JUDGMENT:

This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”) has been preferred by the Appellant Nos.1 to 3/State, represented by the District Collector, Anantapur, District Medical & Health Officer and Medical Officer of Anantapur District, challenging the Award dated 11.10.2004 delivered by the Motor Accidents Claims Tribunal–cum- Additional District Judge, Anantapur (for short “the Tribunal”), in O.P.No.78 of 1999 granting compensation of Rs.6,35,000/- along with interest @ 9% per annum from the date of the petition till the date of realization with proportionate costs against the Respondents 1 to 4 in the claim petition, jointly and severally, on account of the death of the deceased-Bhaskara Rao, who died while proceeding near level crossing No.77 in between Penugonda and Chakarlapalli, Anantapur District on

11.09.1995.

2. For the sake of convenience, the parties are hereinafter referred to as they are arrayed before the Tribunal in the claim petition.

3. The concised facts in the claim petition, relevant for the determination of the appeal are as under:

(a) A 43 years old I.Bhaskara Rao, was a Non-Medical Supervisor in Leprosy Control Unit at Dharmavaram and at the time of his death, he was drawing salary of Rs.6,250/- per month. On 11.09.1995 at about 3.10 p.m., while the deceased was travelling in a Government Jeep bearing No.AHS 2118 along with the other employees of the Unit towards Madakasira and when the Jeep was passing through the level crossing No.77 in between Penugonda and Chakarlapalli, suddenly the passenger train bearing No.282 came from Penugonda side to go to Bangalore dashed against the Jeep which was on the railway track, and on account of the same eight persons died instantaneously including the deceased and the Government Jeep No.AHS 2118 was entirely damaged.

(b) On the same day, the matter was reported to Railway Police by Sreerama Reddy, Station Master, on duty, South Central Railway, Hindupur, alleging that the accident took place at Level Crossing Gate No.77 between Penugonda and Chakarlapalli, as a result, the passenger train No.282 dashed against the Jeep and all the eight members in the Jeep died on the spot. Based on the said report, a case in Crime No.61 of

1995 was registered under Section 304-A IPC.

(c) On account of the death of the deceased-Bhaskara Rao, the 1st petitioner-wife and Petitioners 2 to 5 - minor children i.e., two daughters and two sons filed a petition before the Tribunal, claiming compensation of a sum of Rs.12,00,000/-.

(d) Respondents 1 and 3 filed a memo adopting the written statement of the 2nd respondent. Respondent No.4 did not contest the matter.

(e) The 2nd respondent filed a written statement contending inter alia that the petition is not maintainable either under law or on facts. It is further averred that there is no rash and negligent driving of the driver of the Jeep bearing No.AHS 2118 and that the alleged accident occurred due to negligence on the part of the Railway Gate man (Gate Keeper), who was the employee of the 4th respondent and was on duty and that he did not take effective steps in manning the level crossing gate at the spot in question. It is further averred that they have filed a suit in O.S.58 of 1997 claiming damages for the Jeep bearing No.AHS 2118 caused in the accident against the 4th respondent/Railways and the learned Senior Civil Judge, Anantapur, passed a decree dt.01.05.1998 for a sum of Rs.3,00,000/- with costs and interest thereon. It is further averred that the petitioners are put to strict proof that the deceased was aged about 43 years at the time of the accident. It is further averred that the amount claimed by the petitioners is excessive and prayed to dismiss the petition.

(f) In view of the pleadings of the parties, the Tribunal framed the following issues:

(1) Whether the accident occurred on 11.09.1995 due to the rash and negligent driving of the Jeep bearing No.AHS 2118 by its driver, hit by the passeng