JUDGMENT
G. Yethirajulu, J.
1. All these revision petitions and appeal are filed by the Union of India, represented by the South Central Railway, Secunderabad, against the orders of the Motor Accidents Claims Tribunal, Guntur in M.V.O.P. Nos. 1068, 181, 182 and 184 of 1999.
2. The claimants met with bus accident. They filed claim petitions against the Andhra Pradesh State Road Transport Corporation (for short ‘the A.P.S.R.T.C). Later, at the instance of the A.P.S.R.T.C, the South Central Railway was impleaded as 2nd respondent in the petitions. The Tribunal, while holding that there was negligence on the part of the driver of the bus held that the Railways contributed negligence to the extent of 40%.
3. Section 161 of the Railways Act, 1989 reads as follows:
Negligently crossing unmanned level arming:-If any person driving or leading a vehicle is negligent in crossing 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 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.
The explanation indicates the nature of negligence to attract this section. It amounts to negligence to cross an unmanned level crossing while the approaching train is clearly in sight. Clause (a) of the explanation describes the type of care required for crossing an unmanned level crossing.
4. In Sk. Allah Bakhas v. D. Nath , the Orissa High Court held that an accident occurred on account of auto-rickshaw driver taking the auto-rickshaw crossing the railway line. The driver was found negligent in crossing an unmanned level crossing. It was represented that the driver was negligent in crossing the unmanned level crossing, the duty to take reasonable care is cast on the drivers of the vehicles only when crossing an unmanned level crossing. If the level crossing is manned, they are not required to take such care when the gates/chains/arriers are opened to road traffic.
5. According to the claimants, while the RTC bus was crossing an unmanned level crossing, the train came and dashed against the bus, which resulted in the accident. Whenever there is an unmanned level crossing, it is the duty of the driver of the vehicles crossing the railway track to make sure that the train is not coming and then only they should cross the railway track. But the driver of the bus, in his anxiety to reach the destination at the earliest time, did not care to observe whether the train was coming or not and took the bus for crossing the railway track. In the meanwhile, the train came and dashed against the bus. The train cannot be stopped at a short distance without sufficient signal to stop the train. Therefore, it is impossible for the driver of the train to stop it, at every level crossing to enable the buses and other vehicles to cross the railway track. It is purely the negligence of the driver of the bus. The Tribunal, went wrong in attributing contributory negligence to the driver of the train to the extent of 40%, having held that the accident occurred due to the negligence of the driver of the bus.
5.1 After going through the entire material, I am inclined to set aside the order of the Motor Accidents Claims Tribunal to the extent of 40% negligence fixed against the South Central Railway.
6. In the result, the appeal and the revision petitions are allowed by setting aside the order of the lower Court to the extent of 40% liability of South Central Railway. The entire liability shall be on the APSRTC, and the claimants are at liberty to recover the compensation from the APSRTC. No costs.
