THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.NO.248 OF 1994 Date:08.02.2011. Between: Katkuri Aruna and 4 others …..Appellants. And: National Thermal Power Corporation, Ramagundam, rep. by its General Manager. …Respondent. THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.NO.248 OF 1994 JUDGMENT: This is an appeal filed against the judgment and decree passed in O.S.No.5 of 1989 by the Subordinate Judge, Peddapalli on 10.9.1993. The appellants herein are the plaintiffs and they have filed the above said suit claiming compensation of Rs.5,30,000/- for the death of Katkuri Venkat Reddy who is the husband of the first plaintiff and the father of the plaintiff Nos.2 and 3 and son of Plaintiffs 4 and 5. The brief averments of the plaint are that the deceased K. Venkat Reddy used to collect milk at his native village Ranapoor and surrounding villages and take the said milk to N.T.P.C Ramagundam and sell it there. He used to collect and sell 100 liters of milk daily in the morning and evening for the purpose of selling in N.T.P.C. Like many other people, he had to necessarily cross the Railway line laid by the defendant corporation between the open cast mine and N.T.P.C at Elakalapally point. The point at which the people cross the said Railway track is a regular cart track meant for pedestrians also. At the said place of crossing, the defendant-corporation has neither provided any gate nor taken any other safety measures to see that the people are prevented from crossing the track at the time the train of the defendant corporation passed from that point. For not taking of any safety measurements by the defendant-corporation on the said track amounts to total negligence on its part. On the date of accident, the deceased Venkata Reddy having sold out the milk at N.T.P.C and having seen T.V at the house of his brother Gopal Reddy at F.C.I was returning home on a bicycle with empty cans. On his return journey while he was crossing the said railway line at the said level crossing, the train of the defendant-corporation came from open cast mine side and dashed against the said Venkat Reddy which resulted in instantaneous death on the spot. On the next day, the plaintiff and the above said Gopal Reddy learnt about this accident and Gopal Reddy lodged a report with NTPC police. Thus, the said Venkata Reddy died purely due to the negligence, on the part of the defendant-corporation. The said Venkata Reddy was earning an income of Rs.150/- daily at the rate of Rs.1.50 ps on each liter of milk he sold. Thus, he was earning Rs.4,500/- per month. The plaintiffs were totally dependent and now they have lost their sole source of livelihood. They have no other source of income. Hence, they are entitled for compensation of Rs.5,30,000/-. The defendant-corporation has filed written statement pleading that for the purpose of crossing the railway track, a standard level crossing has been provided KM 6/4 at the time of commissioning of Merry Ground (M.G.R) system. The deceased did not use the same, but crossed the track at KM 5/8-9 where there is no level crossing and the persons are not supposed to cross the track at that point. To avoid any untoward incident at the particular location, check rails are introduced. The accident occurred at KM 5/8-9 which is on the straight portion, right from 4- 65 KM to 6-4 KM and a curve of 1.70 with a radius of 1000 meters begins after KM 6-4 towards OC P-I side i.e., 550 meters away from the occurrence spot. The standard level crossing provided at 6-4 KM for crossing the railway line is protected as per the Indian Railway Standard Rules. The deceased can notice the coming of the train, as the track is straight at the spot where the accident took place. Further, the accident having occurred at about 11.40 p.m., in the night, he can clearly see the head light of the train. There was no negligence on the part of the defendant corporation and they denied about the deceased earning of Rs.4,500/- per month and the plaintiffs are not entitled to claim any damages from the defendant-corporation and the hence the suit is liable to be dismissed with costs. On the basis of the above pleadings, the lower court has framed the following issues: 1. Whether the plaintiff No.1 is the wife, plaintiff No.2 and 3 are the sons, plaintiff No.4 is the mother and plaintiff No.5 is the father of deceased K. Venkata Reddy, as alleged by them? 2. Whether the defendant-corporation has provided a standard level crossing at KM.6, 6/4 at the time of Commissioning of M.G.R. System and whether the point where the deceased crossed the track is a point, where persons are not supposed to cross the track as alleged by the defendant or whether the point where deceased crossed the track is a regular cart track meant for pedestrians also as alleged by the plaintiffs. 3. Whether the railway track at the point of accident and ahead of it from open cast side is having a curve as alleged by the plaintiff making the visibility of coming train difficult, as alleged by the plaintiff, or straight as alleged by the defendant? 4. Whether the accident occurred as a result of negligence on the part of defendant? 5. Whether the plaintiffs are entitled to claim any damages and if so what is the amount of damages they are entitled to? 6. To what relief the plaintiffs are entitled to? On behalf of the plaintiff, P.Ws.1 to 5 were examined and Exs.A-1 to A-10 were marked. On behalf of the defendant, D.Ws.1 to 3 were examined and Exs.B-1 to B-3 were marked. After taking into consideration of both oral and documentary evidence, the lower court held all the issues against the plaintiffs and thereby dismissed the suit. Aggrieved by the said dismissal of the suit, the plaintiffs have filed the present appeal. Now the points that arise for consideration are: 1. Whether the accident occurred due to the negligence on the part of the defendant- corporation? 2. Whether the plaintiffs are entitled to claim damages for the death of the deceased Venkata Reddy, if so to what amount? POINT No.1: The learned counsel for the appellants has pleaded that the deceased Venkata Reddy has crossed the railway track is a regular cart track meant for crossing the carts track and it also being used by the pedestrians and the respondent-corporation has not taken any safety measures at that point and further pleaded that even though the visibility of the Venkata Reddy crossing the railway track and seen from the distance of 200 meters, the train was not stopped by the drivers and the death of the deceased Venkat Reddy was caused due to the negligence on the part of the respondent-corporation. The respondent’s counsel on the other hand has pleaded that the standard level crossing was provided at KM 6/4 at the time of commission of Merry Ground (MGR) system but not at the place where the accident took place and as the deceased has crossed the road where the standard level crossing was not provided by the respondent-corporation, he is a trespasser on the railway track of the defendant-corporation and as such they are not liable to pay any compensation to the plaintiffs and no negligence can be attributed to them. The P.W.1 who is the wife of the deceased has stated in her chief-examination that for going to N.T.P.C from their village one has to cross a railway track laid by N.T.P.C authorities. The crossing of the said railway track occurs at a place in Elkalapally Shivaru. She has been to Elakalapally by crossing that point. From the said point only there is a crossing arrangement for pedestrians as well as bullock carts and other vehicles. There is no other point of crossing the said railway track for the people going from Elkalapally. In the cross-examination she has stated that the place of accident is in low level than the ground level on either side of the track. P.W.2 is the father of the deceased has also stated that the point where the accident occurred is the crossing point on the Railway track of NTPC. At the said crossing point the railway line of the NTPC had double rails to facilitate crossing from that point apart from pedestrians all types of vehicles also used to cross. He denied in the cross-examination that at a distance of 400 meters from the place of accident there is a standard level crossing over the railway track of the defendant corporation, for pedestrians and vehicular traffic. He also denied that the point where the accident took place was not made for level crossing for traffic., and that there was no level crossing at that point. P.W.3 who was the Ex-Surpanch of Elkalapally as on the date of accident has also stated that for the people of Ranapur and Kannala villages and some other villages, to reach F.C.I., N.T.P.C., and Godavarikhani had to cross the railway track of NTPC at the point where the accident occurred. At the place of accident, there were check rails i.e., double rails and layout of road to facilitate the crossing of pedestrians and vehicular traffic. On any point of the defendant-corporation’s railway track, check rails were not provided and no road was made up, to facilitate crossing., except the place where the accident took place, there was no other crossing point on the said railway track. Therefore, according to the plaintiffs, the place where the accident took place is a railway crossing for carts track and pedestrians but the respondents have denied about the same and pleaded that the standard level crossing was provided at KM 6/4 and 6/5. The defendant in support of this contention examined D.W.1 who was the Deputy Manger of the defendant-corporation and according to him the MGR track is a private property of the NTPC., and it comes under the protected area. They have provided a level crossing ‘C’ class un-manned crossing, as per Indian Railways standard, between K.M6/4 and 6/5. Ex.B.1 is the sketch map drawn by him and signed by their Senior Manager. If any person crosses the railway where there is no level is provided then he will be treated as trespasser. In the cross- examination, he admitted that they have provided check rails at the level crossing in between 6/4 and 6/5 k.m. They will not provide any check rails for a straight track where there is no level crossing. In the re-examination, he has stated that check rails are meant for the safety of train and for convenience of the traffic crossing the track. It is not necessary that wherever a check rail is provided there must be level crossing. The check rails also provided on bridges, and sharp curvatures and other necessary places for safe movement of trains, so as to avoid derailment. Therefore, according to D.W.1, no check rails were provided at the place where the accident took place and according to him the check rails will be provided at the place of crossing the cart track and also on bridges and sharp curvatures. D.W.2 is the Co-driver in the train with which the accident has taken place has stated in his cross-examination that he has got clear knowledge of rail track of MGR track of NTPC. There is a Pochamma temple on the left side of the track while coming from open cast of SCC to NTPC at the place where the accident took place. D.W.3 who is the Project In-charge of Indian Railway Construction Company has stated that his company has laid the Merry Go Round Railway track for NTPC from N.T.P.C plant area to the open cast coal mine. Ex.B-2 is the plan prepared by them. At the point of 6.4 k.m a level crossing is shown in Ex.B.2. as per the plan in Ex.B.2, they have provided an un-manned level crossing which comes under the ‘C’ class of Indian Railway Standard. There is no other level crossing on the M.G.R track near-by the said level crossing within 500 meters on either side of the said level crossing. But in the cross-examination, he has stated that it is a fact that to reach the Pochamma temple from FCI side one has to cross the MGR track, at the point where the accident took place. It is a fact that there were several cart tracks across the MGR railway track. He does not know whether any cart track was existing at the point where accident took place to cross the MGR railway track. Defendants in the written statement stated that to avoid any untoward incident at the particular location, check rails are introduced and P.Ws.1 to 3 have stated that the check rails have provided at the place of accident. D.W.2 has specifically admitted that the check rails were provided where the accident took place. But according to D.W.1 check rails will be provided only to prevent the accidents. But from the evidence of D.Ws.2 and 3, it is evident that the check rails are provided at the place of accident. According to D.W.1, the check rails will be provided at the level of crossing railway bridges and sharp curvatures tracks. Admittedly there is no curvatures at the place of accident and it is not railway bridge but the check rails were provided at the place of accident. Therefore, from the above, it is evident that the respondent-corporation has provided check railing as it is a level crossing. Thus, the plaintiff could able to establish that where the accident took place is having cart track having level crossing over the M.G.R railway track. As the defendants have denied that it is not a railway crossing they have not provided any safety measures at that place. Therefore, there is negligence on the part of the respondent-corporation in not taking steps for providing safety measures at the place where there was a cart track for crossing the railway track, more particularly when thy have provided check rails at the place of accident. The next point raised by the learned counsel for the appellants that even though the train can be stopped from the distance of 200 meters, no steps were taken to stop the train by relying upon the evidence of D.W.2. D.W.2 who is Co-driver of the Train has stated in his chief-examination that the deceased Venkata Reddy was laying on the ground about one meter away from the track on the left side. On noticing him, himself and driver Jhon have blow horns of the train twice. Then the deceased raised to go away from the track, but fell on the track, when the train was 30 meters away from him. From about 250 meters distance, they have noticed some object was lying on the side of the track, when they came nearer they found that it is deceased Venkat Reddy. They were blowing the horn continuously, Venkat Reddy wanted to lift his bicycle and go away, but fell on the track. When he noticed the deceased, he cried ‘Hoppa’ i.e., to stop the train, to the driver Jhon, then he applied emergency break and stopped the train. The engine came to a stop position 100 meters away, from the place where Venkata Reddy was lying. But, in the cross-examination, he has stated that the train can be stopped within 150 meters by applying emergency breaks when the train is moving at a speed of 30 kilo meters per hour and he also further admitted he has noticed a person from a distance of 200 meters. If emergency breaks are applied, the train would have been stopped. Therefore, even though they seen the deceased on the track they have not applied the breaks. That itself shows that there is negligence on the part of the defendant-corporation. The respondent’s counsel has pleaded that the deceased was a trespasser on the railway track and as such they are not liable for payment of any compensation for his death. The appellant’s counsel on the other hand pleaded that duty cast on the railways to provide necessary safeguards for the persons who are crossing the rail track and in support of his contention, he relied upon a decision rendered in Mirza Mahboob Ali Baig Aslam v. Union of India[1] wherein the Single Judge of this Court has held that “the instance case relates to a child aged about 5 years. He was living along with his four other brothers and parents in the railway quarters just by the side of platform. These children used to cross the rail track to go the otherwise. It cannot be said that the shunting operations are not dangerous. The possibility of the presence of the children was also there. It is in evidence that whenever there was no movement of the trains children would be crossing the railway lines. Shunting operations cannot involve continuous movement. If the occupier knows before the accident that there was a substantial probability that trespassers will come, it would be a culpable failure not to give any thought to their safety. If the occupier could at a small trouble and expenses take some effective action it would be in humane and culpable not to do that. The present case was clearly not a case of bare possibility of children being present especially when they wee living right by the side of the platform in the railway quarters. The minimum care that was required on the part of the shunting personnel was that there should have been a proper look out and they ought to have warned the children away and ought to have seen that they were nowhere near the shunting operations. This was not done in the present case. Therefore, there was negligence on the part of the railway personnel resulting in the accident. The railways are therefore liable to pay compensation.” In the present case, as already observed there was a cart track for crossing rail track of the respondent at the place of accident, but they have not taken any steps to provide the safety measures for the people who are crossing at the rail track. Therefore, there was negligence on the part of the respondent- corporation in not taking steps at the place of accident. More over as already observed above that the train ought to have been stopped on seeing the deceased from a distance of 200 meters but that was not done. Therefore, the death of the deceased Venkata Reddy was caused due to the negligence of the respondent- corporation. Accordingly, the point No.1 is held. POINT No.2: Since the death of the deceased Venkata Reddy was due to the negligence of the respondent corporation, they are liable to pay the compensation. The plaintiffs have claimed compensation of Rs.5,30,000/- by pleading that the deceased was selling milk at NTPC and earning Rs.4,500/- per month and he was aged 26 years as on the date of death. In order to establish the income and avocation of the deceased, P.W.1 who is his wife and P.W.2 who is the father of the deceased stated abut the avocation and earnings of the deceased. According to them, the deceased Venkata Reddy used to sell milk and earn Rs.150/- per day and they also examined P.Ws.4 and 5 to establish the avocation and income of the deceased. P.W.4 who is the resident of Ramapur has stated that the deceased Venkata Reddy was doing milk business and used to sell about 100 liters of milk per day. The said Venkata Reddy was getting about 20 to 25 liters milk from their own buffaloes and the remaining 75 to 80 liters he used to purchase from him and other villagers of Ranapur. He used to sell about 20 liters of milk to deceased Venkata Reddy per day @ Rs.2.00 per liter and he used to purchase milk from Sugunamma, Achaiah Ram Reddy of their village. He also used to sell the milk in NTPC for various hotels @ Rs.3.50 per liter, per day. P.W.5 who is owner of the hotel by name Welcome Hotel of Ramagundam has stated that he used to purchase the milk from the deceased Venkata Reddy at Rs.3.50 per liter and the deceased Venkata Reddy used to supply the milk in NTPC, Ramagundam. Therefore, the deceased Venkata Reddy was doing milk business and even though there is no documentary evidence with regard to the earnings of the deceased since he was doing milk business, it can be safely rely upon his earnings at Rs.100/- per day. Thereby the deceased would be earning a total sum of Rs.3,000/- per month. Since the death of the deceased due to the accident caused with a train, the multiplier that are being used in Motor Vehicle Accident Claims for awarding just compensation. Since the deceased was earning Rs.3,000/- per month after deducting 1/3rd towards his personal expenses, Rs.2,000/- would be monthly contribution for the maintenance of the plaintiffs. Thus, the loss of dependency of his family members will be Rs.24,000/- per annum. Since the deceased was aged 26 years, the proper multiple can be made applicable is 16. Thus, the petitioners are entitled for a total loss dependency at Rs.3,84,000/-. Since the 1st plaintiff is the wife of the deceased and she is only 22 years as on the date of death of the deceased, she is entitled for a sum of Rs.15,000/- towards loss of consortium and as they were lost sole earning member in the family, they are entitled for a total Rs.15,000/- towards his loss of estate. Thus, the plaintiffs are entitled for total compensation of Rs.4,34,000/-. Accordingly, the point No.2 is held. In view of the finding of point No.1, the finding of the lower court that the accident was not occurred due to the negligence on the part of the respondent-corporation is set aside and consequently the judgment and decree are liable to be set aside. In the result, the appeal is allowed and thereby the suit in O.S.No.5 of 1989 is decreed for an amount of Rs.4,34,000/- with proportionate costs and interest at 6% p.a from the date of filing of the suit till date of realization. ______________________ P. DURGA PRASAD,J. Date:08.02.2011. Gk. THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.NO.248 OF 1994 Date:08.02.2011. Gk. [1] 1995(1) ALD 121