1. Railway administration has preferred this appeal calling in question the judgment and award dated 30.11.2010 of the Senior Civil Judge and Additional MACT, Turuverekere (for short 'the MACT') allowing MVC No. 346 of 2007 recording a finding attributing actionable negligence on the driver of the locomotive, Chalukya Express, for the cause of the accident.

2. Before the MACT, claimant asserted that one Rajani, aged 38, husband of the claimant, while travelling in an autorickshaw bearing registration No. KA 44-320 along with others, from Aralaguppe to Tiptur, at the unmanned level crossing No. 73, the locomotive Chalukya Express No. 1018 proceeding from Banasandra towards Tiptur dashed against the autorickshaw, as a result of which Rajani succumbed to grievous injuries on the spot. The said Rajani, it was said, was a businessman dealing in stones and earning Rs. 10,000 per month and his wife was dependent on such income.

3. The claim petition registered as MVC No. 346 of 2007 was opposed by filing statement of objections of the Divisional Manager (South Western Railway), Mysuru, arraigned as respondent No. 3, contending that under S.161 of the Railways Act, 1989, independently crossing unmanned level crossing is punishable with imprisonment which may extend to one year and as the autorickshaw in question was a luggage auto not permitted to carry passengers, deceased while sitting in the said auto next to the driver, having stopped the autorickshaw before the unmanned railway crossing and after the railway engine measuring 22 mtr crossed the said level crossing, the autorickshaw driver in a rash and negligent manner dashed against the clutch and gear of the locomotive on its hind side resulting in the accident.

4. Oriental Insurance Co. Ltd., the insurer of the autorickshaw in question and arraigned as respondent No. 4, filed written statement denying its liability to pay compensation, while admitting to have insured the autorickshaw. Union of India, arraigned as the respondent No. 1, though served, remained absent and unrepresented. The Officer - in - charge on Special Duty, South Western Railway, though arraigned as respondent No. 2, (sic) nevertheless, petition was dismissed for non - prosecution.

5. In the premise of pleading of parties, MACT framed the following five issues:

“(i) Whether the petitioner proves that on 31.10.2006, at about 9.40 a.m. while Rajani was travelling in an autorickshaw bearing No. KA 44-320 from Aralaguppe to Tiptur, near Aralaguppe railway crossing, due to negligent act of the railway authority, the Chalukya Express No. 1018 came from Banasandra side and dashed against the autorickshaw, as a result, Rajani died on the spot?

(ii) Whether the respondent No. 3 proves that the accident was purely on account of total negligence on the part of autorickshaw driver?

(iii) Whether respondent No. 4 proves that the policy issued by them would not cover the risk against the railway accident?

(iv) Whether the petitioner is entitled for the reliefs claimed?

(v) What order or award?”

6. Before the MACT, the claimant was examined as PW 1 and marked five documents as Exhs. P1 to P5, while for the respondents, neither oral nor documentary evidence was adduced.

7. The MACT, having regard to the material on record and evidence, both oral and documentary, returned a finding in the affirmative over issue No. 1; negative on issue Nos. 2 and 3; partly in the affirmative over issue No. 4 and as per final order on issue No. 5. The MACT observed that PW 1 was neither cross - examined nor evidence, both oral and documentary, tendered by the respondent No. 3 railway administration over its allegation of negligence of the driver of the autorickshaw for the cause of the accident. The police records such as the F.I.R., Exh. P1, in Crime No. 23 of 2006 and the spot mahazar, statement of one Srinivasa to the inquest panchnama, the post - mortem report, Exhs. P2 to P5, when considered by the MACT, held that they were in the direction of estab