The main legal point established in the judgment is the duty of care of railway undertakers, liability for negligence of railway servants, and the assessment of compensation for pecuniary loss and dependency in cases of railway accidents.

Plaintiffs are the appellants. First plaintiff, his wife Pennamma and their three children were travelling from Thiruvananthapuram to Kottayam by Madras Mail on 27-1-1981. After the train stopped at Kottayam railway station, 1st plaintiff and two of the children a lighted. While Pennamma was getting down from the compartment folding the third child in hand the train started moving as a result of which she and the child fell down. Her mutilated body was removed from under the train and by that time he had breathed her last. The child was seriously injured and succumbed to the injuries m the way to the hospital. First plaintiff in his individual capacity and as the next friend if the two children filed original petition 8/1982 before Sub Court, Kottayam as indigent person claiming an amount of Rs.55000/- as compensation. It is alleged in the petition which was subsequently converted into a suit and numbered as O.S.319/1983 at the train suddenly moved forward without any signal or warning and as a result of underking Pennamma and the child fell into the track and Pennamma was run over by i.e. train and her body was cut into pieces. The child also sustained serious injuries id died on the way to the hospital. It is further alleged that the accident occurred due to the negligence on the part of the employees of the Southern Railway. First plaintiffs claims to be an incapacitated person and deceased Pennamma was looking after him and the children. First plaintiff had undergone vasectomy operation in 1973 as a result of which he had become crippled and is not in a position to stand erect. The entire family has gone to Thiruvananthapuram for making a representation to the Government. It is alleged that the authorities had assured 1st plaintiff that Pennamma would be appointed as a Class IV employee in the Public Health Department. The unfortunate incident happened while they were on their return journey. By the death of Pennamma 1st plaintiff and his children had lost the only support apart from loss of her love and affection. Hence the claim against the Union of India represented by the General Manager, Southern Railway.

2. The suit was resisted by the defendant. It is contended that the incident happened while Pennamma attempted to get down from the train while the train was in motion. The fact that Pennamma travelled in that train along with the deceased child is admitted. Defendant disclaimed liability for the reason that there was no negligence on the part of railway employees and that the accident happened only due to negligence and carelessness on the part of the deceased.

3. Two witnesses were examined on the side of plaintiffs. Defendant did not examine any witness on their side. After hearing both sides the court below held that the incident had taken place due to the negligence of the deceased. Still the court directed defendant to make an ex-gratia payment of Rs.10,000/-. The appeal is against that decision. The appeal was filed by the 1st plaintiff alone. C.M.P. 2059/1991 was filed for amending the cause title of the memorandum of appeal by adding the names of plaintiffs 2 and 3 as additional appellants. Since the persons sought to be impleaded were already on record before the court below as plaintiffs and since they are also entitled to claim compensation, the request for amendment is allowed.

4. Heard counsel on both sides.

5. The following points arise for consideration:

(1) Whether Pennamma and the child fell down on account of negligence on the part of Railway servants?

(2) whether defendant is liable to pay compensation or damages?, and (3) what is the quantum?

Points 1 and 2.

6. The main aspect to be considered is whether there was negligence on the part of Railway servants. Negligence as a tort is the breach of legal duty to take care as a result of which damage is caused to another. In order to establish negligence the ingredients to be proved are (1) a legal duty on the part of A towards B to exercise care