P L D 1963 (W (PLP)

3. Mr. Suhrawardy, the learned advocate for the appellant, pressed only issues 4, 5 and

6. We propose to dispose of these issues separately.

4. The plaintiff stated that he was employed at the time of the accident in Sind Tanneries Ltd., Hyderabad on a monthly salary of Rs. 180 together, with Rs. 30 as allowance and was under orders of transfer to Karachi as Manager on a monthly salary of Rs.

350. He wanted to celebrate Eid at Hyderabad and then to proceed to Karachi. In support of his statement the plaintiff examined Mr. Faruqui, Office Superintendent of the firm. Faruqui produced a certificate Exh. 41 issued by the office of Sind Tanneries showing that the plaintiff was to start on a salary of Rs. 350 from 15th May 1956, as Manager of the Karachi factory.

5. The only point that Mr, Suhrawardy tried to make out was that there was contradiction between the statement of the plaintiff and the notice under section 80 of the Civil Procedure Code to the defendant Company. The learned Advocate stated that the plaintiff stated that he was employed in Sind Tannery as Accountant on a salary of Rs. 180 together with. Rs. 30 as allowance per month, while it is stated in the notice that he was an employee of Sind Tannery and was drawing Rs. 350 per month. There is no contradiction. The fact is that on the date of the incident the plaintiff was drawing Rs. 180 plus Rs. 30 as allowance. He was to draw a salary of Rs. 350 per month from 15th May 1956, after he took over as Manager at Karachi. Moreover, it would appear from the cross‑examination of the plaintiff that his pay which was raised from Rs. 210 to Rs. 350 inclusive of allowance was not challenged. It is too late now to challenge the statement of the plaintiff at the stage of argu ment. We would hold that the plaintiff would have drawn a salary of Rs. 350 from the 15th May 1956.

6. On issue No. 5 the learned Advocate for the appellant raised two‑fold contentions. He contended in the first place, that the plaintiff‑respondent has failed to prove the negligence of the Railway Company so as to be entitled to claim damages. In the second place, the learned Advocate contended that at any rate the plaintiff‑respondent contributed to the negligence of the Railway Company. We propose to dispose of these two conten tions separately. We would consider the question whether the defendant company was negligent or not to the light of the proposition that the burden of proof lay upon the plaintiff to establish that the accident which happened was caused by a negligent act of the defendants. In this connection certain admit ted facts may be mentioned at the very outset. It is an admitted position that almost parallel to the shunting railway line there is another railway line which has got gates at the crossing and that one has to pass this gate in order to cross the a railway line and to approach the public road. It is further admitted that the gate was open at the time when the accident took place. It would also be relevant to quote the finding of the learned First Class Sub‑Judge which has not been challenged before us. It runs as under "I he evidence of this witness (hotel keeper Abdul Razak) to the effect that the left side of the road is closed up by the oil tanks is further proved from the four photographs produced by the plaintiff and the admission of the defendant's counsel that the side from where the shunting train was coming was not visible."

7. We would now proceed to consider the evidence on behalf of the plaintiff on the question of negligence of the defen dants. The plaintiff examined himself. He stated that he was going in a tonga to his office. He noticed that the gates of the railway crossing on the main line was open and that pedestrians and a tonga were coming from that direction towards him. He did not find any pointsman on duty at the railway crossing and the shunting lines. There was further no red flag or any caution board. He did not hear the sound of any passing train nor the whistle of the engine. When the tonga reached the shunting line a wagon in fast motion was coming towards the tonga. The plaintiff jumped from his tonga. He could not escape with the result that some wagons passed over both of his legs. The plaintiff is also supported by hotel keeper Abdul Razak. He stated that it is not possible to see the shunting train while coming from the Power House side from the main road on account of the godowns of the Standard Vacuum Oil, Company. He further stated that there were no gates on the shunting line but gates have been put up on this crossing after this incident.

8. On behalf of the defendant company Muhammad Zaki, Engine driver stated that he stopped the engine and 7 wagons at a distance of 6 or 7 yards from the level crossing and pushed back the train on the signal of "All right" given by Jamadar Abdul Hamid and that he blew the whistle. Abdul Hamid, shunting Jamadar, has also been produced. It would be useful to reproduce part of his statement. "I was on guide duty or Jamadar with the flag. We first stopped the train at the sign board. The shunter stopped the train on getting the signal from me. I then went and cautioned the public at the side crossing, as there were no gates there from the very start. I cautioned the public and I then gave signal from there. As the driver moved the train after whistling, I caught hold of the handle of the break-van and got on the foot‑board. The pointsman was on the foot board and the porters were standing on the side. The porters also got into the break‑van. Then suddenly a tonga came with speed. The tonga crossed the lines but its occupant on the back side jumped out and fell in between the railway lines."

9. So far as the negligence on the part of the defendant company is concerned, it would be clear from the findings of the Enquiry Committee filed by the defendant Company along with its written statement. The relevant portion of the finding reads as under :‑ "That shunting Jamadar Abdul Hamid also contributed to the occurrence of the accident by not taking safety precautions before allowing the load to cross the level crossing. thereby violating para. 8‑b‑2 (ii) of the Station Working Rules" Rule 8‑b‑2 (ii) reads as under "The `C' Class level crossing at Padidan end of the yard also crosses the Fulleli Bunder siding line and when any shunting operation is likely to foul this crossing, Yard Foreman or the shunting Jamadar incharge of shunting operations will stop the load at the stop dead boards provided on either sides of this level crossing. He will then send one of his staff ahead who will warn all traffic, and then signal the Yard Foreman or Shunting Jamadar to pass the Level Crossing." It would appear from the finding of the Enquiry Committee which is signed by three very high and responsible officers namely Divisional Engineer, Divisional Mechanical Engineer and Divisional Transport Officer of the defendant company that the defendant company was negligent. The only question that now remains to be considered is whether the plaintiff respondent contributed to the negligence of the defendant company by his own carelessness and want of diligence.

10. We have come to the conclusion, after considering the circumstances of the present case, that the plaintiff cannot be said to be guilty of contributory negligence. In view of the finding of the learned First Class Sub‑Judge, which has not been challenged before us, that the side from which the shunting train was coming was not visible to the tongawalla or to the plaintiff the question of contributory negligence on the part of the plaintiff cannot arise. In this connection we would also rule out the statement of the engine driver that he blew the whistle when he pushed the wagons. The plaintiff and the hotel keeper Abdul Razak have stated that they did not hear the whistle of the engine. We would prefer the statement of the plaintiff and that of the hotel keeper to the engine driver Muhammad Zaki for the obvious reason that had the plaintiff heard the whistle he would have stopped the tonga‑driver from proceeding further. Muhammad Zaki is an interested witness. He could not state otherwise. We would hold that the negligence of the defen dant company led to the accident and that the plaintiff is not guilty of contributory negligence.

11. Mr. Suhrawardy, the learned Advocate for the appel lant relied on the case of Davey v. The London & South W. R. Co. ((1884) 12 Q B D 70). In that case the plaintiff, who lived near and was well acquainted with the crossing, stated that before crossing he looked to the right along the down line, but he admitted that he did not look to the left along the up line, and that if he had looked he must have seen the train coming. The engine driver did not whistle. There was a servant of the defendants employed as a gate‑keeper at the crossing, whose duty it was to open the carriage gates there when carriages could safely be admitted, and to close them at other times. He was standing at the time on the opposite side of the crossing talking to two boys, with a furled flag in his hand; but he gave no warning of the plaintiff that a train was coming. Brett, M. R. observed as under :‑ "It was broad‑day light, and he himself admitted that if he had looked to the left up line he must have seen the train coming. If he had looked and seen the train coming in the position it must have been in on this occasion at that time, it seems to me impossible for any reasonable person to say otherwise than that he ought not to have crossed them. Therefore, if he had looked he ought not to have crossed. Then should he have crossed without looking ?" In these circumstances Brett M. R. found that the plaintiff was guilty of contributory negligence. It may however be mentioned that Baggallay, L. J. differed from the views of Brett, M. R. in that case. The circumstances of the present case however are quite different. In this case the position is that the plaintiff or the tongawalla could not see the shunting train unless they were on the shunting line itself. The question of want of precaution in this case could not arise specially in view of the fact that the tongawalia saw the main gate open which was an invitation to pass. In this connection we would like to mention the case of The Directors, etc. of the North Eastern Railway Co. v. Robert William Wanless ((1874) 75, 7 A C 12). In that case the gate on the railway crossing to the public highway was open. Lord Cairns, the Lord Chancellor observed as under :‑ "The gates of the railway at a place where it crossed the highway at a level being open, amounted to a statement, and a notice to the public, that the line, at that time, was safe for crossing."

12. We have already held that the plaintiff was to draw a salary of Rs. 350 inclusive of allowances from the 15th May 1956. The plaintiff at the time of the accident was of 50 years of age. The plaintiff would have, we agree with the learned Sub‑Judge, continued to serve for another 10 years, if not more.

13. It has been held in the case of Sri Ram v. Delhi Electric Tramways Lighting Co. (A I R 1919 Lah. 213) by Shadi Lal and Martineu, JJ., that where a person has suffered personal injuries on account of the negligence of another, he is entitled to damages for personal e suffering and for loss of enjoyment of life and also to actual pecuniary loss resulting to, and the expenses reasonably incurred by him. We consider that a sum of Rs. 10,000 that has been. awarded by the learned Sub‑Judge on account of pain and suffering is not an excessive one. The plaintiff has for all time become crippled. The learned Advocate for the appellant was unable to show that the sum of Rs. 3,000 for medical expenses was an unreasonable amount.

14. For the reasons given above, we would maintain the decree and judgment of the Court below and dismiss the appeal with costs. K. B. A./A. H. Appeal dismissed.