- (1.) Heard Mrs. Chaitali Chatterjee Sinha, learned counsel appearing on behalf of the petitioner and Mr. Vijay Kumar Sinha, learned counsel appearing on behalf of the respondent-Railway.
(2.) The petitioner has preferred this writ petition for a direction upon the respondent-authorities to pay the compensation of Rs.4,00,000/- to the petitioner whose minor son died on account of railway accident which took place due to the negligence and non-compliance of the statutory obligations on the part of respondent-authorities while crossing an unmanned railway crossing and was hit and run over by a train resulting in his death on 25.08.2003.
(3.) Learned counsel appearing for the petitioner submits that the deceased Prabhat Kujur was a student of Class 10, Gossener High School, Ranchi. On 25.08.2003, the deceased was going to school on a bicycle on Namkom Chutia Road. She further submits that it is a common and popular road for the local residents and this road passed through Railway Crossing at Ketari Bagan, Chutia. The deceased while going to school was crossing the Ketari Bagan unmanned Railway Crossing at Chutia, when Patna Hatia Express Train coming towards Ranchi Station in high speed at about 9:30am without appropriate signals ran over the deceased resulting in his death on the spot. After that incident, the local people demonstrated at the site and demanded for construction of a gate at the site of crossing. She further submits that this matter was also reported in daily newspaper on 26.08.2003. She further submits that the U.D. Case No. 18/03 was registered by the G.R.P. Ranchi railway station Thana on the basis of written statement of the mother of the deceased, namely Smt. Muktisalen Kujur on 25.08.2003. The matter was also investigated by the Railway Police and inquest report was prepared and final report was submitted which also support the case of the petitioner as contained in Annexure-4 to the writ petition. The petitioner filed the representation before the Divisional Railway Manager, Hatia for compensation as contained in Annexure-5. The learned counsel for the petitioner submits that due to ill-advice, the petitioner filed the compensation case under the Motor Vehicles Act , which was rejected on the ground of jurisdiction only on 22.03.2007. Thereafter, the petitioner filed an application under Section 16 of the Railway Claims Tribunal Act and the same was rejected on the ground that it is not in terms of Section 124 of the Railways Act read with Untoward Incidents (Compensation) Rules, 1990. She further submits that under Section 18 of the Railways Act, 1989 contemplates putting gates, chain bars etc. at the level crossing of the smooth running of the trains and it is duty of the railway authority to protect that area under Section 18 of the Act, 1989. She further submits that the case of the petitioner is fully covered by the judgment of a Division Bench of the Hon'ble Orissa High Court in the case of Laxmi Priya Sahu and Another vs. Divisional Railway Manager, East Coast Railway and Another reported in (2013) 3 T.A.C. 352 (Ori.), wherein paragraph Nos. 27 to 29 reads hereunder as: - "27. To answer the above points, we have carefully examined the facts and rival legal contentions urged in the above writ petitions. As can be seen from the provisions of Section 18 of the Railways Act, 1989, the Railway Administration has the statutory obligation to provide sufficient safeguards to the level crossing putting railway check gate and keeping it closes at the time when train is due to pass the level crossing area. In the instant case, had the Railway Administration taken the precautionary measure either by putting a railway gate and keeping it closed at the time the train was due to pass, or put up some other obstruction which could prevent the public from passing over the level crossing giving them information and notice of the approaching train, the accident of the kind the had happened in this case could have been avoided. After receiving notice under Section 113 from the petitioners by railway authorities under Sections 114 and 115 of the Railways Act, 1989. If such report would have been produced, then it could have disclosed whether there is negligence on the part of the railway administration on account of which the accident took place resulting in death of the deceased and severe injuries to the minor boy. Therefore, the said enquiry report as required under Section 113 of the Railways Act having not been produced, this Court draws an adverse inference against the Railways that there is negligence on the part of the Railway Administration in not taking sufficient precautionary measures by posting guard or keeping the railway gate closed at the time while the train was due to pass through that level crossing. Non- compliance with the aforesaid statutory obligations by the Railway Administration, we reject the contentions urged by the learned Counsel for the Railway that there are serious questions of disputed facts and due to carelessness on the part of the deceased and the injured the alleged accident occurred on the fateful day resulting in death of deceased and serve injuries to the minor boy. For the above reasons, we would that the writ petitions are maintainable in law. Further, the Apex Court in N.K.V. Brothers' case (supra) upon which reliance is placed by the learned Counsel for the petitioners made certain observations, the relevant portion of which is extracted as hereunder: "........Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the Courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic may be;. We are emphasizing this aspect because we are often distressed by transport operators getting away with thanks to judicial laxity, despite the fact that they do no exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no fault liability by legislation. A second aspect which pains us in the inadequacy of the compensation of undue parsimony practiced by Tribunals;. We must remember that judicial Tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of Tribunals and the High Courts should insist upon quick disposal so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard............ 28. Further, the High Court of Assam in Swarnalata Barua's case (supra) has held that there is an obligation on the part of the Railway Administration to ensure that whenever a railway passes over a thoroughfare adequate warning should be given to the public about passing of the train at the time they pass so that accidents may be avoided. This duty need not necessarily be a statutory duty. It is implied and inherent in the functions to the discharged by the Railway Administration in the matter of running their railways. It is not disputed that had the Railway Administration taken the precaution of either putting up of a Railway gate and keeping it closed at the time the train was due to pass or put up some other obstruction which could prevent the public from passing over the level crossing giving them information and notice of the approaching train, the accident of the kind that happened in this case could not have happened. 29. Having answered point Nos. 1 and 2 in favour of the petitioners, and against the Railway Administration. We are required to answer point No. 3 with regard to compensation in favour of the petitioners with the following reliefs. ;