D. Sakku vs The General Manager
2023 Latest Caselaw 199 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                APPEAL SUIT No.703 of 2006

JUDGMENT:

This appeal is filed against the Judgment and Decree of

the trial Court in O.S.No.17 of 1998 dated 29.10.2004.

2. The wife and children of the deceased Dhanavath Bala

who died in train accident on 20.06.1996, filed suit for damages

and claiming Rs.5,00,000/- with interest at the rate of 18% per

annum against South Central Railways. They mainly contended

that on 20.06.1996, the deceased was in search of his missing

buffalos, while crossing the railway track between 112 kms and

113 kms where unman level crossing was there, the train which

was coming from Guntur dashed him and he died on the spot.

The railway authorities registered a case in Cr.No.43 of 1996

and the body was disposed off after conducting postmortem. As

the accident occurred on the railway track, where there was no

man to guard the level crossing and there was no display of

danger signal to alert the pedestrian to take safety steps while

crossing track, the accident was occurred due to negligence of

the railways. The deceased was working in APSWHC at

Venkatadripalem Village and earning Rs.100/- per day, apart

from that he was having Acs.3 - 00 gts of land and earning

Rs.15,000/- per month on agriculture and thus totally earning

more than Rs.51,000/- per month and they became destitute

due to his sudden demise. Therefore, requested for grant of

Rs.5,56,000/- but they restricted their claim to Rs.5,00,000/-.

3. In a Written Statement filed by the defendants they stated

that the mandatory provisions of Section 79 and 80 of C.P.C

were not complied. They also stated that unmanned level

crossings have no gates like manned level crossings, as such it

is for the user to cross track safely after taking precautions and

observing road sign boards, visible boards, etc., provided by the

Railway Administration, as such they are not responsible for the

accident and not liable for compensation.

4. The plaintiffs examined P.Ws.1 to 4 and got marked

Exs.A1 to A7. The defendants examined D.Ws.1 and 2 and

marked Exs.B1 to B4.

5. The trial Court after considering the entire evidence on

record and citations filed before this Court and also arguments

of both sides dismissed the suit on the ground that the plaintiffs

failed to prove the negligence of the defendants for the death of

deceased. Aggrieved by the said Judgment, the present appeal is

preferred. The plaintiffs mainly contended that the trial Court

ought to have drawn adverse inference against the defendants

as defendants failed to discharge their burden that there is no

negligence on their part. They also stated that the deceased

Bala died in the accident only due to negligence of the

defendants, but the trial Court erred in appreciating the facts

properly. As the deceased was downtrodden and illiterate, the

trial Court instead of taking lenient view dismissed the suit.

Therefore, requested this Court to set aside the Judgment and

Decree of the trial Court in O.S.No.17 of 1998 dated

29.10.2004.

6. The point for consideration is whether the trial Court

dismissed the suit on proper appreciation of the facts and

evidence and if so, whether the Judgment of the trial Court is

liable to be set aside or not.

7. Admittedly, there is no dispute regarding the fact that the

deceased Bala died in accident, as per evidence of D.W.1 who is

the Station Superintendent, Railway Station, Miryalaguda, on

27.06.1996 at about 8:40 a.m one Keyman Pitchaiah reported

that while observing the lights, he found a male dead body lying

on the track between 112/16 and 113/0. Basing on the said

report, his predecessor K. Bhava Narayana intimated the same

to the sub-Inspector, GRP, Nalgonda and also registered a case

in Cr.No.1/96 under Section 174 of Cr.P.C. He also stated that

there is no unmanned railway gate, where the dead body was

found as per the railway map and the dead body found at 300

meters away from manned-chained level crossing Gate No.70,

which is at KM 112/8-9 and at about 500 meters from

unmanned level crossing No.69 which is at KM112/10-11. He

also stated that the deceased was a trespasser on the railway

track and while crossing the track 112/16 - 113/1, he was

dashed by unknown train. As such they are not liable to pay

compensation. He further stated that railways also giving wide

publicity with regard to the crossing of track by the people and

other vehicles by using electronic and print media. He filed

Ex.B1 to B4 in support of his contention.

8. D.W.2 is the person who informed about the dead body on

the railway track to Station Superintendent of Railways. He gave

his report under Ex.B1. He stated that dead body was not there

on the track near LC 69 and 70.

9. The learned counsel for the plaintiffs before the trial Court

relied upon a decision in the case of Motukuri Bheemavva and

others Vs. APSEB Vidyut Soudha Bhavan, Somajiguda,

Hyderabad,1 in which it was held that the burden of proof in a

case of this nature rests on the defendant to prove that there was

no negligence on its part but not on the plaintiff to prove

negligence. It was also stated that the body of the deceased was

identified only through his clothes as his face could not be

identified. The accident occurred at about 4:00 a.m when he

went in search of his buffalos, it was occurred in June, 1996 i.e,

summer as such it cannot be said that he could not see the

railway track while crossing the same. He should have been

vigilant while crossing the track, but he failed to take necessary

precautions. The trial Court observed that he could not hear the

noise of engine and he has not observed both sides of the

railway track while crossing the same to ensure whether train

was coming from the nearest point or not. It was also stated

that deceased performed his daughter's marriage three months

(1997 (6) ALD 217)

prior to his death and the clothes worn by the deceased at the

time of death were the marriage clothes.

10. P.W.3 in his cross-examination stated that railway

crossing is at a distance of 50 yards from the last point of the

station towards Hyderabad. P.W.4 in his cross-examination

stated that he conducted inquest at KM 112/16/115/0 between

Miryalaguda and Thipparthy and there is no level crossing at

that place. D.W.1 in his cross-examination stated that there are

two unmanned level crossings in between KM 112-113 and

there is mention of level crossing as unmanned in Ex.P4 in

respect of gate 70. D.W.2 in his cross-examination stated that

first level of crossing is located at a distance of 10 posts from

the station and second crossing is at a distance of 10 posts from

the station.

11. The argument of the respondents herein is that the

deceased was a trespasser on the railway track and failed to

take necessary precautions while crossing the railway track,

moreover there is no unmanned level gate at the place of

accident, as such there was no negligence on the part of Railway

Administration. Merely because dead body was found on the

railway track, it cannot be presumed that the accident occurred

only due to the negligence of the railway authorities. The trial

Court rightly appreciated the facts and dismissed the suit. The

learned Counsel for the appellants argued that the appellants

are the wife and children of the deceased, as such requested the

Court to take the lenient view, the deceased Bala died due to the

negligence of Railways was not established and thus the

question of liability of the railway authorities does not arise.

Therefore, appeal is devoid of merits and is liable to be

dismissed.

In the result, the appeal is dismissed confirming the

Judgment and Decree of the trial Court in O.S.No.17 of 1998

dated 29.10.2004. There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________

JUSTICE P.SREE SUDHA

DATED: 11.01.2023

tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

APPEAL SUIT No.703 of 2006

DATED:11.01.2023

TRI