P. S. NARAYANA, J. ( 1 ) THE unsuccessful plaintiffs 1 and 2 in OS No. 2 of 1984 on the file of Subordinate Judge, Ongole, are the appellants. The defendant in the suit is the 1st respondent and the 3rd plaintiff in the suit is the 2nd respondent in the present appeal. The plaintiffs filed the suit as indigent persons for recovery of Rs. 50,000. 00 towards compensation from the 1st respondent-defendant, consequent on the death of the husband of the 1st plaintiff i. e. , the 1st appellant, in a Railway accident on 13-4-1983 at Chavatapalem. ( 2 ) FOR the purpose of convenience, the parties are referred to as plaintiffs and defendant as arrayed in the Court below. ( 3 ) THE allegations in the plaint are that the plaintiffs are the wife, daughter and father of late Sri Venkata Rao, owning a double bullock cart and plying it on hire, himself acting as driver, earning Rs. 15. 00 to Rs. 20. 00 per day throughout the year and at times more than that and that the plaintiffs had been depending upon his earning only for their sustenance and he was the only earning member of the family and that on 13-4-1983, the said Venkata Rao along with his cart had been to Chavatapalem and while returning back to his village i. e. , Kodavakuduru, on his way while crossing the Railway track at the unmanned level crossing, known as Hanuman gate, between Chavatapalem and Ammanabrole No. 44 Kakinada - Madras Circar Express, which was proceeding towards Madras in high speed, the driver driving it in a negligent manner without giving any whistle and caution, hit the cart of the said Venkata Rao and as a result of which both his bulls died on the spot and the cart was badly damaged beyond repair and he himself sustained serious and grievous injuries. Though he was immediately taken to the Government Hospital, Chirala, unfortunately on the same night he breathed his last and on account of his death, the plaintiffs had been deprived of the support of the deceased on whom they were solely depending for their sustenance and who was the only bread winner of the family and that but for the premature death, he being only 22 years old, the said Venkata Rao would have supported and provided them all amenities and comforts for a period of 35 years or even more and thus they are deprived of his earnings to tune of Rs. 35,000. 00 and besides that they have also suffered a loss of Rs. 15,000. 00 on account of the death of the bulls and damage of the cart and that the accident had occurred solely due to the negligence of the driver in driving the train without giving any caution or whistle and had he given whistle and had been cautious, the accident could have been avoided and hence the plaintiffs are entitled to claim compensation. ( 4 ) THE defendant had filed a written statement and the occurrence on the fateful day is not in dispute. The fact that Venkata Rao and bulls died on account of the said accident and the cart also was damaged also are not in serious dispute. However, regarding the liability to pay the compensation, a specific stand was taken by the defendant in the suit - 1st respondent in this appeal, that there was absolutely no negligence whatsoever on the part of the driver of the train and the accident occurred only due to the negligence and also lack of alertness on the part of the deceased since the accident occurred at the unmanned gate and as such while such a gate the deceased should have been very careful to see that no train was passing from either side and he was suddenly found crossing the gate without paying any heed to the whistle given by the train and of approaching of the train and hence the plaintiffs are not entitled to claim any compensation whatsoever. ( 5 ) ON the strength of the pleadings, the following issues were settled :1. Whether the plaintiffs are entitled to recover the suit amount?2. ( 5 ) ON the strength of the pleadings, the following issues were settled :1. Whether the plaintiffs are entitled to recover the suit amount?2. To what relief?on behalf of the plaintiffs, PW1 - the father of the deceased, and PW2 were examined and no documents were marked. On behalf of the defendant-1st respondent in the appeal, DW1 to DW5 were examined and Exs. B1 to B7 were marked. The Court below after appreciating the oral and documentary evidence available on record had arrived at a conclusion that there was no negligence on the part of the Railways and had dismissed the suit. Aggrieved by the said judgment and decree, as already stated supra, plaintiffs 1 and 2, the wife and the daughter, had preferred the present appeal, impleading the 3rd plaintiff- PW1, as 2nd respondent in the appeal. ( 6 ) SRI Narayana, the learned Counsel representing the appellants had contended that there is no doubt about the occurrence of the accident and the only question that has to be decided is on the aspect of the negligence on the part of the Railways. The learned Counsel had contended that the Court below had totally erred in holding that the deceased was negligent and he had not taken proper care while driving the double bullock cart while crossing the unmanned gate. The learned Counsel also had contended that the very fact that there is bend near the gate and further at the relevant time there was large growth of Babul trees obstructing the views of the trains passing on the track and the two iron poles will not be visible during night times clearly, go to show that the unfortunate accident occurred on the fateful day only due to the negligence of the Railways. The learned Counsel also had contended that the evidence of PW2 is a material piece of evidence and he is the eye-witness to the incident and the Court below should have relied upon the evidence of PW2 and decreed the suit. The learned Counsel also had contended that the Driver, Assistant Driver and the Assistant Guard are only interested witnesses and placing reliance on such evidence and coming to a conclusion that there was no negligence on the part of the Railways is totally unsustainble. The learned Counsel also had contended that the Driver, Assistant Driver and the Assistant Guard are only interested witnesses and placing reliance on such evidence and coming to a conclusion that there was no negligence on the part of the Railways is totally unsustainble. The learned Counsel also had pointed out that absolutely there was no whistling so as to alert and no precautionary measures had been taken by the Railways, consequent upon which the accident had occurred on the aforesaid day. The learned Counsel had taken me through the evidence of PW1 and PW2 and had pointed out that in the facts and circumstances, the Court below should have arrived at a conclusion that the Railways had acted negligently by virtue of which the accident had occurred and the victim-deceased consequently died thereupon. The learned Counsel also had contended that in matters of death of a party, while deciding the question of compensation, the Courts have to adopt a liberal approach. ( 7 ) SRI G. S. Sanghi, the learned Standing Counsel for Railways had strenuously contended that this is a matter concerned with the liability of the Railways in relation to an unmanned gate and the law Courts are expected to decide matters in accordance with the principles of law and humanitarian and sympathetic considerations should not weight with the Courts while deciding the matters. The learned Counsel also had drawn my attention to the evidence of DW1 to DW5 and also Exs. B1 to B7 and had pointed out the topography and also the warning issued by the Safety Organisation, South Central Railway in this regard. The learned Counsel in fact had taken me through Exs. B1 and B2 in particular and also the report filed by DW3, Exb3 and the original message issued by DW3, Ex. B4 and Ex. B5 and the report sent by DW3-Ex. B6, and the findings of the Divisional Railway Manager s Office, Transportation Branch, Vijayawada, marked as Ex. B7. The learned Counsel in fact had taken me through Exs. B1 and B2 in particular and also the report filed by DW3, Exb3 and the original message issued by DW3, Ex. B4 and Ex. B5 and the report sent by DW3-Ex. B6, and the findings of the Divisional Railway Manager s Office, Transportation Branch, Vijayawada, marked as Ex. B7. The learned Counsel after taking me through the oral evidence of DW1 to DW5 and also the documentary evidence and the evidence of both PW1 and PW2 had contended that on appreciation of the over all facts and circumstances, it is clear that the accident had occurred on the fateful day due to the fault on the part of the deceased only and the Railways cannot be held to be responsible in any way in this regard. The learned Counsel also had drawn my attention to Sections 83, 85 and 122 of the Railways Act, 1890 and also Section 161 of the Railways Act, 1989. The learned Counsel also had placed reliance on S. N. Hussain v. State of Andhra Pradesh, AIR 1972 SC 685 , Union of India v. United India Insurance Company Limited and Ors. , AIR 1998 SC 640 , Swarnalata Dutta Barua and Anr. v. National Transport India Private Limited and Anr. , AIR 1974 Gau. 31 , Ahmedabad Municipal Transport Service and Anr. v. Manekaben and Ors. , AIR 1982 Guj. 27 . ( 8 ) HEARD both the Counsel and also perused the material available on record. ( 9 ) THE points which arise for consideration in this appeal are: (A) Whether the appellants and the 2nd respondent are entitled to the compensation as prayed for by them due to the death of the husband of the appellant No. 1 in the Railway accident on 13-4-1983 at Chavatapalem? (B) To what relief? Point (a): ( 10 ) AS already stated supra, the occurrence of the accident is not in dispute. PW1 is the father of the deceased and he is not an eye-witness. PW2 is an eyewitness to the occurrence of the incident and in fact PW1 had got the information about the occurrence through PW2 only. The evidence of PW1 is general in nature. PW1 is the father of the deceased and he is not an eye-witness. PW2 is an eyewitness to the occurrence of the incident and in fact PW1 had got the information about the occurrence through PW2 only. The evidence of PW1 is general in nature. Coming to the evidence of PW2, he had deposed that he is a resident of Kodavakuduru and he knows the plaintiffs and also deceased Venkata Rao who died about two years ago as on the date of his deposition and at the time of the accident both of them were returning back to their village after unloading haystack at Ammanabrole and at the time of the incident it was about 9-30 p. m. , and the cart of the deceased was ahead of his cart by about one furlong. PW-2 also further deposed that the incident occurred at the gate of Raparla Machavaram and the distance between the place and Ammanabrole is about a mile and from that gate their village is about 10 to 11 miles away and to come to their village from Ammanabrole there is no other road and by that road lorries, vehicles and men pass through and the place where the incident occurred, the Railways run from North to South and that they were to cross from East to West. PW1 also further deposed that for that on both sides of the gate iron poles have been fixed and near the gate there is a little curve and near the iron poles there were higher Japan Babul trees spread on an area about 100 yards diameter and the bushes are on the Eastern side of the Railway line from North of the Eastern side gate and from the gate one cannot see the light of any coming train and from the unmanned gate it was not possible to see the light of the in-coming train because of the presence of the bushes. PW2 also deposed that they did not hear any whistle of the train nor seen the light of the in-coming train. PW2 also had further deposed certain other details and in cross-examination no doubt several suggestions were put, but however they were denied by PW2. No doubt an attempt was made to contend that PW2 cannot be said to be an eye witness at all and he is an interested witness. PW2 also had further deposed certain other details and in cross-examination no doubt several suggestions were put, but however they were denied by PW2. No doubt an attempt was made to contend that PW2 cannot be said to be an eye witness at all and he is an interested witness. But however, on appreciation of the evidence of PW2, I am not inclined to accept the contention of the Railways in this regard. ( 11 ) A careful reading of the evidence of PW2 clearly shows that the deceased on the fateful day had not taken careful and reasonable precautions at the time of level crossing and no doubt there is no evidence at all in this regard. PW2, in fact at the moment might have not witnessed the incident as such except seeing it from a distance. DWI is the Permanent Way Inspector (Railway Track) with Headquarters at Chirala. DW1 had deposed that this Railway track from Chirala upto Railway Station Karavadi was within his jurisdiction including Karavadi. DW1 had spoken to about the warning Board in two languages of English and Telugu. Ex. B1 was marked through DW1. Ex. B1, issued by the Safety Organisation, South Central Railway, specifies:-"right way to cross safely at unmanned Level Crossing Follow these Rules Stop the Vehicle at the Stop Board Get Down and Look out on both sides for Approaching train wait till the approaching train passes cross only when no train is in sight at Manned level crossing don t force the gateman to open the gate The Motor Vehicles Act enjoins these safety rules on drivers and conductors of all vehicles passing unmanned level crossings Avert accidents and avoid tragedy Issued by: Safety organisation, South Central Railway 1982. "the plan also was marked as Ex. B2. DW1 had deposed about the uptrains and down-trains and also the usual procedure that will be adopted by the driver. DW1 in fact had deposed at page 4 as follows :". . . . . . THE driver of the Railways starts whistling at that point and continues to whistle till he passed the Un-manned level crossing, (v) Chavatapalem is on the north of (v) Ammanabrole and on the east of Railway Track. Near (V) Chavatapalem there is another level crossing. Its number is 211. The whistle Board for that level crossing of (V) Chavatapalem is about 780 meters to further north. Near (V) Chavatapalem there is another level crossing. Its number is 211. The whistle Board for that level crossing of (V) Chavatapalem is about 780 meters to further north. For a person starting from (V) Chavatapalem to go to (V) Raparla, he can go via, the level crossing 221 and need not cross the level crossing 220. At that time the level crossing 221 was also un-manned. Now it is manned. There won t be any gate on the unmanned level crossing . The embankment of the Railway track would be a meter higher than the ground-level. On the embankment there would be stone-ballast. Over the ballast, sleepers and then the rails would be fixed. The top of the Engine would be 4 meters higher from the rail. The rail would be about 50 CMs (i. e. , half a meter) above the embankment. The center point of the Headlight of the engine would be about 3. 74 meters high from the rail. It is an electric focusing i. e. , flood light. One meter is equal to 3 feet, 3 inches and 3/8 inches. If there is no obstruction like bushes or trees etc. , the Railway engine s flood light could be seen upto a distance of 6 to 7 K. Ms. The particular train was Electric Train, The Railways does not allow any bushes or trees to be grown either on the embankment or near above, and as such there would not be any obstruction in the travelling of the light. Within my jurisdiction I am expected to inspect the track once in a week. In the particular case as the cart was proceeding towards north and as the train was coming from north, the cart man could easily see the engine light had he been a little alert. In cases of occurring any untoward incidents at the un-manned level crossing, the Railways do not hold any responsibility. " ( 12 ) DW2 is the driver. DW2 had clearly deposed that on the intervening night of 12-4-1983 and 13-4-1983 while the train was about a kilometer away from the level crossing he started whistling. In cases of occurring any untoward incidents at the un-manned level crossing, the Railways do not hold any responsibility. " ( 12 ) DW2 is the driver. DW2 had clearly deposed that on the intervening night of 12-4-1983 and 13-4-1983 while the train was about a kilometer away from the level crossing he started whistling. DW2 also deposed that while he was at a distance of 200 to 250 meters from the level crossing he saw the bulls approaching the track and then immediately he had applied the brakes and then the train came to a stop but the train could be stopped only after the accident. DW2 also deposed that he first saw the cart. It was not possible to stop the train immediately so as to avert the accident and for stopping the train, the brakes have to be applied from a distance of about 1 KM. No doubt certain suggestions were put to DW2. ( 13 ) DW3 was the Railway Station Master and he had deposed about the Assistant Station Master sending a word about an accident and the other details relating to the accident. DW4 was the Assistant Driver of the train on the relevant day. DW4 had deposed that while the train was proceeding from Uppugundur Station itself they were continuously whistling between Uppugundur and Ammanabrole and the headlights of the train were quite well arid proper and while the train was at a distance of 200 meters from the level crossing for the first time they noticed the cart proceeding towards the Railway track. DW5 was the Assistant Guard of the train at the relevant time. DW5 also had spoken to about the whistling of the train on the fateful day of the incident. Thus, the evidence of DW2, DW4 and DW5 is clear on the aspect that there was no negligence on the part of these persons who were driving the train on the fateful day and hence the Railways cannot be held responsible for the unfortunate incident. The evidence of DW1 also is clear relating to the aspect of taking the necessary precautions while the drivers drive the train. On the aspect of negligence, several probabilities had been pointed out by the learned Standing Counsel for the Railways, which need not be discussed elaborately in the light of the clear evidence specified supra. The evidence of DW1 also is clear relating to the aspect of taking the necessary precautions while the drivers drive the train. On the aspect of negligence, several probabilities had been pointed out by the learned Standing Counsel for the Railways, which need not be discussed elaborately in the light of the clear evidence specified supra. However, a comment was made by the learned Counsel for the appellants that all these witnesses are only Departmental people and they are interested in supporting the Railways as such. ( 14 ) IT is pertinent to note that in a matter of this nature, no other witnesses in fact can be thought of to be examined by the Railways. Chapter VIII of the Indian Railways Act, 1890 which was repealed by Section 200 of the Railways Act, 1989 had dealt with accidents . No doubt reliance was placed by the learned Standing Counsel for the Railways on Sections 83 to 86 of the repealed Act and also Section 121 of the repealed Act and the learned Counsel also had drawn my attention to Section 161 of the present Act i. e. , Railways Act, 1989, which deals with negligently crossing unmanned level crossing . It is pertinent to note that Section 161 of the present Act is a new provision introduced in the present Act. In the decision referred (supra), it was held that where the bus driver received warning from the passengers in the bus that the goods train was coming only when he was already on the Railway track after crossing the level crossing gate which was left open and on seeing the train he drove as fast as he could but in the meantime the train dashed against the bus on the rear side, it was held on facts that it could not be said that the bus driver tried to negotiate the level crossing in a spirit of bravado and absolutely callous and unmindful of the impending collusion. In the decision referred (supra), the Apex Court observed:"in our opinion, in the absence of a board statutorily requiring the vehicle to "stop" and the conductor to "get down", there was only an ordinary common law duty as applicable to prudent persons. This was a duty to "stop", "see" and "hear" and find out if any train was coming. In the decision referred (supra), the Apex Court observed:"in our opinion, in the absence of a board statutorily requiring the vehicle to "stop" and the conductor to "get down", there was only an ordinary common law duty as applicable to prudent persons. This was a duty to "stop", "see" and "hear" and find out if any train was coming. It has been held by the US Courts that there is no absolute duty at common law to get down for the vehicle invariably. In fact a rigid rule of "getting down from the vehicle in addition to stopping, looking and hearing was laid down at one time by Justice Holmes in Baltimore and O. R. Company v. Goodman (1927) 276 UB 66 = 72 Law Ed. 167, 48, S. Ct 580, stating that the requirement of getting down from the motor Vehicle was good if there was a curve or an obstruction or such like situation but not when the line was straight and the train was visible. The get out of the car requirement was, in the absence of special circumstances, and uncommon precaution, likely to be futile and sometimes even dangerous said Cardozo, J. In our opinion, there was no duty - in the absence of a board directing the driver or conductor - to get out of the vehicle, but there was certainly a duty to stop, see and hear, at the unmanned level crossing. If that was not done, there would clearly be negligence on the part of the driver. "in the decision referred (supra), it was held that there a bus driver while crossing an unmanned Railway gate, ignored warnings by passengers and dashed against an oncoming train with tremendous speed, the driver was guilty of rashness and negligence. In the decision referred (supra), while dealing with the aspect of the duty of a motor driver before crossing an unmanned level crossing, it was held that where a level crossing is unmanned the driver of the vehicle should stop the vehicle, look both ways to see if a train is approaching and thereafter only drive his vehicle after satisfying himself that there is no danger in crossing the Railway track. Reliance also was placed on Mohan Malik v. Emperor, 1914 Crl. L. J 468, Chandai v. Emperor, AIR 1933 All 891, Works Manager C and W Shop v. Mahabir, AIR 1954 All 132. Reliance also was placed on Mohan Malik v. Emperor, 1914 Crl. L. J 468, Chandai v. Emperor, AIR 1933 All 891, Works Manager C and W Shop v. Mahabir, AIR 1954 All 132. ( 15 ) IN the case of death of a party due to an accident, it is no doubt true that always humanitarian and also sympathetic considerations may be in favour of the ultimate victims of such an accident. But at the same time, in a case of this nature where the evidence is very clear and overwhelming on the part of the Railways, which clearly negatives any kind of negligence on the part of the Railways and especially in the light of the evidence of DW2, DW4 and DW5 and also Exs. B1 and B2 in particular and even the evidence of PW2, it cannot be said that in the facts and circumstances of the case, the unfortunate deceased had taken atleast the necessary normal measures and care while crossing the unmanned gate and in the absence of any evidence in this regard and when there is clear evidence on the part of the Railways, in my considered opinion, the Railways cannot be fastened with any liability. Point (b) : ( 16 ) IN the light of the detailed foregoing discussion and the finding recorded relating to the absence of negligence on the part of the Railway Administration and the concerned Railway personnel on the relevant date, there are no merits in the appeal and accordingly the appeal is dismissed. But however, no order as to costs. Inasmuch as the appeal also is presented as indigent persons, the appellants are liable to pay the Court fee payable on the appeal.