JUDGMENT
L.M. Ghosh, J.
1. On the 3rd of May,
1967, at about 8.30 A.M., the plaintiff’s truck
bearing No. WGV 3514 was involved in an
accident when it collided with a passenger
train on the level crossing in between
Binnaguri Railway Station and Dalgaon
Railway Station. It is not disputed that the
level crossing where the accident took place
was unmanned at the relevant time. The
plaintiff accuses that the defendant-Railway
Administration was entirely responsible for
the said accident, because it did not take any
measure to man the level crossing and also at
the material time, there was no whistling or
other warning. It is alleged that the plaintiff
acquired the vehicle in question for a
considerable amount, Rs. 38,295/-. Besides,
in the first year, he had to pay Rs. 2,453.90 p.
as insurance charge. According to the plaintiff,
recently the Railway Administration raised
some structures near the level crossing, thus
obstructing the views along the railway track.
Also it is stated by the plaintiff, the obstruction
of vision was caused by some trees too. The
driver of the truck, it is said, could not see the
train nor could have any idea about its
approach until half of the vehicle had crossed
the railway lines when the engine of the
railway train coming from the north collided
against the side of the truck at almost its
middle with great impact. The plaintiff makes
grievance that his truck has now become a
scrap and has gone beyond repairs. On this
allegation, the plaintiff has made a claim of
Rs. 33,000/- against the Railway
Administration,
2. The defendant, the Union of India, has denied all the material allegations of the plaintiff. It is the submission on behalf of the defendant that the accident was due to the truck driver’s negligence, as there was engine whistling and alarms to stope the truck. The answering defendant has also repudiated the plaintiff’s allegation that there was no obstruction due to the construction of gate lodge and submits that the vehicle driver’s view was quiteclear even from all directions, including from Dimdima approach. The defendant has also pointed out that there was caution board with indication “Stop”. Similar indication in Bengali was displayed, it is said. In short, the defence of the defendant has been that the Railway Administration was in no way responsible and there was no want of diligence on its part; on the contrary, the driver of the truck was himself absolutely reckless and negligent and thereby invited the accident.
3. Upon these material allegations, the parties went to trial. On behalf of the plaintiff, ten witnesses, including the plaintiff himself, were examined. On behalf of the defendant, three witnesses have been examined.
4. The learned Subordinate Judge, Jalpaiguri, on a consideration of the oral and documentary evidence on record has found that the defendant Administration was negligent for not making provision for manning the level crossing at that juncture. Finding the defendant’s negligence, he has decreed the suit for the sum of Rs. 33,000/-
5. Mr. Ghosh, appearing for theappellant defendant, has argued that the learned court below has not taken into consideration even the salvage value of the truck. If the extent of damage is not found, according to the learned Advocate, no decree can be passed. As regards negligence, the learned Advocate for the appellant has argued that it is permissible to keep unmanned level crossing and that is not violative of any provision of law. He has referred to a decision to drive home his point that when a level crossing remains unmanned, it is the duty of the driver of the motor vehicle to stop it and look around. That decision in reported in AIR 1974 Gauhati 31.
6. Mr. Roy, appearing for the plaintiff respondent, has taken us through the various parts of the evidence for leading us to the conclusion that the defendant Administration was negligent in nof making provision for
clear vision near the level crossing. He has also referred to several decisions in that connection for laying down what should be the standard of diligence on the part of the Railway Administration in such a situation,
7. At the very outset, it must first be determined whether the plaintiff has proved his ownership of the truck in question. Though in the written statement that is denied, at the time of trial, that was not pressed. Moreover, Ext. 3 itself makes it clear that the plaintiff was the recorded owner of the vehicle in question. It is not necessary to dwell further on the point.
8. The most relevant matter for consideration would be whose negligence brought about the accident. The plaintiff has averred and has led evidence that the defendant was negligent in not manning the level crossing properly. It has also been the point of the plaintiff that the view in front of the railway tracks was obstructed by the new constructions and also by the trees. It is also alleged that there was no warning and no whistling by the approaching train. On the other hand, the defendant has led evidence that whistling was done regularly after the Dimdima Bridge. Also, according to the defence evidence, there was a board giving warning for the approach to the level crossing. Of the ten witnesses examined for the plaintiff. P. Ws. 6, 7, 8 and 9 come forward to give some account of the accident. P. W. 6 has deposed that the train did not sound any whistle, that it was running speedily and that it was not visible because of the obstructions by the forest. However, it has come out from his cross-examination that the cabin of the Dalgaon Railway Station is visible from the level crossing. That, however, is not very relevant, because that is the other direction and we do not get anything from his evidence as to the direction from which the train was coming. P. W. 7, like P. W. 6, has said that he saw the accident. His version is that near the level crossing, the driver got down from the truck and then again entered into it and started off. When the truck was on the railway line, the engine of the truck crossed the railway line and thereafter the train collided with the body of the truck. He adds that the train did not whistle and was running at a high speed. Then he has stated that the view was obstructed by the railway house and the trees. Now though in his chief he has spoken about the obstruction of the vision in his cross-examination he has admitted that the Dimdima Bridge is visible from the level crossing. And, from his chief we get that the train was coming from Binnaguri to Dalgaon and that the bridge is at a distance of one/fourth mile or so from the material place. Scrutinising the evidence, therefore, we get that the frontal vision up to an extent of one- fourth of mile was clear from the point of the level crossing. P. W. 8 claims that he was in the truck itself on the fateful date. He has narrated that the driver of the truck stopped the vehicle near the level crossing, got down and urinated and then got inside and started off. The train collided with the truck when it was crossing the rail line. He says that he did not hear any whistle of the railway engine or any sound of the running of the train. Even this witness has stated that the frontal vision was obstructed. But again, this witness, like P. W. 7, has given out that the Dimdima Bridge is faintly seen from the railway crossing. P. W. 9 Ls another witness whoclaims that he saw the accident. Like the other witnesses, he has stated that there was a construction recently made by the Railway Administration. However, he has made it clear that the construction is at a distance of 20 or 25 cubits from the level crossing. Even the plaintiffs own witness has made this much clear that there was clearance to the extent of 20 or 25 cubits after the construction. From this P. W. 9 we also get that the same passanger train daily passes by the railway crossing at about 8.30 a.m. in the morning. That was also about the time when the train was moving through the railway crossing. Therefore, ordinarily it should be known that about the same time, the train was to pass. This has got some bearing upon the degree of alertness required on the part of persons trying to negotiate the level crossing. Although some of the witnesses for the plaintiff have deposed that there was no whistling and warning, the defence witnesses have asserted that there was regular sounding of whistle and that there was a board on the road side giving the signal for halting. That is the evidence of D. W. 1, who was the railway engine driver himself of the particular train and on that particular date. His version is that it is a practice to sound whistle after crossing the Dimdima Bridge towards Dalgaon. There is a whistle board after the Dimdima Bridge and the drivers are to whistle continuously after crossing the said bridge. And, in the usual course of things, he gave the whistle on the date of the accident also, as he says. D. W. 2 was the fireman of the same engine of the passenger train. He also asserts that on that date, the whistle was blown from the point of warning giving board up to the level crossing. D. W. 3 is another employee of the railway department who was in that very passenger train on that date. According to his account, after crossing the Dimdima bridge there is one warning board on the left hand of the track before the level crossing. That is the whistling board. And, he maintains, on the said date the whistle was given from the point of the said board. Therefore, on the one hand we get the evidences of witnesses who were directly involved in the operation of the train that there was whistling, and, on the other hand, the negative evidence of some of the witnesses of the plaintiff who say that they did not hear any whistling or that there was no whistling. The evidence of the witnesses of the defence side who were directly concerned about whistling, must be more weighty than the evidence of chance witnesses who say that they did not hear any whistling or that there was no whistling. It is not to be disbelieved that on the relevant date and at the relevant time, there was whistling. Even if the witnesses on the two sides neutralise each other, the plaintiff does not prove that there was negligence on that score. D. W. 1 has also deposed that near the level crossing by the road side there was a sign board depicting the picture of an engine and cautioning the passers by. That part of the evidence of D. W. 1 cannot also be disbelieved, as things are neglected to be maintained in the regular course of business. So far, the plaintiff has not been able to disclose any negligence on the part of the defendant on these scores. Regarding the visibility, it has already been pointed out that the plaintiff’s own witnesses themselves have answered that Dimdima Bridge is visible from the level crossing. We have also referred to the evidence on the plaintiffs side that after the construction, there is clearance of about 20 or 25 cubits. As a matter of fad, there could not be any obstruction of vision from the level crossing, as the plaintiffs own witnesses have admitted that Dimdima Bridge is visible from the level crossing. It is the duty of the driver to look around at the point of level crossing, before proceeding further through the said crossing.
9. Mr. Roy, the learned Advocate for the respondent, has referred to a number of decisions to convince that the Railway Administration should have taken more measures in this case. The decision reported in AIR 1963 Assam 117 has first been referred to by him. There, it has been held that where a railway line crossed the busy road at such a point that the incoming train was not visible due to houses and trees until the passer-by was on the railway track and the lorry driver seeing a train coming while on the track tried to speed up his lorry across the railway lines, but the railway engine hit the rear portion of the lorry and damaged it, the defence of contributory negligence could not be sustained as the burden was on the defence. But there is clear finding that the vision was completely obstructed and the train was not visible at all. We have referred to the evidence that in this case there was no such total obstruction of vision. The next decision relied upon by the learned Advocate for the respondent is reported . The facts of that case were completely different. There a railway line crossed a busy road at such a point that the incoming train was not visible until the passenger was on the railway track. The railway line crossed the busy road near a railway junction and it was also a shunting area where the trains would pass now and then without anyone even knowing whether it was time for a train to pass. Here, there is no evidence that the railway line crossed a busy road. It was not a shunting area. And, as pointed out before, there was fixed lime for approached of the particular train, that is at about 8.30 a.m. The case , also cited by Mr. Roy, the learned Advocate for the respondent, is also of no assistance. In view of the paucity of evidence on certain relevant points in that case, it was held that the court was unable to find that the failure of the railway administration to erect a gate and post a gateman amounted to an actionable negligence by itself. That decision, in a way, rather supports the case of the defendant appellant that by itself it is no negligence not to man a level crossing. The case also cited by the learned Advocate for the respondent, is on a different point, that is, regarding the vicarious liability of the State for the tortious act of its employees. It is never disputed that the Railway Administration would be vicariously liable for the tortious acts on the part of its servants
10. The decisions cited by the learned Advocate for the respondent do not establish that the Railway Administration was bound to man the level crossing. On facts, it has been found that the administration took other measures by way of warning by putting up warning board and whistling from the engine near the crossing. We do not find that there was any negligence on the part of the defendant. Even if there was some sort of negligence, the question of contributory negligence would be very material. The test would be who had the last chance to avoid the accident. The defence witnesses have deposed that assoonas the driver of the train engine saw the truck, he applied the vacuum. In spite of that, the engine of the train hit the body of the truck. That driver of the train engine had no better control. But, the driver of the truck, if he was alert, could avoid it by stopping the train at least just near the level crossing. It is common knowledge that by operating the brake and halting the vehicle instantly, even on the road the pedestrians are saved. If so, even if a vehicle was on the move, a prompt brake would have brought the truck to a halt. Undoubtedly, it was within the control of the truck driver to stop the vehicle at once, unless the train emerged out of the blues. The truck driver had the last chance to avoid the crisis. Even if there was some initial negligence, the defendant can take the plea of contributory negligence,
11. We thus come to the conclusion that the plaintiff has not been able to establish that the defendant was negligent in any way. Further, we also come to the conclusion that at any rate, the truck driver had the last chance to avoid the crisis. Such being the position, this action of the plaintiff founded on tort is not maintainable. The suit was liable to be dismissed on that ground We may add one more point and it is that the plaintiff, in any case, has not proved the extent of damage. Even his own witness P. W. 2, during his cross-examination has deposed that even after replacement the truck would not run so satisfactorily as before. That presupposes that the truck can run, but not so satisfactorily. What would have been the difference in valuation or rather the depreciation of valuation, is not made clear by any evidence whatsoever.
12. Having considered the matter from all the aspects, we find that this suit of the plaintiff was liable to be dismissed. The appeal must succeed. The appeal is allowed on contest against the respondent. The judgment and the decree of the learned Subordinate Judge, decreeing the suit for an amount of Rs. 33,000/-, are hereby set aside and we do dismiss the suit on contest. We make no order for costs of the suit or this appeal.
Sankari Prasad Das Ghosh, J.
13. I agree.