IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.322 of 1989 (O&M) Date of decision:02.02.2011 Union of India ....Appellant versus Richhpal Singh and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Karminder Singh, Advocate, for the appellant. None for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ?Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The appeal is by the railway administration contending that the accident had taken place by a collision of a tractor at an unmanned level crossing with a train belonging to the Union and causing the death of a person, who was 45 years of age. The claimant was his widow. The issue raised in appeal is squarely governed by the decision of the Hon'ble Supreme Court in Union of India Versus Bhagwati Prasad-(2002) 3 SCC 661 that dealt with the situation of liability of a railway administration without requiring to refer the parties for an adjudication before the Railway Claims Tribunal. The duty of a railway administration in case of unmanned level crossings was dealt with in FAO No.322 of 1989 (O&M) - 2 - extenso in the judgment of the Hon'ble Supreme Court in Union of India Versus United India Insurance Company Limited-(1997) 8 SCC 68 which was ultimately reversed on the issue of jurisdiction of the Tribunal by the three member Bench. A greater degree of circumspection would be necessary in such like places, particularly in view of the provisions of the Railways Act that casts a duty on the railway administration for due care for unmanned railway crossings. The Court said, “while every accident at an unmanned level crossing could not give rise to a presumption of breach of public duty for the statutory safeguards, if the traffic at the intersection with the road is heavy but the government had still not provided the gates and personnel to supervise, such breach of public duty has to be readily inferred.” It noted with approval the observations of the Judicial Commissioner in Union of India v. Lalman- AIR 1954 VP 17 that “ (A) level-crossing is on the one hand a danger spot in view of the possible movement of trains, and on the other is an invitation to the passers-by. This is a public crossing and not merely one by private accommodation. Therefore it is the legal duty of the Railway to assure reasonable safety. The most obvious way of doing it is to provide gates or chain barriers and to post a watchman who should close them shortly before the trains pass...(E)ven if the car driver knew that there was a crossing, the road users should be alerted at the proper moment by the boards and it is not a case for remote knowledge but “one for immediate alertness”. Adverting to the law in England, the Supreme Court affirmed what the Privy Council said in Commissioner for Railways v. Mc.Dermott-(1966) 2 ALL ER 162 that the Railways' FAO No.322 of 1989 (O&M) - 3 - duty of care at common law is based on the principle of neighbourhood laid down by Lord Atkin in Donoghue v. Stevenson inasmuch as the Railway “was carrying an inherently dangerous activity of running express trains through a level-crossing which was lawfully and necessarily used by the local inhabitants and their guests and persons visiting them on business. Such an activity was likely to cause accidents, unless it was carried on with all reasonable care.... In principle, the liability is not based, however on matters of title but on the perilous nature of the operation and the de facto relationship which after Donoghue v. Stevenson, 1932 AC 562: 1932 AII ER Rep 1 would be called 'proximity' or 'neighbourly' relation between the railway operator and a substantial number of persons lawfully using the level-crossing”. The same principle applies in India also.” The liability cast on the Union will have, therefore, to be upheld in terms of the law laid down by the Hon'ble Supreme Court and the compensation itself being a modest amount for death of a person, I will make no intervention even as regards the same. 2. The award is confirmed and the appeal of the Union is dismissed. (K.KANNAN) JUDGE 02.02.2011 sanjeev