G. M. KOUREJO, J.-These are the four H. C. Appeals against the common judgment and decree dated 31st May, 1974 passed by the learned Single Judge in four connected Suits Nos. 365, 366, 367 and 368 of 1968. Since common question of law and fact were involved in the four suits and the evidence in the main suit was treated as evidence in all the four suits, they were .Disposed of together by the common judgment.
2. The relevant facts leading upto the Appeals are that the four occupants of taxi No. KAU-8394 were going to Juma Goth, Cattle Colony, on 14th August 1966. At about 10-45 p m. The taxi reached the railway level crossing between Landbi and Pipri Railway Station's about 22 miles from Karachi..
When the taxi crossed up lines and front wheels of the taxi had also crossed the down line the 26 Down Rohri Express engine buffers bit the left side rear portion of the taxi which was thrown 50 feet away outside the track and the four occupants Sultan, Pir Muhammad, Sadruddin, Qasim A.I and Driver Muhammad Yousuf died instantaneously as a result of the accident. The crossing gate was of `C' Class according to the railway gradation and it was a manned crossing with iron chains on both sides. It is the case of the plaintiffs--respondents that the accident was a result of negligence of the gatekeeper, who failed to chain the crossing at the time when 26 Down Rohri Express passed on way to Karachi The plaintiffs-respondents have in the alternative alleged that the accident had occurred also due to the negligence of driver of taxi, who drove through the level crossing, without observing the lights of the coming train. The taxi was owned by one Abdur Rehman, defendant-- respondent. He had, however, handed over the possession of the taxi to defendant-respondent Muhammad Yaqoob, under hire-purchase agreement. As the full purchase price of the taxi had not been paid the taxi registration continued in the name of Abdur Rehman and even the insurance policy had been obtained in the name of the previous owner Abdur Rehman without getting the policy transferred in the name of Muhammad Yaqoob.
3. In the suits statutory beneficiaries of the deceased Sultan, Pir Muhammad, Sadruddin and Qasim A.I claimed Rs. j,62,000 ; Rs. 1,44,000 ; Rs. 1,65,000 and Rs. 2,10,000 as damages respectively, under the Fatal Accidents Act (XIII of 1855).
4. The learned Single Judge on the basis of life expectancy of 55 years of the deceased and their not annual income available for the benefit of their estates after deducting 1/3rd, as personal exp.- rises which the deceased might have incurred on themselves granted them the compensation against the appel--lant only. The learned Single Judge further observed that the total damages would accordingly be ascertained on this basis and would then be apportioned amongst the various heirs of the deceased in each case in accordance with their shares under the Muslim Law.
He also observed that the ages of the beneficiaries would also be relevant for the purpose of determining the number of years they would have enjoyed the benefit from this income.
Accordingly he decreed all the four suits against the appellant only and dismissed the same as against the remaining defendant-respondents with no order as to costs. He further directed that the appellant shall be liable to pay the proportionate costs including the court-fee on the amount claimed in each suit which should be deposited in Court under Order XXXIII, rule 10, C. P. C. For payment to the Provincial Government, the suits had been filed in forma pauperis.
5. The beneficiaries of deceased Sultan were granted compensation of Rs. 1,08,216 to be apportioned amongst widow and parents, and two sons and two daughters of deceased Sultan A6.
Share of the minors to be kept in deposit till they attain the age of majority.
The beneficiaries of deceased Pir Muhammad were granted compensation of Rs. 96,192 to be apportioned amongst widow, two daughters and two sons;* since the father and mother of the deceased have not claimed any thing. The share of the minors has to be kept in deposit till they reach majority.
The beneficiaries of deceased Sadar Din were granted compensation of Rs. 1,10,400 to be apportioned amongst the widow, father and five minors, The share of the minors is to be deposited till they attain majority.
The beneficiaries of deceased Qasim A.I were granted compensation of Rs. 1,40,100 to be apportioned amongst widow and six sons, since father and mother have not claimed any thing.
The share of the minors to be deposited till they attain majority.
6. Aggrieved by the judgment and decree the appellant has come in the four appeals. This judgment disposes of the four Appeals Nos. 53, 54, 57 and 58 of 1974.
7. The learned Single Judge framed in all four issues of which issue No. (1) was the main issue, the finding on which resulted in the disposal of the suits, the rest of issues having been found irrelevant for the purpose of disposal of the suits.
8. As agreed by the learned counsel appearing on behalf of the parties, the position would remain the same in the present appeals as well and there--fore, the only point for determination would arise as under :- Whether the accident occurred due to the negligence of the gate keeper of the appellant and as to whether the appellant would be liable to pay the compensation to the plaintiffs-respondents as determined by the Court ?
9. The contention raised on behalf of the plaintiffs-respondents is that the accident occurred on account of the negligence of the appellant as the gatekeeper of the level-crossing failed to close the gates, as he was absent when the 26 Down Rohri Express passed on way to Karachi; whereas the contention of the appellant has been that the driver of the taxi, who was an electrician of Dawood Cotton Mills, Landhi and who had no driving licence drove the taxi through the level crossing gate which was chained, by forcing the chain to open without observing the on-coming train and the taxi driver dashed the taxi against Rohri Express resulting in the accident, and therefore, the Railway Department was not liable to pay any damages to the plaintiff-- respondents. The parties led evidence in support of their respective conten--tions at the trial. The plaintiff-respondents examined one Karim Feroze, a milk-seller, who had proceeded to Cattle Colony on that night and had seen the place of accident at about 10-30 or 11 a. m. Shortly. After the mishap.
They have produced the surveyor's report through one Muhammad Younis and examined the Insurance Surveyor Mehboob Mooraj. The appellant-defendant, the Railway led the evidence of Sher Muhammad, Guard incharge of 26 Down Rohri Express on that evening, Manzoor Ahmed retired P. W. 1 Sukbia gatekeeper, H. A. Hanfi Assistant Engineer Alelding Railway and Muhammad Shamsuddin the engine driver. The defendant-respondents Muhammad Yaqoob and Abdur- Rehman also examined evidence but it will not be relevant to scrutinize the same for the purpose of disposal of these appeals.
10. We would now examine the relevant evidence so as to see as to whether the contentions raised on behalf of the appellant have any force or not and the judgment and decree passed by the learned trial Judge should be upheld on facts as well as on law, the issue having been involved as v) whether the accident occurred on account of the negligence of gatekeeper of the Railway, who failed to chain the railway crossing or due to the rash driving of the driver of the taxi, who took the risk of crossing the railway line when the train was approaching the gate. In that respect the important question for consideration is as to whether the level-crossing gate was chained at the time of the arrival of 26 Down Rohri Express and whether the taxi had forced through the chain barrier au4 come on the railway track 7 The evidence of Mehboob Mooraj, Proprietor of Mehboob Mooraj & Company, Insurance Surveyor adduced on behalf of the plaintiff-respondents is of considerable importance in that respect. This witness alongwith his assistant Ismail Merchant had visited the site on 17th August, 1966, and examined the taxi which was still lying there. He has deposed that the front of the taxi shows no damage to that part of the vehicle. He also examined the chain which was used as a barrier for the crossing and found no damage to the chain either.
The centre of the chain when hooked was 24 inches above the ground level and the bonnet of the vehicle was 33 inches above the ground level. In case the vehicle bad forced its way through the closed chain the vehicle should have had evidence of damage on the front and in all probability the chain should also have been broken. He also found no damage of the snapping of the chain even. The poles to which the sides of the chain were fastened show--ed no sign of damage, as per his report Exh. 11 on record.
11. As regards evidence of the witnesses produced on behalf of the appellant, Sher Muhammad, the Railway Guard Incharge of 26 Down Rohri Express has deposed that the driver stopped the train and informed him that there had been a collision with the taxi at Juma Goth Level Crossing. He got down and found that the chains on both sides of crossing were not booked but were lying on the ground and even at that time a taxi had just passed from the other side. He has further deposed that they had crossed this level crossing about 2 minutes after passing of 1 Up Khyber Mail. He has further stated that on being questioned the gateman said that the chain was opened by the taxi driver who wanted to pass, or the taxi was driven against the chain which had got opened.
According to this witness the taxi had been damaged on the left side but the front part of the taxi was not damaged. According to this witness further, he could not say that in the presence of the gateman any one could go and open the chain and that the pillars to which the chains were attached were in tact. He has further admitted that the gateman had to show green-light signal to the driver to pass the level crossing but he could not say if this was done. He has also admitted that he could not say as to how the taxi came on the track if the chains bad been hooked, and that the traffic was passing on both sides of the crossing when they reached the spot after the accident. The evidence of the Engine Driver Muhammad Shamsuddin is also very significant on this point He has stated that when they approached Juma Goth Crossing they did not see any light with any gateman at this crossing. He has further deposed that when the engine was 100 yards from the crossing a taxi was seen running at 50 miles speed crossing the track, and that he did not notice any impact of the taxi against the chain barrier. He has also admitted that usually the gateman gives green-light signal when the train is at least one mile away from the level crossing gate but this time no such light was seen. So far the evidence of gatekeeper Sukhio is concerned, he has evaded replies to direct and simple questions obviously for the reason that he wanted to conceal the truth. According to him, the taxi driver came and dashed the taxi against the chain and he came on the track. In case the front portion of the taxi had dashed against the chain barrier the taxi would have overturned or in any case the front part of the taxi would have been smashed.
According to him, he showed the white light to the engine driver as he was not in his senses at that time but such fact has not been corroborated by the engine driver or the Guard. The gatekeeper has also admitted that the chain on the Karachi side of the crossing was also lying open but he has tried to explain that it must have been opened by some drivers of the other vehicles as he could not stop anybody from opening the chain when he was not in his senses. . Suffice it to say that his evidence speaks for itself. Coming to the evidence of H. A. Hanfi, Assistant Engineer Welding Railway, who had passed the site of the accident two minutes earlier by 1 Up Khyber Mail, he has obviously tried to defend the Railway and his evidence is not only unnatural but is as unreliable as the report of the railway enquiry which he has produced. On the other hand the report of the Insurance Surveyor is consistent with the facts and surrounding circumstances an appears to be 'more reliable and worthy of credit. The evidence and the circumstances of the case as stated above would, therefore, very clearly show that the gateman showed no green light signal to the engine driver as he was not present and chain barriers on both sides were not hooked with the result that the vehicle were passing through the level crossing on both sides. If the chain barriers had been hooked the taxi coming in speed would have dashed against the barrier and its front portion would have been completely smashed. We would, therefore, come to an irresistible conclusion that the railway crossing chains were left open on both sides as the gatekeeper was absent from his duty at the level crossing, the place of occurrence. Accordingly, we find that the appellant has no case so far as the facts are concerned.
12. Coming to the relevant law governing the case, we find that the reliance has been placed on a number of authorities including the identical cases ; Federation of Pakistan v. Bibi Shahzadi (1) ; Federation of Pakistan v. The Muslim Bihar & Vehnival Bus Service (2) ; Raza Khan v. The State (3) ; Ihsan A.I v. Karachi Road Transport Corporation (4) and a decision of the Supreme Court reported in PLD 19:7 SC 249. In the last reported case the then Chief Justice of Pakistan Mr. Hamoodur Rahman observed as under :- "Thus it has consistently been held that where a railway line crosses a public highway on the level it is the duty of the railway company to make it safe for persons using the highway to cross at a manned level. Crossing under the assumption that they may do so with safety when the gates of the level crossing are left open and if no warning of any special danger is given. The railway operators general duty of taking all reasonable precautions to ensure the safety of persons lawfully using a level crossing not only includes a duty to keep the crossing itself in a reasonable condition of safety according to the circumstances of the case but also to safeguard them from the special dangers inherent in its positive operations."
13. Judging the facts and circumstances of the present case and the situation and the circumstances under which the present accident occurred, in the light of the legal position abovementioned, there is absolutely no doubt B that the Railway is liable on account of the negligence of Gatekeeper in allow--ing the gates left open on account of his absence from the duty. The Railway has also no defence of contributory negligence as the gates having bean left open amounted to an invitation to the traffic including the ill-fated driver of the taxi to cross over the railway line with safety.
14. On facts as well as law both the cases of the appellant fails and we find no material on the record to disagree with the findings of the learned trial Judge.
15. In the result, we dismiss the appeals with costs.
(1) PLD 1966 Kar. 567(2) PLD 195 Lah. 256
(3) PLD 1965 Pesh. 100(4) PLD 1969 Kar. 464