- (1.) .This is plaintiff's appeal against the judgment and decree of the learned Second Additional Judge, City Civil Court, Hyderabad in O.S. No.797 of 1979, dated 29-1-1982 dismissing his suit for recovery of damages of Rs.2,22,000/- from the defendant (Union of India, represented by the General Manager, South Central Railway, Secunderabad) due to loss of his left leg from below the knee at an accident which occurred at Aurangabad on 15-3-1977 in which he was run over by a goods wagon during the shunting operations.
(2.) . At the time of the accident the plaintiff was aged about 5 years and, being a minor, in the suit (earlier O.P. No.47 of 1978) he was represented by his father who at the time of the accident, has been working as Senior Signaller in the defendant's railway establishment at Aurangabad and had been living with his wife and children, including the plaintiff, in the railway quarters allotted to him. The said railway quarters was located near the station, and to go to the market and town-ship by shortcut one had to cross the railway lines. On the fateful day, according to the plaint, the plaintiff was proceeding to the market about 5-30 p.m. To proceed to the market in the town, he had to cross the railway lines and while he was crossing the railway lines, he was run over by 808 UP Goods Train. The crucial plaint allegations as regards the occurrence of the accident and the consequent loss of his left leg below the knee and for his claim for damages, are as follows:- "The said goods train came all of a sudden without any indication. The goods train which was stationary on the second loop line suddenly moved and the Plaintiff was taken unawares. The Plaintiff further states that before he could make any attempt to escape he was under the wheels. At the time when the goods train started moving, the Guard of the Train was not present nor were there any pointsman to give the Engine Driver clearance to move. As a result of the accident, the Plaintiff's left leg had to be amputated from below the knee. Immediately after the accident the Plaintiff was rushed to the Government Medical College Hospital, Aurangabad for two days. Later the plaintiff was admitted in the Railway Hospital Lalaguda, where his left leg was amputated. On account of the accident there was injury to the right leg and the boy is not able to use even the right leg fully. The plaintiff was thereafter treated by a private doctor. The plaintiff further submits that the accident to his body by 808 UP Goods Train was due to the negligence and misconduct of the defendant, its Officers and staff. As an occupier the defendant has a duty to take such reasonable care in the operation of trains to prevent harm to others." The plaintiff claimed Rs.1,92,000/- towards permanent disablement and loss of earning capacity calculated at Rs.400/- per month for 40 years; Rs.5,000/- towards the expenditure incurred by the plaintiff's parents for medical treatment; and Rs.25,000/- towards mental shock suffered by him and his parents i.e., in all Rs.2,22,000/- towards compensation for amputation of the left leg and for medical treatment and the shock suffered by him and his parents. The plaintiff claimed the said sum in the lawyer's notice dated 4-7-1988 issued on his behalf to the defendant under Section 80 CPC. The defendant sent a reply dated 12-7-1977 stating that enquiries were being made and that they would advise further in the matter. The plaintiff sent a fresh notice dated 7-8-1977 informing the defendant that only one leg was amputated and not both legs as mentioned in the earlier notice, and the said notice was also received by the defendant. However, as the defendant did not come forward to settle the said claim of the plaintiff, the present suit was filed by presenting the plaint on 13-12-1977.
(3.) . In the written statement filed on behalf of the defendant, it was admitted that the plaintiff was involved in an accident on 15-3-1977 and that his left leg was amputated at Lalaguda Hospital; but it was asserted that there was absolutely no negligence and misconduct on the part of the defendant and that the plaintiff, and his father were alone to be blamed for the accident and that the plaintiff was not entitled to claim any damages from the defendant. The defendant also had taken the stand that, the plaintiff's father had been absolutely negligent in allowing his son to trespass and wander on the railway lines and that he being a railway employee ought to have known his responsibility as the father and not to allow his minor children to play on the lines and cross in between the wagons and that the accident was purely and entirely due to the negligent conduct of the plaintiff's father as the plaintiff and his brothers were allowed to play and walk on the railway lines which resulted in an accident. The defendant had denied that persons occupying railway quarters would have to invariably cross railway lines running the risk of their lives to go to market and the town-ship. It was stated that a separate passage through the gate opening on the second platform and the main gate on platform No.l had been provided for persons occupying railway quarters for crossing the railway lines and that persons who moved about across the railway lines at a place not meant for use as passage were mere trespassers and that it any trespassers were involved in an accident for no fault of the defendant, the defendant could not be held liable or responsible for the same. As regards the occurrence of the accident, it was stated in the written statement as follows:- "This defendant further submits that on 15-3-77, on second loop line at Aurangabad station shunting operations of 808 UP Goods Train was in progress. The plaintiff aged 5 years attempted to cross in between the couplings of the wagons, when they (wagons) were moving. As a result, the plaintiff was trapped under the wheels. On hearing the shoutings, the shunting staff had immediately stopped the shunting and removed the injured boy and admitted him to the Government Medical College Hospital at Aurangabad for treatment. The boy was kept there for 2-3 days when the medical authorities opined for amputation of leg. The plaintiff's father did not agree and shifted the boy to some private nursing home. Later on the plaintiff was brought to Lalaguda Railway Hospital at Secunderabad. It is submitted that shunting operations were done !in the normal conditions and were properly supervised by the guard of the train. There was no negligence on the part of the operating staff performing the shunting. Enquiries revealed that the plaintiff had come under oil tank on second loop line. During the process of shunting, the oil tankers moved a little and consequently the plaintiff who was under the oil tanker sustained injuries. The presence of the plaintiff "under the wagon was never noticed by anybody inspite of due care and caution. No person expects the plaintiff at the placeof accident, when the shunting operations were on. The plaintiff alone was responsible for the injuries to which his father who was bound to protect the plaintiff was also (the cause of being negligent in not protecting his own children. It is submitted that the departmental enquiry ordered for and conducted in this connection, has also .revealed that the administration was not at all at fault. It was absolutely the plaintiff's carelessness that resulted in the accident. The plaintiff's father has no business or right or authority to let loose his children on the railway track when the shunting operations were on. Even otherwise, on the railway lines in between the wagons there cannot be a passage for going to market or crossing the lines. But if anybody passes through, does so at his own risk.";