The Divisional Railway Manager, Southern Railway Vs. Ksrtc and ors. - Court Judgment

Excerpt:
(a) motor vehicles act, 1939 (central act no. 4 0f 1939) - sections 2(18) & 110(1) -- train being 'motor vehicle' under, claim against railways held maintainable before tribunal.; (b) -- 110-a & 110-b -- ksrtc bus driver rashly & negligently driving bus & colliding with train at level crossing -- driver not heeding passengers' cries to stop - though railways did not provide gateman, held, ksrtc driver negligent, & railways not liable for 50% contributory negligence.; there is unimpeachable and voluminous evidence that the passengers in the bus, after sighting the railway engine coming, screamed and shouted at the callous driver of the bus, imploring him to stop the bus. even so the driver drove the bus. the tribunal has noticed that the driver - seenappa of the bus was not a stranger to that road since he was a resident of horamavu village.; further observed, trial court's holding railways engine driver's duty to stop train, 'nothing but show of wisdom at the post-mortem stage.' ; (c) railways act, 1890 (central act no. 9 of 1890) section 13(c) -- erection of suitable gate & posting gateman at level crossing where accident happened -- without notification by central government railways held, not liable and had no legal obligation.; (d) karnataka motor vehicles rules, 1963 -- rule 327 -- a(2) -- ksrtc driver did his duty to take care at railway level crossing, held, not proved for not examining him. - code of civil procedure, 1908. order 39 rule 1 & 2 : [k. ramanna, j] disparagement of goods- grant of injunction - paper advertisements and t.v.ads. not only saying that products of appellant are superior but also indirectly suggesting consumers not to buy product of respondent held, the comparative advertisement is permissible, so long as such comparison does not disparage or denigrate a trade mark or the products of a competitor. the comparison of different features of two products showing the advantages, which one product enjoy over the other is also permissible provided such comparison stops short of discrediting or denigrating the other product. though the defendant has every right to market its product by claiming that his product is superior in quality, yet, at the same time the freedom of expressions i.e. the right to advertise does not permit to go to that extent so as to cause damage or irreparable injury to the product of the others. it is clear from the facts that respondent is a manufacturer of good day biscuits and the appellant is manufacturer of unibic cookies i.e. biscuits. admittedly, the appellant issued advertisement in various newspapers and in the t.v. the advertisement of the appellant in newspapers contains the words:- no more good days only great day why have a good day, when you can have a great day. further, in one of the frames in tv ads. the word forget the good is biscuit pack shown. from the words used in the advertisement, it is clear that the same are intended to cause damage and loss to the product of the respondent. prima facie, it appears that in all the advertisements the aim of the appellant is to inform the customers not to buy good day products of the respondent. in its advertisements, the appellant besides saying/advertising that its products are superior but are also indirectly suggesting the consumers not to buy the good day product of the respondent; there is resemblance of good day product of the respondent with the product depicted in the advertisement. in the tv advertisements issued by the appellant, in one of its frame, it is mentioned forget the good by pushing the pack, which is similar to the product of the respondent. the advertisements issued by the appellant does not stop by saying that its product are superior, but it further continues to says that the product of the plaintiff respondent are not good. prima facie, it appears that the advertisements issued by the appellants creates an impression on the minds of the consumers to buy the product of the appellant instead of the respondent not because it is superior than the product of the respondent, but because the product of the respondent is bad. the words used in the paper advertisements are more clear and attacking on the products of the respondent. thus, it is prima facie, clear that the advertisements issued by the defendant-appellant are intended to degrade and defame the product of the respondent-plaintiff which amounts to disparaging the product of the respondent-plaintiff which is not permissible under law. the appellant is restrained from issuing for print or telecasting the impugned advertisements in the same form or in any other form disparaging the product of the plaintiff/respondent till the disposal of the suit. however at this preliminary stage of the suit court cannot grant a relief which is of mandatory in nature. thus, operative portion directing appellant to remove the word good day from the impugned news paper advertisements and the word forget the good and pack from the t.v. advertisements frame is modified. - there is no law which says as to what should be done if one of the joint tort feasors is an agency like railway which does not come within the definition of section 2(18) of the motor vehicles act. union of india, wherein it has been laid down that failure of railway administration to provide any warning of approaching trains amounts to negligence on its part. along the west of the railway track and towards the south of the level crossing, there were big trees of neem and the like. this is clearly distinguishable on facts. ' 28. having come to the above conclusion, the learned member of the tribunal has in the same breath come to the conclusion that 'as a railway engine is several times heavier and powerful than a fully loaded bus, i hold that the contribution made by the two drivers to the accident by their negligence can be reasonably apportioned at the ratio of 50:50'.29. on the score that a manned gate with a gateman was not provided by the railways and the railway engine is a heavy vehicle and that 'after sighting the bus racing towards the level crossing, the engine driver could have switched off the engine and applied the brakes in order to considerably reduce its speed even if it was beyond his control to stop the engine before it reached the level crossing and in that event, the force of the impact and the consequent magnitude of the tragedy could have been considerably reduced',is to my mind, nothing but show of wisdom at the postmortem stage.m.b. vishwanath, j.1. this appeal has been filed under section 110-d of the motor vehicles act-1939 and it arises out of the judgment and award passed in mvc 966/1983 on 23.12.1986 by the motor accident. claims tribunal, metropolitan area, bangalore city.2. in the claim petition filed by the claimant-narayanamma (respondent no. 3 in this court), the present appellant southern railway was the second respondent. the karnataka state road transport corporation (ksrtc) was the first respondent. the driver was the third respondent. the driver has not been impleaded as a party in this court. the claimant narayanamma mother of the deceased is the third respondent in the present appeal.3. as i have already stated, the southern railway is the present appellant.4. the accident happened this way: the deceased seena (son of the claimant narayanamma) was traveling in the bts bus bearing no. myf-740 on 14.6.1983 from k.r. market to horamavu. the driver of the said bus was driving the bus in a highly rash and negligent manner, inspite of the passengers repeated requests to drive cautiously. when the bus was approaching the railway level crossing near horamavu, the driver drove the bus most rashly and negligently. the passengers shouted loudly to stop the bus near the railway level crossing since the diesel railway engine was coming from channasandra railway station. inspite of the passengers shouting at the driver to stop the bus, the driver drove the bus rashly. the engine ran over the bus. seena (son of the claimant) was crushed to death. the accident was due to the rash and negligent driving of bts driver and also the negligence on the part of the railways in not providing a gateman at the railway level crossing at horamavu.5. by the impugned judgment, the tribunal allowed the claim petition in part and granted compensation to the claimant.6. the tribunal has held that the southern railway (present appellant) and the ksrtc were both joint tort-feasors. the tribunal apportioned the contribute negligence, 50% on the part of the railway engine driver and 50% on the part of the bus driver.7. the tribunal has ordered that in the event of one of the joint tort-feasors making the full payment, it can recover 50% out of the full payment from the other joint tort-feasor.8. it is said that the ksrtc has made full payment of compensation awarded and is trying to recover 50% of it from the railways.9. section 2(18) of the motor vehicles act, 1939 defines motor vehicles' as 'any mechanically propelled vehicle adapted for use upon roads ........ but does not include a vehicle running upon fixed rails. 'section-110 of the act says that the state government may constitute motor accidents claims tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents.... arising out of the use of motor vehicles.10. on the strength of the definition of the motor vehicle and the wording of section-110 of the act, it is contended by the learned counsel for the appellant-railways that the railway is not a motor vehicle and consequently the claim petition against the appellant-railway was not maintainable before the claims tribunal.11. it is not disputed that the claim-petition was maintainable as against the ksrtc.12. it has been laid down in union of india v. bhagwati prasad, : air1982all310 that the claim petitions of the claimants who were travailing by a tempo-taxi and who sustained bodily injuries as a result of a collision of a tempo-taxi with the railway; at the level crossing were maintainable against the railway also. the allahabad high court has taken this view, taking into consideration the possibility of conflicting decisions if the claimants are directed to file a separate claim petition as against the railways.13. it has been laid down in g.s.r.t. corporation. v. union of india, : air1988guj13 , that in an accident arising out of composite negligence of driver of motor vehicle and some other outside agency (railway), the claims tribunal can entertain claim against railway also which is a joint tort feasor, besides claim against motor driver, owner of the motor vehicle and its insurer. there is no law which says as to what should be done if one of the joint tort feasors is an agency like railway which does not come within the definition of section 2(18) of the motor vehicles act. the fate of unfortunate victims of an accident should not be left to the tender mercies of one of the joint tort feasors or, if i may say so, law when law is silent.14. i agree with the-human and humane view taken by the allahabad high court, : air1982all310 and gujarat high court and hold that the claim petition as against railways also was maintainable before the claims tribunal. i reject the argument advanced by the learned counsel for the appellant-railway.15. as i have already stated, the claims tribunal has held that there was contributory negligence to the extent of 50% on the part of the railways. it is argued by the learned counsel for the appellant-railway that there was no negligence at all on the part of the driver of the railway engine. the learned counsel for the first respondent - ksrtc relied on yatayat nigam v. union of india, wherein it has been laid down that failure of railway administration to provide any warning of approaching trains amounts to negligence on its part. the rajasthan high court has been pleased to hold that the duty in this respect, though not statutory, is implied and inherent in the functions to be discharged by the railway administration in the matter of running their trains.16. in the case before the rajasthan high court as is clear from page-4 at page-18, on the southern border of the level crossing there was a thick hedge dotted with several big trees; a banyan tree with immense proportions and dense foliage. along the west of the railway track and towards the south of the level crossing, there were big trees of neem and the like. there was, absolutely nothing to caution the users of the road since the incoming train was not visible. this is clearly distinguishable on facts. on the basis of this authority, it cannot be held that there present appellant was negligence on the part of the/railways.17. the learned counsel for the ksrtc next relied on the decision of the bombay high court reported in emperor v. ramchandra hari, (1913) 20 i.c - 620 : ilr 37 bom. 685. in this case, there was collision between the passenger train and goods train because of the negligence of the station master who did not obey or follow the general rule nos. 99(c) and 100 of the general rules for all open lines of railways sanctioned under section 47 of the indian railways act. this authority has no application to the facts of the present case. on the strength of this authority, it is not possible to hold that there was rashness or negligence on the part of the railways (appellant).18. i will presently come to the facts of the present case, with which we are concerned.19. it is argued by the learned counsel for the ksrtc that the railway should have provided a manned level crossing.20. section 13(c) of the indian railways act says that the central government may require, within a time to be specified in the requisition, a suitable gate be erected by the railway administration at places where a railway crosses a public road on the level. in the instant case, no such notification has been placed before court. i hold therefore that there was no legal obligation on the part of the railways to erect a gate and post a gateman at the level crossing where the accident happened.21. the learned member of the tribunal who made a spot inspection has observed in his order at para-18 that even a pedestrian or a rider of a small vehicle can have a clear look of the railway track from the road point up to a distance of 15-16 feet.22. it has been laid down by the supreme court, though in a criminal case, in s.n. hussain v. state of a.p., : 1972crilj496 that where a level crossing is unmanned, it may be right to insist that the driver of the vehicle should stop the vehicle, look both ways to see if a train is approaching and only thereafter drive his vehicle after satisfying himself that there was no danger in crossing the railway track.23. lush j. has observed in mercer v. south eastern and chatham railway companies' managing committee, 1922 (2) kb 549 at p 553 that the railway company may have tacitly invited him to cross the line, but [the railways] did not invite [the driver of the bus] to leave his common sense behind him.24. rule 327-a(2) of the motor vehicles rules says;- '327-a. traffic signs to be observed-(1)...(2) every driver of a transport vehicle shall, at the approach of any unguarded railway level crossings, stop the vehicle to allow the conductor to alight and see both sides of the track to ensure that the way is dear; only after the conductor has so assured himself and given the signal to pass, the driver shall proceed across the level crossings;provided that in cases where there is no conductor, the driver himself shall alight and ensure that the way is clear before he crosses such level crossing.' 25. the driver of the bus has not been examined in this case. admittedly, the conductor or the driver of the bus has not done his statutory duty.25. the driver of the bus has not been examined in this case. admittediy, the conductor or the driver of the bus has not done his statutory duty.26. there is unimpeachable and voluminous evidence that the passengers in the bus, after sighting the railway engine coming, screamed and shouted at the callous driver of the bus, imploring him to stop the bus. even so the driver drove the bus. the tribunal has noticed that the driver-seenappa of the bus was not a stranger to that road since he was a resident of horamavu village.27. the learned member of the tribunal in para-28 of his order has come to the conclusion that 'the bus driver has acted in a foolhardy and dare-devil manner in driving the bus full of passengers virtually to the jaws of death as it were. his rash and foolish act has brought misery to many persons and families. therefore, the rashness and negligence of the bus driver is writ large.'28. having come to the above conclusion, the learned member of the tribunal has in the same breath come to the conclusion that 'as a railway engine is several times heavier and powerful than a fully loaded bus, i hold that the contribution made by the two drivers to the accident by their negligence can be reasonably apportioned at the ratio of 50:50'.29. on the score that a manned gate with a gateman was not provided by the railways and the railway engine is a heavy vehicle and that 'after sighting the bus racing towards the level crossing, the engine driver could have switched off the engine and applied the brakes in order to considerably reduce its speed even if it was beyond his control to stop the engine before it reached the level crossing and in that event, the force of the impact and the consequent magnitude of the tragedy could have been considerably reduced', is to my mind, nothing but show of wisdom at the postmortem stage.30. for the aforesaid reasons, i am of the opinion, the finding of the learned member of the tribunal that there was 50% contributory negligence on the part of the railway engine driver is perverse and cannot be sustained. accordingly, i set aside that finding and hold that there was no negligence on the part of the engine driver of the appellant- railways.orderit is held that the claim petition as against the appellant-railway company also was maintainable before the claims tribunal. it is held that there was no contributory negligence on the part of the appellant-railway engine driver. consequently, the railways are hot liable to pay any compensation to the victims of the accident. the negligence on the part of the ksrtc driver was 100%. ksrtc is liable to pay the entire compensation amount. the award as against the appellant-railway is set aside. the appeal is allowed as stated herein. each party to bear its own or her own costs in this court.