Arun Mishra, J.
1. The order passed in this appeal shall also govern the disposal of M.A. Nos, 497/99, 463/99 and 412/99 as these appeals arise out of the same accident which took place on 4th May, 1992. M.A. Nos. 496 and 497 of 1999 have been filed by the Union of India against the awards passed in Claim Case Nos. 30/94 and 31/94 and M.A. Nos. 463/99 and 412/99 have been filed by Oriental Insurance Company against the same very awards passed in the aforesaid claim cases on 5-1-1999.
2. Two claim petitions were filed. Claim Petition No. 30/94 was filed by claimants legal representatives of deceased Sukesh Verma, namely, Smt. Pushpabai, Mohit and Anju, being widow, son and daughter respectively of deceased Sukesh Verma. Sukesh was driving the motor cycle involved in the accident in question. The Pillion rider on the motor cycle at the time of accident was Dashrath who also died in the accident along with Sukesh. The claimants legal representatives of Dashrath, namely, Chandrakala, Ku. Anita, Ku. Durga and Krishnakumar, being widow, daughters and son respectivel of dashrath filed Claim Petition No. 31/94.
3. The accident of the motor cycle with train took place at an unmanned railway crossing. At that time no watchman was present over the railway crossing nor any gate was put by the railways on the said level crossing. The train in question i.e. Patna Express dashed against the motor-cycle. Both the riders died on the spot. The owner of the motor-cycle was respondent No. 1 Satish Kumar. The deceased persons were going on motor cycle, bearing registration number M.K.D. 2803. They were coming back from their agriculture field and were going towards Malkapur. According to the claimants the motor-cycle was stopped as one engine was passing through the crossing. When the engine passed motor-cycle was started and effort was made to cross, but at that time without blowing whistle Patna Express came from other side. As no whistle was blown by the driver of the train, the train could not be noticed which dashed against the motorcycle. The claimants contended that it was the negligence of the railway department. The motor-cycle was insured with Oriental Insurance Company. The claimants of deceased Sukesh prayed for passing an award in the sum of Rs. 4,95,000/- along with interest. The railways, in the reply to the claim petition, denied its liability and contended that the deceased had not observed the rules of unmanned level crossing and was involved in the mishap due to failure of his vehicle's brake. It was submitted that whistle was blown but still the deceased tried to cross. IL was further submitted that liability, if any, was that of the insurance company and not of the railways.
4. The insurance company also in its reply denied the liability and contended that it was the negligence of the deceased himself owing to which the accident took place. It was submitted that the brakes of motor-cycle were in order and did not fail.
5. The owner of the vehicle also submitted apply. It was submitted that the vehicle was insured with the Oriental Insurance Company, as such, if there is any liability that has to be indemnified by the insurance company.
6. The claimants of deceased Dashrath in Claim Case No. 31/94 had prayed for an award in the sum of Rs. 3,66,000/- along with interest in the background of the same facts. The defence taken by the non-applicants was also the same.
7. The learned Claims Tribunal has found that the deceased had stopped the motorcycle before crossing the unmanned railway crossing and one engine passed by. After passing of the same, the deceased started going towards the other side. In the meantime, Patna express came without blowing any whistle. Thus, due to the voice of the engine, it was not possible for the deceased to have heard the noise of the train coming from the other side. It was the duty of the railway driver to blow whistle while passing through unmanned railway crossing. It was found that no whistle was blown as a result of which the deceased could not notice the train and it was further found that it was necessary to have blown whistle at unmanned crossing. Thus, the liability has been fastened over the insurance company as well as the Union of India jointly and severally to indemnify the claimants for the death of Sukesh and Dashrath. In Claim Case No. 30/94. the Claims Tribunal has awarded a sum of Rs. 1,82,000/- and in the Claim case of Dashrath i.e. Case No. 31/94 the Tribunal awarded a sum of Rs. 2,36,000/- to the claimants. The Union of India as also the insurance company have filed the present appeals challenging the said awards.
8. The main question raised that the Motor Accidents Claims Tribunal had no jurisdiction to try the case is no more res integra. There were divergent views of various High Courts. The Orissa High Court in Swarnalata Dutta Barua v. National Trans. India (P) Ltd., AIR 1974 Gauhati 31 and Orissa Road Trans. Corporation Ltd. v. Umakanta Singh, 1987 Acc CJ 133 : (AIR 1987 Orissa 110) and the Madras High Court in Union of India v. P. Kailasam, 1974 Acc CJ 488 have held that no award can be passed except against the owner or driver or insurer of the motor vehicle by a Claims Tribunal. On the other hand, the Allahabad High Court in Union of India v. Bhagwati Prasad. 1983 Acc CJ 13 : (AIR 1982 All 310), the Full Bench of Punjab & Haryana High Court in Rajpal Singh v. Union of India, 1986 Acc CJ 344 : (AIR 1986 Punj & Har 239), the Gujarat High Court in Gujrat State Road Transport Corporation v. Union of India, 1987 Acc CJ 734 : (AIR 1988 Gujarat 13) and the Rajasthan High Court in Union of India v. Dr. Sewak Ram, 1993 Acc CJ 366 have taken the view that a claim lies before the Tribunal even against any person or agencies connected with the same or against whom composite negligence is alleged. Division Bench of this Court in the case of Maniklal Dubey v. Mohd. Ismail, 1998 (2) Acc 888 and the Karnataka High Court in Divisional Railway Manager v. Karnataka State Road Trans. Corp., 1988(2) Acc CJ 973 have taken the view that if there was negligence of the driver of motor vehicle involved in the accident along with the railway, the petition before Motor Accidents Claims Tribunal is maintainable.
9. In the instant case, the accident took place in the year 1992 when the Motor Vehicles Act, 1988 was inforce. Section 165 of the Act provides for 'constitution of the Claims Tribunals for adjudicating upon the claims arising out of the use of motor vehicles, or damages to any property of a third party so arising or both'. Sub-section (1) of Section 168 deals with procedure to be adopted by the Claims Tribunal and is in two parts. Claims Tribunal is empowered to give an award 'determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid.' The word 'compensation' used in sub-section (1) of Section 168 has a reference to the compensation to be adjudged by the Tribunal under Section 165 of the Act, The second part provides --'in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be.' The scope of Section 165 has to be determined with reference to the words used in the said Section itself and cannot be governed by the procedural aspect provided under Section 168 of the Act.
10. The object of constitution of the Claims Tribunal and its jurisdiction were considered by the Supreme Court in New India Insurance Company v. Shanti Mishra, 1976 Acc CJ 128 : (AIR 1976 SC 237) where it was held that jurisdiction of the Civil Court is ousted as soon as the Claims Tribunal is constituted and filing of the application before the Tribunal is the only remedy available to the Claimant. The jurisdiction of Civil Court to entertain any question relating to any claim for compensation is ousted which may be adjudicated by the Claims Tribunal. The question is whether the claim is entertainable by the Tribunal if it is claim against persons or agencies other than the driver, owner or insurer of the vehicle. There may be cases where-
(i) negligence is that of driver of motor vehicle involved;
(ii) case of joint tortfeaser such as involving negligence of driver, owner or insurer of the vehicle with other persons or agencies; and
(iii) negligence of such other agencies or persons than driver or owner of the insured vehicle.
The Supreme Court in the case of Union of India v. United India Insurance Co. Ltd. (1998 Acc CJ 342 : AIR 1998 SC 640) observed that the words 'arising out the use of motor vehicle' are to be considered in a wide manner. In the case of Shivaji Dayanu Patil v. Vatschala Uttam More, 1991 (2) Acc CJ 777 : (AIR 1991 SC 1769), the Supreme Court in the context of Section 92-A of the Act has held that words should be given liberal interpretation. The Supreme Court in the case of Union of India v. United India Insurance Co. Ltd. (AIR 1998 SC 640) (supra) has considered the words 'arising out of the use of motor vehicle' and observed in that contest also considered the Australian case In Government Insurance Office of New South Wales v. R. J. Green & Lloyd Pvt. Ltd., 1967 Acc CJ 329 and the observations of Barwick, C.J. that those words have to be widely construed. The Supreme Court also referred to the observations of Wndeyer, J. in the same case to the following effect:
'...... .no sound reason was given forrestricting the phrase, 'the use of a motor vehicle' in this way. The only limitation upon it......... that I can see is that the injurymust be one in any way a consequence of a use of the vehicles as a motor vehicles.'
The compensation awarded under the Act is recoverable from any person as arrears of land revenue and recovery is not restricted to the owner/driver/insurer specified in Section 168 of the Act. Obviously, the words 'any person' are referable to any person other than owner, driver or insurer of the motor vehicle.
11. The Supreme Court in the case of Union of India v. United India Insurance Co. Ltd. (1998 Acc CJ 342 : AIR 1998 SC 640) (supra), in paragraph 47 (of Acc CJ): (Para 43 of AIR), held as under :
'We are of the opinion that the view taken by the Andhra Pradesh High Court, by way of obiter and the view of the Gauhati, Orissa and Madras High Courts are not correct and that the view taken by 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 or any other vehicle 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.'
Thus, in the first two category of cases the Claims Tribunal would have jurisdiction. Only in the third category of cases the claim would not be maintainable before the Tribunal, that is to say, where there is negligence of the railways only and not that of the motor vehicle involved in the accident. In other words where there is negligence only of motor vehicle and where railway and motor vehicle are both joint tortfeasers, claim would lie to the Motor Accidents Claims Tribunal under the Act of 1998.
12. The Supreme Court in the case of Minu B. Mehta v. Balkrishna Ramchandra Nayan, 1977 Acc CJ 118 : (AIR 1977 SC 1248) in para 25 has elaborated the four categories of cases which can give rise to claims in respect of an accident involving the motor vehicle. The said four categories are--
'I. Claims for compensation in cases where it is alleged that motor vehicle driver was solely responsible for causing accidental injuries giving rise to the claims for compensation.
II. Claims for compensation in cases of accidents where it is alleged that accident is caused not on account of rash or negligent driving of driver of the motor vehicle but is solely caused on account of rashness or negligence of any outside agency who might have rashly or negligently used any vehicle other than the motor vehicle causing the accidental injuries or who might have been solely responsible for the accident even otherwise.
III. Claims for compensation in cases where it is alleged that the accident giving rise to the claim is the result of composite negligence not only of the driver of the motor vehicle but also of outside agency or driver of another vehicle which may not be motor vehicle but who might be found negligent contributing to the causing of the accident, meaning thereby, claims for compensation against joint tortfeasors, one of which at least is the driver of a motor vehicle.
IV. Cases where it is alleged that accidental injuries have been caused on account of composite negligence of driver of the motor vehicle as well as any other person who might be jointly responsible for causing the accident. But when ultimately, on evidence, it is found by the Tribunal that driver of the motor vehicle was not at all responsible, not even to the slightest extent and that sole responsibility for causing of the accident rested on the shoulders of the driver of the vehicle which is not a motor vehicle or on the shoulders of any other agency.'
The Supreme Court held that the first three categories of cases would be triable by the Motor Accidents Claims Tribunal. As regards the fourth category, the Court observed that where the accident is alleged to have been caused on account of composite negligence of the driver of the vehicle or any other vehicle or outside agency, the compensation application would be maintainable before the Tribunal, but, after hearing the parties, if Tribunal comes to a conclusion that the accident has been caused not on account of the rash and negligent driving by the driver of the motor vehicle but solely on account of rashness and negligence of other person who might have driven the vehicle other than motor vehicle like railway engine, horse-cart, etc., the case would get out of provision of Section 110(1) of the old Act, corresponding to Section 165 of the Act of 1988. Consequently, claim against such outside agency will not be maintainable at that stage despite the finding of the Tribunal that the said outside agency is responsible for the accident in question.
13. In view of the abovesaid state of law and the principles deduced therefrom, we have to apply the law to the facts of the present case. Before we do so, It is pertinent to mention the responsibilities of railways at unmanned level crossings.
14. The question which arises for consideration is whether there can be breach of common law duty on the part of railways and what are the tests of breach of common law duty. Question also arises whether omission to perform public law statutory duties can or cannot give rise to actions at private law and if they cannot, ordinarily whether there are any exceptions? The same questions were considered by the Supreme Court in Union of India v. United India Insurance Co. Ltd., 1998 Acc CJ 342 : (AIR 1998 SC 840). In the context whether there is a duty cast on the motor vehicle driver to stop the vehicle at unmanned railway crossing it has been held that in the absence of a board 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.
15. In the instant case, the driver had stopped the vehicle at railway crossing while engine was passing. After it passed through, another train came from the opposite direction without blowing whistle. The motor vehicles was tried to be taken out only after the railway engine had passed through the unmanned railway crossing and it was not possible for the motor-cycle driver to see the train approaching from the other side as its visibility was obstructed by the engine which had passed immediately before the train came from the other direction. What are the duties of railway in such circumstances? Whether under the Law of Torts the claimants in rail-motor collisions can claim that the obligations of the Railway under the statute as well as under common law will run concurrently, what are the common law duties of the Railways at level crossings and whether the Railway is bound to take cognizance of the increase in the volume of traffic and ought to have installed gates and kept a watchman at the level-crossing? These aspects have been considered by the Supreme Court in Union of India v. United India Insurance Co. Ltd. (1998 Acc CJ 342 : AIR 1998 SC 640) (supra) in paragraphs 12 and 13 (of SCC) : (Paras 9 and 10 of AIR) which read 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, the duties are statutorily imposed under the two statutes of 1845 and 1863 directly on the Railways to erect the gates and employ watchmen, etc. at the level crossing 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 Bhagwan (1895) UN PJ 91, by Sir Charles Sargent, C.J. (quoted in B. N. Rly. Co. Ltd. v. Tara Prosad Maity, AIR 1928 Cal 504), the direct obligation cast on the Railways by Section 21 of Act 18 of 1954 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 No. 4). Section 13 of the Indian Railways Act may be noticed :
'13. Fences, screens, gates and bars.--The Central Government may require that with 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 railway;
(c) suitable gates, chains, Jaars, 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 gates, chains or bars.
In view of the above provision, which does not cast a direct obligation upon 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 the 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. Mc.Dermott, (1966) 2 All ER 162. 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 ...........'' Thus, the Supreme Court has held that claimants can sue the railways concurrently for breach of common law or statutory duties or for the breach of either of the two duties. Therefore, it has to be held that claimants in the present case are entitled to sue for breach of common law and statutory duties or for breach of either of the two.
16. What are the common law duties of the Railways at level-crossing? This question has been considered by the Supreme Court in the aforesaid decision, 1998 Acc CJ 342 : (AIR 1985 SC 640) in paragraph 15 (Acc CJ) : (Para 12 of AIR) and observed thus :
'..... .In the same decision of the Privy Council in Commr. for Rlys. v. Mc Dermott, (1966) 2 All ER 162, 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, inasmuch as the Railways :
'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 little but on the perilous nature of the operation and the de facto relationship which after Donoghue v. Stevenson, 1932 AC 562 would be called 'proximity' or 'neighbourly' relationship between the railway operator and a substantial number of persons lawfully using the level-crossing.' The duty to care at common law is therefore based upon the dangerous or perilous nature of the operations of the Railways.'
17. The test of breach of common law duty was considered in para 16 (of Acc CJ): (Para 13 of AIR) of the decision of Union of India (supra) where the Supreme Court observed :
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 the human behaviour. ........... 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.'
18. The Supreme Court has further considered the question whether there can be any breach of a common law duty on the part of the Railways 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. The Supreme Court in paragraphs 18 to 24 (of Acc CJ): (Paras 15 to 21 of AIR) of the decision in Union of India v. United India Insurance Co. Ltd. (1998 Acc CJ 342) : AIR 1998 SC 640) (supra) observed as under :--
'18. In several cases the need to have a constant appraisal of increase in volume of rail and road traffic at level crossings has been treated as a requirement of the common law. In Smith v. London Midland & Scottish Rly. Co., 1948 SC 125, Lord Cooper had emphasised that the Railways should take all precautions which will reduce the danger to the minimum and should take into account 'the nature and volume of such traffic reasonably to be anticipated.' In Llyods Bank Ltd. v. Rly. Executive, (1952) 1 All ER 1248, Denning and Romer, L.JJ. had occasion to say that the railway authorities were bound to take steps from time to time by considering the increase in the rail and road traffic at the level crossing. On facts in Llyods Bank case (supra) it was found that 75 to 100 vehicles crossed the level crossing per day and it was held that the railway company could not say, this increased traffic on the road is no concern of ours. It is their concern.'
The duties of the Railway treating the railway line as an accommodation line at a private road and alternatively as one cutting across a public road were separately considered. It was held that treating it as a private road, the railway authorities ought to have taken steps to have warnings or whistles given. Alternatively, treating it as a public road the Railways ought to have put up gates as per Railway Clauses Consolidation Act, 1845 and a lodge as per the Railway Clauses Act, 1863. Under both alternatives, the increased traffic required a reappraisal of the measures previously taken by the Railways to prevent accidents.
19. In an earlier case Lush, J. also had occasion to emphasise the need to take into account the increase in the volume of traffic. In Cliff v. Midland Rly Co., (1870) LR 5 QB 258, he stated that the greater the thoroughfare over any part of the line, the greater care and vigilance that ought to be exercised by those who have the charge of the trains. Whatever the degree of traffic may be, be it more or less, a corresponding degree of care was required on the part of the company.'
20. In Halsbury's Laws of England (Railways), 4th Edn. 1984, Vol. 38, para 868, it is stated that if there is increase in the number of local inhabitants using the level-crossing, then reasonable additional precautions must be taken.
21. In regard to the absence of a proper notice-board, we may also refer to what Krishnan, Judicial Commissioner, said in Union of India v. Lalman. AIR 1954 Vindh Pra 17. He said 'even if the car driver knew that there was a crossing, the road users should be alerted at the proper moment' by the boards and it is not a case for remote knowledge but 'one for immediate alertness'.
22. Further, in our view, the following passage in the judgment of the aforesaid learned Judicial Commissioner correctly represents the position at common law :
'A level-crossing is on the one hand a danger spot in view of the possible movement of trains and on the other is an invitation to the passers-by. This is a public crossing and not merely one by private accommodation. Therefore, it is the legal duty of the railways to assure reasonable safety. The most obvious way of doing it is to provide gates or chain barriers and to post a watchman who should close them shortly before the trains pass.
But failure to do so is not by itself an act of negligence provided that the railways had taken other steps sufficient in those circumstances to caution effectively a passerby of average alertness and prudence. At a reasonable distance on either side, prominently written board can be affixed asking the road users to beware of trains. If the track on either side is visible from near the caution board or within a short distance from the crossing, this would be sufficient because a diligent road user would look around and see the train. On the other hand, if there is a bend on the track or there are trees or bush in between, or the road on either side of the crossing is very far below the level of the railway track or for any other similar reasons, the track is not visible beyond a short distance, then even the caution boards are useless. In that case, gates are indicated. Similarly, boards may be affixed along the railway, say half to three-fourth of a mile in either direction calling upon the engine driver to whistle. A whistle by the driver can supplement, but cannot repay gates or caution boards as a device to protect the users of a crossing.'
23. In the case before us the railways have led no independent evidence of any application of mind to these issues, Obviously, the railways presumed that the negligence of the driver of the bus would be imputed to the passengers but this, as stated by us under point No. 2. is legally untenable. The High Court has noticed that 300 vehicles pass through this point and six express trains cut across this public road every day (obviously there must be non-express or passenger trains and goods trains every day). The population is dense in Kerala and more so near Kaldy. the pilgrimage centre connected with Shri Jagat Guru Adi Shankaracharya. In Lloyds case (1952) 1 All ER 1248, the Court of appeal thought that even when the road traffic reached a level of 75 to 100 vehicles, the railways ought to have, if it was a public road, put gates and a watchman, as required by statute. The High Court, in our view, rightly observed that the bus driver was from Tamil Nadu, he was not familiar with this place in Kerala State where the accident occurred, there was no caution board or other indication to show that the road was cutting across a railway line and there were no gates or hand rails to alert the passer-by. It was held that if the railways had taken adequate precautionary measures such as erecting hand rails or gates, a severe accident like this would not have taken place. In the absence of gates and caution boards, the level crossing was held to be in the nature of a crap.
24. For the aforesaid reason, no case is made out by the appellant for disturbing the finding of the High Court that applying the common law principles, the railways must also be deemed to be negligent in not converting the unmanned level crossing into a manned one with gates -- having regard to the volume of rail and road traffic at this point.'
19. Thus, the Supreme Court after considering the various decisions as aforementioned, came to the conclusion that applying the common law principles, the Railways must also be deemed to be negligent in not converting the unmanned leval-crossing into a manned one with gates.
20. The further questions which was also answered by the Supreme Court in the said decision of Union of India v. United India Insurance Co. Ltd. (1998 Acc CJ 342 : AIR 1998 SC 640) was -- whether omission to perform public duties can or cannot give rise to actions at private law and if they cannot, ordinarily whether there are any exceptions. In paragraph 29 (of Acc CJ) : (Para 25 of AIR) the Supreme Court has considered the difference between two distinct types of cases --one relates to the omission on the part of the public authority to perform an alleged statutory duty and another relates to omission to exercise a power or rather not deciding whether to exercise a statutory power or not. The Supreme Court considered in the case (supra) the latter category. Section 13 of the Railways Act, 1890 enables the Central Government to send a requisition to the railway administration to take certain steps in regard to level crossing. While considering the second category of cases, the Supreme Court observed :
'The House of Lords in a tenant case in Stovin v. Wise, (1996) 3 WLR 388 was directly concerned with this second type of case --omission to take a decision with regard to exercise of statutory power under Section 79 of the Highway Act. (See among others : Jane Convery : Public or Private -- Duty of care in a statutory framework : Stovin v. Wise in the House of Lords, Modern Law Review, (1997) Vol. 60, p. 559; see also M. C. Harris : Powers and Duties -- A small breach in East Suffolk Wall, Law Quarterly Review (1997) Vol. 113 p. 398; where Stovin v. Wise was commented upon). That case, we consider is more directly on the point. In that case, an earthen mound in the land of the defendant was causing obstruction to the vision of the drivers of vehicles passing on the road at a junction and on that account the plaintiff met with an accident and was injured. The local authority had no power to enter on the land of the owner and remove the mound, but had power under Section 79 to issue a requisition to the landowner to remove the mound. In fact, a requisition was sent a few days before the accident and the landowner was yet to respond. The claim was based on the delay in the exercise of power by the local authority, that is to say, at an earlier point of time which according to the plaintiff was the cause for the accident.'
It was further observed that one simply cannot derive a common law 'ought' from a statutory 'may'. At the same time it was cautioned, 'but it is not as if that a statutory 'may' can never rise to a common law duty of care. There are exceptions in which a statutory 'may' could create a common law 'ought'.
21. After discussing the decision in Stovin v. Wise, (1996) 3 WLR 388 and various other decisions, the Supreme Court came to the conclusion in para 37 as under :
'We are of the view that the principle laid down by Mason, J. is clearly applicable here. This general expectation of the community so far as the Railways are concerned can be summarised from the following passage in Halsbury's Laws of England, Negligence Vol. 34, 4th Edn., 1984, para 73. It is stated that a plaintiff 'is entitled to rely on reasonable care and proper precautions being taken and, in places to which the public has access, he is entitled to assume the existence of such protection as the public has, through custom, become justified in expecting'. Halsbury then refers to a large number of cases of railway accidents. In view of this general expectation of the community that appropriate safeguards will be taken by the Railways at level-crossings, the first pre-condition is, in our view, clearly satisfied.'
22. As to the second condition regarding payment of compensation due to non-exercise of statutory power was considered in para 38 (of Acc CJ) : (Para 34 of AIR) which reads as under :
'As to the second condition, namely, whether the statute can be taken to have intended to provide compensation for the injury arising out of non-exercise of the statutory powers. Lord Hoffman again referred to Mason, J.'s judgment where he said that such a policy to pay compensation could be inferred if the power was intended to protect members of the public from risks against which they could not guard themselves, i.e., having regard to the expense involved or the highly technical nature of safeguards needed to be taken or because the safeguards have to be taken in the premises of the public authority. In the Invercargil case (1994) 3 NZLR 513, the New Zealand Court of Appeal found in it the general pattern of socio-economic behaviour. A careful analysis of community behaviour was therefore warranted. It is therefore necessary to know exactly what in the judgment of the Australian High Court, Mason, J. stated. He observed as follows ;
'But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of power. A common illustration is provided by the cases in which an authority in the exercise of its functions has created a danger, thereby subjecting itself to a duty of care for the safety of others which must be discharged by an exercise of its statutory powers or by giving a warning, That is the conduct of the authority in creating the danger that attracts the duty of care is demonstrated by Sheppard v. Glossop Corpn., (1921) 2 KB 132.' ' There are certain special duties of public authorities recognised by the legislature which were discussed in Stovin v. Wise, (1996) 3 WLR 388 and quoted by the Supreme Court in para 39 of the above decision as under : 'Reliance or dependence in this case is in general on the product of the grant (and exercise) of powers designed to prevent or minimise a risk of personal injury or disability recognized by the legislature as being of such magnitude or complexity that individuals cannot, or may not, take adequate steps for their own protection. This situation generates on one side (the individual) a general expectation that the power will be exercised and on the other side (the authority) a realisation that there is a general reliance or dependence on its exercise of power to act. . ..... The control of air traffic, the safety inspection of aircraft and the fighting of a fire in a building by a fire authority may well be examples of this type of function.'
23. The running of trains by the Railways, as pointed out by the Privy Council in Commissioner for Railway v. McDermott, (1966) 2 All ER 162, has been recognised as inherently perilous. The Supreme Court has approved it in Union of India v. United India Insurance Co. Ltd. (1998 Acc CJ 342 : (AIR 1998 SC 640) (supra) and has opined that in the mind of public a general expectation is created by running of trains by the Railways that safety measures which the public cannot afford otherwise, have been taken by railway administration. The Supreme Court observed :
'In our opinion, steps mentioned by the legislature in the various clauses of Section 13 of the Railways Act, 1890 are in the words of Mason, J. steps which, even according to the legislature, individual members of society cannot afford to take and are not capable of taking, having regard to the expense or expertise involved or for the reason that these steps have to be taken in respect of the property of the Railways.'
Applying the said principle, the Supreme Court has opined that a clear indication in Section 13(c) and (d) of the Railways Act itself that the affected parties are intended to be compensated because of the non-exercise of the aforesaid statutory powers by the Railways. The Supreme Court has observed further in para 4 (of Acc CJ) : (Para 37 of AIR) as under :--
'Once the two pre-conditions laid in Stovin v. Wise, (1996) 3 WLR 388, are satisfied both as to the non-exercise of statutory powers which was irrational and as to the statutory intent of payment of compensation for injury or death due to running inherently dangerous services in respect of which individuals cannot afford to protect themselves -- the conclusion is irresistible that the non-exercise of public taw or statutory powers under Section 13(c) and (d) did create a private law cause of action or damages for breach of a statutory duty. The case falls within the exception where a statutory 'may' gives rise to a 'common law' 'ought'.'
The Supreme Court has summed up the situation by saying that it is not necessary that all unmanned level crossing should have gates with a watchman. It all depends on the volume of traffic at the point and the applicability of the principles discussed by the Supreme Court with respect to the railway's liability under the common law where omission to exercise that power could give rise to claim for compensation.
24. The facts of the present case indicate that not only that there was no gate or chain put and no man was posted, but no sign board on either side of the railway crossing was placed. In such circumstances it was necessary for the driver of the train Patna Express to have blown the whistle. Failure to do so would amount to negligence of the railways. There was thus failure on the part of the railways to carry out common law duties pointed out by the Supreme Court.
25. The claimants examined Shivkishore Mahti (AW 3) whose agricultural field is located nearby as witness to the incident. He deposed that when Sukesh reached the unmanned crossing one railway engine came from Amla side. Sukesh stopped his vehicle at the crossing. After that engine had passed, Sukesh started his vehicle and while he was crossing the railway line, another train from Betul side came which hit him. The train which was coming from Betul side did not give whistle and there was a sharp turn on that spot. As soon as Sukesh reached the first railway line, he applied his brake but could not stop his vehicle and in the meantime the train came and hit him. He stated that both the persons Sukesh and Dashrath died on the spot.
26. The Union of India, Railway, and Insurer on 1-5-1998 declared before the Court that they do not want to lead any evidence in the case and closed their evidence. Thus no rebuttal has been made of the evidence adduced on behalf of the claimants. From the evidence of the eye-witness it is apparent that precaution was taken by the deceased to stop, but there was a turning on the spot from where the train from Betul side had come, and the deceased had tried to cross when the engine which came from Amla side had already passed. That engine had passed through the left side, i.e. the side where the deceased stopped himself and as soon as the engine passed away he started his vehicle and tried to cross the railway line. Thus, the view of the deceased was obviously obstructed by the engine which had passed on and the train from the other side came silently without whistle whereas it ought to have blown whistle as the railway crossing was unmanned. As such, it was a case of negligence on the part of the railways as well as the deceased. Had the train blown the whistle while approaching the unmanned crossing, the deceased would have stopped and would not have tried to cross the railway line. However, it appears that the deceased had also shown a little hurry and started his vehicle as soon as the engine which was shunting had passed by blowing whistle. Thus, he was also responsible to the extent of 50%, and the railway's responsibility is equal as whistle was not blown and its responsibility is held to be 50%.
27. Now, coming to the quantum of compensation awarded in the case, deceased Sukesh was aged 34-35 years on the date of accident. His main source of livelihood was agriculture and yield was Rs. 32-33 thousand per annum by his own efforts. Owing to death of Sukesh his land had to be given on crop-sharing basis and thereby the income has reduced by 50%. The Tribunal has held that there is 50% loss of income per annum by death of Sukekh and 1/4th of income the deceased must have spent on himself and as such the annual dependency of claimants was assessed at Rs. 11,250/-. The multiplier of 14 was applied. Applying the multiplier of 14 to annual dependency of Rs. 11,250/-, the total loss of dependency was worked out by the Tribunal to Rs. 1,57,500/-. Rupees 10,000/- was awarded as funeral expenses and loss of consortium of Rs. 10,000/- was also awarded. For damages to the motorcycle, a sum of Rs. 5,000/- was awarded. Thus the total amount awarded by the Tribunal was Rs. 1,82,500/-.
27A. The claimants of deceased Sukesh have filed a cross-objection praying for enhancement of the compensation. The submission raised by them is that multiplier of 17 should have been applied instead of 14 and assessment of income of deceased Sukesh was made on lower side by the Tribunal. Prayer has been made to award a just compensation. The submission raised on behalf of the legal representatives of deceased Sukesh appears to be proper. Deceased Sukesh was earning a sum of Rs. 35-40 thousand per annum as per version of the claimants. There is no rebuttal evidence led in the case by the Railways or by the insurer. The Tribunal has assessed the loss at 50% on account of dependency which was on the lower side. It may be seen that average income of an agriculturist has to be taken minimum of Rs. 1500/- per month i.e. Rs. 18,000/- per annum. The deceased was not a labourer, he was owning agricultural land and was contributing in augmenting the family income by his own effort. The deceased used to make 'Gud' also out of sugarcane which he used to grow and was saving Rs. 30-35 thousand per annum. He owned 10-11 acres of agricultural land. On account of the death of Sukesh, the income had substantially reduced from 40,000 rupees to 25,000 rupees approximately and only half of that is paid to the widow of the deceased. Thus, as per the claimants, the loss was to the tune of Rs. 25-30 thousand per annum. The Tribunal has assessed the reduced income at Rs. 15,000/- per annum only and has further reduced the income by 1/4th and has assessed the dependency at Rs. 11,250/- per annum. The Tribunal has clearly erred in assessing the loss of dependency at Rs. 11,250/- per annum. There was substantial reduction owing to death of Sukesh in agricultural income by Rs. 15,000/- and further, 50% out of Rs. 35,000/- was spent on account of arrangement for sharing of crop with the actual cultivators. Thus, the loss per annum comes to Rs. 30,000/-. Even if Rs. 10,000/- is reduced from the total which the deceased would have spent on himself, though an agriculturist would spend little less than that, the loss of dependency comes to Rs. 20,000/- per annum. As the deceased was aged 33 years, as per table, the multiplier of 17 is appropriate. Thus, the total loss of dependency comes to Rs. 3,40,000/-. In addition, the loss of consortium and funeral expenses are required to be added. On account of loss of consortium an amount of Rs. 5000/- deserves to be awarded and on account of funeral expenses a sum of Rs. 2000/- is awarded. Thus, the total sum to which the legal representatives of deceased Sukesh were entitled comes to Rupees 3,47,000/-. But for this contributory negligence to the extent of 50%, the total award has to be reduced by 50% making it Rs. 1,73,500/-. In addition, they would be entitled for loss because of damage to the motorcycle to the extent of Rs. 5000/-. Thus, the total payable to L.Rs. of deceased Sukesh is worked out to Rs. 1,75,000/-. The Tribunal has awarded a sum of Rs. 1,77,500/- on account of loss of dependency, consortium and for funeral expenditure. There is only a difference of Rs. 2000/- approx., and therefore, the award is not being disturbed.
28. In the case relating to death of Dashrath, i.e. Claim Case No. 31/94, the question posed by the learned counsel appearing for the appellant is that under the doctrine of 'imputation', the negligence of the driver of the motor vehicle in which passenger is travelling could be imputed to the passenger or the pillian rider. Thus, the question is whether deceased Dashrath was equally negligent along with deceased Sukesh who was riding the motor-cycle and both contributed to the negligence along with railways. The law 011 this point is wettled that there is no law which can fasten liability on a passenger for the negligence of the driver. In para 10 (of Acc CJ): (Para 8 of AIR) of the case of Union of India v. United India Insurance Co. Ltd. (1998 Acc CJ 342 : AIR 1998 SC 640) (supra), the Supreme Court held as under :
'There is no rule that the driver of an omnibus or a coach or a cab or the engine driver of a train, or the captain of a ship on the one hand and passengers on the other hand are to be 'identified' so as to fasten the latter with any liability for the former's contributory negligence. There cannot be a fiction of the passenger sharing a 'right of control' of the operation of the vehicle nor is there a fiction that the driver is an agent of the passenger. A passenger is not treated as a back-seat driver. (Prosscr and Keeton on Torts, 5th Edn., 1984, pp. 521-22). It is, therefore, clear that even if the driver of the passenger vehicle was negligent, the Railways, if its negligence was otherwise proved-- Could not plead contributory negligence on the part of the passengers of the vehicle. What is clear is that qua the passengers of the bus who were innocent, -- the driver and owner of the bus and, if, proved, the Railways -- can all be joint tort feasors.'
Thus, it is clear that the negligence of deceased Sukesh to the extent of 50% would not come in the way of deceased Dashrath's legal representatives as the negligence of driver of motor-cycle cannot be attributed to pillion rider Dashrath and they would be entitled for the entire compensation which may be determined.
29. As to the award in the case of death of Dashrath, the pillian rider, passed in Claim Case No. 31/94, the deceased was aged 43 years on the date of accident. He was working in the Irrigation Department as an employee. His pay certificate indicates that he was drawing salary of Rs. 1657/- per month. His compensation's salary was immediately thereafter increased to Rs. 2,760/-, Considering the future increase, the income was taken to be Rs. 2000/- per month. One fourth amount was further deducted which must have been spent on himself. Thus, the claimants' dependency has been worked out to Rupees 1500/- per month i.e. Rs. 18,000/- per annum. However, for the age of 44 years, the multiplier of l2 which has been applied by the Tribunal is on lower side. But, since the Claims Tribunal has taken the future increase of salary into account in calculating the income, we refrain from enhancing the multiplier. We, therefore, maintain the amount of compensation of Rs. 2,36,000/-awarded by the Tribunal to the claimants of deceased Dashrath. The amount shall carry interest at the rate of 12% per annum from the date of application.
30. In both the cases, 50% of the compensation shall be paid by the Railways and remaining 50% shall be paid by the Insurance Company.
31. In the result, all the appeals are dismissed. However, in the circumstances, parties shall bear their own costs as incurred in these appeals.