Railways represented by the General Manager, Southern Railway, Madras v Omana Paulose

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934 ## AS.No. 84 of 2003 (D) --------------------- OS.1199/1995 of I ADDL.SUB COURT, ERNAKULAM APPELLANTS/DEFENDANTS:: -------------------------------- ## 1. RAILWAYS REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS. 2. UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS. BY ADV. SRI.VARGHESE P.THOMAS, SC, RAILWAYS RESPONDENT/PLAINTIFF:: ------------------------- OMANA PAULOSE, W/O. PAULOSE K.J., KANNAMPILLIL HOUSE, VATTUKUNNU, MULANTHURUTHY P.O. ERNAKULAM DISTRICT. BY ADV. SRI.BABU S. NAIR BY ADV. SMT.SMITHA BABU THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## AS.No. 84 of 2003 (D) ## ORDER ON I.A.NO.2621/2003 DISMISSED. 10.7.2012 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE ## **HARUN-UL-RASHID, J. -----------------------A.S.No.84 Of 2003 ---------------------Dated this the 10[th] day of July, 2012.** ## **J U D G M E N T** Defendants are the appellants. The appeal is directed against the judgment and decree in O.S.No.1199/1995 on the file of the 1[st] Additional Sub Court, Ernakulam. The respondent as plaintiff filed the suit for damages. The court below decreed the suit in part with cost allowing the plaintiff to realise an amount of Rs.20,000/- with 6% interest per annum from the date of suit till realisation from the defendants and their assets. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. The 1[st] defendant is the Railways represented by the General Manager, Southern Railway. The additional 2[nd] defendant is the Union of India. The suit was filed for damages on account of injury alleged to have been sustained by the plaintiff while riding across the road attached to the Railway cross at Mulanthuruthy, maintained by the 1[st] defendant. Plaintiff's case is that she as pillion rider along with her husband who **::2::** ## **A.S.No.84 Of 2003** driven the scooter bearing Reg. No. KL-7- E-7160, while passing through the railway cross at Mulanthuruthy on 7.6.1995 at 6:00 p.m the scooter skidded off the road, touching the railway track as a result of that she was thrown out and the plaintiff sustained fracture to her right arm. The plaintiff was taken to Medicare Hospital for treatment. The plaintiff alleges that it was due to the lack of repairs of the road touching the railway track that the accident occurred. The plaintiff claimed that apart from monitory loss by incurring expenses for treatment she had suffered mental pain and agony and that she had availed long leave. It is contended that had the road kept well maintained within the railway gate, the accident would not have happened. According to the plaintiff, she suffered loss of Rs.50,000/- under the head expenses and treatment for mental agony and pain. 3. Suit was resisted by the defendants, denied the plaint averments and prayed for dismissal of the suit. According to them, the accident happened due to the careless driving of the husband, that the road was motorable and that it was not due to lack of repairs of the road, that the road is in a good condition **::3::** ## **A.S.No.84 Of 2003** worthy for traffic and that the plaintiff was holding the younger child and her elder son was standing on the front of the scooter and that they were riding the scooter in violation of the Motor Vehicles Rules which permits only the rider and the pillion rider at a time. 4. The plaintiff was examined as PW1 and her husband as PW2. Her office colleague was examined as PW3 and a petty shop owner who is running a shop near the railway track as PW4. Watchman of the 1[st] defendant was examined as DW1. The plaintiff produced Exts.A1 to A17 while defendants produced Exts.D1 & D2. 5. The trial court believed the oral testimony of PWs 1 to 4, rejected the contentions of the defendant, held that accident occurred due to unworthy traffic condition of the road, that the defendants are negligent in maintaining the road properly and contributed to the injury of the plaintiff. It has come out in evidence that while PWs 1 & 2 were returning home from office on 7.6.1995 at 6:00 p.m the scooter driven by PW2 met with the accident as a result of which she sustained injuries to right arm. **::4::** ## **A.S.No.84 Of 2003** The plaintiff was taken to nearby Varsha Nursing Hospital for first aid. Later, she was referred to Medicare hospital, Ernakulam. Ext.A1 reveal that she was admitted on 12.6.1995 and discharged on 24.6.1995 and underwent operation on 13.6.1995. It is not disputed that the plaintiff had underwent operation and was advised to review after ten days for removal of suture. The plaintiff also produced series of medical bills. According to the plaintiff, it was due to lack of repair of the road touching the railway track, the scooter skidded off the road as a result of which she was thrown out on the railway line causing fracture to her right arm. PWs 1 & 2 testified before the court that the road adjacent to the railway track has full of pits and ditches due to lack of maintenance and it was in a dilapidated condition. PWs 1 & 2 testified before the court that there was no maintenance for the road touching the railway track and that the accident occurred not due to the fault of the plaintiff's husband or due to slip of the road by down pour of rain. PW3 is the person who is working with PWs 1 & 2. He also tendered evidence in support of the plaint allegations. PW4 is the person conducting a soft drink **::5::** ## **A.S.No.84 Of 2003** shop nearby. He also corroborate the version of PWs 1 to 3. Believing the oral testimonies PWs 1 to 4, the court found that the railway track and the gate were in a dilapidated condition kept without maintenance and the scooter driven by PW2 fell down into a gutter and PW1 sustained injuries. 6. Ext.A17 is the office copy of the notice dated 29.6.1995 addressed to the Regional Manager, Southern Railway by the plaintiff in which it is stated that the plaintiff was travelling along with PW2 and their two children. Referring to Ext.A17, the learned counsel for the appellant contended that PW1 was holding the younger child and her elder son was standing on the scooter in front of PW2. It is pointed out that they were riding the scooter in violation of the Motor Vehicles Rules which permits only the rider and the pillion rider at a time. According to the learned counsel, the accident was occurred not due to the poor condition but, due to the rash and negligent driving of the scooter by PW2 and due to overload. The learned counsel also pointed out that there would be 500-600 vehicles crossing the railway gate each day and that PW2 would have taken care and caution **::6::** ## **A.S.No.84 Of 2003** while riding the vehicle and had he been careful the accident would not have happened. The counsel also pointed out that PWs 1 to 4 are interested persons and therefore, the court below went wrong in believing the testimonies of PWs 1 to 4. According to the learned counsel by this wrong approach the court below granted a decree in favour of the plaintiff. It is pointed out that the plaintiff was holding the younger child while she was travelling in the scooter and she has lost her grip and thereby fell down. The learned counsel pointed out that at the time of crossexamination she testified that her elder son was standing in the scooter in front of PW2, her husband and therefore, negligence on the part of the plaintiff and her husband is proved beyond doubt. The learned counsel pointed out the finding recorded that the accident occurred due to the unworthy traffic condition of the road and that the defendants are negligent in maintaining the road properly and it caused injury to PW1 is wrong and therefore liable to be interfered with. It is pointed out that the finding to that effect means that the plaintiff and her husband have also contributed to the accident and therefore, the decree passed by **::7::** ## **A.S.No.84 Of 2003** the court below is liable to be set aside. The learned counsel also contended that compensation awarded under various heads is without sufficient proof and therefore, unsustainable. 7. The learned counsel also submits that the plaintiff and her husband are responsible for the accident and that the remedy, if any, is to approach the Motor Accidents Claims Tribunal and therefore, the claim should have been dismissed. The learned counsel for the appellant also relied on the decisions reported in _**General Manager, N.F.Railway, Malegaon, Guwahati v. Jitendra Shah and others**_ (2000(9) SCC 58) and _**Union of India v. united India Insurance Co.Ltd and others**_ (1997 (8) SCC 683). 8. considering the contentions raised by the parties in the appeal, this Court is of the view that the matter requires reconsideration. The contentions now taken in appeal has not been appreciated and discussed satisfactorily by the trial court. Therefore, the matter have to be decided afresh after considering all the contentions raised by the parties. **::8::** ## **A.S.No.84 Of 2003** In the result, the appeal is allowed. The impugned judgment and decree passed in O.S.No.1199/1995 is set aside. The case is remanded to the court below for fresh consideration and disposal in accordance with law, untrammelled by any of the observations made in the judgment. Since the suit is of the year 1995, there will be a direction to the court below to dispose of the suit within a period of six months from the date of appearance of the parties. The parties shall appear before the court below on 8.8.2012. No order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-