1996 PLP 406 (SCMR)

2. The respondents in CP 1185‑L/94 who are legal heirs of Ghulam Sarwar filed a suit under the Fatal Accident claiming damages to the extent of Rs.25 lacs on account of the death of Ghulam Sarwar caused on 14‑9‑1987 due to the accident on the unmanned railway level crossing by a running train. Javed Aslam, brother of Sohrab Ahmad Khan lodged report to the police that he, alongwith Saleem Akhtar Khan and others was going in a jeep while his brother Sohrab Ahmad Khan riding on the pillion of Suzuku motor‑cycle driven by Ghulam Sarwar were going to attend a livestock meeting at Renalakhurd. When they reached Chhoti Pul at Jorian Phatak at 9‑00 a.m., a passenger train coming from Lahore collided with them. Sohrab died on the spot while Ghulam Sarwar was removed to the District Headquarter Hospital, Okara where he also died. The respondent filed suit alleging that the death was caused due to the negligence of petitioner No.1 which was denied by them. In defence it was pleaded that the deceased were negligent and were themselves responsible for the incident. It was also averred that due to the contributory negligence of the deceased, petitioners were not liable to compensate the respondents. The learned Civil Judge after examining the evidence produced by both the parties, decreed the suit on 23‑2‑1993 in the sum of Rs.6 lacs against which appeal was filed in the High Court which was dismissed by the impugned judgment.

3. In CP 1186‑L/94 the suit was filed by the legal heirs of Sohrab Ahmad Khan which was decreed by the learned Civil Judge for Rs.11,40,000 and appeal filed against it was dismissed.

4. The learned counsel for the petitioners in both the petitions has contended that the Pakistan Railways, petitioner No.2, was not negligent as it had taken all reasonable precautions required under the law and, therefore, it cannot be held responsible for compensating the respondents. Both the learned Courts have come to the conclusion that the requirement of the rules had not been met and the death was caused due to the gross‑negligence of petitioner No.2. It was observed that due to the bushes which had grown near the unmanned level crossing, the approaching train could not be visible from the road and further that the engine driver had not given whistles which he was required to do continuously and several times near the crossings. In this regard the testimony of Sadruddin who was an independent eye‑witness was believed who had stated that the train was not visible due to surrounding bushes and that the whistles had not been blown. On the other hand no evidence was produced on behalf of the petitioners to show that the bushes along the railway track were ever cut or were periodically cleared as required under the rules. It seems that the petitioners had examined the Fireman to the effect that the driver had blown whistle. The driver himself was not examined on behalf of the petitioners which adversely reflects upon the quality of evidence produced by them. The best witness on this issue could have been the driver himself. The learned counsel contended that the driver has retired and was not available. This is a completely unbelievable statement as retired railway employees can be located and the driver could have been reproduced for examination. In these circumstances the statement of the Fireman was rightly rejected.

5. The learned counsel for the petitioners contended that the unmanned level crossing was on a pathway ~ and not on the highway, therefore, it was necessary for the deceased to have been vigilant while crossing it. Such argument tends to lead to untenable conclusion that on manned level crossings where there are gates the responsibility of the railway is higher in degree than on unanumed level crossings. This argument has no merit. The primary responsibility of the railway is the same whether there is manned level crossing or unamnned level crossing. In cases where there are manned level crossings, the railway authorities have to post employees for closing and opening the gates at the time the train passes through it. But it does not mean that where there are unamnned level crossings the railway should throw the entire responsibility on the persons crossing it and the railway without any duty, care or responsibility is free to speed up its train. Paragraph 16.60) of Pakistan Railways Way and Works Manual, 1969 provides as follow:‑‑ "(j) Whistle boards.‑‑At the approaches to all unmanned Class III level crossings whistle boards should be erected at 1320 ft. on either side to enjoin the drivers of approaching trains to give audible warning of the approach of a train to the road users. The drivers of approaching trains should whistle continuously from the time they pass the whistle board to the time they cross the unmanned level‑crossing." Therefore, where there is unmanned level crossing whistle boards are required to be erected at 1320 feet away and from this point onwards the driver of the approaching train is duty bound to whistle continuously till the train crosses the level crossing. The object of this instruction is to provide audial warning of great intensity by whistling continuously from a distance of 1320 feet so that persons intending to cross the level crossing should know that the railway train is coming ahead. This rule is in consonance with the principle laid down in Federation of Pakistan through Manager, N.W. Railway v. Ahsan Ali (PLD 1967 SC 249). In this case the claimant/respondent was knocked down by the goods wagon while he was on the manned level crossing causing severe injuries resulting in amputation of his right leg. A person hit by a railway train on the level crossing was held to be an invitee and therefore it was the duty of the Railway to take care and ensure reasonable safety to person using it as an invitee. A duty to take care of such invitee is cast upon the Railway and it is duty bound to take such measures which are necessary in the circumstances to provide reasonable safety. In the words of Hamoodur Rahman, J. (as he then was) the Railway was therefore duty bound "to take such care as is in all circumstances of the case reasonable to see that the invitee will be reasonably safe in using the premises for which he is invited or permitted to be there". It was further observed:‑‑ "The railway operator's general duty of taking all reasonable precautions to ensure the safety of persons lawfully using the level crossing not only includes a duty to keep the crossing itself in a reasonable condition of safety according to the circumstances of the case but also to safeguard them from the special dangers inherent in its positive operations." These observations equally apply to manned as well as unmanned level crossing. There are dangers inherent in its positive operation when the train passes through unmanned level crossing. Realising such dangers and the duty to make the unmanned level‑crossing safe for persons crossing it, the Railway Manual quoted above laid down the rules of safety which inter alia include erecting warning boards, cleaning of the surrounding bushes to ensure the approaching train visible and blowing of whistle continuously when the train is 1320 feet away from the unmanned level crossing till it is crossed. It is the duty of the Railway Authorities to take reasonable precaution for the safety of the persons crossing the unmanned level crossing. One of the measures is to give effective warning which can be done by blowing whistle continuously. In Geddas v. BRB (1968) 112 S.J. 194 referred in Charlsworth on Negligence, Sixth Edition an engine driver was found to be negligent in giving only a short blast on his whistle instead of along one while driving on a dangerous part of a track on a dark and stormy morning. Under the manual the driver was duty bound to blow whistle continuously. The failure to whistle has been proved which the petitioners have failed to rebut. Even if the statement of the Fireman is accepted he does not speak of blowing whistle continuously. Furthermore, to ensure compliance with. the rules of Manual the Railway authorities are required to carry out regular inspection. No evidence has been produced that such inspections were carried out and the level crossing was maintained properly.

6. The learned counsel for the petitioners contended that the accident was caused due to the negligence of the deceased persons and, therefore, petitioner No.2 cannot be held liable for compensation. The plea of contributory negligence raises question of fact which should be proved by the party alleging it. It should be established that the plaintiff had failed to take reasonable care for his safety. The defence of contributory negligence arises where damage is caused partly by the negligence of the person who suffers and partly by the fault of the alleged wrong doer. This is a delicate issue but the legal principles that if contributory negligence is established the plaintiff's claim for damages shall not be defeated but the damage shall be reduced as the Court may think just and equitable considering the plaintiff's "share in the responsibility for the damage" and circumstances of the case. The petitioners have failed to establish facts necessary to prove contributory negligence.

7. The learned counsel for the petitioner contended that as the deceased. did not follow section 91 of the West Pakistan Motor Vehicles Ordinance, 1965 as provided by Paragraph 16.9 of the Manual their negligence is proved. Paragraph 16.9 reads as follows:‑ "16.9. Provision of West Pakistan Motor Vehicles Ordinance 1965.‑‑If any railway servant notices a transport vehicle crossing a class III level crossing without complying with the requirement of section 91(i) of the West Pakistan Motor Vehicles Ordinance, 1965 (extract reproduced below) its number with other available particulars shall immediately be brought to the notices of the Sectional Permanent Way Inspector or the nearest Station Master, who shall promptly report the matter to the police. 91(1) The driver of a transport vehicle who desires to pass over a railway level‑crossing shall cause the vehicle to stop before the crossing and shall not attempt to pass over the crossing unless to conductor of the vehicle, or where the‑vehicle has no conductor, a person authorized in this behalf by the owner of the vehicle in writing other than the driver of the vehicle walks before the vehicle until it has cleared the railway line." It can be noticed that it applies to transport vehicles and not a motorcycle or a private car. Furthermore if at all it applies (which is not the case) no report for such violation was made to the Sectional Permanent Way Inspector or the nearest Station Master as required by the aforestated paragraph (16.9). Even if it is not strictly applicable to the present case, it is a rule of caution and prudence required to be observed by the drivers of every vehicle. But to take advantage of such defaults the defendant must prove them. The weight of evidence on record is against such alleged default on he part of the deceased. If the petitioners would have strictly observed the rules, cleared the bushes surrounding the unmanned level crossing to ensure approaching train visible from the road path and if the whistle had been continuously blown by the engine driver, perhaps this incident would not have occurred.

8. The learned counsel for the petitioners further contended that the quantum of damages is excessive and not in consonance with the principles laid down by the superior Courts for grant of such compensation. The compensation in both the cases has been granted on well recognised principles in which taking into consideration inter alia, the expectancy of life, of the deceased and his income, the amount of compensation was calculated at Rs.6 lacs in CP No. 1185‑L of 1994 and Rs.11,40,000 in CP No. 1186‑L of 1994. The petitions are dismissed. The petitioners are directed to pay the decretal amount or deposit the same with the Trial Court within a period of one month from today. A.A./F‑376/S Order accordingly.