Decided on December 23,1957

UNION OF INDIA Respondents


Mehar Singh, J. - (1.) The plaintiff, Vijay Shanker, who is the appellant, was on January, 19, 1947, about two years and two months old, when, at about 3 p.m., on that day, he was crossing the Railway line between Hardinge Bridge and New Delhi Railway stations, opposite residential locality of Mahabat Khan Road, New Delhi, and was run over by a Parcel Express coming from Agra to Delhi. His legs were injured and later on had to be amputated.
(2.) The Railway track, on which the accident took place, was laid some time in 1902. Between Hardinge Bridge and New Delhi Railway stations, on both sides of the track, residential buildings and quarters have sprung up since about 1938 and 1939. Mahabat Khan Road quarters are on one side of the track and the plaintiff was residing with his father in No. 26-E of that Road. On the afternoon of the accident he was playing near the track. He along with a few other children, tried to cross the track, when the Parcel Express was approaching in the direction of New Delhi Railway station. The other children crossed the track. The plaintiff was crawling while crossing the track. According to the driver of the Parcel Express, T.D. Bose D. W. 3, when he saw the plaintiff, he whistled and applied vacuum brakes succeeding in pulling up the train at a distance of 50 to 70 yards, but before he could pull up the train the plaintiff had not been able to clear himself off the track and was run over by the train causing serious injuries to both of his legs, which as stated, had later on to be amputated near the knee joints. The plaintiff has suffered permanent and complete disability.
(3.) The claim by the plaintiff is for a damage of one lakh rupees for the injuries sustained and for expenses of artificial limbs that he must use, but has to keep on changing at intervals as he grows up. No negligence on the part of the driver of the train has been alleged nor is there any evidence of any negligence by him. The claim is based on the negligence of the Railway of the defendant, now Union of India, in not fencing the track in front of the residential houses and quarters so as to be a barrier and prevention for the children and the public in general from crossing over the Railway track. The main defence of the defendant is that there is no such duty in law to fence the track imposed upon the defendant. This defence has found favour with the learned trial Judge, who has, though finding that the cost of the artificial limbs, during the expected life time of about 60 years of the plaintiff, approximates to about Rs. 20,000/- and damages, because of the injuries having regard to the status of the family, should be about Rs. 30,000/-, the total coming to Rs. 50,000/-, dismissed the suit, leaving the parties to bear their own costs. The decree is dated 13-121951, and the plaintiff appeals against the decree.;

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