SARUPI DEVI v. UNION OF INDIA — 1991 DIGILAW 532 (DEL)

Usha Mchra, J. ( 1 ) SMT. Sarupi Devi ann others have filed this suit againstunion of India and the General Manager, Northern Railways. Smt. Sarupidevi is the mother of one Vinod Kumar and plaintiffs No. 2 and 3 are hisbrothers. The said Vinod Kumar was alleged to be a cultivator and alsoengaged in dairy farming. On 23/05/1983 at about I a. m. when the saidvinod Kumar was ioing in a truck accompanied by other persons, be met witha fetal accident as a result of which he died at the spot. the case as built upby the plaintiffs is that Vinod Kumar was travelling in the truck which wascrossing the railway level crossing of Khera Kalan, Delhi between Badli andhalambi Kalan stations. the gate of the level crossing of Khera Kalan at thetime of the accident was left open by the gateman. the truck in which tbedeoeasod Vinod Kumar was travelling when it was crossing the railway levelfrom one erection and from the opposite direction a tractor was coming inolder to cross the railway level crossing. the railway terain No. 1 S. N. (Soaepat Now Delhi Shuttle) approached the railway crossing. It was drtvenvery fast and in a rash and negligent manner, as a resuit of which it hit tbetruck and the tractor, six of the occupants of the truck including Vinod Kumardied and three were seriously injured. Vinod Kumar was a young man of 22years He was unmarried. Because of this unfortunate accident, the plaintiffno. 1, who happens to be the mother of the deceased Vinod Kumar, andplaintiffs No. 2 and 3 who happen to be the brothers of the deceased, havenude a daim of Rs. 1,o5,000. 00. ( 2 ) PLAINTIFF No. 1 being the mother was dependent on the deceafedvinod Kumar, who from Us cultivation, was earning a sum of Rs. 20,000. 00and from dairy farming his annual income was Rs. 10,000. 00. Claim was lodgedwith the railways, who in turn gave a. sum of Rs. 35,000. 00 as compensation tothe plaintiffs. This was accepted under protest by the plaintiffs and thereaftera legal notice was issued on 21/05/1984 but without any success. Hencethis wit. ( 3 ) WRITTEN, statement was filed on behalf of the defendants and defencewas taken that the amount of Rs. 35,000. 00 was in full and final aettlement oftbe claim on account of the death of deccased Vinod Kumar. Hencethis wit. ( 3 ) WRITTEN, statement was filed on behalf of the defendants and defencewas taken that the amount of Rs. 35,000. 00 was in full and final aettlement oftbe claim on account of the death of deccased Vinod Kumar. Further, it wasdented that there was any negligence on the part of the employees of therailways or that the deceased diea becauk of the rash and negligent driving bythe train driver. ( 4 ) REPLICATION was also filed. In which it was reiterated that the deathwas duo to the negligence of the employees of the railways and that the amountof Rs. 35,000/ was accepted without prejudice to the rights of the plaintiffs. ( 5 ) ON the pleadings of the parties, following issues were framed:1. Whether the compensation of Rs. 35,000. 00 was paid to theplaintiffs by the defendants In full and final settlement of theclaim of damages, on account of the death of Vinod Kumar whodied in the accident on railway crossing ?2. If not, whether the accident in question was caused on accountof the rash and negligence and wrongful act and conduct on thepart of the driver of the train and the gateman on the crossing ?3. To what amount on account of damages, if any, are the plaintiffentitled?. . 4. Relief. ( 6 ) AT the out-1, it must be mentioned that plaintiffs were permittedto adduce the evidence by way of affidavits. The plaintiffs have filed tbeaffidavits of Smt. Saropi Devi, Shri Kartar Singh, Shri Saroj Kumar and thatof Shri Rattan Singh Rana. There is no cross examination on the evidence ofthese witnesses. It may also be pointed out that the defendants have not ledany evidence whatsoever nor subjected these witnesses to cross examination. Issue No. 1 ( 7 ) SO far as issue No. 1 is concerned, it was for the defendants toprove that the amount of Rs. 35,000. 00 was paid in full and final settlement ofplaintiffs claim. But since there is no evidence adduced by the defendants todischarge the burden of this issue, therefore, this issue is decided in favour ofthe plaintiffs. It is not simply because the defendants have not led evidence,the reason for deciding this issue in favour of the plaintiffs is also because theplaintiffs have produced on record a letter dated 8/12/1983, Exhibitp. VI issued by the Northern Railway for Chief (Claims) Officer, which clearlyindicates that the amount of Rs. It is not simply because the defendants have not led evidence,the reason for deciding this issue in favour of the plaintiffs is also because theplaintiffs have produced on record a letter dated 8/12/1983, Exhibitp. VI issued by the Northern Railway for Chief (Claims) Officer, which clearlyindicates that the amount of Rs. 35,000. 00 offered by the railway was accepted bythe plaintiffs without prejudice to their claim and it was also made clear bythe plaintiffs to the defendants that this amount they were not accepting infull and final settlement of the claim. This also finds support further from thelegal notice dated 21/05/1984 issued by the plaintiffs to the defendants,which is Exhibit P. VII. These documents fully established the case of the plaintiffs that the amount of Rs. 35,000. 00 was only ad hoc and not in full andfinal settlement of plaintiffs* claim. Issue No. 2 ( 8 ) THE burden of this issue was on the plaintiffs. They have by nuncontroverted and unrebutted testimoney proved that the accident took placeentirely on account of the fault of railway gateman. Had the gate at the levelcrossing been closed, the truck carrying the deceased Vinod Kumar would nothave tried to cross the railway level crossing. The truck driver having seen that the gate was open, tried to cross the same. So ft cannot be said thatthere was any negligence on the part of the truck driver. So far as Smt. Sarupidevi, the mother of the deceased Vinod Kumar, plaintiff No. 1 is concerned,she was not an eye witness. Her account is based on the information shederived from Kartar Singh, plaintiff No. 2 in this case. Shri Kartar Singh has testified that he was engaged in agricultural work. In the mid night of 22ndand 23/05/1983, at about I a. m. he found his brother Vinod Kumar, hisnephew Jaipal Singh and one labour boarding the truck No. DLO- 8174 inwhich manure had been loaded from the field nearby the railway level crossingof Khera Kalan, Delhi. They were to transport the same to other field. Thetruck carrying the manure started proceeding towards the railway level crossing. At that time Saroj Kumar, plaintiff No. 3 was also standing with him. Theysaw the truck going towards the railways level crossing. He kept on standingthere in order to collect the agricultural implements from the field, which wasnear the railway crossing. Thetruck carrying the manure started proceeding towards the railway level crossing. At that time Saroj Kumar, plaintiff No. 3 was also standing with him. Theysaw the truck going towards the railways level crossing. He kept on standingthere in order to collect the agricultural implements from the field, which wasnear the railway crossing. He also saw that from the other side of the villagekherakalan a tractor coming. He saw that the truck and the tractor washit by train No. 1. (Sonepat New Delhi Shuttle), as a result of this collusionvinod Kumar died along with others. According to him, Railway Administration held an inquiry. The inquiry officer found that the accident was causeddoe to the negligence and wrongful act of the gateman and the driver of thetrain. According to him the train did not below the whistle nor its head lightswere on at the time of the accident. The gate was left open at the levelcrossing thereby allowing the truck as well as the tractor to cross the levelcrossing. This part of his testimony and that of Saroj Kumar who hascorroborated in material particulars the testimony of Shri Kartar Singh has notbeen subjected to cross examination. Railway Administration has also notadduced the inquiry report which was conducted in order to ascertain the causeof accident. The statement of Shri Kartar Singh and Saroj Kumar is corroborated by the testimony of Shri Rattan Singh Rana, who is another eye witnessof the accident. He also testifies that the level crossing gate was open winedthe accidint took place and the inquiry which was held found the railwayofficial guilty of negligence and wrongful act. From the unrebutted testimonyof these witnesses copuled with the fact that there is nothing brought on recordby the Railway Administration to establish that there was no fault of thedriver or the gateman, it can safely be presumed that there was a negligenceand wrongful act and conduct on the part of the gateman and to some extentthat of the driver. As already observed, had the gateman not left the gate open,. the truck would not have tried to cross the level crossing. A common mancannot imagine that the train has approached near the leave crossing whenthe gate of the level crossing is still open. The truck driver unmindful of thetrain, tried to cross the level crossing when he found that the level crossing gatewas open. the truck would not have tried to cross the level crossing. A common mancannot imagine that the train has approached near the leave crossing whenthe gate of the level crossing is still open. The truck driver unmindful of thetrain, tried to cross the level crossing when he found that the level crossing gatewas open. For all these reasons I find that there was negligence on the part ofgateman, as a result of which accident took place which in turn killed Vinodkulpar. Hence this issue is decided in favour of the plaintiffs. Issue No. 3 ( 9 ) SO far as the quantum is concerned, according to the defendantsthe amount of Rs. 35,000. 00 has already been paid but the plaintiffs by thetestimony of Smt. Sarupi Devi (Mother of the deceased) Kartar Singh andsaroj Kumar (brothers of the deceased) hove established that the deceased wasan agriculturist. He was also engaged in the dairy farming business and histotal annual income was Rs. 30,000. 00. This stand is supported by the certificateissued by the Gram Pradhan of village Khera Kalan dated 11/08/1983,exhibit P. 1. The Gram Pradhan has certified that the deceased Vinod Kumarwas engaged in agriculture and dairy farming business and that his. totalananal income was from these two sources was Rs. 30,000. 00. This fact has alsobeen incorporated in the notice issued by the plaintiffs. There is no rebutalto the same. The deceased was an unmarried youngman of 22 years of age. He being an agriculturist is also not disputed. To know the income of an individual, if he is self employed, the best person could be the family membersand if agriculturist then Pradhan of the village. In this case, the mother andbrothers of the deceased have deposed that his annual income was Rs. , 30,000. 00. This fact has also been substantiated by the certificate Ex. P. I issued by thegram Pradhan. This part of the evidence has also not been subjected to crossexamination. There is nothing on record to disbelieve this part of thetestimony of the plaintiffs and that of the certificate issued by the Grampradban. Therefore, relying on these factors, I can safely say that the annualincome of the deceased Vinod Kumar was Rs. 30. 000. 00. He was youngman of22 years of age. If be bad remained alive, he must have made good fortunefrom his cultivation as well as from the dairy farming business. Therefore, relying on these factors, I can safely say that the annualincome of the deceased Vinod Kumar was Rs. 30. 000. 00. He was youngman of22 years of age. If be bad remained alive, he must have made good fortunefrom his cultivation as well as from the dairy farming business. Be that as itmay, as on record the annual income of Rs. 30,000. 00 has been establihed,taking that to be the annual income of the deceased, I think the claim ofrs. l,05,000. 00 is not excess. If he had been alive, he would have lived at leastan average life of an Indian. I think it would be fair to award the compensation, of Rs. 1,05,000. 00to the plaintiffs. Therefore, this issued is decided infavour of the plaintiffs and against the defendants. Issue No. 4 (Relief) ( 10 ) IN view of the above discussions, I find that the plaintiffs areentitled to the relief claimed by them and I accordingly pasied a decree tofavour of the plaintiffs and against the defendants in the sum of Rs. 1,05,000. 00 (minus Rs. 35000. 00 already received) with costs and interest @ 12% P. A. tillrealization.