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First Appeal No. 68 of 1951, decided on 19th January, 1955, from the decree of Fazl‑e‑Haq Senior Civil Judge, Multan, dated 25th April 1951.
S. 80‑Notice addressed to General Manager North Western Railway, without any reference to Federation of Pakistan ‑Notice, held, proper
The objection of the defendant was that the notice though addressed to the General Manager, North‑Western Railway, made no reference to the Federation of Pakistan.
Held that the notice was not defective. S. 80 does not require that the words "Federation of Pakistan" should also be used with the General Manager.
S. 80 relates to the delivery of a notice and the parties to which it should be delivered, not to the name of the party who should be formally sued. In the suit itself the party sued against was the Federation of Pakistan through the General Manager. The notice therefore was in order.
(b) Negligence‑Railway company's keeping the level crossing gate open proves Railway's negligence‑Amounts to invitation cross to the line‑Contributory negligence.
The mere fact that the gates were open proves the defendant's negligence.
Where the gates of a level‑crossing are left open, the railway authority, which is responsible for keeping them locked when a train passes, gives to the traffic on the road an "invitation" to cross the line.
[Case‑law referred to.]
There are certain conditions under which the normal standard of a reasonable man's prudence is peculiarly difficult to apply by reason of one party's choice of alternatives, or opportunities of judgment, being affected by the conduct of the other.
In this case the defendant's engine struck against the plaintiff's lorry which was going through a level‑crossing, of which the gate was unlocked, at a speed of 25 miles per hour, the right wheel and the right side of the engine were badly damaged. The lorry was completely smashed, resulting the death of two passengers and injuries to several. The metalled road on both sides of the railway‑crossing was in a straight line, and within 30 or 40 yards of the crossing, the railway track became fairly visible for a length of about 350 yards as one approached it from the direction which the ill‑fated bus was taking. Further, the level of the railway track was higher than that of the metalled road on both sides. Consequently, when a vehicle approached the crossing, the other side of the road was not visible except at the crossing itself.
Held, under the circumstance the plaintiff was not guilty of contributary negligence.
A. R. Changez, Advocate‑General and Muhammad Shat, for Appellant.
Muhammad Yaqub Ali Khan and Muhammad Abbas, for Respondent.
KAYANI J.‑
The Muslim' Vehari and Vehniwal Bus Service at Vehari sued the Federation of Pakistan through the General Manager, North Western Railway, for Rs. 10,000 as damages on account of the loss of a bus in a railway accident at a level‑crossing between Jahanian and Qutabpur on the Vehari‑Multan Road on the 27th of February 1949. The suit was decreed' for Rs. 7,000 with proportionate costs and the Federation has appealed.
The lorry in question, No. PBM‑783, was driven by Mumtaz Ahmad Khan (P. W. 1), a driver in the service of the plaintiff. The level‑crossing was open and another lorry No. PBV‑85, which was going about a hundred yards ahead, had already crossed over. Just as the plaintiff's lorry was passing through, it was struck by a railway engine coming from the right side. The plan of the spot prepared by an employee of the defendant contains a note which shows that the right wheel and the right side of the engine were badly damaged. The plaintiff's case is that the lorry was completely smashed, resulting in the death of two passengers and injuries to several. The plaintiff's allegation that the lorry was removed by the defendant's employees has not been contradicted.
The defendant pleaded that the notice under section 80 C. P. C. was bad and that the plaintiff's negligence was con tributory.
The following issues were struck :‑
(1) Was the accident in which the plaintiff's lorry collided with the railway engine caused on account of the contribu tory negligence of the lorry driver
(2) What was the amount of damages suffered by the plaintiff on account of the accident
(3) Did the defendant take proper care and caution about closing the level‑crossing gate at the scene of occurrence
(4) Is the plaintiff's firm registered according to law, and if not, can the firm sue as such
(5) Relief.
(6) Is the suit bad for want of valid and proper notice under section 80, Civil Procedure Code
Only three points have been argued before us : (1) whether the notice under section 80 was proper. (2) whether the plaintiff's negligence was contributory, and (3) the amount of damages..
As regards the first point, the objection was that the notice had been addressed to the General Manager, North Western Railway, without any reference to the Federation of Pakistan and reliance was placed on Federation of Pakistan v. Firm Muhammad Sadiq Muhammad Din (P L D 1952 Lah. 403.) a case which on facts is not applicable. Section 80, as it stands after the amendment by Governor‑General's Order No. 4 dated the 25th of March 1949, requires that before a suit is‑instituted against the Central Government relating to the affairs of a Government Railway, notice in writing should be delivered or left at the office of the General Mananger of the Railway concerned at least two months in advance. The notice was, consequently, to be delivered to the General Manager and not to the Central Government. In any other suit against the Central Government, the notice according to the aforesaid section should be left at the office of a Secretary. The Central Government, not being a visible entity, is represented by various functionaries in various departments, and in the affairs of a Government Railway, it is represented not by a Secretary but by the General Manager. The learned Advocate‑General, consequently, argued that the notice would have been proper if the words "Federation of Pakistan" had also been used with the General Manager. But that is not what section 80 requires. That section relates to the delivery of a notice and the parties to which it should be delivered, not to the name of the party who should be formally sued. In the suit itself the party sued against is the Federation of Pakistan through the general Manager.
In the Federation of Pakistan v. Firm Muhammad Sadiq Muhammad Din, referred to above, the amended section was apparently not produced before the learned judge, but whether that is or is not so, the objection taken in that case which was upheld by the learned judge, was that the notice threatened a suit against the General Manager and not against the Federation by the use of the word "you". Upon the contention of the plaintiff's counsel that section 80 does not enjoin that the notice should mention the person against whom the suit is to be brought, the learned judge observed:‑-
"There would have been much force in the contention of the learned counsel for the respondent had it not been for the fact that in a suit contemplated by section 80 of the Code of Civil Procedure the defendant may either be Government or a public servant. As the General Manager, North Western Railway, is a public servant, and may in certain circumstances be sued for loss of goods while in transit on the North Western Railway, the fact that the notice said that the General Manager would be sued does, in my opinion, make the notice defective."
Had it been brought to the notice of the learned judge that the amended section makes the notice deliverable only to the Gel Manager, his view night have been different, because the old section does not provide for the adoption of a special procedure in the case of a Government Railway.
We, therefore, hold that the notice is not defective.
The facts of the case which have been already stated may be supplemented by the following circumstances. The spot inspection note of the trial Court shows that the metalled road on both sides of the railway‑crossing is in a straight line, and that within 30 or 40 yards of the crossing, the railway track becomes fairly visible for a length of about 350 yards as one approaches it from the direction which the ill‑fated bus was taking. Further, the level of the railway track is higher' than that of the metalled road on both sides. Consequently when a vehicle approaches the crossing, the other side of the road is not visible except at the crossing itselef.
The lorry driver Mumtaz Ahmad Khan (P. W. 1), stated that he was driving at a speed of 25 miles per hour but there is no evidence that he was driving at a faster speed and had slowed down to 25 miles or that he had been driving at 25 miles and had slowed down near the crossing. He states that when he approached the crossing he found the gates open, and as he was looking straight to avoid the risk of colliding against the gate posts, he did not see the engine coming, though it should have been visible to him even from a distance of a mile. The gate and the road he went on are very narrow at the crossing and he had consequently, focussed his atten tion on what was in front of him. He might have added, though he did not, that the road across the crossing being invisible, he had all the more reason to concentrate on the road only.
It has been held in several cases that where the gates of a level‑crossing are left open, the railway authority, which is responsible for keeping them locked when a train passes, gives to the traffic on the road an. "invitation" to cross the line ; Mercer v. South Eastern and Chatham Railway Companies ((1922) 2 King's Bench Division 549.) North‑Eastern Railway Company v. Wanless (30 L T R 275.) Bengal North Western Railway Company v. Matukdhars Singh (A I R 1937 Pat. 599.) Daya Shankar v. E. B. & C. 1. Railway Company (A I R 1931 All. 740.). Since, however, the learned Advocate‑General relies on Mercer's case for his argument that the plaintiff had contributed to the accident, the facts of that case may be reproduced in some detail. At a level‑crossing on the defendant's railway there was a small wicket gate for the use of pedestrians. According to the practice of the defendants the gate was kept locked when the trains were passing, and was unlocked only when it was safe to cross the line, and that practice was known to the plaintiff. On this particular occasion, owing to the negligence of a servant of the defendants, the gate was left unlocked‑when a train was approaching, and the plaintiff went through it, and proceeded to cross the line when he was knocked down by the train and injured. It was observed by Lush J. that to those who knew of the practice of the railway that the gate was always locked if a train was approaching, its unlocking "was a tacit invitation to cross the line". He was referred to a number of cases, including the North Eastern Railway v. Wanless, and he observed :‑
"The cases do not decide that because there has been some neglect on the part of the railway company tending to mislead a pedestrain coming to the level‑crossing, the pedestrian is entitled in law to take no care to see whether train is approaching, to pay no heed to any danger however obvious it may be, and if he is injured, as a matter of course to recover damages. They only decide that, if he s misled, it is open to a jury to find a verdict for him although he could have seen the train if he had looked for it. He still must take ordinary or reasonable care, but the fact that he was misled must be taken into consideration in deciding whether he did so."
What Lush J.
regarded as want of reasonable care may be illustrated by another passage from his judgment :‑
"I should certainly hesitate to hold that if in a case of this kind a person wishing to use the level‑crossing were, merely because he found the gate unlocked, to omit to look. and see whether the way was clear when there was nothing to prevent him from doing so and were to walk on, reading a newspaper, for example, he could make the company if he were run down by a train that he could liable easily have seen or heard. The railway company may have tacitly invited him to cross the line, but they did not invite him to leave his commonsense behind him."
We do not regard these observations as being of any great help to the defendant's case. The mere fact that the gates were open proves the defendant's negligence. If then the plaintiff had tried to cross the line in circumstances which indicate obvious negligence‑an extreme case is that of a person crossing the line while occupied in the reading, of a newspaper one might allow the doctrine of contribution to assist him. In the decision of such however, it has to be borne in mind that a motor driver is thrown out of his guard by the cir cumstance that the gates of the level‑crossing are open, and where the road on the other side is not visible, the driver's attention would be particularly focussed on what might suddenly appear in front of him. Thus it was observed in Daya Shankar v. B. B. & C. 1. Railway Company that while there can be no doubt that if the plaintiff is guilty of con tributory negligence, he is not entitled to lay the whole of the blame on the negligence of the defendant and recover damages, "there is another rule of law which says that where the defen dant's negligence is such as invites, as it were, the plaintiff to be less circumspect the defendant cannot put the blame on the plaintiff, if he happened to be less circumspect than he would otherwise have been." And it was observed in Pollock and Mulla's Law of Torts that "there are certain conditions under which the normal standard of a reasonable man's prudence is peculiarly difficult to apply by reason of one party's choice of D alternatives, or opportunities of judgment, being affected by the conduct of the other." (13th Edition, page 493.)
The learned Advocate‑General could only argue that since the railway line was visible from a considerable distance, the plaintiff's driver could not but have seen the engine approaching, and if, notwithstanding this fact, he tried to cross the line, his effort must have been to cross it before the engine did so. Therefore his conduct was not only negligent but also rash. This, however, is a mere assumption. If he saw the engine, say about half a mile from the level‑crossing, (the engine was without a train), he could not necessarily assume that the level‑crossing had been left open by mistake. On the other hand, even if he saw the engine, he might have assumed that since the crossing was open‑ the engine was not to pass through. At that distance indeed the thought of a collision would be very remote from his mind. It is idle to think that when both the driver and the engine were about 20 yards from the crossing, the driver, notwithstanding that he saw it coming, tried to rush through. In these circumstances, the only reasonable conclusion is that he did not notice the engine until he found it impossible to avoid the clash.
Next, it was argued that he should have slowed down at the crossing and that a speed of 25 miles per hour could not be regarded as safe at a crossing where the other side is not visible. Firstly, we are not certain that 25 miles per hour was not the speed at which the driver was coming originally. A question appears to have been put to him as to the speed at which he was driving, and his reply was that it was 25 miles per hour. Secondly, Shah. Muhammad (P. W. 3) one of his passengers, stated that he had slowed down at the crossing. Thridly a speed of 25 miles per hour may not altogether be safe for crossing, but a driver may have confidence in himself and in his brakes and may avoid an accident in respect of the road traffic if he is not thinking of the engine. In any case, we cannot allow this factor to retrieve the fundemental week ness of the defendant's position in leaving the gates open. We, therefore, agree with the trial Court that the plaintiff was not guilty of contributory negligence.
The third point relates to the amount of damages. The notice to the defendant stated that the lorry in question was a "Fargo" which had cost Rs. 15,000 and which at the time of accident was worth Rs. 14,000. In the plaint it was stated that the claim was being reduced to Rs. 10,000. For the price of the lorry, reliance was placed on two receipts, Exh. P.1 and Exh. P. 2. The former is a receipt for Rs. 7,900 by Messrs Pearey Lal & Sons Ltd., Delhi, being the price of a "new Forgo" truck in favour of the "Vehari‑Vehniwal Transport Com pany Limited, Multan"; the latter is a bill by Habib Technical Works, Government Contractors and Body Builders, Ichhra Lahore, to the "Vehari and Vehniwal Transport Company Limited, Vehari," containing a number of items including "one new Fargo with black sheets on the floor" costing Rs, 2,500. In other words, this was the cost of the body built on the truck which had been purchased from Messrs. Pearey Lal & Sons Ltd. The date of Exh. P. 1 is the 14th of April 1947 and that of Exh. P. 2 the 8th of June 1947. In proof of these receipts, the plaintiff relied on the evidence of Muhammad Shafi, General Manager of Messrs. Pearey Lal & Sons Ltd., and Allah Rakha, partner of the Firm Habib Technical Works. These two witnesses first appeared before a Commissioner as C. W. 1 and C. W. 2, but as the receipts were then in Court at Multan and the commissioner was at Lahore, the evidence was then inconclusive. A question was put to Muhammad Shafi by the plaintiff's manager as to whether he had sold a Fargo Chasis in the year "1943" to the plaintiff firm and he replied that he could not answer the question without examining the original receipt. The other witness Allah Rakha stated that in the year "1943" his firm had constructed a body on Fargo Chasis for the plaintiff firm. When these witnesses appeared in Court, Muhammad Shafi merely said that the receipt Exh. P. 1 had been issued by his company, while Allah Rakha stated that the receipt Exh. P. 2 was given to the plaintiff by his partner, Saeed Ahmad. Since the receipts bear a date in 1947, he was asked whether he had not stated before the. Commissioner that the body had been built in 1943. He denied this fact and explained that the firm itself had come into existence in 1945. The learned Advocate General originally relied on the contradiction between the dates, but was subsequently prepared to accept the suggestion that the year 1943 had been mentioned by the two. witnesses in the presence of the Commissioner merely through inadver tence. It appears that the plaintiff's manager, who was examining these witnesses, was of the impression that the lorry had been bought in 1943 and for this reason he suggested that year to the witnesses. We have no doubt that the two receipts relate to this truck, although the registered number of the truck or the engine number are not mentioned therein. We have not over‑looked the fact that while the receipt Exh. P. 1 was issued in favour of Vehari‑Vehniwal Transport Company Limited, Multan, the plaintiff's name is Muslim Vehari and Vehniwal Transport Company of Vehari. This, however, is due to the fact that originally the company partly belonged to evacuees. It was stated by Hasan Raza Shah (P. W. 10), General Manager of the plaintiff firm, that the shares of the Hindu evacuees in the firm had been allotted to him by the Rehabilitation authority after partition. He also stated (and this was alleged in the plaint too) that the truck had been removed from the spot by the railway authorities. There is a note on the plan of the spot prepared by the defendant's witness, Fazal Karim (P. W. 1). giving some description of the damage to the vehicle, a circumstance which would indicate that the vehicle was in the custody of the defendant or at least that the defendant's experts must have examined it. The defendant, therefore, should be in a position to know whether it was a 1947 model, but they have produced no evidence. On the present evidence we are satisfied that it was a 1947 model and that the depreciation of Rs. 3,000 which the trial Court has allowed for the use of two years is also a reasonable allowance. We, therefore, dismiss the appeal with costs.
A. H. Appeal dismissed,
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