V. KRISHNAPPA NAIDU Vs. UNION OF INDIA

JUDGEMENT

(1.) THE unsuccessful plaintiff in O.S. 4908 of 1968 on the file of the City Civil Court, Madras, is the appellant herein. The appellant filed a suit for the recovery of a sum of Rs. 25,720.34 as damages in respect of an accident that occurred on 16 -8 -1962 at about 7 p.m. The relevant facts that led to the action can be stated thus: The plaintiff is the real owner of a baby taxi, Standard -X, bearing Registration No. MDC 9261 of the model of 1956. But, the registration certificate stands in the name of his son V.K. Bhaktavatsalam. On 16 -8 -1962, the defendant Railway's train viz., the Tirunelveli Express left Madras Egmore Railway Station at about 6 -45 p.m. while proceeding to Tirunelveli, dashed against the said Baby taxi at the level -crossing between Kadambakkam and Mambalam Railway Stations. The said level -crossing was situated immediately north of Mambalam Railway Station and it is referred to as Doraiswamy Iyer level -crossing. It is so -called by this name since Doraiswamy Iyer Street in T. Nagar is just east of the said level - crossing. The area to the west of this crossing is called Old Mambalam. It is the case of the plaintiff that the driver of the taxi viz., P .W. 3, drove the vehicle across the level -crossing as the gates were open. While the rear portion of the taxi had not crossed the steamline, the Tirunelveli Express, without any warning, came from Egmore side and dashed against the taxi. As a result of this impact, the two passengers and the driver were injured and the taxi was severely damaged. According to the plaintiff, the accident was entirely due to the gross negligence of the defendant Railway Administration and their staff, for the reasons that there was no automatic signal system and no interlocking arrangement for closing the gates sufficiently early before the train was at sight. The Railway gate was wide open and there was no signal or any other alarm at or near the gate to put the driver on guard. It is thus alleged that there was an open invitation as it were for the plaintiff's car to pass through the level -crossing. The plaintiff has valued the damage to the vehicle at Rs. 7,720.34 and a sum of Rs. 18,000 is claimed as the loss of income at the rate of Rs. 30 per day from 17 -8 -1962 to 10 -4 -1964. The said taxi was held up in the office of the Police Commissioner in connection with an inquiry of this accident and the plaintiff took delivery of the same only on 2 -9 -1962, since the plaintiff had been awaiting inspection by the officials of the defendant.

(2.) THE defendant Railway resisted the claim contending as follows : The plaintiff is not the registered owner of the vehicle. There is no question of negligence on the part of the defendant as alleged. The taxi -driver (P.W. 3), in spite of necessary warnings, entered the level -crossing, in spite of the road danger signal exhibited at the gate and ignoring the continuous sounding of the gong and the shouting of the gateman who was trying to close the gate, warning of the approaching train. The level -crossing is a manned level - crossing and on the approaching of a train from either direction, the warning lights are lit and the gongs sound warning the road -traffic about the impending close of the gates. In this case, P. W. 3 entered the level -crossing in spite of the warning. It is futile for the plaintiff to contend that there was an open invitation as it were for the taxi to pass through. Thus, it is submitted by the defendant that since the accident was caused solely because of the rashness and negligence on the part of the driver of the taxi, the defendant is not responsible for the accident or for any alleged damage, which the plaintiff claims to have suffered thereby. The plaintiff's claim of Rs. 7,720.34 towards the repair of the vehicle is also not admitted. Further, the plaintiff is not entitled to claim any damages towards loss of income and the suit is also barred by limitation.

(3.) THE plaintiff examined four witnesses including himself and marked Exs. A -1 to A -10. The defendant relied on the evidence of D.Ws. 1 to 2 and marked Exs. B -1 to B -28. The learned Principal Judge of City Civil Court, after elaborately discussing the evidence, has found on issue 1 that the suit is maintainable and on the main issues 2 and 3 that the accident was not as a result of any negligence on the part of the Railway servants, but was entirely due to the rashness on the part of the taxi driver (P.W. 3). On issue 4 the learned trial Judge estimated the damages suffered by the plaintiff at Rs. 5,800 (Rs. 4,000 for the damage to the vehicle and Rs. 1,800 towards the loss of income). Since issues 5 and 6 were not pressed by the defendant, no finding was given on those issues. Ultimately the trial court dismissed the suit without costs. It is as against this dismissal of the suit, this appeal has been filed.