WP(C) 1266/2004 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) The question that arises for consideration in this writ petition is as to whether the death of the husband and father of the petitioners while c rossing an unmanned level crossing can be said to be an untoward incident as d efined in Section 2 (n) of the Railway Claims Tribunal (RCT), 1987 so as to conf er jurisdiction to the RCT. In the instant case, the RCT, Guwahati Bench by its order dated 23.10.2003 returned the claim application filed by the petitioners c laiming compensation on account of death of the deceased being run over by a pas senger train while crossing the particular unmanned level crossing. The prayer i n the writ petition is to issue direction to the RCT to entertain the said appli cation and dispose of the same in accordance with law. 2. Shortly stated, the facts leading to filing of the instant writ petition are that the petitioners’ husband and father while was coming from Bijni Market riding on his bicycle along with another person was hit by MG(UP) Passenger Tra in No. 853 in the unmanned level crossing. Consequently, he sustained multiple i njuries on his body and died on the same date. In due course, the attending doct ors submitted postmortem report etc. 3. Describing the aforesaid incident as a railway accident, the claimants/p etitioners filed a claim application before the RCT, Guwahati Bench. The claim a pplication having been returned by the impugned order dated 23.10.2003 on the gr ound of being not within the purview of the RCT, the petitioners filed the insta nt writ petition challenging the said order with the further prayer to direct th e RCT, Guwahati Bench to hear and dispose of the said application expeditiously. 4. The respondents have filed counter affidavit denying any liability in th e matter. The basic contention raised is that since the level crossing in questi on was unmanned with due caution in the signboards installed in both sides of th e level crossing, the deceased ought not to have crossed the level crossing with out first discharging the duty cast on him to see as to whether any train was pa ssing by or not. As regards the claim of the petitioners that the RCT has got ju risdiction over the matter, it is the stand of the respondents that as per provi sions of the RCT Act, 1987 coupled with the Railways Act, 1989, the Tribunal doe s not have jurisdiction over such matter. 5. This mater is pending since 2004 and to be precise with effect from 25.2 .2004. The Railways had filed counter affidavit on 8.2.2005. The matter was take n up for hearing on 1.11.2011 followed by 22.11.2011. It is only thereafter, the petitioners have filed affidavit-in-reply along with an additional affidavit on 28.11.2011. Thus, such filing of the affidavits is after getting the pulse of t he court during the course of hearing of the writ petition on the aforesaid two dates. 6. In the aforesaid two affidavits, the petitioners have blamed the Railway s in not providing Railway Gate and keeping the particular crossing unmanned. It has been stated that the unmanned level crossing in question is now being provi ded with Gate realizing the fact that the same would lead to such untoward incid ent again. 7. I have heard Mr. R. Das, learned counsel for the petitioners as well as Mrs. B. Debi, learned counsel representing the respondents. Mr. Das, learned cou nsel for the petitioners referring to the provisions of Railways Act, 1989 and R CT Act, 1987 submits that it being an accident within the meaning of the provisi ons of the said two Acts and also being an ’untoward incident’, the petitioners who are the wife and children of the deceased are entitled to adequate compensat ion. He submits that the Tribunal committed manifest error of law in returning t he claim application on the ground of lack of jurisdiction. In support of his su ch submission, he has referred to two decisions, which are reported in AIR 1998 SC 640 (Union of India Vs. United India Insurance Co. Ltd.) and 1998 (1) GLT 437 (FB) (Aswini Kumar Deka Vs. General Manager, ASTC). 8. Ms. B. Devi, learned counsel representing the Railways, on the other han d submits that the deceased having died because of his own negligence, the parti cular incident cannot be said to be an ’untoward incident’ conferring jurisdicti on to the Tribunal. She submits that there being provisions in the Railways Act for unmanned level crossing with statutory duties on person while crossing the s ame, the deceased having not performed the said duty, the petitioners are not en titled to get any compensation. She also submits that the Tribunal rightly retur ned the claim application as it lacks jurisdiction as per the provisions of the aforesaid RCT Act, 1987. 9. I have considered the rival submissions made by the learned counsel for the parties and the materials on record. 10. In the decisions referred to above, the courts were concerned with the l iability of the Railways in the context of the provisions of the Motor Vehicles Act. In United India Insurance Co. Ltd. (supra), the particular bus met with an accident as a result of collision with the train while crossing the unmanned lev el crossing. A question arose as to whether the claim application filed before t he MACT would be maintainable against Railways as well, apart from the Insurance Company. When it was found there was contributory negligence on the part of the Railways as the unmanned level crossing had no caution board, it was held by th e Apex Court that the Railways should be deemed to be negligent. 11. In Aswini Kumar Deka (supra) also the same question arose. The question raised was as to whether the claim for compensation is maintainable before MACT. In that case also collision occurred between a bus and a train. However, posing the question as to whether the MACT was competent under Section 110 of the Moto r Vehicles Act, 1939 (Old) has jurisdiction in an appropriate case to award comp ensation under Section 110B against a third party not covered by Section 110, it was held that the same would be maintainable. 12. Unlike the aforesaid two cases, in the instant proceeding, we are concer ned with an incident in which a person while crossing unmanned level crossing di ed being hit by a passing train. Under Section 161 of the Railways Act, 1989, if any person driving or leading a vehicle is negligent in crossing an unmanned le vel crossing, he shall be punishable with imprisonment which may extend to one y ear. For a ready reference, Section 161 of the Act is quoted below: 161. Negligently crossing unmanned level crossing.- if any person driving or le ading a vehicle in negligent in crossing an unmanned level crossing, he shall be punishable with imprisonment which may extend to one year. Explanation.- For the purpose of this Section, negligence in relation to any p erson 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 such level crossing to observe whether any approaching rolling stock is in sight, or (b) even while an approaching rolling stock is in sight. 13. From the above, what is seen is that existence of unmanned level crossin g in the Railway Network is an admitted fact. It cannot be expected from the Rai lways to provide level crossing in each and every crossing throughout the countr y over which Railway Network works. It is in such circumstances, there are provi sions for unmanned level crossing and to provide warning such unmanned level cro ssing by installing adequate warning board. As per the said warning board, any p erson crossing such unmanned level crossing is to take precaution by looking bot h sides of the track to ascertain as to whether any train is passing by or not. 14. The RCT was established in the year 1987 with the following object in mi nd: An Act to provide for the establishment of a Railway Claims Tribunal for inquir ing into and determining claims against a railway administration for loss, destr uction, damage, deterioration on non-delivery of animals or goods entrusted to i t to be carried by railway or for the refund of fares or freight or for compensa tion for death or injury to passengers occurring as a result of railway accident s [or untoward incidents] and for matters connected therewith or incidental ther eto. 15. Section 13 of the Act dealing with jurisdiction, powers and auth ority of the claims Tribunal provides that the Tribunal shall exercise the same relating to responsibility of the Railway administration as carriers under Chapt er VII of the Railways Act in respect of claims for - (i) compensation for loss, destruction, damage, deterioration or non-deliver y of animals or goods entrusted to a railway administration for carriage by rail way; (ii) compensation payable under Section 82-A of the Railways Act or the rules made thereunder. 16. The Tribunal shall also exercise such jurisdiction, power and au thority in respect of the claims for refund of fares or part thereof or for refu nd of any freight paid in respect of animals or goods entrusted to a railway adm inistration to be carried by railway. 17. Section 13 (1-A) was inserted by latter amendment brought out in the year 1994 and to be prØcise with effect from 1.8.1994 and the same is repro duced below: The claims Tribunal shall also exercise, o and from the date of amendment of th e provisions of Section 124-A of the Railways Act, 1989 (24 of 1989), all such j urisdiction, powers and authority as were exercisable immediately before that da te by any civil court in respect of claims for compensation now payable by the r ailway administration under Section 124-A of the said Act or the rules made ther eunder. 18. Section 2 (n) defines ’untoward incident’ stipulating that the s ame shall have the meaning assigned to it in clause (c) of Section 123 of the Ra ilways Act, 1989. 19. Section 123 of the Railways Act, 1989 defines accident as an accident of the nature described in Section 124. Section 123(c) defines untoward inciden t as follows: (c) untoward incident means- (1)(i) the commission of a terrorist act within the meaning of sub-section (1) o f Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (2 8 of 1987); or (ii) the making of a violent attack or the commission of robbery or dacoity; or (iii) the indulging in rioting, shoot-out or arson, by any person in nor on any train carrying passengers, or in a waiting hall, clo akroom or reservation or booking office or on any platform or in any other place within eh precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers. 20. Section 2 (29) of the Railways Act, 1989 defines ’passenger’ as a person traveling with a valid pass or ticket. Section 124 and Section 124-A of the said Act prescribe the extent of liability and compensation on account of ’ untoward incident’. For a ready reference, the said two Sections are quoted belo w: 124. Extent of liability.- When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carryin g passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entit le a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwi thstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal i njury and loss, destruction, damage or deterioration of goods owned by the passe nger and accompanying him in his compartment or on the train, sustained as a res ult of such accident. 124-A. Compensation on account of untoward incidents.- When in the course of wor king a railway an untoward incident occurs, then whether or not there has been a ny wrongful act, neglect or default on the part of the railway administration su ch as would entitle a passenger who has been injured or the dependent of a passe nger who has been killed to maintain an action and recover damages in respect th ereof, the railway administration shall notwithstanding anything contained in an y other law, be liable to pay compensation to such extent as may be prescribed a nd to that extent only for loss occasioned by the death of, or injury to, a pass enger as a result to such untoward incident: Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause of disease or medical or surgical treatment unless suc h treatment becomes necessary due to injury caused by the said untoward incident . 21. Section 125 of the Railways Act, 1989 makes provision for applic ation for compensation. An application for compensation under Section 124 or Sec tion 124-A may be made to the Claims Tribunal- (a) by the person who has sustained the injury or suffered may loss, or (b) by any agent duly authorized by such person in this behalf, or (c) where such person is a minor, by his guardian, or (d) where death has resulted from the accident (or the untoward incident), b y any dependent of the deceased or where such a dependant is a minor, by his gua rdian. 22. Now the question which needs to be answered is as to whether the particular incident which occurred on the fateful day, due to which the decease d died is relatable to any of the aforesaid provisions so as to confer jurisdict ion on the Railway Claims Tribunal towards entertaining the claim application ma de by the petitioners. 23. According to the petitioners, since it was the duty of the railw ay administration to provide adequate security and/or level crossing gate in the particular level crossing, there was negligence on that count and thus the Rail ways are liable to pay compensation and accordingly the Railway Claims Tribunal ought to have entertained the claim petition submitted by the petitioners. None of the provisions referred to above are applicable to the case in hand. The Rail ways in their counter affidavit have categorically stated that in the unmanned l evel crossing in question, there was warning board adequately fixed on both the sides of the level crossing (Gate No. S.K. 46). Thus the duty cast on the railwa ys was adequately discharged. In the case of United India Insurance Co. (supra) contributory negligence on the part of the railways was attributed in view of th e fact that the caution board at the entrance of the level crossing was moth eat en and the writings thereon could not be deciphered by any one even if one was i nclined to read. In the instant case, there was no such allegation on the part o f the petitioners. 24. From the above, what is seen is that the Railways had discharged its statutory liability by installing warning board on both the sides of the le vel crossing and the deceased having ignored the said warning fell victim of the incident in which he died due to multiple injuries. Such an incident cannot be said to be railway accident and/or untoward incident within the meaning of Railw ays Act and the Railway Claims Tribunal Act, 1987. Section 124-A, on which the l earned counsel for the petitioners has much emphasized itself provides that no c ompensation shall be provided under this Section by the railway administration, if the passenger dies or suffers injury due to the incident mentioned in the sai d section, one of which is his own criminal act and self-inflicted injury. 25. Above apart the said provision is applicable only in respect of the pass enger, which has been defined in Section 2 (29) of the Act as a person traveling with a valid pass or ticket. In the instant case, the deceased was not a passen ger so as to claim compensation. As noticed above, Section 161 of the Railways A ct debars negligence in crossing an unmanned level crossing. In case of violatio n of the said provision, the offence is punishable with imprisonment, which may extend to one year. It is in this context the aforesaid provision in Section 124 -A of the Railways Act i.e. non-admissibility of any compensation if the passeng er dies due to his own criminal act, will have to be understood. 26. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly it is dismissed. However, there shall be no order as to cost s.