Parvathamma and Another vs General Manager, South Central Railways and Others

T.N. Vallinayagam, J.—The claimant is aggrieved by the dismissal of his petition for compensation in M.V.C. 972/1997 on the ground that the railway engine which is involved in the accident is not a motor vehicle. Holding that the railway -engine is not a motor vehicle, the Tribunal has chosen to dismiss the claim on preliminary issue in the light of the dictum of the Supreme Court in Union of India v. United India Insurance Company Limited (1977) 8 SCC 683, which is as follows:

Under Section 13 of the Railways Act no statutory duties are imposed directly on the Railway Administration to erect gates and employ watchmen, etc., at level-crossing if railway is cutting across a public road. The section on the other hand only confers a power on the Central Government to issue a requisition to the Railway Administration, i.e., the General Managers or the Railway Companies (if any) to take steps as per Section 13. Obviously, if the Central Government does not think fit to exercise that power and does not issue any such requisition, the occasion for the Railway Administration to take steps u/s 13, as per the statutory mandate, will not arise. Thus the statutory duties of the Railway Administration u/s 13, do not arise unless a requisition is made by the Central Government. The above anomaly has naturally compelled the Courts to fall back upon the common law duties resting on the Railways.

The law in this behalf is well settled that the claimants can at their choice sue the Railways to enforce either or both types of these duties, i.e., under the common law as well as under the statute. The claimants can sue the Railways concurrently for breach of the common law or statutory duties or for breach of either of the duties.

The appeal is allowed and the matter is remitted back to the Tribunal. The claimant is permitted to amend the petition by impleading the owner of the vehicle and any other necessary party.