Gopi Nath, J.
1. This is a plaintiff's appeal arising out of a suit for recovery of Rs. 10,000/- by way of damages for an accident which the plaintiff's husband suffered at railway station Katoghan on the Northern Railway. The plaintiff's husband was knocked down by a goods train on 10-5-1966 on that station.
2. The plaintiff's case was that Sri Babu Lal alias Babu Khan, the plaintiff's husband, had to go to Khaga by a passenger train on 10-5-1966 in the morning. The train was about to arrive at 8 a. m. He went shortly before that time and purchased ticket No. 19375 for Khaga. It is admitted by the defendant-respondent that there was no over-bridge at the Katoghan railway' station for platform No. 3 where the passenger train was to arrive, and passengers used to cross the railway lines in order to reach that platform. Babu Khan having purchased the ticket went to platform No. 3 on the announcement that the train was arriving. The platforms of this station are not high according to the statement of P. W. 1. They are only 6' to 9' high. As soon as the plaintiff's husband walked dawn the platform No. 1 he was knocked down by a goods train which was coming at a high speed. Both the courts below have held that the goods train was running at a speed of 45 miles per hour, the permissible speed being only 35 miles per hour. Babu Khan died as a result of the accident. His wife, the plaintiff-appellant filed the suit claiming Rs. 10,000/- by way of damages against the railway administration.
3. The defence delivered was that Babu Khan was a trespasser having no railway ticket and hence having no right to cross the railway lines. It was further pleaded that the railway administration was not required or bound to construct an over-bridge for the railway traffic and that the deceased contributed to the accident by his own negligence. There was, however, no plea that he appeared suddenly before the train and the driver could not avert the accident. The two main defences thus raised were that the deceased was a' trespasser on the railway lines and that he was guilty of contributory negligence. The claim accordingly was not sustainable and the amount claimed in any view was excessive.
4. The trial court decreed the suit for the amount claimed on the finding that the deceased was a bona fide passenger for Khaga having purchased ticket No. 19375, that he was passing through the railway track only because there was no over-bridge provided for going to platform No. 3; thus he was not a trespasser but a licensee; that the goods train was passing at a high speed of 45 miles per hour, which was in excess of the permissible speed; that neither the Driver gave any whistle, nor did the station staff give any warning. There was thus negligence on the part of the railway and it was responsible for the accident.
5. On appeal by the defendant,the Union of India, the court below reversed the decree on the findings thatthough the deceased was a bona fide passenger holding ticket No. 19375. he wasnegligent in crossing the railway lines,and if he had taken proper care of himselfthe accident would have been avoided.The learned Judge held that though thegoods train was running at a high speedof 45 miles per hour and beyond the per- 'missible limit, the accident could havebeen averted if the deceased had takencare to look to either side of the Railwaytrack and listened to the noise producedby the incoming train. Learned Judgeobserved that it was common knowledgethat goods trains driven by diesel enginesmake considerable noise and give sufficient warning by their running. In thiscontext he further observed that one ofthe witnesses produced on behalf of theDepartment stated that the goods trainarrived at Katoghan railway stationsounding a whistle. The plaintiff's witnesses denied this fact. The driver of thegoods train was not examined. He couldhave been the best witness to testify tothe fact whether he sounded a whistle ortook any precaution to avoid the accident.The learned Judge, however, held thatthe deceased was negligent in crossing therailway lines without taking proper precautions, and the defendant could not beheld liable for the accident. He furtherheld that the damages claimed were excessive and if the claim lay, the reasonable amount would be a sum of Rs. 5,400/-on the basis of the earning capacity ofthe deceased at the rate of Rs. 75/- permonth, he being 60 at the time of hisdeath and his span of life in the normalcourse being only six years more.
6. Aggrieved, the plaintiff has filed this appeal, and it has been contended on her behalf that the negligence was on the part of the goods train driver. He was driving the train at a speed of 45 miles per hour, much in excess of the permissible limit, and the deceased being a bona fide passenger crossed the railway lines in order to reach platform No 3 but was crushed on account of the negligence and carelessness of the driver of that train.
7. The deceased was in a position of a licensee or an invitee on the tracks end the accident occurred on account of the high speed of the goods train. In Daly v. Liverpool Corporation. 1939 (2) All ER 142 it was held that the driver of an omnibus has a duty to exercise meticulous and high standard of care and skill while driving a vehicle at a high speed. If a vehicle or a train is driven at a speed higher than the one permissible, some degree of rashness is attributable to the driver. See Swarnalata Barua v. Union of India (AIR 1963 Assam, 117). The Railway is further bound to give a warning of an approaching train, The station staff did not appear to have given a warning. The driver of the train has not been examined. In Swarnatala Barua's case (supra) it was held that failure to give warning amounts to negligence on the part of the railway. As to the audibility of the sound of an approaching train it was held in Union of India v. Supriya Ghosh. : AIR1973Pat129 that a, man bound to catch another train is likely to be inattentive to it, his attention being focussed to the catching of another train. In the instant case the train which the deceased had to catch had almost arrived. If the deceased had heard the noise of the goods train he would never have risked his life by dashing against it. nO plea was raised in the written-statement that the driver had taken all care and precaution to avert the accident but could not do so on account of the sudden appearance of the deceased or his dashing against the train. The Driver would have been the best person to testify to these facts.
8. Both the courts below have held that the goods train was running at a speed higher than the permissible one. It further appears that the care and skill needed at such a speed was not employed by the driver. There was thus negligence on the part of the railway and the accident was caused due to their fault. The defence was of contributory negligence and it was suggested that by crossing the railway lines when a train was approaching the deceased undertook a risk. That however did not mean that he was undertaking a risk of the negligence of the driver. A plea of contributory negligence is more appropriately concerned with the quantum of damages It is no bar to an action in Tort. In Salter v. Clay Cross Co. Ltd., (1956) 2 All ER 625 a lady was struck by a train while walking through a tunnel. It was found that she was a licensee on the track and the Driver of the train was negligent. The court of appeal held that the defence of volenti non fit injuria was not available and if the lady was guilty of contributory negligence, it was a matter concerning the quantum of damages. Learned counsel for the appellant urged on the basis of Union of India v. Supriya Ghosh. : AIR1973Pat129 (supra) that if an invitee crosses the railway lines and meets with an accident while doing so he cannot be held guilty of contributory negligence. The principle though depending upon mutual fault and responsibility and comparative care and caution required of respective parties, does not need any elaborate discussion as in this case the accident seems to have occurred mainly due to the negligence of the railways, the driver not exercising the due care, caution and skill and the staff not issuing any warning.
9. Learned counsel for the respondent invited my attention to B. N Rly. Co. Ltd. v. Tara Prasad Malty : AIR1928Cal504 . J. D. Haywood v F. M. Huggins, (AIR 1937 Sind 118) and Ismail Haii Nana Mafat v. B. B. and C. I. Rly.. (AIR 1932 Bom 452) and urged that the Railway is not responsible for an accident to a trespasser who is not careful about himself and is guilty of contributory negligence. The instant was not a case of trespasser. The deceased was a bona fide passenger holding a ticket for Khaga from Katoehan. He was a licensee or an invitee on the railway tracks and his negligence has also not been established. The cases cited on behalf of the respondent are thus distinguishable. Learned counsel then invited my attention to some cases on Section 304-A, Indian Penal Code. He referred to Mahadeo Hari v. The State of Maharashtra : 1972CriLJ49 where a pe-destrain suddenly crossing a road met with an accident with a vehicle driven slowly and on the correct side of the road. The driver was not held guilty of negligence. The case is wholly distinguishable on facts, besides being one under Section 304-A. Indian Penal Code. It is not the case of the defendant that the deceased appeared suddenly and the accident could not be averted. The relevant paragraphs of the written statement to which my attention was invited by the learned counsel for the respondent were paragraphs 3 and 5 of the written-state-ment. They, so far as material, read:
'Para. 3. ............ The maximum permissible speed of goods train is 40 miles per hour and booked speed is thirty five miles per hour. The passengers have to take precaution while crossing tracks.'
Para 5. ............ Noise of engine and moving vehicles as well as the loud whistle of an approaching train is warning by itself and the passenger should not have been negligent in attending to it.'
None of them make any suggestion about the deceased appearing suddenly before the engine. Learned counsel then relied on Mrs. Shakila Khadar v. Nausher Gama, : AIR1975SC1324 . In that case the High Court had set aside the conviction of the first respondent of offences under Sections 304-A, 337, 338 and 427, Indian Penal Code passed by the City Magistrate and confirmed on appeal by the Sessions Judge. The acquittal was reversed by the Supreme Court and the conviction upheld on the finding that the accused was guilty of rash and negligent driving, he being on the wrong side of the road and trying to overtake another vehicle. In that connection their Lordships laid down some tests regarding rash and negligent driving of cars. The case is not helpful to the respondent.
10. The plaintiff, for the reasons discussed above was entitled to damages for the death caused to her husband by the accident.
11. As regards the quantum, the court below after calculation fixed it at Rs. 5,400/-. The deceased was 60 years of age at the tune of his death. His monthly income was found Rs. 75/- and his further span of life another 6 years. Neither side has seriously challenged the findings or questioned the assessment. It is, therefore, unnecessary to re-assess the quantum of damages. I accordingly hold that' the plaintiff was entitled to a sum of Rs. 5,400/- by way of damages.
12. The appeal accordingly succeeds and is allowed. The decree of the court below is set aside and the suit for damages is decreed for a sum of Rupees 5,400/-. In the circumstances of the case I direct the parties to bear their own costs.