JUDGMENT : Ram Mohan Reddy, J. Railway Administration has preferred this appeal calling in question the judgment and award date 30-11-2010 of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Turuvekere (for short 'MACT') allowing MVC No. 346 of 2007 recording a finding attributing actionable negligence on the driver of the locomotive, Chalukya Express for the cause of the accident. 2. Before the MACT, claimant asserted that one Rajani, aged 38, husband of the claimant, while traveling in an auto rickshaw bearing certificate of Registration No. KA-44/320 along with others, from Aralaguppe to Tiptur, at the unmanned level crossing No. 73, the Locomotive Chalukya Express No. 1018 proceeding from Banasandra towards Tiptur dashed against the auto rickshaw, as a result of which Rajani succumbed to grievous injuries on the spot. That Rajani, it was said, was a businessman dealing in stones earning Rs.10,000/- p.m. and his wife was dependent on such income. 3. The claim petition registered as MVC No. 346 of 2007 was opposed by filing statement of objections of the Divisional Manager (South Western Railways), Mysuru, arraigned as respondent 3 contending that under Section 161 of the Railways Act, 1989, independently crossing unmanned level crossing is punishable with imprisonment which may extend to one year and as the auto rickshaw in question was a luggage auto not permitted to carry passengers, deceased while sitting in the said auto next to the driver, having stopped the auto rickshaw before the unmanned railway crossing and after the railway engine measuring 22 mtrs. crossed the said level crossing, the auto rickshaw driver in a rash and negligent manner dashed against the clutch and gear of the locomotive on its hind side resulting in the accident. 4. The Oriental Insurance Company, the insurer of the auto rickshaw in question arraigned as respondent 4 filed written statement denying its liability to pay compensation, while admitting to have insured the auto rickshaw. The Union of India, arraigned as respondent 1 though served, remained absent and unrepresented. The officer-in-charge on special duty, South Western Railways, though arraigned as respondent 2, nevertheless, petition was dismissed for non-prosecution. 5. The Union of India, arraigned as respondent 1 though served, remained absent and unrepresented. The officer-in-charge on special duty, South Western Railways, though arraigned as respondent 2, nevertheless, petition was dismissed for non-prosecution. 5. In the premise of pleading of parties, the MACT framed the following five issues: "(i) Whether the petitioner proves that on 31-10-2006, at about 9.40 am while Sri Rajani was traveling in an auto rickshaw bearing No. KA-44/320 from Aralaguppe to Tiptur, near Aralaguppe Railway crossing, due to negligent act of the Railway Authority, the Chalukya Express No. 1018 came from Banasandra Side and dashed against the auto rickshaw, as a result, Sri Rajani died at the spot? (ii) Whether the respondent 3 proves that the accident was purely on account of tolal negligence on the part of auto rickshaw driver? (iii) Whether the respondent 4 proves that the policy issued by them would not cover the risk against the railway accident? (iv) Whether the petitioner is entitled for the reliefs claimed? (v) What order or award?" 6. Before the MACT, claimant was examined as P.W. 1 and marked five documents as Exs. P. 1 to P. 5, while for the respondents, evidence neither oral nor documentary was adduced. 7. The MACT, having regard to the material on record and evidence, both oral and documentary, returned a finding in the affirmative over issue 1; negative on issues 2 and 3; partly in the affirmative over issue 4 and as per final order on issue 5. The MACT observed that P.W. 1 was neither cross-examined nor evidence, both oral and documentary tendered by the 3rd respondent-Railway Administration over its allegation of negligence of the driver of the auto rickshaw for the cause of the accident. The police records such as the FIR, Ex. P. 1 in Crime No. 23 of 2006 and the spot mahazar, statement of one Srinivasa to the inquest panchanama, the post-mortem report-Exs. P. 2 to P. 5, when considered by the MACT, held that they were in the direction of establishing negligence of the driver of the locomotive, hence answered issue 1 attributing actionable negligence on the said driver. 8. P. 2 to P. 5, when considered by the MACT, held that they were in the direction of establishing negligence of the driver of the locomotive, hence answered issue 1 attributing actionable negligence on the said driver. 8. The MACT, consequently held that in the absence of evidence of 4th respondent that the driver of the goods auto rickshaw was not permitted to carry passengers, failed to establish the allegation that it was not liable to pay compensation, hence, fastened liability jointly and severally on both Railway Administration as well as Insurance Company to pay compensation of Rs.3,70,600/- with interest at 6% per annum, by the judgment and award impugned. 9. The submission of the learned Counsel for the Railway Administration that Section 125 of the Railways Act, 1989 (for short, 'Act') is a bar to a claim before the MACT for compensation since such an application is to be preferred only before the Railway Claims Tribunal, is noticed only to be rejected. Chapter XIII of the 'Act' provides for liability of Railway Administration for death and injury to passengers due to accidents. 'Passenger' is defined in Section 2(29) to mean 'a person traveling with a valid pass or ticket; while, Section 124 deals with 'Extent of Liability', entitling a passenger who is injured or has suffered a loss to maintain an action and recover damages in respect thereof from the Railway Administration. Section 124-A provides for compensation on account of untoward incident, whence, the injured or dependent of a passenger who is killed, to maintain an action and recover damages from Railway Administration and for that purpose, 'passenger' includes, 'a railway servant on duty; a person who has purchased a valid ticket for traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident'. 10. A conjoint reading of Sections 123 to 124-A discloses that claims for damages could be made by a passenger traveling in the locomotive or on the platform holding a valid platform ticket, being a victim of an untoward accident, before the Railway Claims Tribunal as contemplated by Section 125 of the 'Act', circumscribing its jurisdiction. 11. 10. A conjoint reading of Sections 123 to 124-A discloses that claims for damages could be made by a passenger traveling in the locomotive or on the platform holding a valid platform ticket, being a victim of an untoward accident, before the Railway Claims Tribunal as contemplated by Section 125 of the 'Act', circumscribing its jurisdiction. 11. In the light of the aforesaid provisions, it is dear that adjudication of a dispute by the Railway Claims Tribunal is in respect of the liability of the Railway Administration for death or injury of the passengers due to an accident, in other words, 'passengers who were on the train who held valid tickets or those who were on a platform holding valid platform tickets and not third parties'. 12. In that view of the matter, Rajani, since deceased, neither a passenger of the railway locomotive nor was on the platform with a valid platform ticket, not being a victim of an untoward accident, but succumbed to injuries while traveling in the auto rickshaw which met with an accident involving the railway locomotive 'Chalukya Express', the claim petition by his widow, invoking Section 166 of the Motor Vehicles Act, 1988 for compensation, was maintainable. The bar under Section 125 of the 'Act' cannot defeat the claim for compensation by the widow of the deceased passenger of the auto-rickshaw in question. 13. Although a faint effort was made by learned Counsel to contend that in view of Section 161 of the 'Act' providing for negligently crossing an unmanned level crossing, which was violated by the driver of the auto rickshaw, nevertheless, is unavailable, having regard to the fact that there was neither proof of the allegation advanced in the statement of objection filed by appellants-Railway Administration, nor documentary evidence to sustain the same. The aforesaid allegation is based on speculation, since there are no eye-witnesses and no evidence of the Railway Administration, the appellant, in support of it. The MACT was fully justified in attributing actionable negligence on the driver of the locomotive to answer in the affirmative issue 1. 14. The insurer of the auto rickshaw, though alleged negligence of its driver and that the said motor vehicle was a goods auto, not permitted to carry passengers, nevertheless, in the absence of relevant material constituting legal evidence of the said facts, the MACT justifiably answered issue 3 in the negative. 15. 14. The insurer of the auto rickshaw, though alleged negligence of its driver and that the said motor vehicle was a goods auto, not permitted to carry passengers, nevertheless, in the absence of relevant material constituting legal evidence of the said facts, the MACT justifiably answered issue 3 in the negative. 15. Even otherwise, there cannot be a fiction of Rajani the deceased passenger sharing control of the operation of the auto rickshaw, nor that the driver is an agent of the passenger, or can be passenger be treated as a backseat driver. The driver of the railway locomotive when held guilty of actionable negligence, cannot be permitted to plead contributory negligence on the part of deceased Rajani, the passenger of the auto rickshaw. The drivers of the auto rickshaw and that of the railway locomotive being joint tortfeasors, the MACT was justified in fastening liability, jointly and severally on both the appellant and the insurer of the auto rickshaw. It is useful to refer to the decision of the Apex Court in Union of India v. United India Insurance Company Limited and Others, (1997) 8 SCC 683 , answering in the negative the question, whether the driver's negligence in any manner vicariously attaches to the passengers of the motor vehicle, regard being had to the well-known principle in law of torts called the doctrine of identification or imputation on the plea of contributory negligence of a passenger of a motor vehicle. 16. The fact remains that the spot of accident is an unmanned level crossing of the railways, hence the Railway's duty of care of common law based on the principle of "neighbourhood" as stated by the Privy Council in Commissioner for Railways v. Mc. Dermott, (1966) 2 All E.R. 162 (PC), and laid down in Donoghue v. Stevenson, 1932 AC 562, as extracted in case of United India Insurance Company Limited, is squarely applicable to the facts and circumstances of this case. In the result, appeal devoid of merit, is dismissed. The amount in deposit is directed to be transmitted to the MACT forthwith. I.A. No. 1 of 2012 is dismissed as unnecessary.