1996CLC733 (PLP)

TANVIR AHMAD KHAN, J.‑‑‑This R.F.A. is directed against the judgment decree dated 23‑2‑1993 of the Civil Judge, Okara granting damages to the respondents. Facts. briefly are that a Railway accident took place on 14‑9‑1987 at an unmanned level crossing between Akhtarabad and Renalakhurd whereby a Suzuki motorcycle driven by Ghulam Sarwar with Suhrab Ahmed Khan as a pillion passenger collided with the engine of a passenger train coming from Lahore. Rappat No.7 was got recorded at 11‑35 a.m. on the same day at Police Station Renalakhurd (Exh.P.2) at the dictation of Javed Aslam brother of Suharab Ahmed Khan to the effect that he was going alongwith Saleem Akhtar Khan and others in a jeep while his brother Suhrab Ahmed Khan alongwith Ghulam Sarwar on a Suzuki motorcycle were going to attend livestock meeting at "Renalakhurd. When they reached Chhoti Pul at Jorian Phatak at 9‑00 a.m. suddenly a Musafir train came there from Lahore side and they were run over by it. Suhrab Ahmed Khan died at the spot while Ghulam Sarwar in an injured condition was removed to the District Headquarter Hospital, Okara where he later succumbed to the injuries. The heirs of Suhrab deceased filed a suit on 14‑9‑1988 under Fatal Accidents .Act, 1855 claiming damages. The written statement was filed on 8‑2‑1989 controverting the claim of the respondents. Out of the pleading following issues were framed: (1) Whether the death of the deceased was caused due to negligence of the defendants and that the plaintiffs are entitled for recovery of damages of Rs.25,00,000 from the defendants as per contents of the plaint ? OPP (2) Whether the plaintiffs have got no cause of action or locus standi to bring this suit? OPD (3)??????? Whether the suit is bad for misjoinder of unnecessary parties ?OPD (4)??????? Whether the plaint is liable to be rejected due to non‑itrtpleadment of ??????????? the necessary parties ? OPD (5)??????? Whether the suit is bad for non‑affixation of court‑fee, its effect? OPD (6) Whether this Court has got no jurisdiction? OPD ??? 321 (7)??????? Whether the suit is time‑barred? OPD (8)??????? Whether the deceased violated the statutory provisions by crossing the ??????????? line and death was caused through contributory negligence? OPD (9)??????? Relief. From respondent‑plaintiff side Dr. Muhammad Amin P. W.1 who conducted the post‑mortem examination appeared and stated about the injuries caused to deceased Suhrab Ahmed Khan in the accident resulting into his death. Muhammad . Alan Muharrir A.S.I. who recorded Rappat No.7 appeared as P. W .2 and stated that he recorded the same at 11‑30 a. m. on 14‑7‑1998. Waheed‑ud‑Din appeared as P.W.3 and stated about the vocation of the deceased and the income so derived from it. He also stated that he visited railway track himself which was unmanned at both sides. There were bushes around due to which the incoming train could not be seen. G.T. Road passing near the railway crossing and due to the noise of the troller and heavy traffic, the noise about the arrival of the train could not be heard. Sadar‑ud‑Din an eye‑witness appeared, as P.W.4. He stated that due to the bushes around the railway track the accident took place. This according to him happened due to the negligence of the engine driver who did not blow the whistle. Suhrab Ahmed Khan according to him died at the spot while Ghulam Sarwar died later in the District Headquarter Hospital, Okara. Javed Akhtar, the attorney of the respondents appeared as P.W.5 and gave all the details qua the income of the deceased and normal life span of the family members. From the appellant‑defendant side Muhammad Tuffail Guard Incharge appeared as D.W.1 and Fireman appeared as D.W.2. Both of them stated that the accident took place due to carelessness of the motorcycle driver. The Civil Judge, Okara after scanning the evidence of both the parties through his judgment dated. 23‑2‑1993 decreed the suit for a sum of Rs.11,40,000 by apportioning the shares of each respondent. Hence this appeal. We heard learned counsel for the parties and have gone through the entire evidence with their assistance. The following aspects of the case are admitted by both the parties: (a)??????? Level crossing was unmanned; (b)??????? two men while trying to cross collided with the engine resulting in their death; (c)??????? pillion passenger Suhrab Ahmed Khan died at the spot while the driver of the motorcycle Ghulam Sarwar died in the District Head‑quarter Hospital, Okara. However, the manner in which the accident took place is controversial. The stance of the appellant railway authority is that the accident took place due to the negligence of the motorcycle driver who failed to show proper care while crossing the unmanned level crossing in spite of warning board displayed on both sides. The only point to be decided is whether the accident had taken place due to the negligence on the part of railway authority which could have been avoided, had they taken due care and caution or due to carelessness and negligence of the deceased. In this regard, according to the learned counsel, railway administration has errected warning boards on both sides of the unmanned level crossing so as the passerby be careful while crossing the unmanned level crossing. He has also relied on section 91 (1) of the‑ Motor Vehicles Ordinance, 1965 which casts duty on the driver of the vehicle in the following manner:‑‑ "91.‑‑(1) The driver of a transport vehicle who desires to pass over railway level crossing shall cause the vehicle to stop before the crossing and shall not attempt to pass over the crossing unless the conductor of the vehicle, or where the vehicle has no conductor a person authorised 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." The onus of proving negligence generally lies upon the party who alleges it. However, in the special circumstances it is held in Federation of Pakistan through the General Manger, N.W. Railway, Lahore v. Ali Ihsan (PLD 1967 SC 249) which reads as under: "If this finding of the Courts below is not accepted, then so far as the next question is concerned no serious difficulty, arises, for, if the respondent was on the level crossing when he was hit, he was not a mere trespasser but an invitee lawfully on the level crossing. In the case of such an invitee there can be no manner of doubt that a duty is cast upon the occupier of the premises to take such care as in all the circumstances of the case is reasonable to see that the invitee will be reasonably safe in using premises for the purposes for which he is invited or permitted to be there. The degree of care necessary in the case of such a person lawfully coming on the premises will depend upon the nature of the danger of hazard to which the person so invited is likely to be exposed. This duty is not confined only to maintaining what has often been described as the "static condition" of the property, free from danger but it extends also to the taking of reasonable care to safeguard the invitee from any special hazard of danger to which he may be likely to be exposed by reason of any danger inherent in the activity carried on by the occupier on the premises. Thus it has consistently been held that where a railway line crosses a public highway on the level it is the duty of the railway company to make it safe for persons using the highway to cross at a manned level crossing under the assumption that they may do so with safety when the gates of the level crossing are left oven and if no warning of any special danger is given. The railway operator's general duty of taking all reasonable precaution 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." In Ehsan Ali v. Karachi Road Transport Corporation and others (PLD 1968 Karachi 464) the learned Judge has observed as under:‑‑ "This principle, when applied to the duty of a railway company with regard to 'level crossing' means that the railway company are under a duty to keep the crossing in a proper state for the passage of traffic across the rails. The railway company must take reasonable care to reduce danger created by their line to a minimum. The railway company must take reasonable care to avoid injury to the members of the public at a level crossing. If they do something which would lead a reasonable man to believe that it is safe to cross the line and the plaintiff thereupon attempts to cross and it is run into by a train, there is evidence of negligence against the railway company. Apart from the provisions of gates, the railway company must take reasonable precaution for the protection of the persons using the crossing. The omission to whistle or other‑wise give warning of the approaching train may be evidence of negligence according to the circumstances." Charlesworth on Negligence, Sixth Edition also describes the duty of the railway authority. Section 823 is reproduced below:‑‑ Level crossing over highways.‑‑When a railway line crosses the highway by a level crossing the railway authorities are under a duty to keep the crossing in a proper state for the passage of traffic across the rails. They must take a reasonable care to reduce the danger created by their line to a minimum, the nature of the measures to be taken "depending on the circumstances. Where the rails were placed too high above the surface of the road, as a result of which the plaintiff's carriage was caught by the rails and torn in too, the authorities were held liable. The railway authorities are liable to keep the crossing in proper repair, and their liability at common law extend to any inclined approaches which it may have been necessary to construct. Section 825 is as under:‑‑ Railway authorities must take reasonable care to avoid injuring members of the public at a level crossing. If their servants do something which would lead a reasonable man to believe that it is safe to cross the line and the plaintiff thereupon attempts to cross and is run into by a train, there is evidence of negligence against the railway authorities. Section 826 reads as under:‑ Apart from the provision of gates, the railway authorities must take reasonable precaution for the protection of persons using the crossing. The omission to whistle or otherwise give warning of the approach of the train may be evidence of negligence according to the circumstances, but there is no obligation to whistle in every case, It has been brought on record by the respondents through evidence that the unmanned level crossing where accident took place was over‑shadowed by the growth of bushes hampering the vision as a result of which it was not possible for the passerby to see the on‑coming train from either side of the crossing. It has also been brought on record that the engine driver did not blow the whistle as required under the rules. Chapter 16 of Pakistan Western Railway Way and Works Manual, 1969 casts certain duties upon the Railway Authority qua the upkeep of the level crossing. Some of the rules are as under:‑‑ 16.7 (iv). Notice of level crossing being unmanned.‑‑At all class III level crossing, boards shall be erected on either side of the level crossings just inside the railway boundary or at a distance of 300 feet from gate posts (whichever is less) on the left hand side of the roadway bearing the following legend:‑‑ WARNING ?THIS LEVEL CROSSING IS UNMANNED PLEASE NEGOTIATE WITH CAUTION. ??????????????????????????????????? ?16.6 (j). Whistle Boards.‑‑At the approaches to all unmanned Class II level crossings whistle boards should be erected at 1320 ft. On either side to enjoin the drives 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. 16.13 casts duty of Inspection and Maintenance of level crossing. (c)??????? Inspection.‑‑The inspecting official shall ‑‑‑(i) ensure that all trees, bushes or undergrowth that obstruct or tend to obstruct the view from the railway or roadway when approaching the level crossing are cut down; the necessity of this shall be apparent when trolling along the line or travelling on foot plate of an engine. (d)??????? Frequency of inspection.‑‑The Assistant Way Inspector shall inspect level crossing at least twice a month, the Permanent Way Inspector at least once a month, the Assistant Engineer at least once in a quarter. The Assistant Engineer shall also record a certificate of his inspection against item 5 of the Permanent Way Quarterly Certificate. It is to, be noticed that the witnesses appearing from the side of the respondents have categorically stated that no whistle was sounded by the engine driver while crossing the unmanned railway crossing. The two witnesses appearing from the railway side i.e. guard and fireman did not say a single word about the blowing of the whistle. They simply stated that due to the failure to exercise due diligence on the part of the motorcycle driver as indicated on the "warning board" fixed on both sides of the level crossing the accident had taken place. Regarding the continuous blowing of whistle as required by rule 16.6 ibid not a single word has been stated by the witnesses from the railway side. The driver of the engine best known to the appellant was not produced in the witness‑box. The appellant simply relied on a report (Exh.D.l) of Muhammad Tufail, Guard addressed to the District Traffic Officer, Lahore wherein he had mentioned that the driver of the train sounded whistle repeatedly while arriving at the unmanned level crossing. This report would not advance the case of the appellant any further as it was not recorded at the spot. Instead it was prepared after the return of the Guard Incharge to Lahore and that too in the presence of the other officers. Furthermore the report is contrary to the stance taken by the appellant during the course of evidence. In the report Exh. D.1 Muhammad Tufail, Guard Incharge has stated that the Fireman informed him about the collision of motorcycle with train engine No.7012, while Muhammad Akram, Fireman D . W . in his statement had taken contradictory stance and stated that the train had crossed the level crossing when the accident took place; meaning thereby that the motorcycle collided with the passenger compartment. This is to be noticed that the blowing of whistle was neither stated by any of the witnesses produced by the appellant during the course of evidence nor it was suggested so to the witnesses from the respondent side that the engine driver sounded the whistle many a times. It is held in Dublin, Wicklow and Wexform Ry. v. Slattery (1878) 3 A.P.P. Cas. 1155) that "although there may have been no duty to whistle imposed when approaching a level crossing, if there were a regular practice by the engine driver to do so such practices were well known to the plaintiff, who, on hearing no warning being sounded assumed wrongly that it was safe for him to cross but was struck down, there would be evidence of negligence against the railway authorities. The testimony brought by the appellant in this case merely relies upon warning board so fixed at the unmanned level crossing. However, in such like cases the railway authority cannot be absolved of the liability if the other precautions required under the rule are not taken by them. Mere placing of the warning board as argued by the appellant would not be sufficient. Children cannot read the warning board and the majority of the people of this country where literacy rate is very low cannot derive 'benefit from this board. The unmanned level crossings were made about a century back when the traffic was slow and its flow was very low. Now in this advanced age frequency of train has increased but the railway authority has not taken serious steps in this regard to avoid such accidents. The unmanned level crossing is an open hazard and the appellant railway cannot be absolved from their duty to take due care and caution merely by affixing the warning boards. Respondents in their evidence has established on record that the appellant was initially negligent in not taking due care for the passerby. They have flagrantly violated the rules made for the safety of the track. This unfortunate accident could have been avoided had the engine driver blown whistle continuously as required under rule 16.6 ibid. Sadar‑ud‑‑Din an independent eye‑witness from the respondent side stated that the train was not visible due to the surrounding bushes. He categorically stated that the cause of accident was non‑blowing of whistle and the growth of bushes on the track hampering the vision. The appellant has not brought any evidence on record that the bushes along the railway track were ever cut or were periodically cleaned as required under the rules. From the evidence discussed above it can safely be held that the appellant railway authority was negligent in the upkeep of unmanned level crossing and an account of the non‑blowing of whistle continuously and non-?cutting of the bushes on their part as required under the rules, the accident had taken place. Reliance in this respect is placed upon Province of West Pakistan v. Abdul Lali P. Jivani and 2 others (PLD 1981 Karachi 774), Ursulina D'lima and others v. Orient Airways Limited and another (PLD 1960 (W. P.) Karachi 712), C.K. Subramonia Iyer and others v. T. Kunhikuttan Nair and others (AIR 1970 SC 376) and Gobald Motor Service Ltd. and another v. R.M.K. Veluswami and others (AIR 1962 SC 1). The respondents have successfully brought on record the financial position of the deceased and the pecuniary loss expected to be sustained by them due to his death. The evidence as regards averge/normal span of life of the near relatives has also been brought on record. It has been held in Manmatha Nath Huri v. Muhammad Mokhlesur Rehman and another (PLD 1963 Dacca 290 at page 292) as under: "Therefore, in each case under the Fatal Accidents Act in ascertaining damages on the basis of reasonable probability of pecuniary advantage there is and must be some amount of guesswork which is distinct from speculation as one must have some basis for the guesswork and in the other there is want of that basis i.e. want of reliable evidence." Similarly in Taff Vale Railway Company v. Jenkins reported in (L.R. 1913 Appeal Cases 1) it has been held as under "I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact there must be a basis of fact from which the inference can reasonably be drawn. " In the case in the hand Waheed‑ud‑Dind P.W.3 and Javed Akhtar P. W.5 proved all these facts from where learned trial Judge has rightly held the total income of the deceased as Rs.5,000 per month and keeping in view the average life of other family members that the deceased would have lived up to the age of sixty years justifiably granted decree of Rs.11,40,000 as damages apportioning the share of each respondent. From. what has been stated above, we do not find any force in this appeal and the same is dismissed with no order as to costs. H.B.T./P‑212/L ?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.