Sarupi Devi vs Union Of India And Ors.
1991 Latest Caselaw 622 Del

JUDGMENT

Usha Mchra, J.

(1) Smt. Sarupi Devi ann others have filed this suit againstUnion of India and the General Manager, Northern Railways. Smt. SarupiDevi is the mother of one Vinod Kumar and plaintiffs No. 2 and 3 are hisbrothers. The said Vinod Kumar was alleged to be a cultivator and alsoengaged in dairy farming. On 23/05/1983 at about I a.m. when the saidVinod Kumar was ioing in a truck accompanied by other persons, be met witha fetal accident as a result of which he died at the spot. the case as built upby the plaintiffs is that Vinod Kumar was traveling in the truck which was crossing the railway level crossing of Khera Kalan, Delhi between Badli andHalambi Kalan stations. the gate of the level crossing of Khera Kalan at thetime of the accident was left open by the gateman. the truck in which the deceased Vinod Kumar was traveling when it was crossing the railway level from one erection and from the opposite direction a tractor was coming inolder to cross the railway level crossing. the railway terain No. 1 S.N.(Soaepat Now Delhi Shuttle) approached the railway crossing. It was drtvenvery fast and in a rash and negligent manner, as a resuit of which it hit tbetruck and the tractor, six of the occupants of the truck including Vinod Kumardied and three were seriously injured. Vinod Kumar was a young man of 22years He was unmarried. Because of this unfortunate accident, the plaintiffNo. 1, who happens to be the mother of the deceased Vinod Kumar, andplaintiffs No. 2 and 3 who happen to be the brothers of the deceased, havenude a daim of Rs. 1,O5,000.00.

(2) Plaintiff No. 1 being the mother was dependent on the deceafedVinod Kumar, who from Us cultivation, was earning a sum of Rs. 20,000.00and from dairy farming his annual income was Rs. 10,000.00. Claim was lodgedwith the railways, who in turn gave a. sum of Rs. 35,000.00 as compensation tothe plaintiffs. This was accepted under protest by the plaintiffs and thereaftera legal notice was issued on 21/05/1984 but without any success. Hencethis wit.

(3) Written, statement was filed on behalf of the defendants and defensewas taken that the amount of Rs. 35,000.00 was in full and final aettlement of the claim on account of the death of deceased Vinod Kumar. Further, it was dented that there was any negligence on the part of the employees of the railways or that the deceased idea because of the rash and negligent driving bythe train driver.

(4) Replication was also filed. In which it was reiterated that the death was duo to the negligence of the employees of the railways and that the amount of Rs. 35,000/ was accepted without prejudice to the rights of the plaintiffs.

(5) On the pleadings of the parties, following issues were framed:1. Whether the compensation of Rs. 35,000.00 was paid to the plaintiffs by the defendants In full and final settlement of the claim of damages, on account of the death of Vinod Kumar who died in the accident on railway crossing ?2. If not, whether the accident in question was caused on account of the rash and negligence and wrongful act and conduct on the part of the driver of the train and the gateman on the crossing ?3. To what amount on account of damages, if any, are the plaintiffentitled? . .4. Relief.

(6) At the out-1, it must be mentioned that plaintiffs were permitted to adduce the evidence by way of affidavits. The plaintiffs have filed the affidavits of Smt. Saropi Devi, Shri Kartar Singh, Shri SaroJ Kumar and that of Shri Rattan Singh Rana. There is no cross examination on the evidence of these witnesses. It may also be pointed out that the defendants have not led any evidence whatsoever nor subjected these witnesses to cross examination.Issue No. 1

(7) So far as issue No. 1 is concerned, it was for the defendants to prove that the amount of Rs. 35,000.00 was paid in full and final settlement ofplaintiffs' claim. But since there is no evidence adduced by the defendants to discharge the burden of this issue, therefore, this issue is decided in favor ofthe plaintiffs. It is not simply because the defendants have not led evidence,the reason for deciding this issue in favor of the plaintiffs is also because the plaintiffs have produced on record a letter dated 8/12/1983, ExhibitP. Vi issued by the Northern Railway for Chief (Claims) Officer, which clearly indicates that the amount of Rs. 35,000.00 offered by the railway was accepted by the plaintiffs without prejudice to their claim and it was also made clear by the plaintiffs to the defendants that this amount they were not accepting in full and final settlement of the claim. This also finds support further from the legal notice dated 21/05/1984 issued by the plaintiffs to the defendants,which is Exhibit P. VII. These documents fully established the case of the plaintiffs that the amount of Rs. 35,000.00 was only ad hoc and not in full and final settlement of plaintiffs* claim.Issue No. 2

(8) The burden of this issue was on the plaintiffs. They have by (r)nuncontroverter and unrebutted testimony proved that the accident took place entirely on account of the fault of railway gateman. Had the gate at the level crossing been closed, the truck carrying the deceased Vinod Kumar would not have tried to cross the railway level crossing. The truck driver having seen that the gate was open, tried to cross the same. So ft cannot be said that there was any negligence on the part of the truck driver. So far as Smt. SarupiDevi, the mother of the deceased Vinod Kumar, plaintiff No. 1 is concerned,she was not an eye witness. Her account is based on the information she derived from Kartar Singh, plaintiff No. 2 in this case. Shri Kartar Singh has testified that he was engaged in agricultural work. In the mid night of 22ndand 23/05/1983, at about I a.m. he found his brother Vinod Kumar, his nephew Jaipal Singh and one labour boarding the truck No. DLO- 8174 in which manure had been loaded from the field nearby the railway level crossing of Khera Kalan, Delhi. They were to transport the same to other field. The truck carrying the manure started proceeding towards the railway level crossing.At that time Saroj Kumar, plaintiff No. 3 was also standing with him. They saw the truck going towards the railways level crossing. He kept on standing there in order to collect the agricultural implements from the field, which was near the railway crossing. He also saw that from the other side of the village KheraKalan a tractor coming. He saw that the truck and the tractor was hit by train No. 1. (Sonepat New Delhi Shuttle), as a result of this collusion Vinod Kumar died along with others. According to him, Railway Administration held an inquiry. The inquiry officer found that the accident was caused doe to the negligence and wrongful act of the gateman and the driver of thetrain. According to him the train did not below the whistle nor its head lights were on at the time of the accident. The gate was left open at the level crossing thereby allowing the truck as well as the tractor to cross the level crossing. This part of his testimony and that of Saroj Kumar who has corroborated in material particulars the testimony of Shri Kartar Singh has not been subjected to cross examination. Railway Administration has also not adduced the inquiry report which was conducted in order to ascertain the cause of accident. The statement of Shri Kartar Singh and Saroj Kumar is corroborated by the testimony of Shri Rattan Singh Rana, who is another eye witness of the accident. He also testifies that the level crossing gate was open wined the accident took place and the inquiry which was held found the railway official guilty of negligence and wrongful act. From the unrebutted testimony of these witnesses coupled with the fact that there is nothing brought on record by the Railway Administration to establish that there was no fault of the driver or the gateman, it can safely be presumed that there was a negligence and wrongful act and conduct on the part of the gateman and to some extent that of the driver. As already observed, had the gateman not left the gate open,. the truck would not have tried to cross the level crossing. A common man cannot imagine that the train has approached near the leave crossing when the gate of the level crossing is still open. The truck driver unmindful of thetrain, tried to cross the level crossing when he found that the level crossing gate was open. For all these reasons I find that there was negligence on the part ofgateman, as a result of which accident took place which in turn killed VinodKulpar. Hence this issue is decided in favor of the plaintiffs.Issue No.3

(9) So far as the quantum is concerned, according to the defendants the amount of Rs. 35,000.00 has already been paid but the plaintiffs by the testimony of Smt. Sarupi Devi (Mother of the deceased) Kartar Singh and Saroj Kumar (brothers of the deceased) hove established that the deceased wasan agriculturist. He was also engaged in the dairy farming business and his total annual income was Rs. 30,000.00. This stand is supported by the certificate issued by the Gram Pradhan of village Khera Kalan dated 11/08/1983,Exhibit P. 1. The Gram Pradhan has certified that the deceased Vinod Kumar was engaged in agriculture and dairy farming business and that his .total annual income was from these two sources was Rs. 30,000.00. This fact has also been incorporated in the notice issued by the plaintiffs. There is no rebut alto the same. The deceased was an unmarried youngman of 22 years of age.He being an agriculturist is also not disputed. To know the income of an'individual, if he is self employed, the best person could be the family members and if agriculturist then Pradhan of the village. In this case, the mother and brothers of the deceased have deposed that his annual income was Rs., 30,000.00.This fact has also been substantiated by the certificate Ex. P. I issued by the Gram Pradhan. This part of the evidence has also not been subjected to crossexamination. There is nothing on record to disbelieve this part of the testimony of the plaintiffs and that of the certificate issued by the GramPradban. Therefore, relying on these factors, I can safely say that the annual Income of the deceased Vinod Kumar was Rs. 30.000.00. He was youngman of22 years of age. If be bad remained alive, he must have made good fortune from his cultivation as well as from the dairy farming business. Be that as itmay, as on record the annual income of Rs. 30,000.00 has been establihed,taking that to be the annual income of the deceased, I think the claim ofRs. l,05,000.00 is not excess. If he had been alive, he would have lived at least an average life of an Indian. I think it would be fair to award the compensation, of Rs. 1,05,000.00to the plaintiffs. Therefore, this issued is decided in favor of the plaintiffs and against the defendants.Issue No. 4 (Relief)

(10) In view of the above discussions, I find that the plaintiffs are entitled to the relief claimed by them and I accordingly passed a decree to favor of the plaintiffs and against the defendants in the sum of Rs. 1,05,000.00(minus Rs. 35000.00 already received) with costs and interest @ 12% P.A. tillrealization.