R. K. ABICHANDANI., J.

( 1 ) THE appellants have challenged the judgement and decree dated 4th May 1984 passed by the learned Civil judge (S. D.) - Navsari in Special Civil Suit No. 28 of 1981 dismissing the suit in which they have prayed for damages to the tune of Rs. 1,20,000=00 with interest for the death of Shri Jitendrakumar Somchand Shah, who while travelling by 15th Down Saurashtra express on 30th April 1979 from Maroli railway station to Ahmedabad, was thrown out from the railway compartment while the train was moving between Maroli and Sachin and died as a result of injuries resulting therefrom.

( 2 ) ACCORDING to the appellants-plaintiffs, Shri jitendrakumar Somchand Shah was issued a ticket on 30th april 1979 by the railway for travelling from Maroli to ahmedabad by 15 Down Saurashtra Express, and he entered the compartment on the basis of that ticket. According to the plaintiffs, the defendant No. 1 was in the practice of issuing the tickets far in excess of the space and capacity of the compartments even though the train guard and station master and other employees had the knowledge about such overcrowding. On 30-4-1979, there was a heavy rush of passengers, but the defendant No. 1 did not control or regulate or accommodate them. No steps were taken either for cancelling the excess tickets issued or for making any alternative arrangement for the safe journey of the ticket holders. The defendant No. 1 allowed the said train to proceed further. It was contended in the plaint that, because of the excessive issue of tickets, ignoring the permissible capacity of the train compartments or the space available from the stations prior to Maroli station, there was chaos and passengers were "fighting their best to get into the train". The passengers were sitting on joining sections between the two compartments and some were sitting even on outer part of the windows of the compartments and some were holding the rods meant for alighting the compartment. The foot-boards of the compartments were also occupied by passengers and the rule of "might is right" prevailed. The compartments were completely jammed with passengers and "even the air could not reach them". The passengers were in a situation that could be compared with "entangled branches of tress and plants in a forest". It is alleged that there was also mud and water on the floor of the compartment making it slippery. As soon as the whistle went off, the remaining passengers from outside tried to force their way into the compartment in which Jitendrakumar had entered and though there was no scope for any further entry, the flow continued from the door of the compartment and at that time, the train was already in motion. The passengers from outside continued to enter the compartments from opposite direction through both the doors which were open. Because of the thrusts by the passengers entering the compartment in this manner, the deceased was pushed towards the edge of the door of the compartment and as he struggled to hold himself, his legs slipped and he fell down from the running train while the train was passing by the pole No. 254/6. When Jitendrakumar fell down from the train, the passengers pulled the emergency chain which, as stated in paragraph 11 of the plaint, was not working. The train did not stop until it reached to udhna station. Some passengers rushed to the driver of the train and the guard and questioned them as to why the train was not stopped though the chain was pulled. Ultimately, Jitendrakumar, who was lying unconscious near the electric pole No. 254/6, was taken to the hospital where he was declared dead. According to the plaintiffs, the accident occurred because of the "fatal careless and negligence" of the railway administration. Jitendrakumar was drawing a salary of Rs. 800 per month and was 40 years of age and on that basis, the compensation to the tune of rs. 1,20,000=00 was claimed.

( 3 ) IN the written statement exh. 11, it was contended that

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