2023:BHC-AS:25860 215-FA-836-1995.doc Shailaja IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.836 OF 1995

1. Union of India ] 2. General Manager, Central Railway,]

V.T. Bombay. ] Appellants (Original Defendant Nos.1 and 2)

Vs.

1. Smt. Umraobi W/o Saiyed Munir ] 2. The New India Assurance Co. Ltd.]

Bombay – 1. ]

3. Galamhussein Amnjibhai Soudagar] Respondents …..

Mr. T.J. Pandian, for Appellants.

None for Respondents.

…..

CORAM : PRITHVIRAJ K. CHAVAN, J.

DATE : 10th AUGUST, 2023.

JUDGMENT:

1. This is an appeal by Union of India challenging a judgment and decree passed by III Joint Civil Judge (Senior Division) Nashik on 31st March, 1993 in Special Civil Suit No.8 of 1988 by which respondent’s suit came to be decreed against the appellants-original defendants viz: Union of India, The General Manger, Central Railway, V.T. Bombay, The New India Assurance Company Ltd and Gulamhussein Amanjibhai Saudagar holding that they are jointly and severally liable to pay an amount of Rs.51,000/- as compensation to the respondent-plaintiff on account of loss of life of her son in an accident which occurred on 24th January, 1979 when deceased son of the plaintiff, as a cleaner, was travelling in a truck of which respondent No.3 was the owner which met with an accident while crossing railway level crossing gate between Nashik Road and Odha Railway Station.

2. Briefly stated, the facts are as follows.

3. Deceased Maheboob (for short ‘deceased’) was required to travel in a truck bearing Registration No. MHS 7493 as a cleaner of which respondent No.3 – Gulamhussein Amanjibhai Saudagar was the owner. He was employed with respondent No.3. The said truck was insured with respondent No.2. On the fateful day of 24th January, 1979, during the course of his employment, deceased was travelling in the said truck loaded with sugarcane from the field of one Namdeo Rambhau Pekhale which was situated at Odha. From Madsangvi to the field via Nashik by Aurangabad Highway, one had to cross Railway Level Crossing gate which was between Nashik Road and Odha Railway station. The said truck was being driven by one Mohamed Amanjibhai Saudagar who was also employed with respondent No.3.

4. The truck was required to cross one railway level crossing gate at 197/57 k.m between Nashik Road and Odha Railway Station. At about 8.30 p.m, when the truck was about to cross railway crossing gate, one light engine belonging to Central Railway was crossing from Odha side towards Nashik Road Railway Station in a reverse direction. The engine suddenly dashed against the said truck which got completely crushed beneath the said engine. The deceased died two years after the accident, in a hospital.

5. The gate of the level crossing was open for road traffic when the truck was crossing the railway track. There was no indication whatsoever at the gate by the concerned railway staff to warn the traffic, particularly to the driver of the truck who was about to cross the level crossing. It is the contention of the respondent that the railway engine was being driven in a rash and negligent manner by the employee of the appellants. It is further contended that the employees of the appellants acted in rash and negligent manner by keeping level crossing gate open for road traffic of which the gateman was not informed by the concerned staff of the Central Railway about passing of the engine at the relevant time. The gateman even did not give a caution order to the driver of the engine to stop before approaching the gate. It is the contention of the appellants that there was no system of private number between “C” cabin staff and gateman of the railway gate. Driver of the steam railway engine had driven it in a high speed exceeding prescribed limit of 25 k.m per hour.

6. The deceased was 24 years old at the time of his death who was well built and healthy without any disease or vices. It is pointed out that he would have certainly survived up to 65 years of age. He was gett