The court established that in cases of accidents at unmanned railway crossings, the lack of proper signaling can mitigate the liability of the deceased, allowing for compensation under no-fault liability provisions.

JUDGMENT

1. In this appeal, the petitioners have challenged the judgment dtd. 25/8/2014 passed in M.V.C.No.1587/2009 by the Additional District and Sessions Judge and Addl.M.A.C.T., Chitradurga ('the Tribunal' in short) in dismissing the claim petition filed under Sec. 166 of the Motor Vehicles Act, 1988.

2. For the sake of convenience, the rank of the parties will be referred to as per their status before the Tribunal.

3. Brief facts of the petitioners case are that, the husband of petitioner No.1, father of petitioners No.2 to 4 and son of petitioner No.5, by name Jayappa, the deceased, was met with an accident on 12/6/2003 at 12.20 p.m., while driving the car bearing registration No.KA-16/M-8055 on unmanned railway gate hit against the Train No.252 and suffered injuries and died on 18/6/2003 at Manipal Hospital, Bangalore. Seeking grant of compensation, the petitioners have approached the Tribunal. The claim was opposed by the respondents. By order dtd. 5/7/2013, the claim petition came to be dismissed. Against the said order, the petitioners have filed an appeal before this court in M.F.A.No.8657/2013 (MV). By order dtd. 31/1/2014, the order of dismissal was set aside and the matter was remanded. After remand, the Tribunal has further taken up the matter and assessed the compensation of Rs.15, 23, 000.00 with interest @ 6% per annum holding that if the claim is to be allowed, the petitioners are entitled for said compensation. However, on the ground that the accident has occurred due to sole negligence of the deceased, the petitioners are not entitled for said compensation and dismissed the claim petition. Aggrieved by the same, the petitioners have field this appeal on various grounds.

4. Heard the arguments of Sri.B.Pramod, learned counsel for the petitioners and Smt.H.C.Kavitha, learned counsel for respondents.

5. It is the contention of the learned counsel for the petitioners that, there is a negligence on the part of the respondents as the Railway crossing was unmanned without any proper signal, the Tribunal has committed an error in observing that negligence is on the part of the deceased and the impugned order of dismissal is erroneous and sought for interference.

6. Per contra, learned counsel for the respondents has contended that the evidence placed before the Tribunal clearly points out that the deceased himself drove the car in a rash and negligent manner ignoring that there is unmanned railway gate ahead and he had negligently went and hit against the Train No.252 and therefore, he himself being the Tortfeisor, the petitioners are not entitled to claim compensation and he has supported the impugned judgment.

7. I have given my anxious consideration to the arguments advanced on behalf of both parties and also perused the materials on record.

8. On a careful perusal of the materials on record, it is pertinent to note that the accident took place because of there was unmanned railway crossing. There is no evidence on record to indicate that the unmanned railway crossing has been indicated to public in any manner. Eyewitness PW- 2/K.R.Mallappa @ Malleshappa points out that inspite of the sound horn on the arrival of the train being visible, the deceased drove the car rashly and hit against the train which, in fact, has been denied. It has been explained that near Nagehalli, on both sides of railway crossing, there existed 5 or 6 feet height weeds and plants and there was no indication of railway crossing ahead.

9. The accident, cause of accident, the injuries sustained by the deceased and his death on account of it have not been disputed. The only issue is, whether because of own negligence of the deceased, the petitioners are debarred from entitlement of any compensation. The petitioners have invoked Sec. 166 of the M.V.Act whereas they had also an option to approach the Railway Claims Tribunal. Learned counsel for the petitioners has relied upon the judgment of the Hon'ble Orissa High Court reported in 2014 SCC O