JUDGMENT :

T. MALLIKARJUNA RAO, J.

1. Aggrieved by the order dated 05.09.2011 in M.V.O.P. No. 275 of 2008 passed by the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, West Godavari, Eluru, the claimant in the M.V.O.P. No. 275 of 2008 filed M.A.C.M.A. No. 731 of 2012, whereas the 1st respondent-Union of India Rep. by its General Manager, South Central Railway, Secunderabad, has filed M.A.C.M.A. No. 808 of 2012. As both appeals arise out of the orders passed in M.V.O.P. No. 275 of 2008, both appeals are disposed of by common Judgment.

2. For the sake of convenience, hereinafter, the parties will be referred to as per their rankings in the M.V.O.P. as claimants and respondents.

3. The claimants have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming a compensation amount of Rs. 9,05,000/- for the death of Tangirala Venkata Kanaka Durga (hereinafter be referred to as ‘the deceased’) in a rail-cum-motor vehicle accident.

4. The entire material on record shows that the following facts are either admitted or not in dispute. The relationship between claimant and the deceased, as referred to in the claim petition, is not in dispute; on 12.01.2006, the claimant along with her mother i.e. deceased and other family members, engaged in an auto bearing No. AP-37-V-8366 from Velivennu to go to Yellaramma Temple at Mandapaka. After worshipping at the temple, they proceeded to Relangi village in the same Auto. On the way, there is an unmanned level crossing of the railway line near Velpur railway station. The Auto on which the deceased and others were travelling reached a few yards away from the rail crossing, the auto driver tried to cross the railway line, but the Auto was struck up in the ditch between two rails, and the engine stopped. When the auto driver tried to start it to cross the high-level 2nd rail, he could not. Suddenly, he found coming of the Circar Express from the Tanuku side; he alerted and cautioned the passengers to alight the Auto. He ran away. He was able to save two children and a passenger from danger, and others also tried to run from the vehicle, but meanwhile, the engine of the Circar Express collided with the stranded Auto. As a result, the Auto was crushed; dragged for a few yards; pushed out from the track. Due to this, the deceased and two others died instantaneously due to fatal injuries sustained in the accident.

5. The claimant’s case coming to disputed facts is that the abovereferred unmanned railway crossing line is busy. There is also a sharp curve of the railway line from Tanuku to Velpur station at a distance of 500 mts from the said level crossing. The trains coming from the Tanuku side cannot be sighted from the Velpuru station beyond the sharp curve at a distance of about 500 meters. From the commencement of the curve, there are thick rows of coconut trees and other trees and bushes on either side; more than ten huge rain trees (niddragannera trees) are along the eastern edge of the railway station platform, about thirty to forty years old. The heavy branches were overhanging and overshadowing the railway line. The railway line is a single track from a point at the road while crossing; it cannot sight the rail engine/train coming from Tanuku side until it reaches very near the crossing. The road from Mandapaka to Velpur is a pucca black metal tar road, except between the two rails of the said railway line. The road between the two rails of the unmanned level crossing had become damaged. There is only black metal stone at a lower level by 6” than the road level on either side. The place of occurrence at the level crossing had become a ditch. A small board containing the warning that vehicles to look at the railway track and proceed in small letters, dusted all over and not visible, was found on the other side. The Circar express was scheduled to