IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE ELEVENTH DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 122 OF 2001 BETWEEN: Mohd. Muneer Ahmed …APPELLANT AND Union Bank of India, represented by its General Manager and others. …RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 122 OF 2001 JUDGMENT: The plaintiff in O.S.No. 489 of 1994 on the file of the I Additional Senior Civil Judge, Ranga Reddy District, is the appellant herein. The suit was filed for recovery of damages of Rs.1,50,000/-. 2. According to the case of the plaintiff, he is the owner of the lorry bearing No. AP 36 T 267, which was hired by the 3rd defendant for the purpose of transporting rice from the Godowns of the Food Corporation of India (for short “FCI”). On 06-09-1993 the lorry was loaded with 148 bags of rice at the Block of the Food Corporation of India, Sanatnagar, and it was going for weighment along with some other lorries, which were ahead and behind the lorry of the plaintiff. There is a railway track in the premises of the 3rd defendant running from North to South. While so, the plaintiff claimed that at about 12-35 P.M., on 06-09-1993, when the plaintiff’s lorry was about to cross over the said Railway Track, one Railway Goods Train belonging to the defendant No.1, came in reverse direction in a rash and negligent manner without any signal or whistle or any indication of its coming, dashed against the rear-side of the plaintiff’s lorry bearing No. AP 36 T 267 and bulldozed it to a distance of about 30 feet till front portion of the said lorry came into contact with the platform of the FCI Godowns and till the lorry was very much pressed and sandwiched in between the platform and the railway Goods Train Wagon, resulting which, heavy damages to the plaintiff’s lorry. The plaintiff further claimed that the said Goods Train was not having any Guard on its rear-side at the time of its running in a reverse direction. The Goods Train came to a halt only when a sweeper by name Smt Papamma, an employee of F.C.I. Godowns, shouted and signal led to the Driver of the Goods Train to stop the said train. The driver of the said Train was reckless, rash and negligent when he was driving the Train in the reverse direction and he had not taken any precautions. Due to the recklessness, rash and negligent driving of the driver of the said Goods Train, the serious accident took place. The driver of said Goods Train is responsible for the said accident. Thus, the defendant No.1 is liable vicariously for the damage caused to the plaintiff’s lorry and also the other Railway officials on duty on the spot at that time, who are all the employees of the defendant No.1. The plaintiff suffered damages to the vehicle. When a claim was made, the defendants have not paid any amount. The plaintiff suffered loss of earnings to a tune of Rs.20,000/- for two months as the lorry was under repair, the plaintiff also spent Rs.1,30,000/- for repairs. Hence the suit. 3. The first defendant filed a written statement denying the allegations in the plaint and putting the plaintiff to strict proof of the rashness and negligence of the driver of the Goods Train and over the employees of the 1st defendant. The incident happened due to the fault of the driver of the lorry while crossing the track against the rules. The speed of the wagons will be only 8 Kms and there is no scope for negligence. The lorry was negligent on the track when shunting operation was in progress. The alleged damages are not true. Therefore, the suit is liable to be dismissed. 4. On the basis of the above pleadings, the following issues were framed by the trial Court for trial: 1) Whether the defendants engaged the lorry of the plaintiff for transport of rice? 2) Whether the defendants are responsible for the accident and liable to pay damages to the plaintiff as claimed? 3) Whether the responsibility for the running of train rests with railways as averred in the written statement? 4) Whether the plaintiff is entitled to claim damages from the defendants as averred in the plaint? 5) To what relief? 5. On behalf of the plaintiff, PWs.1 to 4 were examined and marked Exs.A-1 to A-35. On behalf of the defendant, DWs-1 and 2 were examined and marked Ex.B-1 map. 6. After considering the evidence on record, the learned I Additional Senior Civil Judge dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether the damages, if any, to the lorry of the plaintiff were caused due to the rash and negligent act of the employees of the 1st defendant? 2) Whether the defendants are liable to pay the damages, if so, to what extent? 3) Whether the judgment and decree passed by the learned I Additional Senior Civil Judge is legal and sustainable? 8. POINTS: In support of the case of the plaintiff, PW-1, who is the owner of the vehicle, was examined and he is not an eye witness to the incident. PW-2 is the driver of the lorry and according to him, on the date of incident, he was taking a load of rice in the lorry and when it was been taken for weighment and crossing the railway track, the engine came in the reverse and dashed the lorry. There was no level crossing gate and there are 4 or 5 vehicles ahead and behind of his lorry. Therefore, according to him, the engine dragged the lorry to a distance of 10 to 15 yards and due to which, the lorry was damaged. In the cross-examination, he denied that the incident happened due to his fault and that he negligently kept the lorry on the track when the wagons were coming. PW-4 is said to be the Hamali in the godowns of the FCI of India and according to him, when the lorry of the plaintiff was proceeding to the Weigh Bridge, there were lorries ahead and behind and when the lorry was crossing the railway track, goods train came in the reverse and dashed the vehicle. There was no Guard and there was no caution. In cross-examination, he stated that the lorry was on the track when the incident happened. Therefore, from the evidence of PWs. 2 and 4, it is quite clear that before the incident, some lorries were behind the vehicle of the plaintiff and also ahead of the vehicles of the plaintiff. By the time the incident happened, the lorry was actually on the railway track without any movement. 9. Learned counsel for the appellant contends that it is not a regular railway line and it was in the godowns of the 3rd defendant and therefore, the general contentions that the duty of the care is only on the driver of the lorry cannot be accepted and negligence is apparent on the part of the railways. In this connection, he relies upon a letter Ex.A-34, which is said to have been written by the 3rd defendant to the 1st defendant about the nature of incident. The evidence of DW-1, who is the Points Man in railway department, shows that the Goods Train came in reverse with slow motion and red flag was also given, in spite of it, the lorry came and incident happened. In cross-examination by defendants 2 and 3, he stated that there is a separate route for the lorries to go to the Weigh Bridge. DW-2 is the employee of the 3rd defendant and according to him, there is a separate road for reaching of the lorries to the Godown without touching the railway track and the map Ex.B-1 is filed. The correctness of Ex.B-1 was not disputed by the plaintiff and on the other hand, the availability of the other route for weighing is not disputed. Therefore, from the evidence available on record, it is quite clear though there is another specified route for moving of the lorries for weighment, PW-2 has not taken the lorry in an authorised passage and struck on the railway track and the incident happened. This clearly goes to show that the conduct of PW-2 is negligent rather than attributable, culpable negligence of the driver of the Goods Train. Even otherwise from the nature of the evidence on record, it is not clear as to whether the engine has struck the lorry or the wagons have hit the lorry coming the reverse direction, as the evidence of PWs. 2 and 4 on this aspect is not consistent. 10. Assuming to be that the plaintiff can proceed on the route where the defendants can be said to be at fault, learned counsel for the plaintiff contends that when the train was moving, some precautions should have been given and in this case, it is absent. This contention of the plaintiff cannot be accepted in view of the positive evidence of DW-1. Further-more, when the driver of the vehicle was crossing on railway track whether manned or un-manned, it is his duty to see that any train is coming on the track. When such a duty of care is lacking and when the vehicles are admittedly in front and behind the lorry of the plaintiff, is not expected to struck on the railway track. It is also difficult to believe that by exercising the duty of care, PW-2 would not have noticed the Goods Train. It is not a case that there is any blind curve, in which the train could not be noticed. The rules of railways are not different from the regular railway line or the railway line in the FCI Godowns. The law applicable with regard to the liability of the railways is same. In this case, the evidence on record clearly goes to show that PW-2, who is the driver of the lorry, has lacked care and there is no negligence attributable to the driver of the Goods Train and therefore, the learned I Additional Senior Civil Judge, has rightly held that there is no liability. 11. Further-more, when a claim for damages of repairs for Rs.1,30,000/- was claimed by the plaintiff, evidence should be produced to show as to where the vehicle was got repaired and the damages should have been estimated through a competent surveyor, but there is no evidence on this aspect and in fact no effort was also made to make such an assessment. The person, who has repaired the vehicle, is also not examined. Merely because the plaintiff has purchased some spare parts from PW-3, it does not mean it is only due to the accident and the consequent damages, he has purchased the spare parts. 12. Therefore, in view of the above circumstances, I have no hesitation in holding that the plaintiff failed to prove the cause of accident as alleged and the liability of the defendant and the suit was rightly dismissed. 13. Accordingly, the appeal is dismissed. There shall be no order as to costs. Date: 11-02-2011. ________________________ N.R.L.NAGESWARA RAO,J INL THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No. 122 OF 2001 11th February, 2011 INL