IMPORTANT POINT
The central legal point established in the judgment is that the negligence of a driver in crossing an unmanned level crossing, as per Section 161 of the Railways Act, 1989, can absolve the railway authority from liability for resulting accidents.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

1. Heard Ms. U. Chakraborty, learned counsel representing the appellants. None appears for the respondents in spite of service of notice.

2. This is an appeal under Section 173 of the Motor Vehicles Act challenging the judgment and order dated 19.07.2013 passed by the Motor Accident Claims Tribunal, Tinsukia in MAC Case No. 23/2010.

3. On 13.11.2009 at about 6.18 P.M. Late Bibhnu Bharali was travelling insides the driver’s cabin of the TATA Magic ACE Pick Up vehicle bearing Registration No. AS-23-AC-0846. The vehicle was driven by Lok Bahadur Chetri. The handyman Hori Sonar was also present inside the cabin along with the deceased and the driver.

4. When the vehicle tried to cross one unmanned Railway crossing near Laipuli, a train coming from Lidu towards Dibrugarh had hit the aforesaid vehicle. The deceased sustained grievous injuries and succumbed to his injuries.

5. Therefore, Smti. Rekha Bharali, the wife of the deceased, his two children and his parents filed a claim petition before the Tribunal seeking compensation.

6. Shri Bharat Bharali and Shri Lok Bahadur Chetri, the owner and the driver of the vehicle bearing Registration No. AS-23-AC-0846, the Insurance Company of the said vehicle and the present appellant were arraigned as defendants in that case.

7. In his written statement, Shri Bharat Bharali has claimed that his vehicle was insured with a valid Insurance Policy. He, therefore, claimed that the Insurance Company is liable to pay compensation.

8. The driver Lok Bahadur Chetri has stated in his written statement that he did not notice the incoming train due to heavy fog. He further claimed that the train did not use its horn.

9. The National Insurance Company Limited in its written statement has pleaded that since the vehicle bearing Registration No. AS-23-AC-0846 was a goods carrying commercial vehicle, it cannot carry passengers.

10. The appellant Union of India has stated in his written statement that the incident took place because of carelessness and negligence of the driver of the vehicle bearing Registration No. AS-23-AC-0846.

11. On the basis of the pleadings, the Tribunal framed the following issues:

(i) Whether Bibhnu Bharali @ Bishnu Bharali died on 13.11.2009 as a result of rash and negligent driving of TATA Magic ACE Pick Up vehicle bearing Registration No. AS-23-AC-0846?

(ii) Whether the claimants are entitled to get any compensation? if so, to what extent and from whom?

(iii) Whether the accident occurred as a result of negligent act of NF Railways?

12. The claimant Smti. Rekha Bharali examined herself along with Prem Raj Bharali and Lok Bahadur Chetri. The contesting opposite parties did not examine any witness.

13. On the basis of the evidence on record, the Tribunal directed the National Insurance Company Limited to pay compensation of Rs. 4,03,550/- to the claimant along with interest @ 6% per annum.

14. The Tribunal further directed the present appellant to pay an amount of Rs. 4,03,550/- to the claimant along with interest @ 6% per annum.

15. Being aggrieved by the judgment passed by the Tribunal, the appellant has filed the instant appeal.

16. Ms. Chakraborty has pointed out to Section 161 of the Railways Act, 1989, which states that if any person driving or leading a vehicle, is negligent in crossing an unmanned level crossing, he shall be punished with imprisonment which may extent to one year.

17. At this stage, a brief visit to Section 161 of the Railways Act, would be fruitful, it reads as under:

“161. Negligently crossing unmanned level crossing:

If any person driving or leading a vehicle is negligent in crossing an 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 s