Anand B. Gogia
submitted that there is a use of motor vehicle involved in the
accident and it gives the jurisdiction to the Claims Tribunal to
decide the claim petition under Section 165 of the 'MV Act'.
4.8 Mainly upon aforesaid submissions, learned advocate
Mr. Anand B. Gogia submitted to allow this appeal.
4.9 In support of his submissions, he has relied upon the
judgment of the Supreme Court in the case of:- i) Union of
India v. United India Insurance Company Limited, reported
in 1997 8 SCC 683, ii) Union of India v. Bhagwati Prasad,
reported in 2002 ACJ 721, iii) The judgment of Division
Bench of the Orissa High Court in Guri Behera and others v.
DRM East Coast Railway and others, reported in AIR 2012
Orissa 62 and the judgment of the coordinate Bench of this
Court in iv) Union of India v. Indiraben Wd/o. Panchpadhi
Thandapani and others, First Appeal No. 4898 of 2008 .
5. Per contra , learned advocate Ms. Archana Amin
relying upon the judgment of the Karnataka High Court in the
case of G. Nagarathna v. G. Manjunatha in Misc. First
Appeal No. 2850 of 2017, confirmed by the Supreme Court in
SLP (Civil) Diary No. 22411 of 2025, submitted that the
learned Tribunal has, in its vivid examination of the evidence,
rightly believed that the deceased was solely negligent in causing
the accident.
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5.1 She would further submit that Railway was in its
settled route, the driver of the auto rickshaw, at the unmanned
railway level crossing, was required to first stop the vehicle and
then, to see on the either side of railway track and then to
ensure that no railway train is coming and only thereafter, he is
required to cross the unmanned railway crossing.
5.2 She would further submit that, in the present case, it
appears from the evidence that, at the time of incident, two other
rickshaws were already stopped at the unmanned railway level
crossing, whereas the deceased, in a hurry of reaching at the folk
fair, tried to cross the railway track, but was frightened and
during which, his auto rickshaw was stopped. The railway,
which was on its settled route, therefore, dashed with the auto
rickshaw stood in middle of railway track and this resulted in
the unfortunate death of the deceased.
5.3 In this scenario of the incident, the loco pilot of the
Train cannot be held negligent in causing the accident. She
would further submit that the loco pilot as well as the co-loco
pilot of the Train, both have entered into the witness-box. Both
of them have even submitted that the unmanned railway level
crossing was just one or one and half kilometres away from the
railway station. The loco pilot, having knowledge that the railway
level crossing is cutting the busy road, was continuously blowing
horn from the railway station.
5.4 She would further submit that the presence of sign
boards or stop-sign boards, etc. as per the evidence of the loco
pilot were proved. In these circumstances, the learned Tribunal
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rightly analyzed the issue of complete negligence of the deceased
and dismissed the claim petition.
5.5 She further submitted that, in the claim petition, the
vehicle, which is said to be involved in the accident, was driven
by the deceased himself and the claim petition levels the
complete negligence against the Railways. Thus, merely invoking
the phrase “Motor Vehicle”, the claimants cannot seek the
compensation from the learned Motor Accident Claims Tribunal
under Section 165 of the 'MV Act'. Claimants were required to
file the claim petition under the ‘Railways Act’ before the Railway
Claims Tribunal.
5.6 Mainly upon above submissions, learned advocate
Ms. Archana Amin appearing for the Railway Administration -
Union of India submitted to dismiss this appeal.
6. I have heard learned advocates for both the sides and
perused the Record and Proceedings as well as the impugned
judgment and order.
7. As far as the facts of the case are concerned, it is
undisputed that the deceased was riding an auto rickshaw at the
time of road accident and was crossing the unmanned railway
level crossing No. 21C, which was on Morbi to Makansar railway
line. Deceased got frightened seeing the on-coming railway train,
his rickshaw was stopped in the middle of the railway tracks and
it was dashed by the oncoming railway train. The rickshaw was
dragged to some extent and ultimately, resulted in the death of
the rickshaw driver.
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8. In regards to these factual aspects, what is noticeable
is that the FIR is filed against the deceased and abated summary
was also filed.
9. The wife of the deceased entered into the witness box
at Exhibit-27 and has testified on oath. To be noted that the wife
of the deceased was not an eyewitness to the accident.
9.1 In her chief-examination, she stated that the train
was not visible due to the various plants, bushes and trees and
there was some loud noise going around the spot of incident,
which was a reason for not hearing the blowing of horn.
9.2 It was also deposed by her that the railway level
crossing was very busy and many trains are running up and
down on this railway track, and thus, there was a necessity of
gate man as well as regular railway barrier, which may inform
the passers-by to stop there.
9.3 In the cross-examination, she has admitted that she
was not present at the spot of accident and she does not know
that who was negligent in causing the accident. She has further
admitted that if a train is passing over the railway track, it is
visible or it could be seen from a distance.
9.4 She has further admitted that she does not have any
personal knowledge that whether the railway driver had blown
the horn or had slowed down the train. She has further admitted
that whenever people are passing through the railway level
crossing, they are required to take more care. She has further
admitted that the accident took place due to negligence of her
husband.
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10. Claimant has examined Mr. Bhikhubhai Devshibhai
at Exhibit-28, He claimed that he was an eyewitness to the
accident, however, no evidence comes on record that at the time
of the incident he was present on the spot.
10.1 Be that as it may, his chief-examination is alike the
chief-examination of Gitaben – P.W-1. In his cross-examination,
he has admitted that he has already crossed the railway level
crossing and the auto rickshaw driven by the deceased was
coming behind. He has further admitted that when he was
crossing the railway track, he could hear the train.
10.2 He has further admitted that when he had reached
up to 50 feet away from the railway level crossing, after crossing
it, the accident took place. He has further admitted that the
place of incident was just one agricultural field away from the
railway station.
10.3 He has further admitted that he has stated in the
chief-examination that one cannot hear the blow of horn due to
loud noise of the people, on insistence of learned advocate who
was appearing for the claimant.
10.4 He has further admitted that the rickshaw drivers, in
greed of getting more fare, were driving the rickshaw rashly and
at excessive speed. He has further admitted that as per the Rule,
if you intend to cross the railway level crossing, you have to see
on either side of the railway track and then pass the unmanned
railway crossing.
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10.5 He has further admitted that he cannot say that
whether deceased stopped at the unmanned railway level
crossing and got down from there to see either side of the railway
track and to ascertain that whether the railway train is coming
or not.
10.6 He has further admitted that a sign board was kept
near the unmanned railway level crossing, but on his own, he
said it was not readable.
10.7 He has further admitted that had the deceased taken
a precaution, accident could have been avoided.
11. Aforementioned is the oral evidence from the
claimant’s side.
12. Mr. Dilipkumar Mehta and Mr. Jayesh Rajnikant,
loco pilot and co-loco pilot of the Train No.9502 Bhuj-Rajkot
Inter-city Train, entered into the witness box at Exhibit-32 and
33 respectively. They are defence witness. Both of them have
stated that when train was passing through the unmanned
railway level crossing near Makansar village, the train was
continuously blowing the whistles to avoid any mishap. They
have further stated that two rickshaws were stopped near
unmanned railway level crossing seeing the oncoming train, but
as deceased was in a hurry, he quickly tried to cross the railway
track, but got frightened due to which his rickshaw stopped in
the middle of the railway track and ultimately, dashed with
running railway train.
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12.1 Both the witness have further stated that the stop
board was kept at unmanned railway level crossing. In the cross-
examination, both of them have admitted that they have not
seen the stop board as the railway train was running at a speed
of 75 km/hr, but clarified that it's the usual speed of a railway
train.
12.2 They have further admitted that they have
continuously blown the whistle and even one minute before
incident took place, they have blown the whistle. They have
further admitted that at the place of incident, no trees are grown
up. They have further admitted that the railway track is busy
with several running trains and denied that the incident took
place due to the negligence of the railway train.
12.3 At Exhibit-67, a map prepared by the railway
authority is produced and it shows the railway track, the place of
incident, the standing of the sign board etc. It further shows that
the kachcha road was cut by the railway track from Morbi to
Makansar and after the railway level crossing, there was a cross
junction on the road.
13. At this juncture, let refer Section 161 of the ‘Railways
Act’, which reads as under:-
“ 161. Negligently crossing unmanned level crossing.- If
any person driving or leading a vehicle is negligent in
crossing an unmanned level crossing, he shall be punishable
with imprisonment which may extend to one year.
Explanation.--For the purposes of this section, "negligence" in
relation to any person driving or leading a vehicle in crossing
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an unmanned level crossing means the crossing of such
level crossing by such person--
(a) without stopping or caring to stop the vehicle near such
level crossing to observe whether any approaching rolling
stock is in sight, or
(b) even while an approaching rolling stock is in sight.”
14. Though the aforesaid provision is stating the
punishment for driving or leading a vehicle crossing an
unmanned level crossing, however, the word “negligence” in view
of explanation (a) says, the person will be treated as negligent if
he is crossing without stopping or caring to stop the vehicle near
such level crossing to observe whether any approaching rolling
stock is in sight, or as per explanation (b), if the person is
crossing even while an approaching rolling stock is in sight.
15. Apt to refer Section 131 of the 'MV Act', which reads
as under:-
“131. Duty of the driver to take certain precautions at
unguarded railway level crossing.—Every driver of a motor
vehicle at the approach of any unguarded railway level
crossing shall cause the vehicle to stop and the driver of the
vehicle shall cause the conductor or cleaner or attendant or
any other person in the vehicle to walk up to the level
crossing and ensure that no train or trolley is approaching
from either side and then pilot the motor vehicle across such
level crossing, and where no conductor or cleaner or
attendant or any other person is available in the vehicle, the
driver of the vehicle shall get down from the vehicle himself
to ensure that no train or trolley is approaching from either
side before the railway track is crossed.”
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15.1 Plain reading of Section 131 of the 'MV Act' put
statutory duty upon driver to take precaution at an unguarded
railway crossing. The driver has to stop his vehicle, and has to
ensure that no trolly or train is crossing from either side, and
only thereafter, to cross the railway track.
16. A conjoint reading of both the provisions from the
different Acts marshal the liability upon the person approaching
to cross railway level crossing to take full precaution,
particularly at an unguarded railway level crossing and to stop
its vehicle, get down from the vehicle and to ensure that no train
or trolley is approaching from either side before the railway track
is crossed.
17. In Union of India v. United India Insurance Co.
Ltd. , reported in (1997) 8 SCC 683 , the Supreme Court
examined the provisions of Section 13 of the Railway Act, 1890
in regards to unmanned level crossing, vis-a-vis the statutory
and common law duties of the railway. It has been observed by
the Supreme Court that the railway has no statutory duty under
clause (c) and (d) of the Section 13 to erect gates, chains, bars
etc., or to employ person to open and shut the gates, chains,
bars unless Central Government, by requisition, requires the
railway to do so. The railway's common law duties are
concurrently enforceable along with or independently of
statutory duty under Section 13. Relevant para 12 to 17 of the
judgment reads as under:-
“12. We shall now deal with the main point. At the outset it
is necessary to notice the difference between the statutes in
England and in India. In England as shown below, duties
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are statutorily imposed under two statutes of 1845 and
1863 directly on the Railways to erect gates and employ
watchmen, etc. at the level-crossings if the railway was
cutting across a public road. But the position in our country
is somewhat different. As pointed out by the Bombay High
Court in Henry Condor v. Ballaprosad Bhagwandin, (1895)
Un PJ 91 (Bom) by Sir Charles Sargent, C.J. (quoted in B.N.
Rly. Co. Ltd. v. Tara Prosad Maity, AIR 1928 Cal 504 : 48
Cal LJ 45) the direct obligation cast on the Railways by
Section 21 of Act 18 of 1854 was repealed later by Act 25 of
1871. To this extent, the Indian statute therefore differs from
the English statute. Under Section 13 of the Railways Act,
1890 no such duties are imposed directly on the Railway
administration by the statute. The section on the other hand
only confers a power on the Central Government to issue a
requisition to the Railway administration, i.e. the General
Managers or the Railway Companies (if any) to take steps
as per Section 13. Obviously, if the Central Government does
not think fit to exercise that power and does not issue any
such requisition, the occasion for the Railway administration
to take steps under Section 13, as per the statutory
mandate, will not arise. (As to what can be the effect of an
omission to exercise this statutory power to issue a
requisition, will be dealt with separately under Point 4.)
Section 13 of the Indian Act may be noticed:
“13. Fences, screens, gates and bars.— The Central
Government may require that, within a time to be
specified in the requisition or within such further time
as it may appoint in this behalf,—
(a) boundary-marks or fences be provided or renewed
by a railway administration for a railway or any part
thereof and for roads constructed in connection
therewith;
(b) any works in the nature of a screen near to or
adjoining the side of any public road constructed
before the making of a railway be provided or renewed
by a railway administration for the purpose of
preventing danger to passengers on the road by
reason of horses or other animals being frightened by
the sight or noise of the rolling-stock moving on the
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railway;
(c) suitable gates, chains, bars, stiles or handrails be
erected or renewed by a railway administration at
places where a railway crosses a public road on the
level;
(d) persons be employed by a railway administration
to open and shut such gates, chains or bars.”
(emphasis supplied)
In view of the above provision, which does not cast a
direct obligation on the Railway administration, several High
Courts have taken the view, and in our opinion, rightly that
the statutory duties of the Railway administration under
Section 13, do not arise unless a requisition is made by the
Central Government. The above anomaly has naturally
compelled the courts to fall back upon the common law
duties resting on the Railways. It has been contended for
the claimants that under the common law, the Railways, as
an occupier of the level-crossing for the purpose of running
railway trains which are inherently dangerous to those who
use the public road at that point, has special responsibilities
as a responsible body to see that accidents are kept at the
minimum. The question then arises whether the common law
duties are concurrently enforceable along with or
independently of the statutory duties under Section 13.
13. The law in this behalf is again well settled that the
claimants can at their choice sue the Railways to enforce
either or both types of these duties, i.e., under common law
as well as under the statute. These aspects have been
summarised by the Privy Council in Commr. for Rlys. v.
McDermott, (1966) 2 All ER 162, PC. That was a case which
arose from the judgment of the High Court of Australia. In
that case, Lord Gardiner L.C. stated:
“Theoretically, in such a situation, there are two duties
of care existing concurrently, neither displacing the
other. A plaintiff could successfully sue for breaches of
either or both of the duties....”
(emphasis supplied)
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14. It must, therefore, be accepted that the claimants can
sue the Railways concurrently for breach of the common law
or statutory duties or for breach of either of the duties.
15. The next question is as to what are the common law
duties of the Railways at level-crossings from time to time?
In the same decision of the Privy Council in Commr. for Rlys.
v. McDermott, (1966) 2 All ER 162, PC it has been stated
that the Railways’ duty of care at common law is based on
the principle of neighbourhood laid down by Lord Atkin in
Donoghue v. Stevenson, 1932 AC 562 : 1932 All ER Rep 1
inasmuch as the Railway
“was carrying an inherently dangerous activity of running
express trains through a level-crossing which was lawfully
and necessarily used by the local inhabitants and their
guests and persons visiting them on business. Such an
activity was likely to cause accidents, unless it was carried
on with all reasonable care. ... In principle, the liability is not
based, however on matters of title but on the perilous nature
of the operation and the de facto relationship which after
Donoghue v. Stevenson, 1932 AC 562 : 1932 All ER Rep 1
would be called ‘proximity’ or ‘neighbourly’ relation between
the railway operator and a substantial number of persons
lawfully using the level-crossing”. (emphasis supplied)
The duty to care at common law is therefore based upon the
dangerous or perilous nature of the operations of the
Railways.
16. In Donoghue v. Stevenson, 1932 AC 562 : 1932 All ER
Rep 1 a manufacturer was held liable to the ultimate
consumer at common law on the principle of duty to care.
Lord Atkin said: “You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would
be likely to injure your neighbour.” He asked:
“Who then, in law, is my neighbour? The answer
seems to be, persons who are so closely and directly
affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are
called in question.”
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The test of breach of common law duty is again the test of a
reasonable or prudent person in the particular fact situation
— of course the amount of care, skill, diligence or the like,
varying according to the circumstances of the particular
case. The standard of foresight is again that of a reasonable
person. Such a person is also expected to take into account
common negligence in human behaviour. Of course, he need
not anticipate folly in all its forms (London Passenger
Transport Board v. Upson, 1949 AC 155 : (1949) 1 All ER
60, HL). That if there is omission to exercise such a common
law duty of care, an action at common law can be filed for
nonfeasance is also clear from a judgment of this Court in
Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, (1994) 4
SCC 1. In our view, therefore, because the Railways are
involved in what is recognised as dangerous or perilous
operations, they are at common law, to take reasonable and
necessary care, on the “neighbourhood” principle — even if
the provisions in Section 13(c) and (d) of the Railways Act,
1890 are not attracted for want of requisition by the Central
Government.
17. The next important question is whether there can be any
breach of a common law duty on the part of the Railway if it
does not take notice of the increase in the volume of rail and
motor traffic at the unmanned level-crossing and if it does
not take adequate steps such as putting up gates with a
watchman so as to prevent accidents at such a point? What
is the extent of care required at common law has also been
decided.”
18. In view of the aforesaid finding, the railway may be
fastened with the common law liability, if not the statutory
liability, to pay the compensation but on proving any inaction or
non-performance of the statutory/mandatory duty or failure to
exercise the duty required to be followed. Common law duty to
consider exercise of power vested by the statute would come into
picture on omission to exercise and not deciding whether or not
to exercise the discretionary statutory power.
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C/FA/4447/2009 CAV JUDGMENT DATED: 22/10/2026
(GJHC240399532009)
19. In the present case, it indisputably is that the
unmanned railway level crossing has been crossed by the
deceased hurriedly, ignoring that the two other rickshaws,
intend to cross railway track were stopped and were waiting for
the railway train to pass. It comes on record through the
evidence that deceased was frightened seeing the train up close,
unfortunately the rickshaw stopped in the middle of the track
and was dashed by running railway train.
20. It is true that it was an unmanned railway crossing,
but simultaneously it also appears that the sign board was kept.
Plaintiff’s witness as well as defence witness, both were
analogous on the fact of keeping of sign board near the
unmanned railway crossing, except minor difference that sign
board was not readable. What further appears from evidence
that the train having left the railway station, the loco pilot of it
was continuously blowing the horn and it was in force till the
accident took place.
21. The loco pilot and co-loco pilot of the train involved in
the road incident have been examined and nothing fruitful
comes on record, which specifies omission on the part of the
Railway to perform the duty enshrined by the statute. In
contrast, it is evident that the deceased was at peak of his
negligence and in a hurry of getting more fare from the folk fair,
impulsively, without following the Rules and provisions of law,
ignoring two stopped rickshaws at the unmanned railway
crossing, attempted to cross the railway level crossing and lost
his life in an unfortunate and tragic incident.
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C/FA/4447/2009 CAV JUDGMENT DATED: 22/10/2026
(GJHC240399532009)
22. Recently, the Gauhati High Court in MACApp.
No.349 of 2013, Neutral Citation: GAH010014202013 , in
the identical fact situation having referred the Section 161 of the
‘Railways Act’, in para 22 to 24 of the judgment held as under:-
“22. Section 161 of the Railways Act, 1989, makes it
compulsory for the drivers of every vehicle crossing an
unmanned level crossing, to stop and to observe whether
any train is coming, before crossing the level crossing. The
driver Lok Bahadur Chetri has stated in his evidence that he
did not stop his vehicle before crossing the level crossing. He
has stated that though he did not stop before crossing the
level crossing, he had looked for incoming train in the
direction of Dibrugarh while his handyman had looked
towards Tinsukia/Lidu direction. The driver further stated
that when he and his handyman did not see any incoming
train, he took the vehicle forward for crossing the level
crossing.
23. At this stage, I find it hard to believe that the driver did
not hear the sound of a huge incoming train.
24. Now, it is clear on the face of the record that the driver
Lok Bahadur Chetri had violated the provision of law as laid
down in Section 161 of the Railways Act, 1989. It is proved
that the accident took place because of the negligence of Lok
Bahadur Chetri who was driving the vehicle bearing
Registration No.AS-23-AC-0846. In that case, the appellant
NF Railways is not liable to pay any compensation to the
claimant.”
23. In the aforesaid analysis of the evidence emerging
from the facts of the case, I find that even if the learned Motor
Accident Claims Tribunal has the jurisdiction to hear and decide
the matter, but for the self-negligence of the deceased, the
learned Tribunal has rightly dismissed the claim petition.
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(GJHC240399532009)
24. The authorities, which are relied upon by the learned
advocate Mr. Anand B. Gogia, are factually distinguishable.
Therefore, they are of no assistance in the present case.
25. In view of above and for the foregoing reasons, the
appeal sans merit, deserves to be dismissed. Accordingly, it is
hereby dismissed .
26. Record and Proceedings, if any, be sent back to the
concerned Court forthwith.
Sd/-
(J.C. DOSHI, J.)
Raj
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