JUDGMENT :

J.C. DOSHI, J.

1. The appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘MV Act’) is directed against the judgment and order dated 25.08.2009 passed in MACP No.170 of 2003, by the Learned Motor Accident Claim Tribunal (Aux.) at Morbi, by which the claimant’s claim petition under Section 166 of the ‘MV Act’ came to be dismissed.

2. The briefly stated facts of the case are that, on 27.08.2003, the deceased - Bachubhai Dabhi riding with auto rickshaw No.G.T.F-9969, at around 11:30 a.m., was trying to cross the unmanned railway level crossing at crossing No.21C on the Morbi Rafaleshwar road, whereby railway track was cutting the road, was dashed by the Railway Train No.9502. The auto rickshaw was dragged, and ultimately, the driver of the auto rickshaw - Bachubhai Dabhi, died.

2.1 P.W.I. Shri Kundanlal Gulyani, registered the FIR against the deceased with Morbi Taluka Police Station vide CR No. I - 155 of 2003 on same day.

2.2 In the factual background, claimant No. 1 being widow of the deceased and claimant Nos.2 to 6 children of the deceased, claimed the compensation under Section 166 of the 'MV Act' against the owner of the auto rickshaw and Railway Administration - Union of India in the tune of Rs.7,43,000/- with interests and cost.

2.3 The learned Tribunal, after framing the issues at Exhibit-22, believed that the claimants have failed to prove any of the issues in the affirmative. Thus, while answering the issues in negative, dismissed the claim petition. The main finding of the learned Tribunal based upon the evidence led before it, shows that the deceased himself was wholly negligent in crossing the unmanned railway level crossing in breach of the Railways Act, 1989 (hereinafter referred to as the ‘Railways Act’) as well as provision of the 'MV Act', and therefore, the Union of India is not liable to pay any compensation. The owner was also not held liable to pay compensation on the ground that the claimant failed to prove that the opponent No.2 was the owner of the vehicle and as RTO book of the auto rickshaw is not produced on record to prove that.

2.4 Being aggrieved, the appeal is filed.

3. Heard learned advocate Mr. Anand B. Gogia appearing for the appellants and learned advocate Ms. Archana U. Amin assisted by learned advocate Mr. Manish Malaviya representing the respondent - Railway Administration - Union of India.

4. Learned advocate Mr. Anand B. Gogia assailing the impugned judgment and order, mainly submitted that the learned Tribunal has committed serious and manifest error in fastening the total liability upon the deceased to cause the road accident.

4.1 He would submit that the deceased was riding the auto rickshaw to attend the folk fair, which was organized one kilometre away from the railway level crossing No.21C. The deceased was, thus, required to cross the unmanned railway crossing No.21C, which cuts the road leading to the folk fair place.

4.2 He would submit that the learned Tribunal was required to apply the Principle of common law liability. He further submitted that the railway route from Morbi to Rafaleshwar is a busy route. Apart from the Railway Train No.9502, several other railway trains are passing through this railway route and yet, the cutting road was kept with unmanned railway level crossing in breach of Section 13 of the ‘Railways Act’. Thus, it is a fit case to apply the common law of negligence. 4.3 He further submitted that the learned Tribunal committed manifest error in not considering the negligence on part of the railway Train Driver, i.e. loco pilot, who was expected to take precaution while passing through a busy area.

4.4 He would further submit that the evidence on record indicates that there is no sign board or any other board, which can inform the passerby about the unmanned railway crossing.

4.5 He would further submit that according to the evidence on record, around the unmanned railway level crossing, many bushes and trees also existed a