Madhosingh vs Union of India

Wanchoo, C.J.—This is an appeal by Thakur Madho Singh against the judgment & decree of the Civil Judge, Balotra, and has arisen in the following circumstances:

The appellant brought a suit against Mr. Rawlins, General Manager, Jodhpur Railway, Jodhpur, 1945. His case was that five of his mares had been run over by a railway train on the night between the 27th and 28th of July, 1943. Four of them died, while the fifth was rendered more or less useless. Consequently Rs. 9,000/-were claimed as damages for the loss.

The suit was originally filed against Mr. Rawlins. He appeared on the 27th of October, and filed a written statement in which he took the objection that the suit as filed against him was not proper, as he was not the owner of the Jodhpur Railway, and that he could not be sued as representing the Jodhpur Railway Administration.

There upon the plaintiff got the plaint amended, & the name of Mr. Rawlins was removed on 8-11-1945, & the suit continued against the General Manager, Jodhpur Railway. There was another amendment later on, & the name of the General Managerf Jodhpur Railway, was also struck off, and ''Marwar Durbar'' was substituted for it on 15-7-1946. Later, the Marwar Durbar has been replaced by the Union of India.

The main defence of the defendant was two-fold, (1) that the suit was barred by time, and (2) that there was no such accident and in any case there was no negligence on the part of the Railway, which would entitle the plaintiff to a decree for damages.

We shall first deal with the question of limitation. Article 36 of the, Limitation Act is the article which applies to this case, and the limitation is two years from the date when the malfeasance, misfeasance or nonfeasance takes place. Thus the suit should have been brought within two years of 28-7-1943. It was actually filed on 2-7-1945, and was within time on that date.

But the contention of the defendant is that it was filed against a wrong person, namely Mr. Rawlins, and the substitution of either the General Manager, Jodhpur Railway, or the Marwar Durbar took place after the period of limitation was over. Such a substitution would not enure to the advantage of the plaintiff, inasmuch as the suit was originally filed against a wrong person. Learned counsel for the appellant, however, urges that the plaint shows that from the very beginning the intention was to sue the owner of the Railway, and that the description of the defendant given in the original plaint was merely a misdescription, and therefore the later amendment, by which the right person was brought on the record, must be deemed to relate back to the 2nd of July, 1945.

In this connection, reliance has been placed on a number of railway cases on behalf of the appellant. These cases are - The Saraspur Manufacture Co. Vs. B.B. and C.I. Railway Co., ; Gopiram Behariram Vs. Agent, East Indian Railway and Agent, Oudh and Rohilkhand Railway, ; ''Kanailal Kripasankar v. Governor General in Council'', 46 Cal WN 18 (C).

These are all cases, however, where the suit was originally filed against the agent of the Railway Company, and it was held that the name was a mis-description, and the suit was really against the Railway Company itself. There was no suit in the proper name of any particular person in these cases.

Reliance has also been placed on -''Jodhpur Railway v. Gulam Rasul'', 1947 Marwar LR 7 (Civil) (D). In that case, it was held that it was the practice in the former State of Marwar to file the suit against the Manager of the Jodhpur Railway in such cases.

There are some cases which have taken the opposite view even where the suit was brought in the name of the Agent or Manager of the Railway Company as for example - '' Sinehi Ram Bihari Lall Vs. The Agent East Indian Railway Co., , Agent, Bengal Nagpur Ry. Vs. Behari Lal Dutt, , East Indian Railway Co. Vs. Ram Lakhan Ram, . We are of the view that if the suit is filed against the manager or agent of the railway, and if it appears that the intention was to sue the railway, and to get a relief against the railway, it may be possible in an appropriate case to hold that the name of the defendant originally put down was merely a mis-description.

But the present case is of a different nature altogether. Here the suit was not against the Manager of the Jodhpur Railway. The suit was against Mr. Rawlins who was described as the Managed, Jodhpur Railway. In paragraph 3 of the plaint, it was said that the suit was being brought against the defendant (i.e. Mr. Rawlins) as he was the manager of the railway by the train of which the accident had been caused, and the plaintiff was entitled to recover the amount of damages from him. Learned counsel urges that these words mean that the suit was against the Railway. We are not prepared to accept this interpretation. The words clearly mean what they say, namely that Mr. Rawlins had been sued as the plaintiff held Rim responsible for the damage as the Manager of the Railway. Therefore, the principle of the cases relied upon by learned counsel for the appellant does not apply to the facts in this case. The facts here are more in accord with two older cases to which we may refer, namely - ''Ram Dass Sen v. Cecil Stephenson'', 10 Suth WR 366 CH); ''Nubeen Chunder Paul v. Cecil Stephenson, Agent of the E.I. Ry. Co.'', 15 Suth WR 534 (I). In those cases, the suit had been brought in the proper name of certain servants of the Railway, and it was held that it was not brought against the Railway.

We are, therefore, of opinion that the suit in the present case must also be held to have been brought against Mr. Rawlins, and not against Jodhpur Railway, and as such the substitution of Mr. Rawlins by the Manager, Jodhpur Railway, or by the Marwar Durbar amounted to bringing these persons, for the first time, on the record. As this was done long after the period of limitation was over, it must be held that the suit either against the Manager, Jodhpur Railway, or against the Marwar Durbar was barred. We are, therefore, of opinion that the view of the court below on the question of limitation is correct.

The next question is whether the accident took place at all, and also whether there was such negligence as would make the Railway liable. So far as the actual accident is concerned, we are satisfied from the plaintiff''s evidence that the accident did take place. The defendant''s case was that no such accident had taken place; but we are not impressed by the fact that no report of the accident was made by the driver. He might not have made a report for fear that he might be held departmentally liable to punishment.

The question, however still remains whether the Railway would be liable in the circumstances on the ground of negligence. The accident took place on the open line where there is no restriction of speed and no rule requiring a constant look-out by the driver. The mares, according to P.W. 1, were grazing in the ''Jor'' which is about 2 miles from the railway line. For some reason or other they came and trespassed on the railway line. The time was past mid-night. There is nothing to show that the driver had noticed the mares on the railway line, and had time to stop and still did not do so. The mere fact that five mares were injured in one accident would not necessarily establish the negligence of the driver. If the mares were all together, it is quite possible for all five of them to be injured in one accident.

We may in this connection refer to a number of cases which lay down responsibility of the Railway Company for accidents of this kind.

In - B.N. Ry. Co. Ltd. Vs. Tara Prosad Maity, , it was pointed out that there was no principle or authority which demanded that a driver running an engine on the open line at places where there were no level-crossings or which were not known to be ordinarily used for purposes of crossing the rails was bound to be on the look out to see if any trespassers were on the lines. A Railway Company allowing persons to cross the line otherwise than by a level crossing was not in duty bound to use care to protect such persons. Omission to notice and the failure to blow a whistle in consequence of which any loss was sustained did not amount to negligence. It was also pointed out that the Railway Companies in India were not bound to fence the line, and that if an animal strayed on the Railway line and was killed in consequence, and there was nothing to show that the accident was caused by negligence on the part of the driver, the Company would not be liable.

In - Ismail Haji Nana Mafat Vs. The Bombay Baroda and Central India Railway, , it was'' held that a Railway Company was not liable, for damages to a trespasser for a mere error of judgment (such as failure to blow whistle) even amounting to negligence on the part of its servant which caused damage to the trespasser. The company would be liable only if the servant acted in wilful disregard of the safety of the trespasser.

In - ''Ramkumar Singh v. Governor General in Council'', AIR 1950 Nag 234 (L), it has been held that the duty of an occupier towards the trespasser is different from that towards a licensee or an invitee. So far as the trespasser is concerned, the duty is not to do a wilful act in reckless disregard of ordinary humanity. The general rule is that a man trespasses at his own risk. The position is the same with regard to trespassing animals.

On the principles laid down in these cases, with which we respectfully agree, it is quite clear that the plaintiff has fayed to prove, such negligence on the part of the driver as would make the Railway liable. There is nothing to show that the driver necessarily noticed the animals trespassing on the line, and that after noticing them he deliberately ran over them. We cannot agree with the view taken by the lower court that there was negligence by the driver, and so the Railway was bound to pay damages.

There is no force in this appeal, and it is hereby dismissed with costs.