BALBINDRA SINGH JOG SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) WHAT the appeal is about ? This is the plaintiffs appeal. He was the owner of a Truck. While crossing the level crossing at Taloja, an engine of the Railway knocked down the truck and broke it into pieces. The plaintiff filed the suit for damages on the ground that the Railway Administration was negligent in the matter of not locking the level crossing gate while the engine was moving on the rails. The suit was filed in forma pauperis. The trial Court upheld his contention that there did exist negligence on the part of the Railway Administration, as alleged by the plaintiff. Major portion of the damages pleaded by the plaintiff was held established. All the same, the suit was dismissed on the ground that it was barred by limitation. In effect, the learned Judge has held that the presentation of the pauper petition on the last day of the date of limitation should have been by the petitioner himself, that the presentation of the same by his Advocate and his verification of the same about 5 days thereafter meant that the pauper petition itself was filed 5 days after the expiry of limitation. The suit has been dismissed on this narrow ground. Hence, this appeal. As will be presently pointed out, the learned Judges view regarding vindication of the Railways negligence is quite correct, having regard to the nature of the evidence adduced by the parties. However, in my opinion, his view regarding the question of limitation turns out to be very narrow and pedantic. In my opinion, the suit must be held to be within limitation.

(2.) (A)Facts : undisputed and indisputable---At least at this stage there is no dispute that the plaintiff was the owner of the relevant truck, B. M. O. 2640 on the date of the accident in question. There is no dispute about the accident as well. On 7-6-1968 the truck was loaded with stacks of grass and was being driven from village Pethali to Thane, driven by the driver Gurmit Singh. It came near Taloja Railway Station. There is Level Crossing Gate No. 10 at that station. The time was about 10. 15 p. m. According to him the gate of the level crossing was open, no prohibitory red light was shown anywhere whether on the gate or elsewhere. The man to open the gate was no where on the horizon and thus, there existed no indication whatsoever that any train or engine would be passing over the rail across the railway crossing. He and his cleaner were in the truck at that time. The truck was driven over the Level Crossing and was about to cross the down track. While doing so, the rear right side of the truck was knocked down by the Railway Engine which was being driven reverse towards Panvel. It broke the truck literally into 2 pieces. Fortunately, both the driver and the cleaner escaped unhurt, but the truck was in shambles. The two pieces of the truck were removed from the rail track by the Railways crane on the next day. About 3 or 14 days thereafter, the two parts of the truck were loaded in another truck and carried away by the plaintiff to a garage, at Kalyan. The Garage owner however, made no bones of the fact that it was a total loss and it was futile attempting repairs of the truck. As it was, it was a 2nd hand truck of old vintage. The last received knocking made a junk of it. The Garage owner took out some serviceable parts of the truck and sold them as second hand spare parts and in this way the plaintiff could salvage Rs. 2000/- from out of the shambles. There is no dispute at least at this stage that the Station Master, Mr. Pangare, made the necessary inquiry and submitted his report to the Divisional Superintendent of Railways. In that report, he specifically attributed the accident to the gross negligence of the Pointsman on duty at that time, one Sagu Kushaba Jadhav. It is also an admitted fact (as is evident from the Station Masters own evidence) that in fact 2 years increments of the Pointsman were stopped on account of his (Pointsman) act of gross negligence. Admittedly, the plaintiff gave Notice dated 19-6-1968 to the Railway Administration claiming damages as mentioned in the instant plaint. A reply dated 22-4-1969 was given by the Administration. The contents of the reply are set out in para 19 of the defendants own written statement. This is what is averred therein :-" (a) The doors of the level crossing Gate No. 10-C were closed for road users at the time of accident. (b) The left wing of the closed gate was forcibly opened by the truck driver attempting to trespass the Railway Track disregarding the Warning Board and the red lamps which were burning at the gate indicating the closures of Level Crossing Gate to Road Users. (c) The level crossing gate was not manned as alleged. (d) There was no negligence or wrongful act of the Railway Administration or its employees and the accident was entirely due to negligence and rashness of the truck driver and therefore the applicants claim is inadmissible. "

(3.) QUESTIONS urged in this Court by learned Advocates on both the sides.---The plaintiff (Appellant in this Court), unfortunately got next to no help from any of his Advocates in this Court. As many as three Advocates have filed their appearance, but no help of whatsoever character was received from any Advocate, because all of them chose to remain absent on the relevant dates of hearing. Mr. Mandrekar the learned Counsel for the Railway Administration, however, helped me examining the entire evidence on both the sides. Mr. Mandrekar while supporting the view taken by the learned Judge relating to the position of limitation, questioned the correctness of the lower Courts finding on merit. As indicated above, I am not inclined to accept the learned Judges view relating to the expiration of limitation. But I find no justification whatsoever for interfering with his findings so far as the merits of the plaintiffs suit are concerned, very industrious and persuasive arguments of Mr. Mandrekar notwithstanding. I will give indication as to why I have not been able to accept his challenge to that part of the lower Courts finding. I will presently deal with the question of limitation, which is the sole ground on which the plaintiffs suit has been dismissed.