A.K Parichha, J.:— The petitioners in all the writ petitions are individual family members and legal heirs of the persons who died in the tragic accident, which occurred at the unmanned level crossing between Charbatia and Gurudijhatia Railway Stations in the night of 25.6.1997, the deceased Md. Yusuf Ahmad Rahim, an advocate of Orissa High Court was going in his car bearing registration No. OR 01-0015 along with his associates, namely, Bijay Prasad Panda, R. Ghadei, and Nirmal Kumar Mallick and advocate's clerk, Debi Prasanna Mishra on 25.6.1997 to attend a marriage ceremony at village Badasaman-tarapur. The deceased Md. Yusuf Ahmad Rahim was driving that car. Unfortunately, the said car while crossing the unmanned level crossing between Gurudijhatia and Charbatia at 8.55 p.m was dashed by the 210-Puri Talcher Train and all the five occupants of the car died, three at the spot and two at the hospital. It is alleged by all the petitioners in their respective writ petitions that the accident occurred due to sheer negligence of the railway authorities and that none of the deceased had any fault of his own. It is also alleged that although several accidents had occurred in the past at the same unmanned level crossing and many persons had lost their lives, the railway authorities did not take any step to avoid further accidents by putting suitable gates, chains, bars, etc. or by employing persons to guard the said level crossing. Asserting that the accident and deaths had occurred because of the negligence of the railway authorities, the petitioners, who are the legal heirs of the deceased persons, have claimed compensation of different amounts against the Railways.

2. The legal heirs of the deceased Md. Yusuf Ahmad Rahim, who are petitioners in O.J.C No. 10205 of 1999 have claimed compensation of Rs. 50,00,000, the legal heirs of late Nirmal Kumar Mallick, who are petitioners in O.J.C No. 9277 of 1999 have claimed Rs. 5,00,000, the legal heirs of deceased Debi Prasanna Mishra, petitioners in O.J.C No. 10335 of 1999 have claimed compensation of Rs. 1,00,000 and the petitioners in W.P (C) No. 11490 of 2003 who are the legal heirs of deceased Bijay Prasad Panda have claimed compensation of Rs. 50,00,000. The railway administration in the counter affidavit has opposed the writ petitions filed by the petitioners. In the counter affidavit while admitting the acci dent and death of the five occupants of the ill-fated car, the railway administration has denied any negligence on its part. According to them, all precautions in the shape of caution boards, speed breakers had been provided, but without following the minimum precaution, Md. Yusuf Ah mad Rahim drove the car negligently, as a result of which the accident occurred. It is specifically averred that a Committee was appointed to enquire and ascertain the cause of the aforesaid accident and the said Committee after due inquiry have submit ted a report that the accident occurred due to negligence of the driver of the car bear ing registration No. OR 01-0015 and that it was never due to negligence on the part of the railway administration. It is further claimed in the counter affidavit that the railway administration is not bound to put chains, bars, gates at all level crossings and that such bars, gates, chains, etc., are provided only Where there is considerable flow of traffic. The railway administration has also challenged the maintainability of the writ petitions indicating that the claim of the petitioners is based on the alleged tortious liability and, therefore, redress is available only by filing civil suits and such claim cannot be adjudicated or awarded under Article 226 of the Constitution of India.

3. Having heard the learned counsel appearing for the petitioners in all the writ applications and learned counsel appearing for the railway administration, we find that the accident at the unmanned level crossing and the death of the five occupants of the ill-fated car is an admitted fact. The con-troversies, which require adjudication are whether there was deliberate negligence on the part of the railway authorities resulting in the accident and whether the railway authorities are liable to pay compensation to the petitioners who are the legal heirs of the persons who died in the accident. There is also another legal question requiring determination, namely, whether the claim of present nature can be entertained in a writ petition under Article 226 of the Constitution.

4. Learned counsel appearing for the Railways vehemently submitted that when the railway administration has denied any negligence on its part, the issue becomes a disputed question of fact, which can only be adjudicated in a civil suit and that the writ jurisdiction under Article 226 of the Constitution cannot be invoked to award compensation to the petitioners.

5. As against this, the learned counsel appearing for the petitioners submitted that a writ court is not debarred from awarding reasonable compensation, if there is deliberate act of negligence on the part of the statutory authorities and that in appropriate cases, compensation has been awarded by the Apex Court and this court in the past. Several case-laws were also cited to support this contention. The rival contention need careful examination.

6. In Rudul Sah v. State of Bihar, (1983) 4 SCC 141 : AIR 1983 SC 1086, Apex Court observed that in appropriate cases, the court discharging constitutional duties can pass orders for payment of money in the nature of compensation, consequent upon deprivation of a fundamental right to life and liberty of a petitioner as State must repair the damage done by its officers to the petitioner's right. In the case of Kalawati v. State of Hima-chal Pradesh, 1988 ACJ 780 (HP) and also in the case of Seemu v. Himachal Pradesh State Electricity Board, 1994 ACJ 623 (HP), the High Court of Himachal Pradesh ruled that writ court can grant relief to the petitioners claiming damages for the injuries arising out of negligence of the State authorities like the Electricity Board. In the case of Kumari v. State of Tamil Nadu, 1992 ACJ 283, the Apex Court overruling the decision of the High Court of Madras observed that the writ jurisdiction under Article 226 of the Constitution can be invoked for awarding compensation to a victim, who suffered due to negligence of the State or its functionaries. In that case a six years old child had fallen down in the uncovered sewerage tank. The High Court refused to entertain the claim of compensation in a writ petition under Article 226 of the Constitution, but the Supreme Court directed the State to pay compensation. In the case of Parikhita Behera v. Divisional Railway Manager, South Eastern Railway, 1998 ACJ 1019 (Orissa), this court also took the same view that jurisdiction under Articles 226 and 227 of the Constitution can be invoked and direction for payment of compensation can be given if there was deliberate act of negligence on the part of the statutory authorities, namely, the railway administration.

7. The concept is, therefore, clear that the writ court is not debarred from awarding reasonable sum of money by way of compensation, if there is deliberate act of negligence on the part of the statutory authorities and/or to help in protecting, preserving and enforcing the fundamental right to life of a citizen. In such legal backdrop the moot question for consideration is whether there was any deliberate act of negligence on the part of the railway authorities, which resulted in the accident and the death of the occupants of the car bearing registration No. OR 01-0015.

8. According to the learned counsel for the petitioners, the work of running trains and its crossing public road at the level crossing is hazardous activity and the train being a heavy vehicle, its authorities should be more vigilant in protecting the lives of innocent human beings who are using the level crossings. It is argued that section 18 of the Railways Act, 1989 (hereinafter to be called ‘the Act’, in short), puts liability on the railway authorities to construct suitable gates, chains, bars, stiles, etc., at level crossings to avoid accidents and to protect the lives of human beings who use the level crossings and so if the Railways fail to provide such precautions as contemplated under section 18 of the Act, the omission would amount to deliberate negligence and would make them liable for compensation against any loss of life or damage to the properties of individuals. As against this, learned counsel for the Railways submitted that although section 18 contemplates putting up gates, chains, bars, etc., at the level crossings for smooth running of the trains, it is not a mandatory provision and that the railway administration is liable to put such gates, bars, etc. only at the level crossings, where traffic flow is considerable and/or where the visibility of the level crossing and the approaching train to the pedestrians or vehicles is not clear. According to him, unless the Central Government directs by notification to put such gates, chains, etc. at a level crossing, the omission to put such gates, chains, etc. at a particular level crossing would not amount to violation of section 18 of the Act and any accident occurring at such unmanned level crossings would not expose the railway authorities to compensation, particularly when the accident occurs due to negligence of the pedestrians or driver of the vehicle. It has been specifically argued that in the present case, Md. Yusuf Ahmad Rahim, who was driving the car bearing the registration No. OR 01-0015 on the fateful night did not take the required precaution and because of his negligent driving the accident had occurred.

9. Before examining the merits of the respective submission of the parties, it may be profitable to note the provision of section 18 of Railways Act, 1989, which reads thus:

“18. Fences, gates and bars.—The Central Government may, within such time as may be specified by it or within such further time, as it may grant, require that:

(a) boundary marks or fences be provided or renewed by a railway administration for a railway or any part there of and for roads constructed in connection therewith;

(b) suitable gates, chains, bars, stiles or handrails be erected or renewed by a railway administration at level crossings;

(c) persons be employed by a railway administration to open and shut gates, chains or bars.”

10. According to the learned counsel for the petitioners, a duty cast under sec tion 18 of the Act to put fence, gates, bars, etc. at the level crossings is absolute and deviation would amount to negligence, whereas according to the learned counsel for the railway administration the duty cast in section 18 is never absolute and is de pendent on the issue of notification by the Central Government. A close reading of the provisions of section 18 would indicate that there is no statutory obligation on the part of the railway administration to fence all the level crossings, but once the Central Government requires that any boundary, fence, gates, chains, etc., should be erected at a particular level crossing, the railway administration is bound to put such gates, chains, etc. But on the basis of the said provision, the railway administration cannot claim immunity on every occasion on the plea that the Central Government did not require for putting up gates, fence, chains, etc. at a particular level crossing because such precautions are necessary steps to protect the lives of persons crossing the level crossing. If the traffic flow is considerable, if visibility, due to road bend, topography or presence of trees is not good, then, even if there is no notification of the Central Government, the railway administration would be held negligent for not providing protection by way of gates, chains, etc. Furthermore, the railway administration is also duty-bound to display prominently written boards at reasonable distances on either side of the level crossings for the passing road users to be aware of the train and to put boards at a reasonable distance indicating to the train driver to blow the whistle to caution the passers-by of the level crossings. If such precautions are not taken near the level crossings, then also the railway administration would be held negligent.

11. It is claimed by the petitioners that the level crossing at the spot was not clearly visible to the road users and no red signal or caution board with bold letters had been placed on either side of the level crossing and sufficient light arrangement was not there to make the level crossing visible to the approaching vehicles and persons during night time. It is also claimed that although several accidents had already occurred at the same level crossing earlier, the railway administration never bothered to put gates, bars, chains as provided under section 18 of the Act. The allegations have been refuted in a general way in the counter affidavit. The allegation of previous accidents at the same level crossing has not been specifically denied. It is also not specifically averred that traffic flow at the said level crossing was not considerable, rather it is clear from the averments made by the petitioners that the traffic flow on the route in question is reasonably heavy and visibility of the level crossing during night time was not good. As has been said earlier, the work of running trains is itself hazardous and perilous in nature and involves great risk of causing damage to life and property of others. When a train passes through a level crossing, the duty of railway authorities becomes more crucial for which more precautionary measures should be taken at the level crossings. So, failure to take adequate precautionary measures at the level crossings would automatically bring home wilful negligence of the railway authorities. The available materials reveal that at the particular level crossing the traffic and pedestrian flow was considerably high and visibility was not very good and a number of accidents had already taken place earlier and some lives had been lost. In spite of all these the railway administration did not take any step to put check gates, chains, bars, etc. and did not also take other precautionary measures up to the degree required. Such an omission on the part of the Railways would amount to negligence as the omission involves unreasonably great risk of causing damage to life and property of others.

12. The railway authorities have pleaded contributory negligence on the part of the occupants of the ill-fated car and have denied the liability of the Railways to pay any compensation to the legal heirs of the deceased persons. Admittedly, deceased Md. Yusuf Ahmad Rahim was driving the car, which met with the accident and the other four deceased were simply the occupants of the car. They were in no way involved in the driving of the car or taking the decision of crossing the level crossing at the time of accident. In the famous case of Mills v. Armstrong (also called the Bernina case), reported in 1988 (30) AC 1 (HL), it was clearly held that contributory negligence is not applicable to the passengers of a vehicle in the sense that negligence of the driver of the vehicle in which passenger is travelling cannot be imputed to the passenger. In the Bernina case, the crew and passenger in the ship Bushire were drowned on account of collision with another ship Bernina. It was held that even if the navigators of the ship were negligent, the navigator's negligence could not be imputed to the deceased, who were travelling in that ship. This principle has been applied in latter cases to a passenger travelling in a motor vehicle whose driver was found to be guilty of contributory negligence. In view of this settled principle, no contributory negligence can be attributed to the four deceased occupants who were with Md. Yusuf Ahmed Rahim in the car bearing registration No. OR 01-0015.

13. So far as the deceased Md. Yusuf Ahmad Rahim is concerned, it is difficult to hold that he was not at all negligent while driving the car near the unmanned railway gate. As a driver he was under duty to be careful and cautious particularly during the night time. Hence, while the Railways cannot be absolved of its liability to compensate for the loss of life of Md. Yusuf Ahmad Rahim caused due to negligence of the railway authorities, the quantum of such compensation will stand reduced on account of contributory negligence of the deceased Md. Yusuf Ahmad Rahim for not driving the car carefully.

14. Coming now to the quantum of compensation to be paid to the different petitioners in the four writ petitions, in M.S Grewal v. Deep Chand Sood, 2001 ACJ 1719 (SC), the Supreme Court after considering the English authorities on this point held that the quantum of compensation stands dependent upon the fact situation of the matter before the court and decision of the court as such cannot be taken to be a binding precedent and each case has to be dealt on its own peculiar facts. In the said decision, however, the Apex Court held that the placement in the society or the financial status of the victim can be one good guide for determining the quantum of compensation. This position of law was reiterated by the Apex Court in Lata Wadhwa v. State of Bihar, 2001 ACJ 1735 (SC), in which the Apex Court took into account the financial status of the victims killed in the accident for determining the quantum of compensation payable to the petitioners. In the present case, the deceased Md. Yusuf Ahmad Rahim was an advocate of Orissa High Court and was enrolled with the State Bar Council as an advocate as far back as in 1962. Considering his length of practice, we are of the view that a compensation of Rs. 6,00,000 (rupees six lakh) less Rs. 2,00,000 (rupees two lakh) towards his own negligence would be just and adequate. Hence a sum of Rs. 1,00,000 (rupees one lakh) will be paid to each of the petitioners in O.J.C No. 10205 df 1999 totalling to a sum of Rs. 4,00,000 (rupees four lakh) by the Railways towards such compensation.

15. The deceased Bijay Prasad Panda and Nirmal Mallick were two young advocates working as associates of the deceased Md. Yusuf Ahmad Rahim and considering their financial status and length of practice, a compensation of Rs. 2,00,000 (rupees two lakh) each for their death would be just and adequate. Deceased Debi Prasanna Mishra was an advocate's clerk. Considering his financial status and placement, a compensation of Rs. 2,00,000 (rupees two lakh) to the petitioners for his death would be just and adequate. Hence, a sum of Rs. 1,00,000 (rupees one lakh) to each of the two petitioners in O.J.C No. 9277 of 1999 and O.J.C No. 10335 of 1999 would be paid by the Railways towards such compensation. In W.P (C) No. 11490 of 2003 the compensation amount of Rs. 2,00,000 (rupees two lakh) be paid to petitioner No. 1 who would receive the same for herself and on behalf of the minor petitioner Nos. 2 and 3.

16. The petitioners will also be entitled to interest at the rate of 6 per cent per annum on the compensation amount from the date of filing of the writ petitions till payment from the Railways. These directions will be complied with within three months from today. Accordingly, the writ petitions are allowed to the extent indicated above.

17. Petitions allowed.