JUDGMENT
A.K. Parichha, J.
1. The petitioners in all the Writ Petitions are individual family members and legal heirs of the persons who died in the tragic accident, which occurred at the unmanned level crossing between Charbatia and Gurudijhatia Railway Stations in the night of 25.6.1997. the deceased Md. Yusuff Ahmad Rahim, an Advocate of Orissa High Court was going in his car bearing Registration No. OR-01-0015 along with his associates, namely, Bijay Kumar Panda, R. N. Ghadei, and Nirmal Mallick, and Advocate Clerk, Devi Prasanna Mishra on 25.6.1997 to attend a marriage ceremony at village Badasamantarapur. Deceased Md. Yusuff Ahmad Rahim was driving that car. Unfortunately, the said car while crossing the unmanned level crossing between Charbatia and Gurudijhatia at 8.55 P.M. was dashed by 210-Puri Talcher Train and all the five occupants of the car died, 3 at the spot and two at the hospital. It is alleged by all the petitioners in their respective Writ Petitions that the accident occurred due to sheer negligence of the railway authorities and that none of the deceased had any fault of his own. It is also alleged that although several accidents had occurred in the past at the same unmanned level crossing and many persons had lost their lives, the Railway Authorities did not take any step to avoid further accidents by putting suitable gates, chains, bars etc. or by employing persons to guard the said level crossing. Asserting that the accident and deaths occurred because of the negligence of the Railway Authorities, the petitioners, who are the legal heirs of the deceased persons, have claimed compensation of different amounts against the railways.
2. The legal heirs of the deceased Md. Yusuff Ahmad Rahim, who are petitioners in OJC No. 10205 of 1999 have claimed compensation of Rs. 50 lakhs, the legal heirs of Late Nirmal Kumar Mallik, who are petitioners in OJC No. 9277 of 1999 have claimed Rs. 5 lakhs, the legal heirs of deceased Devi Prasahna Mishra, petitioners in OJC No. 10335 of 1999 have claimed compensation of Rs. 1 lakhs and the petitioners in WP(C) No. 11490 of 2003 who are the legal heirs of deceased Bijay Prasad Panda have claimed compensation of Rs. 50 lakhs.
3. The Railway administration in the counter affidavit have opposed the Writ Petitions filed by the petitioners. In the counter affidavit while admitting the accident and death of the 5 occupants of the ill-fated car, the railway administrations have denied any negligence on their part. According to them, all precautions in the shape of caution boards, speed breakers had been provided, but without following the minimum precaution, Md. Yusuff Ahmad Rahim drove the car negligently, as a result of which the accident occurred. It is specifically averred that a Committee was appointed to enquire and ascertain the cause of the aforesaid accident and the said Committee after due enquiry have submitted a report that the accident occurred due to the negligence of the driver of the car bearing Registration No. OR-01 -0015 and that it was never due to the negligence on the part of the Railway administration. It is further claimed in the counter affidavit that the Railway administration is not bound to put chains, bars, gates at all level crossings and that such bars, gates, chains etc. are provided only where there is considerable flow of traffic. The Railway administration have also challenged the maintainability of the Writ Petitions indicating that the claim of the petitioners are based on the alleged tortuous liability and so, the redress is available only by filing civil suits and such claim cannot be adjudicated or awarded under Article 226 of the Constitution of India.
4. Having heard the Learned Counsel appearingfor the petitioners in all the Writ Applications and the Learned Counsel appearing for the Railway administration, we find that the accident at the unmanned level crossing and the death of the 5 occupants of the ill-fated car is an admitted fact. The controversies, which require adjudication are whether there was deliberate negligence on the part of the Railway Authorities resulting in the accident and whether the Railway Authorities are liable to pay compensation to the petitioners who are the legal heirs of the persons who died in the accident. There is also another legal question requiring determination, namely, whether the claim of present nature can be entertained in a Writ Petition under Article 226 of the Constitution.
5. Learned Counsel appearing for the Railways vehemently submitted that when the Railway administration have denied any negligence on their part, the issue becomes a disputed question of fact, which can only be adjudicated in a civil suit and that the Writ Jurisdiction under Article 226 of the Constitution cannot be invoked to award compensation to the petitioners.
6. As against this, Learned Counsel appearing for the petitioners submitted that a writ Court is not debarred from awarding reasonable compensation, if there is deliberate act of negligence on the part of the statutory authorities and that in appropriate cases, compensation has been awarded by the Apex Court and this Court in the past. Several case laws were also cited to support this contention. The rival contention needs careful examination.
7. In Rahul Sah v. State of Bihar and Anr., AIR 1983 SC 1086 the Apex Court observed that in appropriate cases, the Court discharging Constitutional duties can pass orders for payment of money in the nature of compensation, consequent upon deprivation of a fundamental rights to life and liberty of a petitioner as State must repair the damage done by its officers to the petitioners right. In the case of Smt. Kalabati v. State of H.P., AIR 1989 H.P. 5 and also in the case of Kumari Seema alias Seema v. Himachal Pradesh State Electricity Board and Ors., AIR 1994 Himachal Pradesh, 139 the High Court of Himachal Pradesh ruled that Writ Court can grant relief to the petitioners claiming damages for the injuries arising out of negligence of the State authorities like the Electricity Board. In the case of Smt. Kumari v. State of Tamil Nadu and Ors., AIR 1992 SC 2069 the Apex Court overruling the decision of the High Court of Tamil Nadu observed that the Writ Jurisdiction under Article 226 of the Constitution can be invoked for awarding compensation to a victim, who suffered due to negligence of the State or its functionaries. In that case a six year’s old child had fallen down in the uncovered sewerage tank. The High Court refused to entertain the claim of compensation in a Writ Petition under Article 226 of the Constitution, but the Apex Court directed the State to pay compensation. In the case of Parikhita Behera and Anr. v. The Divisional Railway Manager, South Eastern Railway, Khurda Division, 1997 (II) OLR 69 this Court also took the same view that jurisdiction under Articles 226 and 227 of the Constitution can be invoked and direction for payment of compensation can be given if there was deliberate act of negligence on the part of the statutory authorities, namely, the Railway administration.
8. The concept is, therefore, clear that the Writ Court is not debarred from awarding reasonable sum of money by way of compensation, if there is deliberate act of negligence on the part of the statutory authorities and/or to help in protecting, preserving and enforcing the fundamental rights to life of a citizen. In such legal backdrop the moot question for consideration is whether there was any deliberate act of negligence on the part of the Railway Authorities, which resulted in the accident and the death of the occupants of the car bearing Registration No. OR-01-0015.
9. According to the Learned Counsel for the petitioners, the work of running trains and its crossing public road at the level crossing is hazardous activity and the train being a heavy vehicle, its authorities should be more vigilant in protecting the lives of innocent human beings who are using the level crossings. It is argued that Section 18 of the Railways Act, 1989 (hereinafter to be called as ‘Act’, in short), puts liability on the Railway Authorities to construct suitable gates, chains, bars, stiles etc. at level crossings to avoid accidents and to protect the lives of human beings who use the level crossings, and so if the Railways fail to provide such precautions as contemplated under Section 18 of the Act, the omission would amount to deliberate negligence, and would make them liable for compensation against any loss of life or damage to properties of individuals. As against this, Learned Counsel for the Railways submitted that although Section 18 contemplates putting up gates, chains, bars etc. at the level crossings for smooth running of the trains, it is not a mandatory provision and that the Railway administration are liable to put such gates, bars etc. only at the level crossings, where traffic flow is considerable and/or where the visibility of the level crossing and the approaching train to the pedestrians or vehicles is not clear. According to him, unless the Central Government directs by notification to put such gates, chains etc. at a level crossing, the omission to put such gates, chains etc. at a particular level crossing would not amount to violation of Section 18 of the Act and any accident occurring at such unmanned level crossings would not expose the Railway Authorities to compensation, particularly when the accident occurs due to negligence of the pedestrians or driver of the vehicle. It is specifically argued that in the present case, Md. Yusuf Ahmad Rahim, who was driving the car bearing Registration No. OR-01-0015 in the fateful night did not take the required precaution and because of his negligent driving the accident occurred.
10. Before examining the merits of the respective submission of the parties, it may be profitable to note the provision of Section 18 of the Act, which reads thus :
” 18. Fences, gates and bars The Central Government may, within such time as may be specified by it or within such further time, as it may grant, require that:
(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) suitable gates, chains, bars, stiles or hand-rails be erected or renewed by a Railway administration at level crossings;
(c) persons be employed by a Railway administration to open and shut gates, chains or bars.”
11. According to the Learned Counsel for the petitioners, a duty cast under Section 18 of the Act to put fence, gates, bars etc. at the level crossings is absolute and deviation would amount to negligence, whereas according to the Learned Counsel for the Railway administration the duty cast in Section 18 is never absolute and is dependent on the issue of notification by the Central Government. A close reading of the provisions of Section 18 would indicate that there is no statutory obligation on the part of the Railway administration to fence all the level crossings, but once the Central Government requires that any boundary, fence, gates, chains etc. should be erected at a particular level crossings, the Railway administration is bound to put such gates, chains etc. But on the basis of the said provision, the Railway administration cannot claim immunity on every occasion on the plea that the Central Government did not require for putting up gates, fence, chains etc. at a particular level crossing because such precautions are necessary steps to protect the lives of the persons crossing the level crossing. If the traffic flow is considerable, if visibility, due to road bend, topography or presence of trees is not good, then, even if there is no notification of the Central Government, the Railway administration would be held negligent for not providing protection by way of gates, chains etc. Furthermore, the Railway administration are also duty bound to put prominently written boards at reasonable distances of either side of the level crossings for the passing road users to be aware of the train and to put boards at a reasonable distance indicating to the train driver to blow whistle to caution the passersby of the level crossings. If such precautions are not taken near the level crossings, then also the Railway administration would be held negligent.
12. It is claimed by the petitioners that the level crossing at the spot was not clearly visible to the road users and no red signal or caution board with bold letters had been placed on either side of the level crossing and sufficient light arrangement was not there to make the level crossing visible to the approaching vehicles and persons during night time. It’ is also claimed that although several accidents had already occurred at the same level crossing earlier, the Railway administration never bothered to put gates, bars, chains as provided under Section 18 of the Act. The allegations have been refuted in a general way in the counter affidavit. The allegation of previous accidents at the same level crossing has not been specifically denied, it is also not specifically averred that the traffic flow at the said level crossing was not considerable, rather it is clear from the averments made by the petitioners that the traffic flow on the route in question is reasonably heavy and visibility of the level crossing during night time was not good. As has been said earlier, the work of running trains is itself hazardous and perilous in nature and involves great risk of causing damage to life and property of others. When a train passes through a level crossing, the duty of the Railway Authorities becomes more crucial for which more precautionary measures should be taken at the level crossings. So, failure to take adequate precautionary measures at the level crossings would automatically bring home willful negligence of the Railway Authorities. The available materials reveal that at the particular level crossing the traffic and pedestrian flow was considerably high and visibility was not very good and a number of accidents had already taken place earlier and some lives had been lost. In spite of all these the Railway administration did not take any step to put check gates, chains, bars etc. and did not also take other precautionary measures up to the degree required. Such omission on the part of the Railways would amount to negligence as the omission involves unreasonably great risk of causing damage to life and property of others.
13. The Railway Authorities have pleaded contributory negligence on the part of the occupants of the ill-fated car and have denied the liability of the Railways to pay any compensation to the legal heirs of the deceased persons. Admittedly, deceased Md. Yusuf Ahmad Rahim was driving the car, which met with the accident and the other four deceased were simply the occupants of the car. They were in no way involved in the driving of the car or taking the decision of crossing the level crossing at the time of accident. In the famous case of Mills v. Armstrong (also called the Bernina case), reported in 1988 30 AC 1 (HL), it was clearly held that contributory negligence is not applicable to the passenger of a vehicle in the sense that negligence of the driver of the vehicle in which the passenger is traveling cannot be imputed to the passenger. In the Bernina case, the crew and passenger in the ship Bushire were drowned on account of collision with another ship Bernina. It was held that even if the navigators of the ship were negligent, the navigator’s negligence couldn’t be imputed to the deceased, who were traveling in that ship. This principle has been applied in latter cases to a passenger travelling in a motor vehicle whose driver was found to be guilty of contributory negligence. In view of this settled principle, no contributory negligence can be attributed to the four deceased occupants who were with Md. Yusuf Ahmed Rahim in the car bearing registration No. OR-01-0015.
14. So far as the deceased Md. Yusuf Ahmad Rahim is concerned, it is difficult to hold that he was not at all negligent while driving the car near the unmanned Railway gate. As a driver he was under duty to be careful and cautious particularly during the night time. Hence, while the Railways cannot be absolved of its liability to compensate for the loss of life of Md. Yusuf Ahmad Rahim caused due to the negligence of the Railway Authorities, the quantum of such compensation will stand reduced on account of such contributory negligence of the deceased Md. Yusuf Ahmad Rahim for not driving the car carefully.
15. Coming now to the quantum of compensation to be paid to the different petitioners in the four Writ Petitions, in M. S. Gresal and Anr. v. Deep Chand Sood and Ors., (2001) 8 SCC 151, the Supreme Court after considering the English authorities on this point held that the quantum of compensation stands dependant upon the fact situation of the matter before the Court and decision of the Court as such cannot be taken to be a binding precedent and each case has to be dealt on its own peculiar facts. In the said decision, however, the Supreme Court held that the placement in the society or the financial status of the victim can be one good guide for determining the quantum of compensation. This position of law was reiterated by the Supreme Court in Lata Wadhwa and Ors. v. State of Bihar and Ors., (2001) 8 SCC 197, in which the Supreme Court took into account the financial status of the victims killed in the accident for determining the quantum of compensation payable to the petitioners. In the present case, the deceased Md. Yusuf Ahmad Rahim was an Advocate of the Orissa High Court and was enrolled with the State Bar Council as an Advocate as far back as in 1962. Considering his length of practice, we are of the view that a compensation of Rs. 6,00,000/- {rupees six lakhs) less Rs. 2,00,000/- (rupees two lakhs) towards his own negligence would be just and adequate. Hence a sum of Rs. 1,00,000/- (rupees one lakh) will be paid to each of the petitioners in OJC No. 10205 of 1999 totalling to a sum of Rs. 4,00,000/- (rupees four lakhs) by the Railways towards such compensation.
16. The deceased Bijay Kumar Panda and Nirmal Mallick were two young Advocates working as associates of the deceased Md. Yusuf Ahmad Rahim and considering their financial status and length of practice, a compensation of Rs. 2,00,000/- (rupees two lakhs) each for their death would be just and adequate. The deceased Debi Prasanna Mishra was an Advocate’s Clerk. Considering his financial status and placement, a compensation of Rs. 2,00,000/- {rupees two lakhs) to the petitioners for his death would be just and adequate. Hence, a sum of Rs. 1,00,000/- (rupees one lakh) to each of the two petitioners in OJC No. 9277 of 1999 and OJC No. 10335 of 1999 would be paid by the Railways towards such compensation. In W.P.(C) No. 11490 of 2003 the compensation amount of Rs. 2,00,000/- (two lakhs) be paid to the Petitioner No. 1 who would receive the same for herself and on behalf of the minor Petitioner Nos. 2 and 3.
17. The petitioners will also be entitled to interest at the rate of 6 percent annum on the compensation amounts from the date of filing of the Writ Petitions till payment from the Railways. These directions will be complied with within three months from today.
18. Accordingly, the Writ Petitions are allowed to the extent indicated above.
A.K. Patnaik, J.
19. I agree.