Honble GARG, J.–All the abovementioned civil misc. appeals filed by the owners of the truck in question are being decided b this common judgment as all of them have arisen out of the same accident and in all of them identical and common questions of law and facts are involved.

S.B. Civil Misc. Appeal No. 635/1998

(2). This civil misc. appeal has been filed by the appellants against the judgment and award dated 27.7.1998 passed by the learned Judge, Motor Accident Claims Tribunal (First), Jodhpur (for short ``Claims Tribunal) in MACT Case No. 288/95 by which the learned Claims Tribunal, on account of death of Chutraram, passed an award of Rs. 76,500/- in favour of the claimants- respondents No.4 to 6, namely, Smt. Madki, Jetha Ram and Bhinjaram respectively, who are LRs of deceased Chutraram and against the present appellant No.1 Amrit Lal, owner of the truck in question and the National Insurance Company Limited (respondent No.3) (for short ``Insurance Company) and Railway Administration (respondents No.1 and 2) were exonerated from their liability to pay compensation to the claimants-respondents No.4 to 6.

(3). It arises in the following circumstances:-

On 12.6.1991, a Truck bearing No. RRN 5343, owner of which was appellant No.1 Amrit Lal, was being driven by one Avad Ram (who also died in the accident) and that Truck was carrying about 50-60 passengers and was going towards Satlana and when it reached near Satlana railway crossing, which was unguarded and unmanned level crossing, it met with accident with the Railway engine, as a result of which, deceased Chutraram and some other persons died including the driver of the truck in question and some other persons received injuries.

Thereafter, on 11.11.1991, a claim petition was filed by the claimants-respondents No. 4, 5 and 6 being the wife and sons of the deceased Chutraram and at the time of accident, the age of the deceased Chutraram was 60 years and was doing the work of black-smith and Rs. 3,00,000/- were claimed as compensation by the claimants-respondents No.4 to 6.

In the claim petition, it was asserted by the claimants- respondents No.4 to 6 that apart from the negligence of the driver of the truck in question, there was also neglige- nce on the part of the respondents No.1 and 2 (Railway Administration) also as com- pliance of paras 1604(6), 1611(0), 1613 & 1601 of the Indian Railway and Works Manual was not made by them and as a result whereof, the alleged accident took place.

A reply to the claim petition was filed by the appellant No.1 Amrit Lal, owner of the truck in question and it was asserted by him that the truck in question was being driven by the driver slowly, but accident took place because of the negligence of the driver of the Railway engine. Apart from this, at the time of accident, there was no gate at the railway crossing in question and the railway crossing was unguarded and unmanned level crossing. Hence, claim against the appellant No.1 Amrit Lal, owner of the truck in question, be dismissed.

The respondent No.3 Insurance Company also filed a separate reply to the claim petition and it asserted that the truck in question was meant for carrying goods and not passengers and, therefore, passengers were being carried in the truck in question in violation of the terms of the policy entered into between the Insurance Company and the appellant No.1 Amrit Lal, owner of the truck in question, and since there was breach of the terms of the policy, therefore, Insurance Company should not be held liable. Hence, the claim against the Insurance Company be dismissed.

The respondents No.1 and 2 (Railway Administration) also filed a separate reply to the claim petition and they asserted that accident took place because of rash and negligent driving of the truck in question by the driver of the truck in question and there was no fault on the part of the Railway Administration. Hence, the claim against the Railway Administration be dismissed.

The following issues were fr

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