( 24 ) IN Kemshead v. British Transport Commission is a case of accommodation crossing which is to be distinguished from a crossing to which the public as such has a usual access. That was a case where a car at an accommodation crossing run over by a train and it was held that as no negligence was proved which could be attributed to the driver of the train and it was also held that it was an accommodation crossing the only duty owed by the railway was to take reasonable care and it was not a case where there are any special circumstances of danger and, therefore, even if no whistle had been given by the train and no whistle board was placed at the crossing the accident could not be attributed to the negligence of the railway. It is pertinent to note that in this very case it was recognised that there may be special circumstance relating to the particular crossing which might as a matter of commonsense and common or reasonable precaution require that special precaution should be taken. It was also recognised that if there were circumstances in which the railways ought to put a whistle board and they do not put it up they will be held liable. It is clear that this authority recognises that the degree of care required of occupier will depend on the circumstances of the case. ( 25 ) IN Jenkins v. Great Western Railway was a case where railway was sued for damages for injury when he was crossing the main line. It was found that the main line was at a distance of 35 yards from the place where wooden sleepers were placed to which place the company had knowledge that the children would come and play with sleepers. In these circumstances it was held that leave and licence, if any, to play on the pile of sleepers was confined to that spot and did not extend to the main line; that there was no duty on the railway to fence off the sleepers from the rest of their land, and, therefore, they were not liable. In these circumstances it was held that leave and licence, if any, to play on the pile of sleepers was confined to that spot and did not extend to the main line; that there was no duty on the railway to fence off the sleepers from the rest of their land, and, therefore, they were not liable. It was clearly found that there was no danger at the place where licence was given to the children, namely, the pile of wood the accident had taken place only because child got through the fence to the main line and as he was considered to be in the position of a trespasser, when on the main line obviously no liability of the railways could arise. ( 26 ) LATHAM v. R. Johnson and, Nephew Limited was a case where it was found that a child who had not been invited but was in the position of a licencee had gone on a plot and found upon a heap of paving stone one of which had fell upon her and injured her hand. There was no evidence to show how accident happened. It was in these circumstances held that no negligence could be attributed to the owner because the use of the land for placing on the heap of stone was a normal use, and it was neither allurement nor trap, nor dangerous thing. I do not see how this authority is of any assistance to Mr. Dhir. Reference was also made to Commissioner for Railways v. Cuinlan. This was a case where a person was injured when he was going in a truck on a private level crossing. There the injured had taken the route which brought him on the crossing where both the gates were open but before he was clear of the crossing the truck was run into by the train. It was found that no permission had been obtained to use the crossing, and that he could reach the development site by other means of access. It was conceded at the hearing that the injured was a trespasser. It was also found that it was an accommodation crossing. It was also found that there was no evidence that the railway would know that this cross ing would be used at the time when the accident took place by a builders truck. It was conceded at the hearing that the injured was a trespasser. It was also found that it was an accommodation crossing. It was also found that there was no evidence that the railway would know that this cross ing would be used at the time when the accident took place by a builders truck. It is apparent that in that case after the finding that the injured was in the position of a trespasser the duty owed to him was evidently different from what is expected in the present case where the deceased had been specifically, certainly, impliedly permitted to stay on in the bogie. In Short v. British Railways Board the train had run into a cattle and railway had been sued by the owner on the ground that they had been negligent. It was found that the statute laid no responsibility on the railways to keep the gates of the crossing in good repair. It also found that the railway driver could not have known whether the cattle were in the field or in the track. It was also found that the train was being driven at an appropriate speed of 70 miles per hour and the court found that even if the driver had seen then at the last moment he could not have stopped the train in time. In these circumstances it was held that no liability could be laid down on the defendants. ( 27 ) IT will be thus seen that all cases relied on by Mr. Dhir proceeded on the finding that the injured or the deceased was a trespasser. In the present case the position is totally different. The deceased was, if not an invitee certainly in the position of a licensee and the care and precaution expected of the defendants was different from that in the case against a trespasser. All these authorities, therefore, do not advance the plea of the defendants. ( 28 ) AS a result I have thus no manner of doubt that keeping in view the circumstances and probabilities of the case the accident which caused the resultant death of the deceased Gurprit Singh was caused due to the gross negligence of the defendants. ( 29 ) I would, therefore, find issue No. 6 in favour of the plaintiff and against the defendants. ( 30 ) ISSUE N0. ( 29 ) I would, therefore, find issue No. 6 in favour of the plaintiff and against the defendants. ( 30 ) ISSUE N0. 6 Plaintiff as Public witness 5 the mother of the deceased has deposed that the deceased was 21 years old at the time of the accident. The father of the deceased was 50 years and the grand father was alive at the age of 85. The grand mother of the deceased died in December, 1970 at the age of 80. She stated her age to be 45 years, when she was examined in early 1971. So far as longevity is concerned it can safely be assumed that had the deceased not met with the accident he would normally had a sufficiently long span of life. Father of the deceased being 50 and the mother being 45, it is reasonable to assume that both would have at least lived for another 20 years. She has also deposed that they had not taken any insurance policy on the life of the deceased. There is therefore, no other pecuniary benefit which would be received by the plaintiff on account of this accident. It does not admit of any doubt that had deceased continued to live he would have certainly helped his family and considering the age of the mother and the father it can be assumed that they would have been in a position to receive benefits for at least 20 years. The question then arises as to what amount the plaintiff would have received during this period. Public witness 2 one of the students in the party has deposed that he was posted as a S. D. O. in the year 1970 and getting Rs. 680. 00 as his salary and after a period of 6 years he would have been an Executive Engineer and getting Rs. 1,000. 00. He has also given the instance of other boys who are getting Rs. 850. 00 to Rs. 1,000. 00 per mensem. Public witness 3 says that he is getting Rs 805. 00 p. m. It is also in evidence that the deceased was a good student, and being the Secretary of the Hockey Team, it would be legitimate to assume that he also would have been selected for a job after he had passed the final year by 1970, and would start getting about Rs. 700. 00 p. m. It is also in evidence that the deceased was a good student, and being the Secretary of the Hockey Team, it would be legitimate to assume that he also would have been selected for a job after he had passed the final year by 1970, and would start getting about Rs. 700. 00 p. m. as salary. In usual course he would have reached the scale of Rs. 1,000. 00 after about 6 years and then got at least 1,500. 00, and even more so in another next 10 years. The question of working the technique of valuation as given by Mayne and Mcgregor on Damages (12th Edition) pages 691 and 692 and as adopted in The Indian Mutual General Insurance Society Ltd, Madras v. At. Kothandian Naidu and another: "this (basis) may be calculated by taking the annual figure of the dependency, whether stemming from money or goods provided or services rendered and multiplying it by the number of years that the dependency might reasonably be expected to last. This latter figure is generally referred to as the multiplier. The resulting amount must then be scaled down by reason of two considerations, first that a lump sum is being given instead of the various sums over the year, second that contingencies might have arisen to cut off the benefit prematurely". ( 31 ) MR. Makhija and Mr. Dhir were at complete variance as to the amount which one could assume that the deceased would have spared and given to his parents for maintenance. Mr. Makhija says that even an average of Rs. 300. 00 p. m. would be low. Mr. Dhir, however, was not willing to contemplate anything more than Rs. 50. 00 p. m. and that too only for the first five years, because according to him later on the deceased would have married and had his family and would not have been able to spare any thing for the parents. I do not agree. In Rajindar Kaur and others v. Puran Chand and others the monthly contribution of a son who had died at the age of 21 and was earning Rs. 200. 00 per mensem was taken to be Rs. 50. 00 per mensum for the purpose of calculating compensation payable to parents. I do not agree. In Rajindar Kaur and others v. Puran Chand and others the monthly contribution of a son who had died at the age of 21 and was earning Rs. 200. 00 per mensem was taken to be Rs. 50. 00 per mensum for the purpose of calculating compensation payable to parents. A similar amount was also accepted in Prem Singh and Others v. Tika Ram and others when the pay was Rs. 2751 -. In Satya Wall Devi v. Union of India the basis adopted was Rs. 200. 00 per mensem in the case of a deceased who held a commission in the Indian Air Force and at the time of his death was getting total emoluments amounting to Rs. 527. 00 per mensem. ( 32 ) IT appears to me-therefore, that keeping in view the fact that the mother would at least have lived for 20 years and keeping in view the pay of the deceased would at least have been about Rs. 700. 00 to start with and would have gone to at least Rs. 1,500. 00 in the first 15 years and even though he could have his responsibilities to his family, but because of the progressive increase in pay it can be reasonably held, and I do so hold that the pecuniary benefit which the plaintiff would have obtained, had the deceased not died, because of the accident, and which the plaintiffs has lost would be Rs. 150. 00 p. m. for a period of 20 years which comes to Rs. 36. 000. 00. This is a reasonable expectation and more so because the parents as deposed to by the plaintiff, are not in a very affluent condition and would be expecting as is convention and practice amongst that part of society to which the parties belong that the eldest earning son would look after them in their old days. ( 33 ) MR. Dhir then wanted to persuade me by referring me to The Hindustan Ideal Insurance Corporation Ltd. , Hyderabad v. Marine Chimperamma and others for urging that there should be deduction of 20% on account of lump sum payment. Though no doubt a deduction is usually made on account of lump sum payment, it is not an inflexible rule. Dhir then wanted to persuade me by referring me to The Hindustan Ideal Insurance Corporation Ltd. , Hyderabad v. Marine Chimperamma and others for urging that there should be deduction of 20% on account of lump sum payment. Though no doubt a deduction is usually made on account of lump sum payment, it is not an inflexible rule. In 1967 Accident Claims Journal 243 (Supra), no deduction was made because it was observed that the benefit of lump sum payment was offset by the increase in prices and progressive decrease in the value of rupee. Here the accident took place about seven years back. The claim is being allowed now, and in the meanwhile prices have gone up considerably and the plaintiff has been deprived of all this amount for all these years. I am, therefore, not inclined to make any deduction on account of lump sum payment. ( 34 ) THE result would be that the plaintiff will be entitled to be paid Rs. 36,000. 00 as compensation by the defendants. ( 35 ) AS a result, I would decree the suit of the plaintiff for Rs. 36,000. 00 against the defendants. The plaintiff will have proportionate costs also. Rajindar Sachar, J. ( 1 ) AN unfortunate accident which cut prematurely the life of a youngman of 21 is the occasion for the present suit, for the recovery of Rs. 5 lakhs by plaintiff No. 1, the mother of the deceased Gurprit Singh and plaintiffs 2 and 3 sister and brother of the deceased. Gurprit Singh was a final year student of Punjub Engineering College, Chandigarh, in the year 1967. The college arranged a trip for carrying final year mechanical students from Chandigarh to Asansol, from Asansol to Howrah and from Howrah to Tatanagar and from Tatanagar to Bombay and then back to Chandigarh. A bogie CT 3816 was booked from 15th December, 1967 to 3rd January, 1968 through the Chief Operating Superintendent Northern Railway, New Delhi. The train 308 Down containing the bogie reached Howrah on 21st December, 1967 and the bogie was kept far away from Howrah Station. A bogie CT 3816 was booked from 15th December, 1967 to 3rd January, 1968 through the Chief Operating Superintendent Northern Railway, New Delhi. The train 308 Down containing the bogie reached Howrah on 21st December, 1967 and the bogie was kept far away from Howrah Station. On the morning of 22nd December, 1967 when the deceased Gurprit Singh came out of the bogie and was going to Howrah platform to get his breakfast and was crossing the railway lines, an electric train struck the deceased and as a result thereof he died in the Howrah hospital. It is alleged that the accident was caused by gross negligence of Eastern Railways as bogie was kept at an unsafe place. The deceased was said to be a sportsman and came from a good family and was assured of a bright future. On these pleadings a decree of Rupees five lakhs as compensation is prayed for. ( 2 ) IN the written statement filed by the Union of India, preliminary objection was taken that as the tour was arranged by the Punjab Engineering College, the responsibility was on the college which was a necessary party. Objection was also taken that the plaintiffs 2 and 3 have no locus standi to file the suit under the Fatal Accidents Act, 185 5 (hereinafter called the Act ). The factum of death of the deceased was admitted but it was denied that it was due to the negligence on the part of the defendant. It was stated that the coach was parked in Tikipara yard along with the rake as usual for washing, cleaning and checking. Due to post route relay work, it was not possible to detach the coach on arrival but it was placed on the V. I. P. siding adjacent to platform No. 8 on the next morning. There was said to be a protected/safe passage leading from Tikipara yard washing lines to Howrah Railway Station which is normally adopted by the Railway staff for going from the washing lines to Howrah Railway Station. But as the deceased and other students in their over-enthusiasm did not use that passage and trespassed on the railway lines, responsibility tor this unfortunate accident, it was claimed, cannot be put on the railways. But as the deceased and other students in their over-enthusiasm did not use that passage and trespassed on the railway lines, responsibility tor this unfortunate accident, it was claimed, cannot be put on the railways. It was also stated that the enquiries have revealed that electric train No. C-163up came from Howrah side after giving due warning by blowing whistle, but the deceased even after having seen the approaching train tried to cross the railway lines in an attempt to catch train No. 32s Down which was going towards Howrah and had stopped outside the signal, and as a result the deceased dashed against the left side buffer of the said train. The deceased was said to have been picked up. by the driver and Assistant Driver of C-163 UP and taken to Batnangachi railway dispensary where the incharge of the dispensary gave him the medical assistance but as there was no adequate arrangement for treating the deceased there the deceased was sent to Howrah General hospital for treatment where he unfortunately died. The accident was said to have taken place by dashing against the left side buffer of C-163 UP at about 0730 hours on 22nd December, 1967 at K. M. Post No. 2 of the UP Mainline. The allegation of the negligence and fault of the railways is denied and it is also denied that the plaintiff is entitled to recover any amount. ( 3 ) ON the pleadings of the parties, the following issues were framed on 26th May, 1970: 1. Is the suit bad for mis-joinder and non-joinder of parties ? If so, what is its effect ? 2. Whether plaintiffs Nos. 2 and 3 have locus standi to file the suit ? 3. Whether the notice under section 80 Civil Procedure Code served on the defendants was not valid ? 4. Whether this court has jurisdiction ? 5. Whether death of Gurprit Singh on 22nd December, 1967 resulted on account of gross negligence and misconduct of the defendants ? 6. If issue No. 5 is proved, to what damages the plaintiffs are entitled. 7. Relief. Further additional issue was framed on 6th September, 19 1. Whether the Punjab Engineering College, Chandigarh is necessary party ? ( 4 ) ISSUE No. 2. : Mr. 6. If issue No. 5 is proved, to what damages the plaintiffs are entitled. 7. Relief. Further additional issue was framed on 6th September, 19 1. Whether the Punjab Engineering College, Chandigarh is necessary party ? ( 4 ) ISSUE No. 2. : Mr. Makhija concedes that the plaintiffs 2 and 3 are not covered by section 1 (A) of the Act and therefore they are not competent to maintain the suit. This, however, does not make any difference because the only result will be that the names of plaintiffs 2 and 3 would be considered surplusage as the suit can definitely be brought by plaintiff No. 1 who is the mother of the deceased. Issue No. 2 is decided accordingly. ( 5 ) ISSUE No. 3. : Objection under this issue is that the pauper application was presented on 16th May, 1968, while the notice under section 80 was served on the General Manager of the Railways on 16th March, 1968 and clear two month s period has not expired since the giving of notice. This was apparently based on a typographical mistake in copy of the plaint with Mr. Dhir because this argument proceeded on the basis that it was stated in para 18 that notice under section 80 Civil Procedure Code was served on the General Manager on 16th March, 1968 ; in fact the allegation in the plaint is that the notice was served on 13th March, 1968. In that view the pauper application was obviously filed after the expiry of two months after the notice had been received by the General Manager. This is, therefore, decided against the defendant. ( 6 ) ISSUE NO. 4. : Mr. Dhir contended that the suit cannot be filed in this court as the accident took place at Howrah (West Bengal) and, therefore, the court in that place alone would have jurisdiction. Now Section 80 of the Railways Act provides that suit for compensation for loss of life or personal injury to a passenger. . . . may be instituted if the passenger was. . . . . booked over the railways of two or more railway administrations against that railway administration from which the passenger obtained his pass or purchased his ticket. . . . . . . . . may be instituted if the passenger was. . . . . booked over the railways of two or more railway administrations against that railway administration from which the passenger obtained his pass or purchased his ticket. . . . . . or against the railway administration on whose railway the destination station lies, or the loss, injury, destruction, damage or deterioration occurred and in either case the suit may be instituted in a court having jurisdiction over the place at which the passenger obtained his pass or purchased his ticket. It has been alleged in para 6 of the plaint that the Chief Operating Superintendent, Northern Railway, New Delhi by his telegram dated 6th December, 1967 booked the bogie from 15th December, 1967 to 3rd January, 1968. The bogie was to start from Chandigarh and after taking the deceased and party on tour was to come back to Chandigarh. This is admitted in the written statement where it is stated that as per instructions issued by the Northern Railways dated 6th December, 1967 a bogie was provided for the students of the Punjab Engineering College. It is thus clear that the bogie was booked by the Northern Railways whose headquarters are at Delhi and is within the jurisdiction of this court. In terms of section 80 of the Railways Act the jurisdiction to file suit for compensation for loss of life could be filed where the passenger purchased his ticket and as the booking was done through New Delhi Office of Northern Railway, the suit is maintainable in this court. This issue is decided in favour of the plaintiff. ( 7 ) ISSUE No 1. : Under Issue No. 1 the objection of Mr. Dhir was that as under section 4 of the Act the word parent is mentioned and this word parent has been defined to include father and mother, the former was a necessary party and he having been not impleaded the suit is bad for non-joinder. I find no merit in the same. The Act empowers the parents to file the suit for compensation. As the definition of the word parent means both father and mother, the suit can be filed by either of them. There is no warrant for the suggestion that mother alone could not have filed the suit without impleading the father. I find no merit in the same. The Act empowers the parents to file the suit for compensation. As the definition of the word parent means both father and mother, the suit can be filed by either of them. There is no warrant for the suggestion that mother alone could not have filed the suit without impleading the father. The objection that one of the parents cannot alone file the suit without impleading the other parent was rejected in Krishnaji v. Subhadra Devi and another^. In Kasturi Lal and another v. Prabhakar and another an application by the father alone was held to be competent and it was observed that the same should be deemed to have been filed on behalf of the mother also. In Prabha Kumari and others v. Surinder Nath and others it was again held that a suit under the Fatal Accidents Act can be filed by the wife, husband, daughter or the sons of the deceased jointly, individually or by any one or more of them. The law only requires that there should be only one claim. The different persons mentioned in paragraph 2 of Section 1 of the Act cannot bring separate suits. This issue is decided against the defendants. ( 8 ) ADDITIONAL ISSUE : The only argument that was urged by Mr. Dhir was that as the tour was arranged by Punjab Engineering College and as the accident took place during the tour, the same was due to the negligence of the college authorities who should have been impleaded in the suit. J find no merit. The plaintiff has not alleged any negligence on the part of the Engineering College nor is it claiming any relief against it. I do not see why in such a case was it necessary for the college to be impleaded. Of course, the Railway are not prohibited from taking the plea that there has been no negligence on its part or that had the college authorities been more diligent, this accident would not have taken place. But that is a question on merits and has no relevance to the fact whether the Engineering College should have been impleaded. The question of impleading the College does not arise because no relief is sought against it. The issue is decided against the defendant. ( 9 ) ISSUE NO. But that is a question on merits and has no relevance to the fact whether the Engineering College should have been impleaded. The question of impleading the College does not arise because no relief is sought against it. The issue is decided against the defendant. ( 9 ) ISSUE NO. 5 The deceased Gurprit Singh was a student of final year Mechanical Engineering Course and was amongst the brilliant students as deposed to by Public Witness 1, Avtar Singh Kaira who was on the teaching staff. He has stated that the deceased used to get more than 70% marks in the subjects and was also Captain of the Hockey Team of the College and also Sports Secretary of the College Sports Club. This evidence stands unrebutted and must be accepted. Public Witness 1 who was accompanying the students on the trip has deposed that the college booked a bogie from the Northern Railway and they left Chandigarh on 15tb December, 1967 and they were detrained at Delhi and then they continued their journey by Toofan Mail for Asansol. The same bogie in which they came from Chandigarh was attached to Toofan Mail. When they reached Howrah Railway Station on 21st December, 1967 the bogie was detached from the train and kept on the same platform for some time and from there it was then shifted to Tikipara Yard which was at a distance of 2/3 kms. from the platform. He, however, spent the night in the waiting room and it was on the next day that he was informed at 7. 25 that Gurprit Singh had met with an accident and soon thereafter he was told that he had died. He has denied that there was any prohibition on the students to visit the bogie while it was parked in the Tikapari yard. In fact he has deposed that the boys had earlier also stayed in the bogie when they stopped at Asansol. No special arrangement had been made for the stay of students at Howrah and they were to stay in the bogie and also stated that the students stayed in the bogie as usual as they had been staying throughout in the bogie while on tour. ( 10 ) IT is relevant to note that most of the facts are not in dispute. ( 10 ) IT is relevant to note that most of the facts are not in dispute. It is thus common case that the bogie which had been booked by the Engineering College for the students was stabled at Tikipara yard on the night of 22nd December, 1967 when the train 308 DN reached Howrah. It is also not disputed that the deceased died as a result of having been run over by the train C 163 UP while it was coming from Howrah on the morning of 22nd December, 1967 at about 7. 30 a. m. the defence as put by Mr. Dhir, learned counsel for the defendant, is that the deceased was on the railway line in the position of a trespasser and the railway as owner of the land owed no duty to the deceased, who trespassed at his own risk, the only duty it has was not to wilfully and deliberately lay trap for him which may cause injury and as this was not even the pleading by the plaintiff, no liability attaches to the defendants. Now it is true that a trespasser in order to make good the case of actionable negligence against someone, he must show a breach of a duty on his part towards himself. The Railway is only under a duty to the plaintiff not wilfully to injure him, they were not entitled unnecessarily and knowingly, to increase the normal risk by deliberately placing unexpected danger in his way, vide Grand Trunk Railway Company of Canada v. Walter C. Barnett. But in order to invoke this rule regarding trespasser, it must first be established by the defendants that the deceased was on the railway lines in the capacity of a trespasser. Public Witnesss 2 and 3 who were accompanying the deceased in the party have deposed that when they reached Howrah station some people told them that the bogie in which they were travelling shall be removed from the platform and they told them that they would stay in the bogie as they had been staying all through the railway stations which they visited on the tour. Public witness 3 was Secretary of the team. He states that he requested railway officers that their bogie be detached and kept at the platform so that the students should not face any difficulty but the bogie was then taken to Tikipara yard. Public witness 3 was Secretary of the team. He states that he requested railway officers that their bogie be detached and kept at the platform so that the students should not face any difficulty but the bogie was then taken to Tikipara yard. He has denied that they were asked by the railway authorities to vacate the bogie. He has rather stated that no separate arrangement was made at Howrah because normally they had been staying in the bogie throughout the tour. Similarly Public Witness4 has denied that any railway official told them that they should vacate the bogie. He has stated that on the contrary they were told that the bogie would be kept in Tikipara yard for three days. Public Witness 1 the professor who accompanied the party has also denied that there was any prohibition to stay in the bogie while it was parked in Tikipara yard. One of the witnesses produced by the defendant CDW4 Senior Station Master Howrah stated that he attended the arrival of train 308 DN including coach 3816 as per his routine and he told the occupants of the coach to vacate the same before it was put back in the yard but the students in the coach replied that the professors had gone outside and after they come back, they will see to it. But he also states that the bogie was still at the station when he went off duty as the duty finished at 22. 30 hours. It is apparent that CDW 4 did not even wait to see whether his order to vacate the coach had been carried out by the students. Not only that, he neither met any of the professor accompanying the students nor does he remember that he told any body else that the coach occupied by the students be got vacated. Moreover he was supposed to be looking to all the platforms from 6 to 15, and it would be surprising if he would have spent more than minute for this particular train. ( 11 ) SIMILARLY CDW 3 the train clerk at Howrah deposed that his duty was upto 2230 hours on 21st December, 1967 and his duty included taking down the numbers of the coaches forming part of 308 DN which arrived at 2215 hours. ( 11 ) SIMILARLY CDW 3 the train clerk at Howrah deposed that his duty was upto 2230 hours on 21st December, 1967 and his duty included taking down the numbers of the coaches forming part of 308 DN which arrived at 2215 hours. He has deposed that a few persons were staying in the coach while the majority of them were on the platform and after taking down the number he told one of the persons sitting in the coach that they should vacate the coach, as the rake was to be backed to Tikiapara yard for general check up, washing and maintenance etc. and that after telling them he went away. He, however, had to admit that he did not know anything about whether the occupants of coach stayed over night nor did he know the names of the persons to whom he is said to have told to vacate the coach. He also did not know whether the occupants stayed overnight in the same coach or not. He does not even know whether any professor was travelling with the party. ( 12 ) IT will thus be seen that there is evidence of the students that not only had they stayed in the bogie while on tour at earlier stations but they also had told the officials concerned at Howrah that they would be staying in the coach. In the written statement it has been pleaded that the coach had been sent back to Tikiapara yard for usual washing and cleaning and the coach on arrival at Howrah had to be vacated in terms of the standing instructions of the head office and it is again reoccupied when attached to the train and back on the platform with the booked rake. Unfortunately no such instructions have been placed on record and this explanation remains unsubstantiated. It seems to me that there could not have been any prohibition against the students occupying the bogie when kept in the yard. This is even borne out by the conduct of CDW 3 and 4 whose evidence at the best only shows that apart from having told the students to vacate the coach they did nothing; they not even bothered to see whether the coach in fact was vacated or even told any officer who came on duty after them to see that it is vacated. Public Witness 3 and 4 have stated that they stayed in the bogie during the tour on stations before reaching Howrah. No witness has been produced by the railways from any of these stations to depose that the students did not stay in the bogie as had been deposed by them. It is thus not possible to accept the contention of Mr. Dhir that the staying of the students in the bogie was unauthorised and was an act amounting to trespass. It may be that there was no actual permission granted to the students to stay in the bogie. But one looks in vain for any such warning or prohibition which would have clearly impressed on the students that if they stayed for the night in the coach at the yard, they would be treated as trespassers. As was said in Hardy v. Central London Railway Company, i can conceive of warnings to children so ineffective, either from their nature or from the absence of any attempt to enforce them, as to convey to the mind of a child the impression that no real objection was taken to what was being done. In such a case it might be possible to draw the inference that the child was allowed to be and remain under the impression that it had permission to do what it was doing. . . . . . . or it was encouraged to come by absence of objection", the fact that there was no objection to the students staying in the coach parked at Tikiapara yard is clear from the further fact that no evidence had been led to show that any railway employee had at any time even during the night told the students that they should not stay in the bogie when it was stabled in yard. It is common ground that the students had stayed and slept in the bogie for the night which was parked in the yard. Now the apparent reason given by defendants for stabling the bogie at the yard is stated to be for cleaning and washing purposes. Unfortunately there is no evidence to show that any attempt was made by railways to wash or clean it and the same was frustrated because of the persistent of the students not to vacate it. CDW 12 Mr. Unfortunately there is no evidence to show that any attempt was made by railways to wash or clean it and the same was frustrated because of the persistent of the students not to vacate it. CDW 12 Mr. J. N. Das Mazumdar, Assistant Yard Master, Tikiapara Howrah has deposed that it is the option of the students who come on the educational tours to stay in the bogie overnight on the platform. This part of the statement witness wanted to withdraw but the Local Commissioner noted that the same was answered without any objection when taken and this change could not be allowed. In my view the Commissioner acted correctly in not changing what had been said by the witness previously. This witness has also admitted that sometimes these bogie are detached and stabled on the V. I. P. sidings nearing the running lines. I must, therefore, proceed on the basis that the students had at least a licence from the railways and that it had acquiesced in the students staying in the bogie for the night when it was parked at Tikiapara yard. ( 13 ) THERE are three categories in which persons visiting premises belonging to another person, may fall, namely, :- (i) by the invitation express or implied of the occupier; (ii) with the leave and licence of the occupier; and (iii) trespassers. ( 14 ) NO duty is owed to the trespasser and an occupier is only liable where injury is due to some wilful act involving something more than the absence of reasonable care. Towards those persons coming in the first category the occupier has a duty of taking reasonable care that the premises are safe. As for the second category the occupier has no duty to ensure that the premises are safe but is bound not to create a trap or to allow concealed danger to the said premises which is not apparent to the visitor but which is known or ought to be known to the occupier vide Robert Addie and Sons (Collieries), Limited v. Dumbreck. Negligence as a tort is the breach of a legal duty to take care. Negligence as a tort is the breach of a legal duty to take care. It is an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and a reasonable man would not do, vide Governor-General in Council v. Mst. Saliman. The railway authority is under a duty to use reasonable care and skill in the provision and maintenance of its carriages, the provision and maintenance of its railway track, and the provision of a proper system of signalling so as to prevent accidents. It is also liable for the negligence of the signalmen and others operating the system and of the drivers and others in the driving and management of its trains (vide Article 752 of Duty of Carriers at page 754 ). Persons resorting to railway premises, whether as passengers, intendering passengers. . . . . . . . . . . . . . . . . . . . . are in the position of invitees. . If the railways are, therefore, under a duty to take care that their premises are reasonably safe for persons using them in the ordinary and customary manner and with reasonable care (vide Article 764 of Duty of Carriers) at page 764 ). No doubt the degree of care which is required of an occupier will vary and depend on the circumstances of each case. It will, therefore, be apt to consider the various aspects right from the train reaching Howrah station on 21st December, 1967 to the actual accident to see whether the railways have failed to exercise that reasonable, proper care and precaution to guard against the injury to the students which having regard to the particulars circumstance of the case it was their imperative duty to adopt. It is only as the cumulative result of consideration of all these events that a finding can be given whether the railway was negligent or not. ( 15 ) ONE other aspect on which the parties are at variam is whether the train No. C-163 UP by which undoubtedly deceased was knocked down, stopped after hitting the deceased or continued on its journey. ( 15 ) ONE other aspect on which the parties are at variam is whether the train No. C-163 UP by which undoubtedly deceased was knocked down, stopped after hitting the deceased or continued on its journey. Though strictly speaking, it may not be of much consequence as to ultimate result as to whether that train stopped after the impact or whether the deceased was picked up by the following train and removed to Bamangachi Dispensary, yet it may have some relevance for the purpose of proper assessment and appreciation of the evidence led by the parties. It is common case that after the deceased Gurprit Singh was knocked down he was carried in a train to Bamangachi shed where he was examined by the railway doctor at dispensary who finding that the deceased was in critical condition sent him to the General Hospital, Howrah for further treatment. Public Witness 2, 3, 4 have deposed that they stopped the train which came after the train which knocked down the deceas and carried him to the Railway Hospital a couple of kilometers away and thereafter they moved him to casualty ward to Howrah Hospital. Defendants produced C. D. W-l, Assistant Medical Officer who deposed that he was posted at Bamangachi Health Unit on 22nd December, 1967 and got the memo. Ex. CDW 2/1 from the guard of C163-UP. He then wrote a letter Ex. CDW 1/1 to the Howrah General Hospital forwarding the deceased to them for treatment. He, of course, denies the suggestion that the memo was prepared subsequently. But this witness cannot say who has written or signed CDW 2/1. He also admitted that he has not given the reference about the memo, in Ex. CDW 1/1. CDW 2 is the guard who was on duty of C 163-UP, on the morning of 22nd December, 1967. He has deposed that when the student was knocked down by the engine of his train, he stopped the train, got out of the brake van and put the injured in the luggage van, rendered him the first aid and directed the driver to proceed to the Local Bamangachi Hospital to get the necessary aid. He says he wrote CDW 2/1 and gave it to the student for passing over to the medical in charge. He denied that the train did not stop after the impact. He says he wrote CDW 2/1 and gave it to the student for passing over to the medical in charge. He denied that the train did not stop after the impact. He, however, did not keep any copy of the memo Ex CDW 2/1. He also did not take any receipt for giving this memo to the doctor. Though he admits that record is to be maintained regarding the rendering of first aid to anybody on the train which is kept on the card inside the first aid box and though according to this witness first aid was given by him to the deceased, he does not know if the card is still with the department, nor is he able to say if the entry card placed on the first aid box was written on any register later on by the department or not. He admits that the first aid box along with the entry card was taken out at Burdwan where the train terminated. In that event it does seem surprising that this record of having given the first aid should not be forthcoming in support of the oral version of this witness. The other peculiar feature is that he admits that a record of any non-scheduled stoppage which is made by the train enroute has to be maintained on the joint train report. Now admittedly C-163 UP stopped at the site of the accident as well as at Bamangachi and he made entry in the joint train report, but the same is not forthcoming. This non-production was sought to be explained unsatisfactorily by CDW 7 clerk in the transportation Branch of D. S. Office, E. Railway, Howrah, who stated that joint train report could not be retained after six months under the rules, but was not able to say whether the record had actually been destroyed or not as he only stated what he had been instructed by the officer in charge to say. Similarly CDW 10 the Chief Clerk, Transportation Branch has deposed that J. T. R. are normally maintained for a period of six months, and that they did not have any J. T. R. for 1967-68 or any J. T. R. more than six months old. Similarly CDW 10 the Chief Clerk, Transportation Branch has deposed that J. T. R. are normally maintained for a period of six months, and that they did not have any J. T. R. for 1967-68 or any J. T. R. more than six months old. But he has no personal knowledge whether any record pertaining to C-163 UP from Howrah to Burdwan for 22nd December, 1967 regarding J. T. R. has been destroyed or not. He however admits that if a claim is pending and the authorities have knowledge that record relates to the claim, the same is not destroyed if the knowledge is within the period of six months. This admission by him is relevant because the notice under section 80 of the Code of Civil Procedure by the plaintiff was given in March, 1968, i. e. within six months from the date of accident and it is curious that the J. T. R. should not be available. Mr. Dhir sought to suggest that notice is normally dealt with by one department while the J. T. R. and first aid record is maintained by another department, the record may have been destroyed in the ignorance of the notice. That, however, is not a satisfactory explanation because once the notice has been given to the railways the notice must be deemed sufficient for all the departments and the defendants cannot be allowed to say that one particular department was unaware that the matter was the subject matter of a claim. There is another significant omission in the evidence of CDW 2 who has stated that under the rules he had to inform the first scheduled stoppage station which was Liluah about the accident. He says that he informed of the accident to the station Master, Liluah to be relayed to the Control office but does not remember that he gave the information orally or in writing though admits that such information is to be given in writing to the Station Master. He also admitted that the information given by him might be available with Station Master, Liluah. Again no effort has been made by the defendants to produce the record from the Station Master Liluah in support of the version that such an information has been given by the guard of C-163 UP. He also admitted that the information given by him might be available with Station Master, Liluah. Again no effort has been made by the defendants to produce the record from the Station Master Liluah in support of the version that such an information has been given by the guard of C-163 UP. No doubt CDW 5 the driver and CDW 6, the Assistant Driver of C 163 UP state that after the impact with the person-deceased, the train was stopped. Yet the evidence mentioned above discloses significant omissions and absence of following of the rules and directions by the railway employees at various points of time. It is not understandable why the memo was not mentioned by the doctor in CDW l/l because I should have thought that was the basic fact as it gave the information in what capacity and in what manner the doctor happened to deal with the accident. Again though under the instructions, first aid given on a train is said to be shown on a card maintained in the Aid Box, the same is not forthcoming. Again the unscheduled halts at the time of accident and again at Bamangachi, which are to be reported in a J. T. Report have also not been produced. This record of the first aid which was supposed to have been left in writing with Station Master Liluah is also missing. Thus the safeguards provided under the rules have been violated and there is no satisfactory explanation for it. Mr. Makhija has also made a criticism that this version of the train stopping and rendering the first aid and carrying the injured could not stand scrutiny because, acc6rding to the railways witnesses, the schedule timing to reach Liluah was 7. 34 a. m. and on that date the train is said to have reached at 7. 45 a. m. The suggestion being that if train had stopped at impact and then really first aid had been given and also at Bamangachi, it would have been delayed for much longer time than that for a mere 10 minutes. In respect of their case that train C-163 UP stopped for the impact, defendants examined CDW-13, Cabin Assistant, Station Master was on duty on 22nd December, 1967 and has proved Ex. In respect of their case that train C-163 UP stopped for the impact, defendants examined CDW-13, Cabin Assistant, Station Master was on duty on 22nd December, 1967 and has proved Ex. CDW 13/1 which purports to give information about the time at which trains were supposed to leave and the time when they started. He admits, however, that it is not actually recorded in his register as to at that time train C-163 UP passed his cabin or train No. 328 Dn. passed his cabin, nor is there any remark against C-163 UP on 22nd December, 1967 but there was a remark in front on train No. SI showing that the line was blocked as C-163 UP bad run over one case. Mr. Dhir naturally relies on this entry to urge that C-163 UP had stopped after the accident and the 10 minutes that it reached late were spent in giving first aid and dropping the injured at Bamangachi shed. He also referred to the fact that the entry in CDW 13/1 shows that the other trains in between C-163 UP and S. I, started late and this also shows that there could have been no other train except C-163 UP going towards Bamangachi shed which could have carried the injured and dropped him there. Mr. Dhir made some effort to read out from the Railway Time Table of Eastern Railway for the purpose of urging that no other train excepting those mentioned in CDW 13/1 pass during that time. But I do not find that a satisfactory method. I wish the Railway had been able to give definite evidence of, with reference to record so as to show which trains were to leave from Howrah enroute to Bamangachi during the relevant period so as to rule out the possibility that there was no other train, either electric or otherwise, which could have carried the injured. Section 83 of the Indian Railways Act provides for making a report when any accident occurs if it is attended with loss of human life or with grevious hurt occurs in the course of working railways and causes a duty on the Railway Administration to send a notice of the same to the State Government and to the Inspector appointed for the railway. Section 85 provides for the submission of return of accident. Section 85 provides for the submission of return of accident. section 92 provides for a penalty for delay in submitting the returns under section 85. Rule 102 of the Accident Manual (N. Riy, 1968) defines accident as any occurrence which may affect the safety of the passengers. Admittedly on record there is nothing to show that report as required by law was ever sent. Thus in the present state of evidence I cannot rule out definitely that there may not have been some other train going towards Bamangachi and which could have carried the boy. But as I said before, this fact by itself is not determinative of the question whether the accident was caused by negligence of the railways, which necessarily has to be examined by reference to the whole matter as brought out in evidence. ( 16 ) ONE aspect is as to why the bogie was stabled for the night at Tikiapara yard and not at some other convenient and safe siding. One explanation mentioned in the written statement that it was done for the purpose of cleaning and washing as already mentioned above does not stand scrutiny because there is no evidence that any attempt was made by the railway authorities to do washing and cleaning on that night. Another explanation mentioned in written statement was that due to post route relay work it was not possible to detach the coach just on arrival and it was placed on the V. I. P. siding adjacent to platform No. 8 on the next morning. CDW 4 has deposed that they did not have any provision for stabling the individual coaches on the platform, which was due to transportation difficulty and shortage of sidings or all the sidings being pre-occupied. He stated that they did not permit the occupants of the reserved bogie to occupy the same in the yard. We thus have a situation, where undoubtedly this bogie was placed on the V. I. P. siding on the next morning but unfortunately after the accident- No doubt the authorities seem to have moved fast immediately after the accident but that did not prevent the unfortunate accident having taken place earlier. We thus have a situation, where undoubtedly this bogie was placed on the V. I. P. siding on the next morning but unfortunately after the accident- No doubt the authorities seem to have moved fast immediately after the accident but that did not prevent the unfortunate accident having taken place earlier. The question arises as to why it was not possible to place this bogie on the V. I. P. siding which undoubtedly was a safe comer on the very evening of 21st December, 1967 when this coach arrived at Howrah. The only evidence given by the Railways is of CDW 4 who has deposed that the remodelling of Howrah Station was going on from 1968-69 and they did not have any provision for stabling the coach on the platform which was due to transportation difficulty and shortage of sidings, or all the sidings being pre-occupied. However, he was looking after platforms 6 to 15 and is not able to remember how many trains apart from 308 DN (in which the boys were travelling) arrived on other platforms between 2200 to 2230 hours. Mr. Dhir would have it that the evidence of this witness was enough to show that it was not possible to stable the bogie on the V. I. P. siding on the night of 21st December, 1967. I find myself unable to agree. The bald statement of this witness that there was no place for stabling the coach on the platform because of the shortage of space, is not enough to inspire confidence. I should have expected that if on the night of 21st December, 1967 the V. I. P. siding to which undoubtedly this bogie was removed on the very next morning after the accident was not vacant, it should have been easy to produce the record available with the Railways in support of that. But no record is forthcoming, and there is no explanation for its non-production, because it is well settled that if the best evidence is not produced, the presumption will be otherwise. If as Mr. But no record is forthcoming, and there is no explanation for its non-production, because it is well settled that if the best evidence is not produced, the presumption will be otherwise. If as Mr. Dhir seemed to suggest that there may not be any record maintained by the railways of the siding which are occupied on any particular date (though there is no evidence about this conjecture by the counsel) then it appears to me that the statement made by CDW 4 that there was provision for stabling individual coaches at the platform because of the shortage of the siding, it would be a useless statement being made after a lapse of almost five years from the date of accident and from memory. In such a case it is hard to digest how this witness could remember about this particular coach. As a matter of fact no witness has made a statement that any particular train or coach was occuping the V. I. P. siding on the very next day at 8. 00 A. M. unless it was with reference to some record of the siding. If so, why has that record not been produced by the railway ; nor is there any explanation for its absence. I must, therefore, hold that it hag not been shown that V. I. P. siding was not available on the evening of 21st December, 1967 when the coach in which the deceased was travelling reached Howrah ; if that be so, the action of the railways in not stationing this coach at V. I. P. siding which was undoubtedly safe and placing it in Tikiapara yard was not only negligent but also unreasonable. There has to be some explanation by the railways as to why the bogie in which the students were going to stay had to be parked in the yard at a distance of about 2 K. M. from the Howrah Railway Station when a more convenient, safe and better siding was available. In the absence of any explanation the only conclusion that can follow is that it was an act of omission and failure to use the proper and ordinary care that was expected of the railways in the circumstances. In the absence of any explanation the only conclusion that can follow is that it was an act of omission and failure to use the proper and ordinary care that was expected of the railways in the circumstances. ( 17 ) THEN we go to the next aspect as to whether even if the coach was parked in the yard was there any safe protected passage which the students could have used for coming to Howrah railway station without having to cross the railway lines? Here again in the amended written statement dated 24th May, 1971 it was pleaded that there was a protected/safe passagefrom the yard to the station which students were required to use, but it was alleged that the deceased and the students in an attempt to reach earlier to the Howrah station by avoiding travelling on foot through the safe passage, by catching some train which possibly could stop outside the signal trespassed on the railway lines without caring for their own safety. It is significant to note that in the original written statement dated 27th January, 1970 filed by the railways this suggestion which has been incorporated in the amended written statement filed on 24th May, 1971 that the deceased and the students tried to catch some train which possibly could stop outside the signal was not even hinted and has been brought in only by the amended written statement. No doubt CDW 13 has deposed that train No. 338 DN stopped at outer signal between 7. 35. A. M. to 7. 46 A. M. But apart from the fact of halt of this train, I do not find any basis for the suggestion which is sheer conjecture on the part of the defendant more so because admittedly there is no scheduled stoppage of the train at the place of accident and what is even suggested in the amended written statement is that the possibility of some train stopping at the outer signal which at the best is very uncertain. CDW 11 who is working as a head draftman has produced plan CDW 1/l and has deposed that he prepared this plan from the original showing Howrah car shed area. This plan does not show any passage which connects Tikiapara yard with Howrah station and which one can use without having to cross the railway lines. CDW 11 who is working as a head draftman has produced plan CDW 1/l and has deposed that he prepared this plan from the original showing Howrah car shed area. This plan does not show any passage which connects Tikiapara yard with Howrah station and which one can use without having to cross the railway lines. Similarly CDW 8 is a photographer and had produced the photographs of the running lines between the yard washing line and the car shed of the Howrah railway station. These photographs CDW 8/1 and CDW 8/2 do not indicate or show any such protected passage. CDW 12 has stated that there are more than 500 employees working in each shift from different branches in the Tikiapara washing line He has also deposed that there is a protected passage for use of the staff wishing to go to Howrah station fom Tikiapara washing line on foot. Likewise there is a safe passage leading to Bamangachi bridge for use of the pedestrians. Nearly 8 platforms are there in between the washing lines, and there is a boundry wall between the washing lines and the running lines and the same is about 7 feet in height, which ordinarily could not be crossed. He however, does not know anything about the accident. He also stated that it takes 25 minutes to walk from the yard to the Howrah railway station. He, however, had to admit in cross-examination that certain lines had to be crossed while going from the yard to the railway station Howrah but stated that the same were not running lines. He also stated that sometimes these lines are also used for shunting and light engine. He does not know whether there is any plan maintained by the railway showing the passage between the yard and the station. Now Public Witness 2 has stated that after reaching Howrah station they went to take their meals and enquired from the railway officials as to where the bogie would be and were told that it was at the yard and told them to proceed to that direction. He has stated that nobody prohibited them from visiting the yard and says that they had to cross through railway lines, rather a complete network of lines to reach Tikiapara yard. He has stated that nobody prohibited them from visiting the yard and says that they had to cross through railway lines, rather a complete network of lines to reach Tikiapara yard. He says that they had no time to know that there was any protective passage which is said to exsit at the site. Similarly Public Witness 3 has stated that there was no regular path for going to the railway station and that it was through the lines that the boys had to go from the yard to the railway station. What is more significant is that CDW 3 and 4 who alleged having told the students that the bogie was to be stabled at the yard and that they should vacate it did not say that they told the students that there was safe passage from the Howrah station to the yard. There is also no evidence that when the bogie was in the yard, anyone from the officials told the students that there was a safe passage which they should use in the morning while going from the Tikiapara yard to Howrah station. Though CDW 12 maintained that there was a safe passage yet had to grudingly admit that even then certain lines have to be crossed though according to him they are side lines and used for shunting of light engines. Even this witness does not, therefore, say that there existed safe passage connecting the yard with the station in the sense that no railway lines at all had to be crossed while going from yard to the station. It also not understandable why if such a safe passage existed no plans or photographs of that had been shown when photographs of the washing line and the Howrah side car park shed have been indicated in the plan. I thus find that it has not been established that there existed a safe protected passage by which the students could have gone from the yard to the station without having to cross running lines. Even assuring that such a passage existed it will be of no avail to the defendants. This is because on record there is no material to show that the railways officials ever told the students about the existence of such a passage. Even assuring that such a passage existed it will be of no avail to the defendants. This is because on record there is no material to show that the railways officials ever told the students about the existence of such a passage. Obviously the students from a far off place like Chandigarh could not be expected to know and to be familiar at all with the surroundings of the yard station. They had been put in the yard for the night. In the absence of any information that there was any passage the students naturally took it that the only manner by which they could reach the station would be by crossing the running lines and such an action could not be characterised as anything but normal and natural. It is not the defendants case that the existence of the passage was indicated by any sign or board or was so prominently visible that the students, in the ordinary course could not have but known of the existence of this passage. The conduct thus of the railways which was responsible for the safety of the students in ignoring the presence of the students and not taking proper steps to warn them of the hazards of running lines or in the alternative of not telling them of the path (assuming one existed, though I have held otherwise) was in either case shown which was not that of an ordinary prudent man and can only be described as an omission which was unpardonable and was nothing but sheer negligence. ( 18 ) WHEN there is more than one approach, it is no defence for the railway undertakers to show that the other route was the safer, because the passenger is entitled to avail himself of any approach provided by the railways vide Article 772 of Duly of Carriers at page 774. Reference may be made to Lowery pauper v. Walker In that case it was found that the respondents who owned a savage horse which he knew to be dangerous to mankind, put it. without giving any warning, into a field of which he was the occupier and which he knew the public were in the habit of crossing without leave on their way to a railway station. The appellant in crossing the field was attacked, bitten and stamped on by the horse. without giving any warning, into a field of which he was the occupier and which he knew the public were in the habit of crossing without leave on their way to a railway station. The appellant in crossing the field was attacked, bitten and stamped on by the horse. Owner s defence that he was not guilty of negligence was negatived. Earl Halsbury posed the question whether the occupier who knew that the public was going over his land, habitually is entitled without warning or notice, to put a dangerous beast where he knows it may be probable and that the beast will do some injury to the person crossing in one sense with his permission" not that he has given direct permission but that he has declined to interfere and so acquiesced in their crossing it. It was further observed at page 14 : "if he has acquiesced in their doing so, he is bound to take the ordinary precaution to prevent persons going into a dangerous place where he knows they are going, and going by his acquiescence without notice or warning or any form of security to prevent the injury happening which did happen". ( 19 ) NOW coming to the time of the accident, Public witness 2, 3, and 4 eywitnesses have deposed that on the morning of 22nd of December, 1967 after getting ready they got out to go to Howrah railway station. The deceased was knocked down by the incoming train C-163 UP, while he was crossing the railway line. Public witness 2 has stated that he had seen C-163 UPwhich hit the deceased at a distance of 20 yards from the place where he was crossing the railway line and the same distance was there between the incoming train and the deceased. The deceased was on the same track though on the other portion when he was bit by the incoming electric train. The deceased tried to jump over to the other side with a view to escape being hit, but could not escape from being hit. The faces of the boys were not towards the side from which the train was coming. He saw the deceased being hit by the train and the deceased tried to jump over to the other side with a view to escape and being hit. The faces of the boys were not towards the side from which the train was coming. He saw the deceased being hit by the train and the deceased tried to jump over to the other side with a view to escape and being hit. The witness was going ahead of the deceased and the other students who were coming at his back saw the accident. Similarly Public witness 3 has deposed that the deceased was walking ahead of him and while they were crossing the railway line, the electric train came and struck him. The deceased was walking 2 or 3 feet ahead of him while Public witness 2 was walking ahead of the deceased. He did not hear any rumbling noise nor he heard any whistle. The deceased was going to cross the track on which the train was coming when the buffer struck him. He has also deposed that there was a bogie on the previous track and, therefore, it was not possible to see the incoming of the electric train. He stated that where they were crossing on their right all of a sudden an electric train came which never gave any whistle and neither they could see it from the distance, as on the right side there was a stationary railway bogie standing on the line and they could not see the approaching train. He has stated that there was network of railway lines on the spot and number of trains were coming and going on the lines. He says that he heard the rumbling noise of the incoming electric train which hit the deceased and that as a matter of fact the accident happened all of a sudden and they were bewildered by it. According to him the group including the deceased was going on the other side of the railway line and there Was no intention of catching another railway train. Public witness 4 is another student who accompanied the deceased on the tour and has deposed that in the morning of 22nd December, 1967 at about 7 or 8 a. m. they had gone for about 20 yards when the deceased was hit by an electric train all of a sudden on which he immediately stepped back as he was near the track. The right side buffer of the electric train struck the deceased as a result of which he was thrown on the opposite side of the train at a distance of about 6 to 7 feet of the outside of the track. He stated that he was actually puzzled as the train zoomed passed him with speed. He stated that he did not hear any noise of the accident prior to the incoming train, again stated that he heard the noise a few second earlier to the accident. The train was said to be coming at a speed of about 60 miles per hour. He has stated that the boys were talking to each other in a casual manner but were also careful about the lines, and were crossing the lines and not going parallel. He says that each one of them was lucky, they were able to avoid the accident while it was unlucky what the deceased was hit by the train. He says that though they were talking, they were careful about the lines, while crossing. All of them deposed that no whistle was given by the train and the speed of the train was about 60 K. M. ( 20 ) CDW 2, Guard, CDW 5, the driver andcdw6,the assistant driver of C-163 UP, however, deposed that speed was not above 30 kilometres and the train was whistling throughout. CDW 5 driver of the train says that 10 to 12 persons were coming but they were standing on the left side while facing towards Burdwan. He says he whistled and one of the students tried to cross by jumping from it in front of the moving train when it was at a distance of 10 to 15 feet. In cross-examination he, however, stated that he saw the students standing on the other line from the distance of 100 feet and none of the students was on the running line on which his train was running and stated that even when he saw students from 10 to 15 feet, the students were not on the running line. He denied that there was any coach or empty rake standing on the lines on his left hand side. He has stated that after application of the vacuum brake the train stopped after about 80 feet. He denies that he did not stop the train. He denied that there was any coach or empty rake standing on the lines on his left hand side. He has stated that after application of the vacuum brake the train stopped after about 80 feet. He denies that he did not stop the train. He denied that it was due to his negligence that the accident took place. CDW 6 stated that he saw a person from 200 feet and started blowing the whistle. He denied that there was any bogie standing near of accident which prevented the persons standing there from seeing the train. He also stated that when the train reached near the car shed a person out of those tried to cross the line and he was struck with the left side buffer of the engine. ( 21 ) UNDOUBTEDLY, the deceased has died as a result of the impact by C-163 UP. The question is whether the death if the result of the negligence of railway. Mr. Dhir tried to argue that as the train was coming on a fixed track and was on its route it cannot be held that there is any negligence, if some person happens to come in the way of the on-coming train and is injured thereby, and emphasised the distinction between the driving of a train and a car and relied on the observation in Lloyds. Bank, Ltd. v. British Transport Commission and another where it was said : "it is undesirable to seek to equate the approach to this matter to that made to the driving of a motor car along a public thoroughfare. The driving of a train and the driving of a motor car are two quite different things. " A train has priority on its track; it is being driven on a fixed track; it is normally expected to proceed to a time schedule;. . . I do not think the above observations in any way support the extreme contention of Mr. Dhir, that as the train running on fixed track and therefore unless it is shown that it had wilfully run over a person there would be never a negligence of the railways to accept this argument would mean that it will have to be held in every case that any death caused on the track by the railway would never be due to the negligence of the railways palpably untenable argument. I am of the view that when the train is coming on a running line and an accident takes place it has to be found on the facts of each case whether there was something in the action and conduct of the person injured which may have contributed to that accident, because if the accident was the result of joint negligence of the deceased and the defendant, the plaintiff could not recover anything. Now what is the position here. As per my findings above the students had been allowed to stay in the bogie at yard. The only passage known to them to reach Howrah station was by walking across the running lines. In the normal course the students had to go to Howrah station (and could not be expected to remain huddled up in bogie) so as to go out to visit places. The conduct of the deceased in thus crossing the line was normal one and cannot be characterised as suicidal or mad, as Mr. Dhir tried to suggest. There is no evidence to show that these boys had played any tricks while going on the railway lines and, therefore, were completely oblivious of the incoming train. Mr. Dhir sought to make much from thestatement of plaintiff s witness that they had seen the train at some distance and had also heard some noise, and as only the deceased has been injured, it must be due to his own negligence. Mr. Dhir referred to the fact that there Is a lot of space between the running line and to save himself from the said accident. Mr. Dhir had urged that as in the previous night admittedly many of the students who had gone out had been able to reach the yard safely and also further many of them had also been able to walk over the running lines without accident, it follows that there was no negligence of the defendants. In my view that is bagging the question. Public Witnesss are very clear that it was just by a stroke of luck that they were able to avoid the accident and that the deceased was unlucky. According to Public Witness 4 the deceased was on the further side of the track. Though therefore he would have made full efforts to jump clear of the track but unfortunately the incoming train caught him earlier with the fatal result. According to Public Witness 4 the deceased was on the further side of the track. Though therefore he would have made full efforts to jump clear of the track but unfortunately the incoming train caught him earlier with the fatal result. As a matter of fact the train zoomed past Public Witness 4, just missing to hit him. There was hardly any time for the deceased to get out of the way of the oncoming train before he was knocked down and it cannot be said that the deceased was in any way negligent in avoiding the accident. The fallacy in the reasoning of Mr. Dhir when he emphasises exclusively on this aspect of the train knocking down the deceased on the track lies in his missing the point that negligence is not being alleged because of some particular action of the railway driver but as a result of the cumulative effect of series of negligent act by the defendants which ultimately led to this unfortunate accident. The present is a case where the situation had been allowed to develop to a point where the defendant as an ordinary man of prudence would and should have known that there was a reasonable possibility of the accident taking place and should have taken some special care and precaution and its omission to do so is nothing else but negligence. In my view the test that has to be applied in a case like the present is the test laid down in Cooks v. Midland Great Western Railway of Ireland1 "would not a private individual of common sense and ordinary intelligence placed in the position in which the company were placed, and possessing; the knowledge which must be attributed to them, have been that there was likelihood of some injury happening to children resorting to the place an playing with the turntable, and would he not have thought it his plain duty either to put a atop to the practice altogether, or at least to take ordinal precautions to prevent such an accident as that which occurred". 22. In that case it was found that the place was belonging to railway company was visited by the children habitually and they were in the habit of playing with turntable. It was found that in spite of this knowledge no precaution was taken by the company to have the turntable fastened. 22. In that case it was found that the place was belonging to railway company was visited by the children habitually and they were in the habit of playing with turntable. It was found that in spite of this knowledge no precaution was taken by the company to have the turntable fastened. In these circumstances it was held by the House of Lords that there was evidence on which the company could be held to be guilty of negligence. Here also it must be appreciated that the deceased was not familiar with the surroundings and was not aware of the number of trains that would be using the lines. This was his first stay at Tikiapara yard and he never had an occasion to use the route which he was compelled to use on that fateful day knowing all this the defendants should have taken steps that the students including the deceased were properly informed if there was another independent path, which did not require crossing the railway lines. This was not done. They did not even knowing that in the morning the boys in any case would have to come but of the bogie for the purpose of going to Howrah railway station take the ordinary precaution of deputing some railway official to instruct the students about it. The deceased was certainly in the position of a licencee if not an invitee and it was incumbent upon the defendant-railway to warn him of the danger of the incoming trains and to inform if there was any safe passage, and if there was not then to take effective steps to help him by informing him of the layout and other hazards in the way like running trains. The action of the defendants in placing the students in the bogie in Tikiapara yard without warning them of any protective paasage and without bothering to see that some person is there to assist them or inform them cannot be said to be the act of a prudent man. The action of the defendants in placing the students in the bogie in Tikiapara yard without warning them of any protective paasage and without bothering to see that some person is there to assist them or inform them cannot be said to be the act of a prudent man. This is even made worse by the fact that no justification has been shown by the defendants as to why in the first instance the coach was placed at Tikiapara yard at all, and why it could not be placed in the first instance at V. I. P. siding which was safe as it was done next morning, soon after the accident but when unfortunately a life had already been lost. 23. Mr. Dhir referred to Vijay Shanker v. Union of India2. In that case a ley child was run over by the train, while crossing the line. Railway was not held liable his because the finding given was that the child a trespasser, and it was also found that there was no duty on the railway to keep a watchman at level footway. This was the case on the footing of a deceased being a trespasser and obviously distinguishable.