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1. This appeal is directed against the judgment and decree dated 8.3.2002 passed in O.S.No.51 of 1993 on the file of III Senior Civil Judge, City Civil Court, Secunderabad, whereby and whereunder, the learned Senior Civil Judge dismissed the suit of the plaintiffs.
2. The appellants are the plaintiffs and the respondent is the defendant in O.S.No.51 of 1993 on the file of III Senior Civil Judge, City Civil Court, Secunderabad. The plaint averments, in brief, are:-
The 1st plaintiff carries on business in general insurance. The 2nd plaintiff is owner of crane. It insured crane with the 1st plaintiff. The 2nd plaintiff was awarded a contract by M/s. National Thermal Power Corporation, Ramagundam ("NTPC"). On 17.12.1989, when the crane was at work site in the premises of NTPC, a rake of 33 fully loaded coal wagons rolled down on the track and dashed the iron gate, went on abandoned track and dashed the crane. As a result, the crane and its fabricated structure got damaged substantially. According to the plaintiffs, the defendant railway left the wagons on the railway track without taking proper care and unattended. Had the breaks were properly applied, rake would not have moved. The 1st plaintiff conducted preliminary survey by B.T.Khanna and also by J.P.Mistry, a Chartered Engineer. They furnished reports dt.1.1.1990 and 27.10.1990 respectively. Though the railway administration and NTPC conducted enquiries and survey, they did not furnish reports to the plaintiffs. The main reason for the accident according to the plaintiffs, are:-
1) Fully loaded rake was left unattended
2) There might be break failure and the same should have been avoided by presence of some attendant.
Investigation was also conducted by the plaintiffs through M/s. Delta Security and Detective Services Private Limited, Hyderabad. They have submitted a report on 8.10.1991. All these reports confirm the negligence and careless on the part of the defendant railway. Since the crane was insured with the 1st plaintiff company, the 1st plaintiff settled the claim by paying Rs.23,49,600/-. Thereby, the 1st plaintiff secured subrogated rights and remedies of the insured against the railway. The 1st plaintiff issued legal notice under the provisions of Section 80 CPC on 10.12.1992 demanding the defendant-railway to pay the amount of Rs.23,49,600/-. The defendant neither paid the money nor issued reply. Hence the plaintiffs filed suit for recovery of Rs.37,02,843/- which is inclusive of principal amount of Rs.23,49,600/- and interest at 18% p.a from 17.12.1989 to 12.2.1993 and charges towards survey and investigation.
3. The defendant filed written statement resisting the claim of the plaintiffs.
The plea of the defendant is that the accident occurred in a private siding and therefore, it is not liable to pay compensation. The defendant handed over the rake of 33 loaded wagons on 17.12.1989 at 2.20 P.M. The entry point into NTPC at the exchange yard is protected by a trap switch. Once the rake entered into NTPC yard, shunting jamedar operates the trap switch. On 17.12.1989, two pointsmen and Shunting Jamedar operated the hand brakes before detaching the engine, which returned to Ramagundam after leaving the rake of 33 wagons at NTPC exchange yard. Two hours ten minutes thereafter, the wagons started rolling and thereupon, the NTPC authorities diverted the rake towards abandoned track in order to prevent the rake hitting the wagons from which material was being unloaded by labourers on the other track, and therefore, the accident occurred due to the decision of the NTPC authorities and the defendant-railway was nothing to do with it. Once the rake has been handed over to the NTPC at the inter-exchange yard, the defendant railway ceases to have any responsibility thereafter.
4. Basing on the above pleadings, the trial Court settled the following issues:-
1) Whether the plaintiff is entitled to the suit claim and interest as prayed for?
2) Whether the suit claim is barred by limitation?
3) To what relief?
5. On behalf of the plaintiffs, three witnesses were examined as Pws.1 to 3 and 14 documents were marked as Exs.A-1 to A-14 and on behalf of the defendant, four witnesses were examined as Dws.1 to 4 and three documents were marked as Exs.B-1 to B-3.
6. The trial Court, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the plaintiffs failed to establish that the defendant railway acted negligently and thereby, proceeded to dismiss the suit of the plaintiffs, by judgment dated 8.3.2002. Hence, this appeal by the plaintiffs.
7. Heard learned counsel appearing for the appellants-plaintiffs and learned counsel appearing for the respondent-defendant.
8. Learned counsel appearing for the appellants-plaintiffs submits that the defendant railway left the rake consisting of 33 loaded wagons at inter- exchange point without informing NTPC and without taking necessary safeguards such as application of air breaks and hand brakes, which resulted in rolling down of the wagons on the railway line in side the premises of NTPC causing substantial damage to the crane owned by the 2nd plaintiff and insured with the 1st plaintiff and as the accident occurred due to the negligence and improper handling of the rake at the inter-exchange point, the defendant railway is liable to pay the damages claimed by the plaintiffs. He would also contend that had Dws.2 and 3 applied the breaks properly and took safety measures, the wagons would not have moved and rolled towards NTPC. In a way, the contention of the learned counsel is that the circumstances of the case warrant invocation of doctrine of res ipsa loquitur [sic] and in which case, it is to be held that the accident occurred due to negligent handling of the rake consisting of 32 loaded wagons by the defendant railway. Learned counsel took us to the evidence of the witnesses extensively. The evidence of Dw.1 has been copiously referred to convince us that the defendant railway left the rake unattended and without informing the NTPC. The relevant portion of the evidence of Dw.1 on which much emphasis has been laid by the learned counsel is as follows:-
" Our engine would not take the loaded rakes to the unloading point in NTPC. NTPC would have engine of its own to take loaded wagons to the unloading point in NTPC from its exchange yard. Generally, the Railway engines would not carry the wagons to the unloading point in NTPC, unless there is a special request. According to me, there is no such special request in this case.
The duties of yard-Master are doing of formations, placement of loaded rakes exchange yard, `B' power house yard and clearing of empties from all siding of GDK sidings with the help of pointsmen. I have not seen the rakes rolling inside the NTPC as I would be five kilometres away from NTPC exchange yard. There is no documentary evidence to show that we informed about the arrival of loaded rakes to NTPC. It is our usual practice to inform them by their telephone located in our office. I do not remember the name of the driver who has taken loaded rakes to the exchange yard of NTPC. It is not true to say that our driver left the engine along with the wagons at the exchange yard of NTPC. I do not know where the damaged train is located. The witness adds " even in this case, our driver has worked the same engine back to the Ramagundam yard after leaving the loaded rakes at the exchange yard of NTPC without any empties. I have no personal knowledge about this accident as I was five kilometres away from that place..."
9. In a nutshell, the contention of the learned counsel is that the defendant railway was solely responsible for the accident and the same had occasioned due to negligence and carelessness on the part of the defendant railway. Had Dws.2 and 3 applied breaks properly and took safety measures, the wagons would not have moved and rolled down towards NTPC.
10. Learned counsel appearing for the respondent-defendant railway submits that once the rake consisting of 33 loaded wagons is handed over to the NTPC at its exchange yard, the responsibility of the respondent-defendant railway ceases and it is for the NTPC to secure the safety of the rake and take it to the unloading point by operating trap switch. He would also submit that the railway staff took proper care while detaching the locomotive from the rake at the inter-exchange point. Learned counsel highlighted the point that rolling of wagons started after two hours ten minutes of the detachment of the locomotive from the rake and that itself indicates that by the time the locomotive left the rake at inter-exchange point, brakes were properly applied to the wagons so as to make them not to move further. The wagons were found to be rolling on the track after two hours ten minutes of leaving the locomotive and it was noticed by the driver of the incoming pilot bringing coal loads from Singareni Collonies siding. The driver informed the NTPC authorities on telephone and thereupon, the NTPC authorities diverted the rolling wagons towards an abandoned track, which ultimately caused damage to the crane and in these circumstances, no negligence could be attributed to the respondent-defendant railway.
11. Basing on the contentions advanced by the learned counsel appearing for the parties, the only issue that requires to be resolved in this appeal is: Whether there is any negligence on the part of the respondent-defendant railway which resulted in causing damage to the crane owned by the 2nd appellant insured with the 1st appellant
12. Negligence is considered as a separate tort. It means a conduct which creates a risk of causing damage rather than a state of mind. The House of Lords in Donoghue v. Stevenson1 "treats negligence, where there is a duty to take care, as specific tort in itself, and not simply as an element in some more complex relationship or in some specialised breach of duty".
13. In an action for negligence the plaintiff has to prove the following essentials:
(1) Duty of care to the plaintiff
(2) Breach of duty
(3) Damage
14. The plaintiff has to establish that the defendant owes a special legal duty to take care of which he is made a breach. Mere carelessness on the part of the defendant does not entitle the plaintiff to sue him; it has to be proved that the defendant owed a duty of care to the plaintiff. When the defendant owes a duty of care to person other than the plaintiff, the plaintiff cannot sue even if he might have been injured by the defendant's act.
15. Breach of duty means non-observance of due care which is required in a particular situation. What is the standard of care required? The standard is that of a reasonable man or of an ordinarily prudent man. If the defendant has acted like a reasonably prudent man there is no negligence. The degree of care required varies according to each situation. What may be a careful act in one situation may be a negligent act in another. The law does not demand the same amount of care under all situations. The kind of risk involved determines the precautions which the defendant is expected to take. The position in this regard was explained in Mysore State Road Transport Corporation v. Albert Dias2 as under:-
" Negligence is failure in the duty to take due care. The expression `due' connotes that degree of care which a reasonable man ought to take in a given set of circumstances. What may amount to `negligent' act in a particular place and occasion may not be a negligent act in another place or occasion. In deciding what care was called for by a particular situation one useful test is to enquire how obvious the risk must have been to an ordinary prudent man. The question in each case, therefore, depends upon its own facts".
16. As a general rule it is for the plaintiff to prove that the defendant was negligent. The initial burden of making out at least a prima facie case of negligence as against the defendant lies heavily on the plaintiff, but once the onus is discharged, it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence on the part of the plaintiff. If the plaintiff is not able to prove negligence on the part of the defendant, the defendant cannot be made liable.
17. The party seeking to recover compensation for damages must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales, and does not satisfy the Court that it was occasioned by the negligence or default of the other party, he cannot succeed.
18. Direct evidence of the negligence, however, is not always necessary and the same may be inferred from the circumstances of the case. But when the plaintiff fails to establish prima facie case either by direct or circumstantial evidence that the defendant was negligent the plaintiff's action must fail. Though, as a general rule, the plaintiff has to discharge the burden of proving negligence on the part of the defendant, there are, however, certain cases when the plaintiff need not prove that and the inference of negligence is drawn from the facts. There is a presumption of negligence according to the maxim `Resipsa loquitur', which means "the things speak for itself". When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant. In such a case it is sufficient for the plaintiff to prove accident and nothing more. The defendant, can, however, avoid his liability by disproving negligence on his part. For the maxim res ipsa loquitur to apply it is also necessary that the event causing the accident must have been in the control of the defendant. Thus, when the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on defendant's part, the maxim applies and the burden of proof is shifted from the plaintiff to the defendant. Instead of the plaintiff proving negligence the defendant is required to disprove it. The maxim res ipsa loquitur is not a rule of law. It is a rule of evidence benefiting the plaintiff by not requiring him to prove negligence. When the accident is more consistent with the negligence of the defendant than with any other cause and the facts are not known to the plaintiff but are or ought to be known to the defendant the doctrine applies. If the defendant is able to prove that what apparently seem to be negligent was due to some factors beyond his control, he can escape liability. When the circumstances do not indicate negligence in clear and unambiguous terms, but the accident is possibly because of certain other reasons, the maxim does not apply.
19. On behalf of the appellants/plaintiffs, three witnesses were examined and 14 documents were marked. Pw-1 is Senior Assistant in the 1st appellant/1st plaintiff company at Hyderabad. He stated in chief examination that it is the duty of the railway to keep an attendant or driver at the delivery point till unloading of the wagons. He admitted in cross examination that the distance between the inter-exchange point to the place of accident was 7 Kms. The 2nd appellant/2nd plaintiff is the owner of the crane, which insured the same with the 1st appellant/1st plaintiff. The 2nd appellant/2nd plaintiff did not choose to enter into witness box nor examined anyone who witnessed the incident to speak of the manner of the accident and as to how it occurred. The appellants- plaintiffs also did not examine any one from NTPC to speak of its role after the rake reached the inter-exchange point. Undisputedly, the accident occurred in the premises of NTPC. Pw.1 admitted in cross examination that he did not know the time when the train entered NTPC premises. He neither enquired with the NTPC authorities as to how the accident occurred nor witnessed the incident.
Therefore, his evidence is not much material.
20. Pws.2 and 3 are the Surveyors who are more concerned with the assessment of the damage of the crane and some fabricated structures. What all they stated is that the accident may have occurred due to failure of brakes of the goods' wagons. Pw.2 admits in cross-examination that basing on the report of the NTPC engineer and the report of the Engineer of the 2nd plaintiff, he came to the conclusion that the damage was caused by the wagons and the purview of his survey was to know the damage of crane and the fabricated structures. A reading of the evidence of Pw.2 indicates that his report is more centered on the aspect of assessment of damages. Therefore, his evidence is of no use to decide as to whose negligence the accident occurred. Pw.3 is a chartered engineer. His report also centered as to assessment of damage. During the enquiry, he did not examine any officials of the railway regarding the incident. His statement that the accident occurred due to the negligence of the respondent railway is not based on any material. For better appreciation, we may refer the relevant portion of his cross examination, which reads as hereunder:-
" I did not give any notice to the Railways before conducting the survey. I did not enquire any official of the railways regarding this incident. I am not aware of any agreement between Railways and NTPC. As the rake was left unattended by the driver after the locomotive was disconnected, I came to the conclusion that the driver was negligent. I made survey depending on the information given by the plaintiffs 1 and 2. According to me, it is not the duty of the NTPC to take care of the rake before it was handed over by the railways. According to me, the rake was not handed over to the NTPC by the Railways. I did not file any other documents other than my survey reports and the statements recorded by me".
21. The evidence adduced on behalf of the appellants-plaintiffs is solely unsatisfactory to fix the negligence on the part of the respondent-railway for occurrence of the accident resulting in damage to the crane and its fabricated structures owned by the 2nd appellant-2nd plaintiff. Learned counsel appearing for the appellants-plaintiffs heavily relied on the evidence adduced on behalf of the respondent to crystallize the negligence on the part of the respondent-defendant railway. Learned counsel by referring the evidence of Dws.1 to 4 contended that the respondent-defendant railway failed to place any evidence on record to show that the rake has been handed over to the NTPC authorities at the inter-exchange point and in which case, the respondent- defendant railway is to be held responsible for occurrence of the incident, which resulted in damage to the crane and its fabricated structures owned by the 2nd appellant-2nd plaintiff.
22. Dw-1 is Senior Work Duty Inspector. Dw-2 is the driver of the locomotive which brought the rake comprising 33 loaded wagons from Ramagundam to NTPC on the date of the incident. Dw-3 is the Pointsmen, who accompanied Dw.2. Dw-4 is the Divisional Commercial Manager of Hyderabad Division and at the relevant point of time; he was Area Manager, Ramagundam. He speaks of dispatch of rake from Ramagundam to NTPC. He categorically states in the cross examination that the exchange yard is a place where the loaded wagons are placed by the railways and empty wagons are handed over by the NTPC to the railway. On the date of the incident, the locomotive, which took the rake comprising 33 loaded wagons from Ramagundam to NTPC, after leaving the rake at the inter-exchange point, returned to Ramagundam. Once the rake is entrusted to NTPC authorities at the inter- exchange yard, it is the NTPC authorities who have to take the rake inside the premises by providing necessary clearance to any one of the tracks available in the NTPC premises. After reaching the message, he rushed to NTPC siding i.e., place of accident and noticed that the wagons rolled back and hit the crane. He made it clear to the NTPC authorities, who were present there, that the railway took sufficient precautions after placing the rake at the exchange yard and that the wagons rolled down after a gap of two hours and ten minutes and that the railway was not responsible for rolling of the wagons. He also stated in cross-examination as to the activities at the exchange yard. According to him, the exchange yard is a place where the loaded wagons are placed by the railway and empty wagons are handed over by the NTPC to the railway.
23. Dw-1 explains the procedure as to how the wagons are detached from the locomotive. He stated in the chief examination as follows:-
" Our usual practice is after the pilot (train) reached the exchange yard and before detaching the engine, the points men would secure the rakes.(tightening of hand brakes of the wagons). Before entering the NTPC exchange yard, the train was brought to a stop at the inter-exchange point which has a switch. Before detaching the engine, we would secure the brakes of the wagons and then only, we will uncouple the engine. There are three ways to release the wagons. One way is by attaching another engine and by making through the air connection. The second way is by connecting the air pipe with air compressor situated in the exchange yard. The 3rd way is by manually releasing the hand brakes by using some pipe.
From our office at Ramagundam, we would inform to the NTPC authorities about the loaded rakes to be placed in their yard. After placing the loaded rakes at exchange yard, our responsibility ceases. The NTPC usually place their empty wagons in the exchange yard with prior intimation to us. After reaching the yard, we would give information to them and similarly, they would give prior information to us about placing of empty wagons. After the loaded wagons are placed in the exchange yard, it is the responsibility of NTPC to safeguard the loaded wagons. Even on the date of incident, the railways informed NTPC about the loaded wagons reaching the exchange yard. After the incident neither the NTPC nor the Insurance Company gave any information to us about the accident. As we were not informed about the accident, no departmental enquiry was conducted by the Railways. I was working as Yard Master on the date of incident at Ramagundam".
24. Dws.2 and 3 are the material witnesses. Dw.2 is driver and Dw.3 is Pointsmen of the locomotive, which took the rake comprising 33 loaded wagons from Ramagundam to NTPC exchange yard. They categorically stated that before leaving the rake at NTPC exchange yard, they applied hand brakes to 33 goods' wagons properly and after securing the application of brakes to the wagons properly, locomotive came to be detached and that they took the locomotive to Ramagundam. After the inter-exchange yard, it is the NTPC authorities to divert the rake to any one of the tracks, which are within the premises. It is relevant to note that the wagons started rolling on the track after nearly two hours and ten minutes of detachment of the locomotive. There is no material placed on record by the appellants-plaintiffs as to the steps taken by the NTPC authorities to take care of the rake after the railway left the rake at the inter-exchange yard. Indeed, when the wagons started rolling on the track and traveled to a distance of 7 kms., the driver of another locomotive noticed the wagons rolling on the track without engine and informed the same to the NTPC authorities and thereupon, the NTPC authorities took a decision to divert the wagons to an abandoned track. It is a matter of record that at the nearby abandoned track, the crane owned by the 2nd appellant- 2nd plaintiff was carrying on the work. Because of diversion of the wagons to the abandoned track, the accident occurred. Of course, the explanation of the appellants is that the wagons came to be diverted to the abandoned track to avoid human loss since some persons were attending to unloading of the material on the wagons, which were on the other track. Whatever may be the reason, it was because of the action taken by the NTPC authorities in diverting the rake to the abandoned track, collusion with the crane owned by the 2nd appellant-2nd plaintiff insured with the 1st appellant-1st plaintiff occurred. The plaintiffs did not choose to examine anyone from the NTPC to say that the NTPC took all precautions to judge properly before diverting the wagons to an abandoned track.
25. By reading the evidence of Dws.1 to 4, it cannot be said that the accident occurred due to the negligent act of the respondent railway. The trial Court analyzed the evidence in great detail and came to the conclusion that the appellants-plaintiffs failed to substantiate their plea that the accident occurred due to the negligent act of the respondent-railway. We do not see any reason to differ with the finding recorded by the trial Court. Accordingly, this issue is answered against the appellants and in favour of the respondent.
26. In the result, the appeal fails and the same is hereby dismissed with costs.