1 2025:CGHC:52147 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 10 of 2012 1. Union of India through General Manager, South East Central Railway, Bilaspur, District Bilaspur, Chhattisgarh --- Appellant versus 1. Firat Ram Rathor, son of Puniram, aged 49 years, occupation agriculture 2. Smt. Puni Bai, wife of Firat Ram Rathor, aged 45 years, occupation housewife Both are residents of Village Nandour Khurd, Tahsil Sakti, District Janjgir – Champa, Chhattisgarh --- Respondents FA No. 9 of 2012 1. Union of India through General Manager, South East Central Railway, Bilaspur, District Bilaspur, Chhattisgarh --- Appellant versus 1. Kashi Ram Yadav, son of Amru Ram Yadav, aged 49 years, occupation labour 2. Smt. Leela Bai, wife of Kashi Ram Yadav, aged 44 years, occupation Housewife Both are residents of Village Nandour Khurd, Tahsil Sakti, District Janjgir – Champa, Chhattisgarh --- Respondents Digitally signed by GOPAL SINGH Date: 2025.11.03 20:28:55 +0530 2 FA No.10 of 2012 and FA No.9 of 2012 For Appellant/Union of India : Shri Ramakant Mishra, Deputy Solicitor General with Shri Rishabh Dev Singh, Advocate For Respondents : None though served Hon’ble Shri Justice Parth Prateem Sahu Judgment on Board 27/10/2025 1. As both appeals arise out of same accident, they are heard together and decided by this common judgment. 2. First Appeal No.10 of 2012 is filed by appellant/defendant questioning legality and sustainability of impugned judgment and decree dated 19.9.2011 passed in Civil Suit No.7B of 2010 by Additional District Judge, Sakti, District Janjgir – Champa, whereby learned Trial Court has allowed suit in part and awarded sum of Rs.2,24,500 as compensation against death of Kamlesh Rathor (son of plaintiffs). 3. First Appeal No.9 of 2012 is filed by appellant/defendant questioning legality and sustainability of impugned judgment and decree dated 19.9.2011 passed in Civil Suit No.3B of 2011 by Additional District Judge, Sakti, District Janjgir-Champa, whereby learned Trial Court has allowed suit in part and awarded compensation of Rs.2,28,000 against death of Kartikram Yadav (son of plaintiffs). 4. Facts relevant for disposal of these appeals are that on 3 2.11.2006 Kamlesh Rathor was travelling on a bicycle driven by Kartikram Yadav and going to Village Raipura from his Village Nandour Khurd. Deceased persons were going to school on bicycle in which Kamlesh Rathor was pillion and it was being driven by Kartikram Yadav. On the way, there was unmanned and unbarriered railway crossing near Village Maldi, which is on Mumbai Howrah Railway Track. On the date of accident, at about 11 a.m., when they were crossing the unbarriered and unmanned level crossing, their bicycle was hit by one goods train coming from Baradwar Railway Station and going to Sakti, caused accident. In the said accident, Kamlesh Rathor and Kartikram Yadav suffered grievous injuries. They are taken to nearby Community Health Centre. During treatment, Kartikram Yadav died. Kamlesh Rathor was referred to higher hospital (CIMS Hospital, Bilaspur), however, during course of treatment, he also died on same date. 5. Plaintiffs/claimants in both appeals are parents of deceased Kamlesh Rathor and Kartikram Yadav, respectively. In Civil Suit No.7B of 2010 filed against death of Kamlesh Rathor, plaintiffs have claimed total sum of Rs.13,59,000 as compensation. In Civil Suit No.3B of 2011, plaintiffs claimed Rs.12,89,500 as compensation against death of Kartikram Yadav. Defendant/Union of India filed written statement resisting claim of plaintiffs seeking compensation on the ground that accident was a result of negligence on the part of deceased persons themselves. Defendant is not responsible for death of Kamlesh Rathor and Kartikram Yadav, but, accident was a result of 4 negligence on the part of Kartikram Yadav. The gate/barriers are to be installed on the railway crossings based on the rules and directions of Railway Board wherein Railway Board has fixed criteria for installing barrier/gates on railway crossings. The number of vehicles (2-wheelers, 4-wheelers and other vehicles) are not upto the number of vehicles as fixed in the criteria and, therefore, Level Crossing No.323 on which accident occurred was unmanned and no barrier was installed. But, instruction boards were installed in the nearby area cautioning persons travelling through level crossing. On boards, slogans were written. It is also pleaded that according to the Railway Act, 1989, persons who are travelling in a train with valid railway ticket are only entitled for compensation against injuries suffered due to railway accident or death. 6. Learned Trial Court framed as many as 4 issues for consideration and upon conclusion of trial allowed both suits upon appreciating pleadings and evidence brought on record by respective parties. 7. In Civil Suit No.7B of 2010, learned Trial Court awarded total compensation of Rs.2,24,500 deducting 50% of computed compensation against contributory negligence of deceased. Similarly, in Civil Suit No.3B of 2011, learned Trial Court awarded total compensation of Rs.2,28,000 deducting 50% of computed compensation towards contributory negligence of deceased. Learned Trial Court also awarded 6% interest from dates of filing of suits till realisation of compensation. 5 8. Learned counsel for the appellant/Union of India would submit that learned Trial Court fell into error in partly allowing suits seeking compensation. Learned Trial Court erred in holding deceased persons to be contributory negligent to extent of 50% only, whereas accident was a result of sole negligence of deceased persons, who were crossing railway track of level crossing negligently without looking to either side, left or right. He would also submit that impugned judgments passed by learned Trial Court in both civil suits are perverse to evidence available on record to extent of recording of finding of negligence on part of appellant/defendant. 9. There is no representation on behalf of respondents/plaintiffs in both appeals though served. 10. I have heard learned counsel for appellant/Union of India and also perused record of learned Trial Court in both appeals. 11. It is not disputed by learned counsel for appellant/Union of India that death of Kamlesh Rathor and Kartikram Yadav was due to railway accidental injuries suffered by them while crossing railway track. It is also not in dispute that Level Crossing No.323, i.e., place of accident was unmanned and unbarriered/ungated railway crossing. In above facts of case, it is to be considered whether railway accident resulting in death of two persons travelling on bicycle can be said to be an accident on account of sole negligence of two persons travelling on bicycle. 12. Appellant/defendant/Railway Department in written statement 6 have taken a plea that in Railway Crossing No.323 there is less movement of vehicles (2-wheelers, 4-wheelers and other vehicles) and, therefore, according to instructions and guidelines/rules issued by Railway Board, no barrier/gate with man was installed at subject Railway Crossing No.323. To prove aforementioned plea taken in defence, appellant/defendant have examined Abhimanyu Sahu as DW1, who was posted as Senior Section Engineer, Baradwar Railway Station of South Eastern Central Railways (SECR). In examination-in-chief, he stated according to pleadings made in written statement that Level Crossing No.323 does not come within zone of criteria as fixed by Ministry of Railways for installing manned gate/barrier. He also stated that in average about 78 trains crosses subject Railway Crossing No.323 in 24 hours and 3.65 motor vehicles crosses subject railway crossing in 24 hours, according to valuation/calculation of the year 2004. In para 8 of cross- examination, question was put to said witness whether survey report based upon which Ex.D13C is prepared is placed before learned Trial Court or not, in which he stated that said survey report based upon which Ex.D13C is prepared is not forming part of record. He also stated that on left side of railway track, subject matter of suits, there is National Highway No.200, but, he showed his unawareness about situation of Village Panchayat Serli, Village Panchayat Raipura, Village Panchayat Maldi and Village Panchayat Parsada. He also showed his unawareness that all the Village Panchayats are big panchayats and in Village Panchayat Raipura, Parsada and Serli there are High Schools. In paragraph 10 of his cross-examination, he admitted that 7 according to railway rules, wherever travelling of rails and crossing of motor vehicles average TVU is 6,000 then on that railway track crossing, manned railway gate/barrier is installed. He also stated that where along with 78 trains crossing of 80 motor vehicles are there then TVU will be 6,000. 13. There is admission of Abhimanyu Sahu (DW1) that in average about 78 trains crosses, subject Railway Crossing No.323 in 24 hours. No evidence is brought on record by appellant/defendant/Railway Department about average number of vehicles crossing subject Railway Crossing No.323 in 24 hours to support their contention that it does not fulfill criteria for installation of manned railway gate on crossing of railway tracks over road. 14. Learned Trial Court, upon appreciation of pleadings and evidence brought on record, in particular, considering that accident occurred when deceased persons were crossing railway track, travelling on their bicycle which was unmanned and ungated railway crossing and further considering that defence taken by appellant/defendant/Railway Department to keep railway track ungated no proper documentary evidence like survey report based upon which document Ex.D13C is prepared is submitted, arrived at conclusion that there was contributory negligence on part of deceased as also defendant/Railway Department and computed compensation. Appellant/Union of India had not produce any evidence to show that under such norms or rules or directions there is no requirement of installing any gate at level crossings. 8 15. Quantum of compensation is not put to challenge but only negligence as found by learned Trial Court to extent of 50% upon appellant/defendant is put to challenge. 16. For the foregoing discussion and evidence available on record, in particular, evidence of Abhimanyu Sahu (DW1), in the opinion of this Court, learned Trial Court has not committed any error in recording finding that there is contributory negligence on part of appellant/defendant also. Said finding recorded by learned Trial Court is upon proper appreciation of facts and evidence available on record. Hence, it does not call for any interference. Both appeals being sans merit which are liable to be and are hereby dismissed. No order as to costs. 17. Decree be drawn up accordingly. Sd/- (Parth Prateem Sahu) JUDGE Gopal