KESSOWJI ISSUR vs GREAT INDIAN PENINSULA RAILWAY COMPANY

Headnote Court Copy Facts Arguments Court observation Judicial Analysis Case Map Category Hierarchy Table of Content

1907 Supreme(SC) 8

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ROBERTSON, LORD COLLINS, AND SIR ARTHUR WILSON.
KESSOWJI ISSUR - Appellant
Versus
GREAT INDIAN PENINSULA RAILWAY COMPANY - Respondents
On Appeal from the High Court at Bombay.
Decided On : April 24; May 9, 1907.

Important Points

Appellate courts cannot use Section 568 of the CPC to admit new evidence discovered outside the court to bypass Section 623's review requirements. Additionally, simulated site visits by judges cannot supersede legal evidence of actual occurrences.

Subject

Civil Law - Procedural Law

Act Referred

CIVIL PROCEDURE CODE: S.623, S.568

Headnote

(A) Code of Civil Procedure - Sections 568, 623, 626 and 629 - Admission of additional evidence by appellate court - Jurisdiction - Requirement to record reasons for admission of evidence under Section 568 - Distinction between filling lacunae in evidence and importing new evidence discovered outside the court - The latter being the subject of Section 623 - Appellate court cannot use Section 568 to reverse a trial court's refusal of review.

(B) Local Investigation - Judicial procedure - Visit to the scene of accident under simulated conditions - Legal evidence of actual occurrences cannot be superseded by impressions arising from a concerted representation or simulation of events.

(C) Appeal - Consent to local inspection - Does not amount to submission to arbitration or preclude the right to appeal.

Facts of the case:
A passenger sustained injuries after alighting from a train that had overshot the platform and stopped opposite a slope in dark conditions. The trial court found the railway company negligent for failing to stop at the platform, failing to provide sufficient light, and failing to warn the passenger. On appeal, the appellate court admitted fresh evidence without recording reasons and conducted a site visit to simulate the lighting conditions of the night of the accident, subsequently concluding that there was sufficient light and dismissing the suit.

Findings of Court:
The appellate court lacked jurisdiction to admit the fresh evidence as it failed to record reasons as required by law and attempted to bypass the strict conditions for review. The simulated site visit was an improper judicial method and could not override the legal evidence provided during the trial.

Issues: Whether the appellate court had the jurisdiction to admit fresh evidence under Section 568 of the Code of Civil Procedure without recording reasons, and whether a simulated local investigation by the judges could supersede the legal evidence of the actual occurrence.

Ratio Decidendi: Section 568 of the Code of Civil Procedure is applicable when an appellate court finds an inherent lacuna or defect in the existing evidence; it is not a mechanism to import new evidence discovered outside the court, which is governed by the strict requirements of Section 623. Furthermore, judicial impressions formed during a simulated reconstruction of events cannot supersede the legal evidence of actual occurrences given at trial.

Result: Appeal allowed.

Legal Category Hierarchy

Advocates:
Solicitors for appellant:Payne & Lattey. Solicitors for respondents: White, Borret & Co.

Judgement

Appeal from a decree of the High Court; (December 23, 1904), reversing a decree of Tyabji J. (July 14, 1904).

The action was brought to recover damages for injuries to the plaintiff under the circumstances stated

Law. Rep. 34 Ind. App. 115 ( 1906- 1907) Kessowji Issur V. Great Indian Peninsula Railway Company 35

in their Lordships judgment. The negligence complained of was that the compartment in which the plaintiff was travelling overshot the platform and was drawn up opposite to the foot of a slope where the lighting was insufficient. The defendants traversed the allegation that the compartment in question was drawn up opposite to the slope, and asserted that it was drawn up opposite to the platform itself, and, after traversing the allegation that there was insufficient light on the slope, alleged that the plaintiff was well acquainted with the station and the slope, and that his injuries were caused by his own negligence and carelessness, and could have been avoided by the exercise of ordinary care and caution on his part.

The findings on the evidence as to negligence are thus stated by Tyabji J. —

" The conclusions of fact at which I have arrived from a review of the evidence are that (1.) This second-class carriage in which the plaintiff was travelling had overshot the platform ; (2.) that this second-class carriage stood opposite the slope of the platform ; (8.) that it was dark; (4.) that the purpose of the defendants, their intention, their avowed object, and their instructions to their servants were to draw up the train at the platform—that although, as the witnesses state, the trains did now and then overshoot the platform, they were usually at the platform; (6.) that the plaintiff, who had constantly travelled by this train between Victoria terminus and the Sion Station, had in his own experience never known the train to overshoot the platform, but he always got down on to the platform from his carriage; (7.) and that no warning of any kind was given to the plaintiff, and he was not in any manner made aware that his carriage was not opposite the platform as usual, but was opposite the slope.

“I say it was dark, because the train arrived at Sion at about 53 or 54 minutes past 6. On that day the sun set at 6.12 or 6.13, and the twilight lasted 38 minutes; therefore, the daylight had ceased at 6.13, and the reflected twilight had ceased at about 6.51. And this accident took place at about 6.54; that is to say, after all light from the sun had entirely disappeared.

" As regards the artificial light, there were four lamps; but they were at great distances from each other. They did not throw sufficient light, even on to the platform; but if they did, none of them threw any light on this particular slope, where I hold it proved that the plaintiff fell.

" This slope (the highest point of it is three feet above the ground) is about sixteen feet in length, and it is obvious that, if there is not sufficient light for a man to see exactly where he is alighting, and if he imagines that his carriage is drawn up at the platform as usual, it is obvious, I say, that he can sustain these injuries without any neglect or default on his own part.

"And I, therefore, hold that the defendant company was negligent in drawing up this carriage at the slope, in not providing sufficient light to the plaintiff to see that it was drawn up at one slope and not at the platform, and in not cautioning him in any way that he was to use more than the usual amount of care that the law demands from the passengers by these railways."

The appellate Court, on the application of the defendants under s. 568 of the Civil Procedure Code, ordered that further evidence should be taken without recording any reasons for so doing. It found that the appellants carriage did overshoot the level of the platform and was drawn up alongside the slope; and that the appellants injuries were received by a shock or fall on alighting, and not by a fall after he had a