BALBINDRA SINGH JOGA 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 form 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 le ir ned 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 abobt 5 days thereafter meant that tpe pauper petition itself was filed 5 days after the expiry of limita-tion. The suit has been dismissed on this narrow ground Hence, this appeal. j as will be presently pointed out, the learned Judge's view regarding vindication of the Railway's negligence is quite correct, having regard to the nature of the evidence adduced by the parties. However, in my opinion, his vi ;w regarding the question of limitation turns out to be very narrow and pedantic. In my opinion, the suit must be held to be within limita-tion.

(2.) FACTS : undisputed and indisputable : (A) At least at this stage there is no dispute that the plaintiff was the owneir of the relevant Truck, B. M. Q. 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 pethai 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 reserse 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 Railway's crane on the next day. About 3 or 4 days thereafter, the two parts of the truck were loaded another truck and carriqd away by the plaintiff to a garage, at Kalyan. The Garage owner, however, made no bones of the fact that it was total loss and it was futile attempting repairs of the truck. As it was, it was a second 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 secondhand spare parts and in this way the plaintiff could salvage Rs 2,000 from out of the shambles. j 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 divis:onal 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 Jodhav. It is also an admitted fact (as is evident from the Station Master's 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 install plaint. A reply dated 22-4-1969 was given by the administration. The contents of the reply are set put in para 19 of the defendant's 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 closed gate was forcibly opened by the truck driver attempting to trespass the railway truck disregarding the warning boatd and red lamps were burning at the gate indicating the closures of lever 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 railay administration or its employees and the accident was entirely due to negligence and rashness of the truck driver and therefore the applicant's claim is inadmissible. " (B) A statutory notice under Section 80 of the Civil Procedure Code was given by the plaintiff on 3-6-1971 and a petition in forma pauperis was filed by the plaintiff on 5-8-1971. There is no dispute that the last date for filing the-petition would be 6-8-1971, having regard to the statutory period of 60 days required for giving notice under Section 80 C. P C. That suit, unfortunately, came to be filed in the Court at Thane. What this means is that the plaintiff was advised by bis Advocate to file the suit in the Court at Thane. The learned Judge has blamed the plaintiff for having filed the suit in such a court. I have to see whether the blame brought by the learned Judge to the door-step of the plaintiff is justified. (C) The petition for leave to sue in forma pauperis remained cooling its heels in the Court at Thane till 26-9-1972, on which date that Court realised that it had no territorial jurisdiction to entertain the suit. The plaint was ordered to be returned for presentation to the proper Court. The plaint was in fact withdrawn by the learned Advocate for the plaintiff on that very day and he filed it in the Court at Alibag, which was the appropriate Court having jurisdiction to entertain the suit on the very next day 27-9-72. There cannot be any dispute that if the petition is deemed to have been filed on that date validly, then there would be no question of any bar of limitation. But the plea raised on behalf of the defendant was that the suit was barred by limitation. The above mentioned pleas were also raised by the defendant, which are set out as part of para 19 of the written statement. It is unnecessary to set out the other averments in the plaint or the written statement. All the facts set out above are stated in the plaint and the main defence of the defendant, which is contained in para 19 of the written statement, is also set out above. On these pleadings, issues were framed by the learned Judge and the parties went to trial. As mentioned at the outset, the court found no difficulty in upholding the plaintiffs claim, on merit, to the extent of Rs. 16,200, Rs. 12,000 being the market value of the truck on the date of the accident and Rs. 4,200 being the loss of income suffered by the plaintiff on account of the damage to the vehicle. As regards limitation, however, the learned Judge held - (i) that there existed no bona fides or goodfaith on the part of the plaintiff when he filed the suit in a wrong court on 5-8-1971. In this connection, the learned Judge has observed as follows : -"he (the plaintiff) resides at Kalyan and was expected to know that Taloja, where the alleged accident took place, did not come within the jurisdiction of Thane Court. " this, according to the learned Judge, was indicative of complete absence of due care and caution on the part of the plaintiff. (ii) that no averment of good faith was made by the plaintiff while presenting the pauper petition to the Alibag Court. According to the learned Judge -"it was necessary for the plaintiff to state how and when he was misled in presenting his petition in Thane Court on 5th August, 1971. As this was exclusively within his own knowledge, the plaintiff was expected make specific avernment to that effect in his petition which was presented in the Court on 27th September, 1972 and also to state about it in his evidence in Court. Failure on the part of the plaintiff to attend to any of the above requirements gave rise, in the learned Judge's opinion, to an inference that good faith was absent in this case in totality. The pauper petition was verified by the plaintiff as lats as on 4th October, 1972, that it was presented by his advocate on 27-9-1972, that, hence, 4-10-1972 was the date of presentation of the present petition, on which date, according to the learned Judge, the petition was hopelessly barred by limitation. The suit was, therefore, dismissed by the learned Judge with costs.

(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 Court's finding on merit. As indicated above, I am not inclined to accept the learned Judge's 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 plaintiff's 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 Court's finding, i will presently deal with the question of limitation, which is the sole ground on which the plaintiffs suit has been dismissed.