Page No.# 1/9 vs Kasem Ali And Anr
2025 Latest Caselaw 5185 Gua

Gauhati High Court

Page No.# 1/9 vs Kasem Ali And Anr on 11 June, 2025

                                                                         Page No.# 1/9

GAHC010015032015




                                                                   2025:GAU-AS:7658

                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : MACApp./118/2015

            UNION OF INDIA and 2 ORS
            REPRESENTED BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON,
            GUWAHATI

            2: ADDITIONAL CHIEF ENGINEER

             N.F.RAILWAY
             BHALUKDUBI
             P.S. and DIST. GOALPARA
             ASSAM.

            3: EXECUTIVE ENGINEER

             N.F. RAILWAY
             BHALUKDUBI
             P.S. and DIST. GOALPARA
             ASSAM

            VERSUS

            KASEM ALI and ANR
            S/O SABARUDDIN MOLLAH, VILL. RAKHYASINI NO. II, P.O. RAKHYASINI,
            P.S. MORNOI, DIST. GOALPARA ASSAM

            2:MST. SURBHAN KHATUN

             W/O KASEM ALI
             VILL. RAKHYASINI NO. II
             P.O RAKHYASINI
             P.S. MORNOI
             DIST. GOALPARA
             ASSAM

Advocate for the Petitioner   : SC, NF RLY, MS.U CHAKRABORTY,MS.S P DAS,MS.M
                                                                                   Page No.# 2/9

CHATTERJEE

Advocate for the Respondent : , ,,MR.A R AGARWALA(R-1&2)

BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

JUDGEMENT AND ORDER (CAV)

Date : 11-06-2025

This appeal is directed against the judgment and order dated 23.02.2015 passed by the learned Member, MACT in connection with MAC Case No. 57/2010 awarding Rs.1,18,100/- (Rupees One Lac Eighteen Thousand and One Hundred) as compensation to the claimant Md. Kasem Ali and Must. Surbhan Khatun and directing the appellants to pay the amount to the claimant with the interest @ 8% from the date of adducing evidence by the claimant till payment, in full.

2. The claimants are arrayed as respondents in this case and will hereinafter be referred to as respondents. The appellants are 1. Union of India (Represented by the General Manager, N.F. Railway, Maligaon, Guwahati), 2. Additional Chief Engineer, N.F. Railway, Bhalukdubi, Goalpara and 3. Executive Engineer, N.F. Railway, Bhalukdubi, who were the original respondent Nos. 4, 5 and 6 in original MAC Case No. 57/2010, brought up by the claimants/respondents herein. The respondent No. 1 and his wife, respondent No. 2 have prayed for compensation on account of death of their son Rayjuddin Ahmed @ Azizuddin @ Raijuddin, who died in a motor vehicular accident that occurred on 29.04.2006 at about 7.30 PM at Railway level crossing which was unmanned, being No. 176, between Krishnai and Goalpara Town stations. The incident was caused by Train No. 5642 DN Jhajha Express and Truck No. WB-25/0487. The victim (also referred to as the deceased) was the driver of the aforementioned truck who died on the following day of the accident. The registration number of the truck was WB-25/0487 and was insured with the Oriental Insurance Company Ltd., Bongaigaon Division, under the Policy No. 313306 and was valid up-to 04.12.2006. The opposite party No. 2 in the original MAC Case No. 57/2010 is Tapesh Aich @ Tapan Aich, who is the owner of the truck.

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3. All the opposite parties except the insurer did not contest the proceeding and the case proceeded ex-parte against them. At the time of the incident, the deceased victim was 23 years old and was a regular employee under the opposite party No. 2 and used to earn a sum of Rs.3,300/- (Rupees Three Thousand and Three Hundred) per month. The Insurer i.e. the Divisional Manager, Oriental Insurance Company contested the proceedings and filed written statement. The maintainability of the proceeding was challenged as the Tribunal has no jurisdiction to entertain a claim petition in an accident case pertaining to accident involving the Railways. Contributory negligence was also attributed to the driver of the truck through the written statement.

4. The Railways have challenged the appeal on the ground that the decision was patently illegal as the decision was passed beyond the jurisdiction by the learned Tribunal, without according an opportunity to the Railways to contest the proceeding. The ex-parte judgment was erroneously passed.

5. It is contended that the compensation was awarded in violation of Section 13(1-A), 15 of the Railway Claims Tribunal Act, 1987 inasmuch Section 161 of the Railways Act, 1989, was not appreciated. It has been admitted by the learned Tribunal that the accident is a result of contributory negligence as the driver's contribution to the accident has been affirmed by the Tribunal by observing that the railway crossing was unmanned.

6. Learned counsel for the appellant laid stress in her argument that the learned Tribunal failed to take into consideration Section 110 B of the Motor Vehicles Act, 1939, which makes it clear that Tribunal has jurisdiction only to enforce a claim over the owner, driver and the motor vehicle involved in an accident and there is no scope for inclusion in proceeding before the learned Tribunal. The competent Court would be the Railway Claims Tribunal and the proper provisions would be Section 131, (1-A)/15 of the Act of 1987, which is the appropriate forum to entertain any application in respect of claim of compensation payable by the Railway administration.

7. Learned counsel for the appellant has prayed to set aside and quash the judgment and order dated 23.02.2015 passed by the learned Member, MACT in connection with MAC Case Page No.# 4/9

No. 57/2010.

8. Heard Ms. U. Chakraborty, learned Senior Counsel for the appellant assisted by learned counsel Ms. M. Chatterjee.

9. The following issues were framed by the learned Tribunal and based on the following issues, the compensation was awarded:-

"1) Whether the accident took place due to rash and negligence driving of the driver of the vehicle No. WB-25/0487 or Train No. 5642 DN (Jhajha Express)?

2) Whether the claimant is entitled to get any compensation; if so, what should be just compensation?

3) Whether the Insurance Company or the owner is liable to pay compensation?"

10. It was held by the learned Tribunal that there was no bar for the Tribunal to adjudicate the claim petition on its merits under any provisions of the Railways Act or Rules. It was held that as the railway level crossing was unmanned, the appellants are thereby held responsible

for the accident owing to the negligent act leaving the railway crossings unmanned at the busy hour when the driver tried to cross the railway level crossing and got run over by the Train No. 5642 DN Jhajha Express.

11. The respondent No. 1 adduced his evidence as PW-1 and exhibited several documents to substantiate his pleadings. An FIR was also lodged by the railway authorities and Mornoi Police Station Case No. 23/2006 was registered against the deceased.

The certified copy of the FIR was marked Exhibit-1.

The certified copy of the seizure list is marked as Exhibit-3 and,

the certified copy of the postmortem report was marked as Exhibit-4.

12. It was held by the learned Tribunal that the vehicle was insured at the time of the accident and the opposite party No. 1, the Insurance Company was the insurer of the offending vehicle. It was also held by the Tribunal that the Railway authorities have lodged an Page No.# 5/9

FIR suppressing the facts and has alleged that the driver of the offending vehicle drove the vehicle without any care and precaution and as the vehicle crossed the unmanned level crossing, the vehicle was tossed up in the air by the impact. The vehicle then landed against the train by which it was tossed up in the air and thereafter, dragged to about 20 meters on the track. Consequentially, the vehicle was damaged and the victim sustained grievous injuries. The handyman of the vehicle named Rayjuddin also sustained severe injuries, substantiated by the postmortem report, Exhibit-4.

13. After observing that the driver of the vehicle and the Railways as liable for the accident, the Tribunal exonerated the Insurer.

14. The compensation was calculated by considering the salary of the deceased @ Rs.3,300/- (Rupees Three Thousand and Three Hundred) per month. After calculating the loss of dependency and loss of love and affection and other expenses, the compensation was assessed @ Rs.2,36,200/- (Rupees Two Lacs Thirty Six Thousand and Two Hundred) which was reduced to half as contributory negligence was attributed to the deceased by the Tribunal. The Railways was then directed to pay Rs.1,18,000/- (Rupees One Lac and Eighteen Thousand).

15. As accident occurred at night, the driver was held liable for not exercising caution at night at the railway crossing that was unmanned. However, the Railways did not have the opportunity to contest the proceeding. The order dated 30.01.2014 passed by the Tribunal in MAC No. 57/10 clearly reflects the typographical error that 7:30 P.M. was typed erroneously as 7:30 A.M. as the time of accident.

PW-1 was cross-examined only by OP No.1. PW-1 had also exhibited Criminal Case as Exhibit No. 1.

16. Even if this Court evaluates the evidence, it appears that the driver of the truck ought to have been careful as the crossing was unmanned at night.

17. The Railways were held liable for negligence as the level crossing was unmanned at the time of the accident.

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18. It was held by the learned Tribunal that the Railway authorities have lodged the FIR suppressing facts and shifting the responsibility to the driver of the vehicle. The Tribunal thereafter exonerated the insurer of the vehicle. The entire decision of the Tribunal cannot be held to be erroneous. If an accident takes place between a motor vehicle and a railway train, the liability or the negligence has to be ascertained and, Motor Accidents Claims Tribunal can pass an order if the motor vehicle is held responsible but in this case, the railway authorities were held responsible for the unmanned level crossing, which is correct. The negligence of the Railways cannot be disputed as the level crossing was unmanned. A level crossing has to be manned. In the cover of erroneous decision of the learned Tribunal, the Railway authorities cannot shirk away from their responsibility. It has been proved on the touchtone of preponderance of probabilities that railway crossing was unmanned. The Railways have not at all denied that the level crossing was unmanned as it is evident from the FIR lodged against the deceased by the Railways.

19. The question that falls for consideration is whether the Tribunal has erred while passing the judgment and holding the Railways responsible. As per Section 110B of the Motor Vehicles Act, 1939, the Motor Accidents Claims Tribunal has jurisdiction only to take up cases where a motor vehicle is involved. In the instant case, the entire responsibility has been shifted to the Railways. Thereby the Motor Accidents Claims Tribunal has no jurisdiction to award the compensation. The quantum of compensation has been assessed, but as the Railways have been held solely responsible, the Tribunal has no jurisdiction to pass such an order. If the insurer of the vehicle would have been held liable, then, the jurisdiction of a Civil Court or a Railways Tribunal would fall for consideration.

20. In the instant case, as the Railways have been held to be liable, the Motor Accidents Claims Tribunal was not the proper forum to adjudicate the case brought up by the claimant. It is apparent that it was not comprehensible for the claimant to choose the proper forum as the claimant believed that both the insurer and the Railways to be liable to pay the compensation for the loss of their son in the unfortunate accident at the unmanned level crossing.

21. This Court would like to clarify that as the learned Tribunal after scrutinizing the Page No.# 7/9

evidence and the pleadings held the Railways responsible, the Motor Accident Claims Tribunal is not the proper forum and thus, this application against the Railways does not lie in a Motor Accident Claims Tribunal. The proper forum will be the Railways Tribunal in this case.

22. Any decision in a proceeding under the Motor Vehicles Act can be decided by the Tribunal on the touchtone of preponderance of probabilities. In the instant case, it has been affirmed through the evidence and the pleadings that the railway level crossing was unmanned at the time of the incident. Therefore, the Railway Tribunal is the proper forum where the claimant had to approach.

23. It has been held by the Hon'ble Supreme Court in Union of India v. United India Insurance Co. Ltd. and others reported in AIR 1998 Supreme Court 640 that :

"7. In our opinion, in the absence of a board statutory requiring the vehicle to "stop" and the conductor to "get down", there was only an ordinary common law duty as applicable to prudent persons. This was a duty to "stop" "see and hear" and find out if any train was coming. It has been held by the U.S. Courts that there is no absolute duty at common law to get down from the vehicle invariably. In fact a rigid rule of "getting down from the vehicle in addition to stooping down from the vehicle in addition to stooping locking and hearing was laid down at one time by Justice Holmes in Baltimore & O.R. Co. Vs. Goodman 91927) 275 US 66 (72 L.Ed. 167, 48 S.Ct. 24) but such a principle of special caution which was under adverse criticism was rejected by Cardozc, J. in Pokora Vs. Mabash Rly.Co. (1934) 292 US (78 L.Ed. 1149, 54 S.Ct.580) stating that the requirement of getting down from the motor vehicle was good if there was a curve or an obstruction or such like situation but not when the line was straight and the train was visible. The get out of the car requirement was in the absence of special requirement, an uncommon precaution, likely to be futile and sometimes even dangerous', said Cardozo J. In our opinion, there was no duty - in the absence of a board directing the driver or conductor - to get out of the vehicle, but there was certainly a duty to stop, see and hear, at the unmanned level crossing. If that was not more, there would clearly be negligence on the part of the driver. In fact, it has been so held by this Court, in a case under Section 304 A, IPC that the driver must be deemed to be rash and negligent if he did not stop the vehicle and then see and hear, (S.N. Hussain vs. State of A.P.) AIR 1972 S.C.685. It was there observed (at p. 688 of AIR):

"Where a level crossing is unmanned, it may be right to insist that the driver of the vehicle should stop the vehicle, look both ways to see if a train is approaching and thereafter only drive his vehicle after satisfying himself that there was no danger in crossing the railway track."

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It was also pointed out (at p. 688 of AIR) :

"But where a level crossing is protected by a gateman and the gateman opens out the gate inviting the vehicle to pass, it will be too much to expect of any reasonable and prudent driver to stop his vehicle and look out for any approaching train".

Inasmuch as in this case, the driver did not stop the vehicle at the unmanned crossing, it must in our view be held that he was guilty of negligence even though there was no curve or obstruction at the point. The Tribunal and the High Court were, in our opnion, justified in finding negligence on the part of the driver. Of course, the High Court felt that the driver who must be deemed to be conscious that his own life was at stake could not be accused of criminal negligence in wanting to kill the passengers even if he was angry with their complaint of delay. The High Court thought that the case might be one where the driver took a risk which ought not to have been taken and the engine of the bus, for some unknown reasons, might have failed, while it was on the track. In any event, the finding of negligence of the bus driver does not call for interference.

Point 2: The claimants are either the injured passengers or the dependents of the deceased passengers travelling in the ill-fated motor-vehicle. We have accepted that the driver of the said motor vehicle was negligent. The question is whether the driver's negligence in any manner vicariously attaches to the passengers of the motor-vehicle of which he was the driver?"

**** ***** *****

"43. We are of the opinion that the view taken by the Andhra Pradesh, by way of obiter and the views of the Gauhati. Orissa and Madras High Court is not correct and that the view taken by the Allahabad. Punjab and Haryana, Gujarat, Kerala and Rajasthan High Courts is the correct view. Further, as pointed by the Gujarat High Court, claims where it is alleged that the driver/owner of the motor vehicle is solely responsible for the accident, claims on the basis of the composite negligence of the driver of the motor vehicle as well as driver or owner of any other vehicle or of any other outside agency would be maintainable before the Tribunal but in the latter type of case, if it is ultimately found that there is no negligence on the part of the driver of the vehicle or there is no defect in the vehicle but the accident is only due to the sole negligence of the other parties/agencies, then on that finding, the claim would go out of Section 110 (1) of the Act because the case would then become one of exclusive negligence of railways. Again if the accident had arisen only on account of the negligence of persons other than the driver/owner of the motor vehicle, the claim would not be maintainable before the Tribunal."

24. Learned counsel for the appellant has also relied on the decision of the Division Bench Page No.# 9/9

of this Court in Swarnalata Dutta Barua and Another vs. M/S National Transport India Pvt. Ltd. and Another reported in AIR 1974 Gauhati 31 (V. 61, C. 10)(1) wherein it has been observed that :-

"12. From the scheme of this group of sections it will be clear that the claims tribunals have been constituted to deal with the claims for compensation for death of or injury to persons arising out of use of motor vehicles. The Tribunal has got no jurisdiction to enforce any such claim against any other person or authority except the owner, the driver and the insurer of the motor vehicle involved in the accident, as will be evident from the provisions of Section 110-B. That being the legal position, there was no scope for the petitioners to implead the Railway Administration in these proceedings before the Claims Tribunal. If they have been able to prove that the accident arose out of any negligence or rashness in the use of the motor vehicle, they will succeed -otherwise they will fail. In this view of the case I hold that the claim petitions are not bad for non-joinder of the Railway Administration."

25. In the wake of the foregoing discussions, it is thereby held that when the learned Tribunal has no jurisdiction to pass an order directing the Railways to pay the compensation, the learned Tribunal has erroneously directed the Railways to pay the compensation. As this is a case relating to an unmanned level crossing and as the Railways have not been heard, it is thereby held that the order directing the Railways to pay the compensation is liable to be set aside. The claimants/respondents are at a liberty to approach the proper forum for any relief.

26. In terms of the above observation, this appeal is partly allowed.

27. Send back the Trial Court Record.

JUDGE

Comparing Assistant