© S1N6LE BEI^GH IN THE HIGH COURT OF CttHATTISGARH AT BILASPUR CC.G.) WRIT PETITfON N0. ^-5& fc /2005 UNDERARTICLE 22-6 OF THE CONSTITUTION OF INDIA/ P£TITIONER: ..'I Smt. Kaushlyabai, wd/o Late Virendra Kumar Gabhel , aged about 26 years, occupation housewife, r/o Village / ...•••:'^' ..-•''^y~.. ^x^-v~ ..••'" •<y..-- -^ ..<• Amandola, Tahsil Malkharoda, District ^tffy'.•-•'" .....-..-.".-,.-..-.. ..-.....-.—, Janjgir-Champa (C.G.) '^'.•- ^ ^•\rf^' v^w' y . ^? ^' ^' ^y^ VERSUS. RESPQNDENTS: Inion of India, through Generai Manager, South East Central Railway, Bilaspur (C.G.) BIII '% .:.'"' "'^ t .,::C..S-%1 {^^^s^ HIGH COURT OF CHHATTISGARH^BILASPUR Single Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Writ Petition N0.4506 of 2005 Petitioner Respondent Smt. Kaushlyabai Versus Union of India (Writ Petition under Article 226 of the Constitution of India) Present: - Shri Alok Bakshi, counsel forthe petitioner. Smt. Noushina Afrin Ali, counsel for respondent. ORAL ORDER (Passedon 01-03-2011) This petition has been filed by the petitioner, unfortunate widow of the deceased Virendra Kumar Gabhel, who died in accident. By this petition, the petitioner has prayed for payment of compensation to the tune of Rs.4 Lakhs and has also prayed for a direction to put barrier at the concerned railway crossing between Navapara and Mahkaknown as Mahka Khula Phatak. 2. The facts of the case are that the husband of the petitioner, an agriculturist, was going on a motorcycle on 14-01-2000 and he happened to cross a railway crossing as he had to go to Village Mopka from Paraskol, for which, one needs to pass through an unmanned railway crossing between Kharsiya and Jharadih Railway Stations. When the deceased and is co-brother reached the unmanned railway crossing, he stopped when one goods train was crossing through. Thereafter, when he proceeded to cross the railway track, another passenger train No.328 Down came in and dashed the motorcycle. In fhis massive accident, husband ofthe petitionerdied. :r 6$ ; . nlS3 . 2-- 3. Learned counsel for the petitioner submitted that the accident occurred entirely due to the negligence of the Railways. He submits that had the railway crossing been manned or some barrier would have been installed, the incident would not have happened and the deceased would not have met untimely death. He submits that at all places including the place where the accident took place, the Railways are duty bound to provide safety measures either to make it manned crossing or to install barriers to ensure Ihat whenever any train is crossing, the public is not allowed to cross through the railway track. According to learned counsel for the petitioner,, on account of failure on the part of the respondent-Railways to comply with necessary safety measures, it is a case of sheer negligence and as death of the petitioner's husband is direct result of such a negligent act on the part of the respondent, as a palliative measure, the petitioner is entitled to compensation. Learned counsel for the petitioner submitted that even if there existed a traditional remedy of getting compensation by taking recourse to the ordinary civil remedy, the Writ Court has all the jurisdiction and authority under the law to grant appropriate compensation, where a citizen has lost his life or limb due to the negligence on the part of the State authorities. ln support of his submission, learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of M. S. Grewal and another vs. Deep Chand Sood and Others, AIR 2001 SC 3660. 4. On the other hand, learned counsel for the respondent submitted that the altegation that the accident occurred due to negligence on the part of the Railway Authorities in the matter of operation of Railways is not correct. Learned counsel forthe respondent submitted that even according to the petitioner, the manner in which, the incident has been narrated itself shows that the accident was on account of negligence on the part of the deceased, who while crossing through the railway track, did not take proper care and caution. Learned counsel for the :<&i '— 3> •?" 't •5J> • respondent further submitted that the crossing where the incident happened is an unmanned crossing. Learned counsel submits that unless the petitioner establishes that the incident was a direct outcome of negligence on the part of the respondent in not maintaining railway operation system, according to their own standards, claims with regard to establishment of manned, unmanned barriers, merely because death has occurred due to crossing through a railway track, no compensation can be claimed in the absentfe of there being any such right under any law for the time being in force and there was a policy of Railways granting compensation generally in all cases of accident. Further submission of learned counsel for the respondent is that the Railways have laid down their own policy and guidelines with regard to establishment of manned and unmanned Railway crossing vide circular dated 11-06-2003. It is submitted that according to those norms, the place where the accident happened was an unmanned Railway crossing and it is not a case where though the manned Railway crossing required to be established yet it was not established. It is further submitted that it is neither practical nor possible to cover up the entire Railway track with manned crossing, 'and therefore, manned Railway crossing is established only wherever it is found necessary in terms ofthose guidelines. 5. From the averments made in the petition, it is born out that the death occurred at the time when the deceased was crossing through the Railway track at a particular place. The averments made in the writ petition show that the accident occurred in the circumstances where the deceased was trying to cross the railway track and was overturned by crossing a passenger train. That being the situation reflected from the pleadings of the parties, in the absence of any other specific CSse of the petitioner, there was some negligence on the part of the driver, who was operating the train or because of the negligence on the part of any Railway employee to take some measure at the time of crossing of the -^t (:f^) train, and in the absence of any oral evidence in this regard, it is not possible for this Court to come to a definite conclusion in this proceedings as to whether the accident was on account of negligence of operation of train or Railway track or because ofthe negligence ofthe deceased. 6. Though the jurisdiction of this Court under Article 226 of the Constitution of India is very wide and even in cases, where a citizen is adversely affected in his life and is the member or for enjoyment of any of fundamental rights, this Court would have jurisdiction to award some compensation as a palliative '" measure, in the present case, on the pleadings and the circumstances in which the accident is occurred, in the opinion of this Court, the petitioner should approach the Civil Court claiming compensation on a specific pleading and prove all negligence. Though, reliance has been placed on the decision ofthe Supreme Court in the case of M. S. Grewal and another (supra), facts in that case are different, that was a case where writ petition was filed by the parents and the guardians of the unfortunate children, who had died in an accident in school picnic. That is not a case here. Moreover, the Supreme Court dealt with the argument of alternative remedy in the peculiar cireumstances of the case held that before the Writ Court, this aspect was not pressed too much and when the orderwas passed by the High Court, in the Supreme Court,such objection to the maintainability ofthe writ petition was raised. In the present case, considering the totality of the circumstances, in the absence of there being any material on record to show that the accident was direct result of any lapse on the part of the respondent-Railways on account of failure of there own norms and guidelines relating to safety measure and establishment of manned Railway crossing or on accountof negllgence of the driver of the train, it would be open for the petitioner to work out their remedy in an appropriate Civil Court. The petitioner would be at ^^'•s ' I 'Sa. b liberty to claim compensation by taking recourse to the remedy available before a Civil Court of competentjurisdiction. 7. With the aforesaid observation, the petition stands dismissed. Ma"'"draMohanShrivastevaJ Judge " umane