JUDGMENT
P.S. Narayana, J.
1. This appeal is preferred by the Union of India, represented by its General Manager, South Central Railway, Secunderabad, and the Chief Claims Officer, South Central Railway, Rail Nilayam, Secunderabad, who are defendants 1 and 2 in O.S. No. 101/87 on the file of Subordinate Judge, Kothagudem. The 3rd defendants in the suit-The Indian Explosives Limited was impleaded as 2nd represent in the present appeal and the appeal was dismissed for default as against R.2. The Singareni Colleries Company Limited, represented by its Law Officer, Kothagudem is the 1st respondent-plaintiff.
2. The respondent No. 1 herein – the plaintiff filed the suit for recovery of Rs. 78,786-49 ps., together with future interest at 18% per annum, on Rs. 52,176-48 ps., being the value of 161 cases of Ajax-G Explosives.
3. The learned Subordinate Judge, Kothagudem, on the respective pleadings of the parties had settled the issues, examined P.Ws.1, D.Ws.1 to 3, marked Exs.A.1 to A.9 and Exs.B.1 and B.2, and consequently decreed the suit for Rs. 78,786-49 ps., with costs with interest at 6% per annum on the principal amount from the date of suit till its realization against defendants 1 and 2, and the suit against 3rd defendant was dismissed with costs, and aggrieved by the same, the present appeal is preferred.
4. Sri T.S. Venkata Ramana, the learned Counsel representing the appellants would contend that in the light of the provisions of the Indian Railways Act, 1890, the 1st respondent-plaintiff had not discharged the burden or proof that there was negligence on the part of the Railways and hence, decree granted cannot be sustained. The learned Counsel also would maintain that in the facts and circumstances of the case, definitely it cannot be said that it was due to the negligence of the Railways but the misfortune had happened and hence for the said loss, the Railways cannot be made liable. The learned Counsel also would contend that Ex.B.2-Ex.A.7, Railway Receipt, dated 18-6-1984 had been issued under Loading and Unloading condition and the same is at owner’s risk as per the Rules and hence in this view of the matter also, the findings recorded by the Trial Court and the decree made cannot be sustained. The learned Counsel also made elaborate submissions relating to the other aspects and had taken this Court through the evidence available on record and also the findings recorded by the Trial Court.
5. Per Contra, the learned Counsel representing the 1st respondent would contend that in the light of the findings recorded in detail by the Trial Court, the Judgment and Decree do not suffer from any legal infirmity and hence, the said findings are liable to be confirmed.
6. Heard the Counsel on record.
7. The appeal as against the 2nd respondent-3rd defendant as already referred to supra was dismissed for default. The 1st respondent as plaintiff had pleaded in the plaint in O.S. No. 101/87 on the file of the Subordinate Judge, Kothagudem, as hereunder:
“It was pleaded that the plaintiff is a public sector undertaking for exploration, mining and sale of coal and got several coal fields at Kothagudem, Yellandu, Bellampalli, Ramkrishnapur and other places in the State of Andhra Pradesh.
It was further pleaded that the plaintiffs have placed an order with the Indian Explosives Ltd., Madras for supply of 400 cases of Ajax G’ explosives and paid them the value of the entire consignment. Freight to be paid by the plaintiffs. The said consignment of 400 cases was sent by the consignor i.e., 3rd defendant by rail from Gomia to Singareni Collieries Railway Station (Yellandu), instead of Ramagundem as per plaintiffs order vide R.R. No. 014010, dated 18-6-1984. At the time of taking delivery of the consignment, the plaintiffs at Singareni Collieries Railway Station observed that 180 cases out of 400 cases were drenched in water inside the wagon and the consignment to that extent was damaged. Thereupon, the plaintiffs asked for open delivery. After exchange of protracted correspondence with the consignor of Explosives and with 2nd defendant, 180 cases i.e., cartons of explosives have been segregated on 24-12-1984 in the presence of Area Officer, Bhadrachalam Road Railway Station representatives of 3rd defendant and Executive Engineer (Stores) of Plaintiffs and it was found that 161 out of 180 cases have totally becomes useless and the said joint Inspector Report was also issued by the representatives of all parties. Later, the said 161 cases were destroyed under the supervision of Controller of Explosives on 29-4-1985.
The plaintiffs thereupon lodged their claim with the 2nd defendant claiming a sum of Rs. 52,176-48 ps., being the value of 161 cases those damaged and destroyed duly forwarding the joint inspection report and the bill. Subsequently, 2nd defendant through a letter dated 19-3-1985 replied staling that the consignment was loaded by the senders in Wagon No. SC 11693 under ‘L’ condition i.e., Loading and Unloading by the consignor and consignee respectively and hence the defendants 1 and 2 are not responsible for any damage to the goods as the wagon was received at the destination with seals intact etc.
Defendants 1 and 2 cannot escape from the liability because the senders loaded the Wagon under alleged ‘L’ condition. It does not absolve the liability of the Railways as carries for any damage done to the goods during the transit. As mentioned above, it was found that the water crept into the 189 cases, thereby rendering 161 cases useless. This could have happened only during transit, but not at the time of loading and unloading. However, 3rd defendant is also jointly and severally liable as 3rd defendant has to see that the explosives reach the destination safely and intact.
The value of the consignment thus damaged is Rs. 52,176-48 ps. The said amount is payable by all the defendants to the plaintiffs together with interest at 18% per annum as per trade usage and custom from the date when the consignment reached destination i.e., 5-8-1984 till the date of payment.”
D.1 and D.2 filed written statement denying all the allegations. It was further pleaded in their written statement as hereunder:
“The defendants are not concerned nor they responsible for any compensation arising out of the transaction as they are not parties to it. These defendants are not liable to pay any damages. It was also pleaded that the Joint Certificate was issued to show that the condition of consignment at the time of delivery and it does not amount to admission of any liability on the part of this defendant. Service of notice of claim is admitted, but the value of claim is not admitted. The claim towards the damages is correctly repudiated as the consignment was loaded by senders in Wagon No. 11693 under ‘L’ condition i.e., loading and unloading by consignor and consignees respectively. The consignment was received at the destination in the same wagon in which it was loaded by senders and offered for delivery in the same condition. This defendant is not aware as to the condition of consignment at the time of loading and as such, it is not liable for any damages. The allegations that damages occurred due to water creeping in the wagon is denied as the Railway Receipt bears clear stamp of forwarding station that wagon made fit by TXR for explosive loading. Hence, this defendant denies liability to pay any compensation. The value quoted is not admitted. These defendants are not liable to pay any amount and the plaintiffs are not entitled for any interest. Plaintiffs have no cause of action to file this suit. The cause of action alleged is not true and tenable. The service of notice under Sections 78-B and 80 C.P.C., are admitted, but the contents are denied. They denied that the value of the suit is Rs. 78,786-49 ps. The plaintiffs cannot claim interest. There is no trade usage to pay interest. Moreover, there was no express or implied agreement to pay interest between the parties at the time of booking, over the value of the goods in the event of loss or damage, if any, during its transit, payment of interest amounts to damages on damages. Correctness of valuation made and the Court fee paid is not admitted. The alleged damages are due to damaged contents loaded by senders due to their negligence, hence, the plaintiffs should look to the senders to make good the loss if any suffered by them. This defendant is not liable to pay any compensation or part thereof.”
D.3 also filed a written statement in detail and in view of the facts that the suit itself was dismissed and the Appeal was also dismissed for default as against this defendant, the pleading of this defendant need not be considered in detail.
8. Before the Trial Court, the following issues were settled:
(1) Whether the plaintiff is duly registered before the Registrar of Companies and the plaint is signed and verified by a proper person?
(2) Whether the alleged damages are due to the damaged contents loaded by the defendant No. 3?
(3) Whether the plaintiff is entitled to any damages and if so, to what amount and from which defendant?
(4) Whether the plaintiff is entitled for interest? If so, at what rate?
(5) Whether the suit is had for non-joinder of Eastern Railways rep. By General Manager?
(6) Whether notices under Section 78-B of Indian Railways Act and as well as under Section 80 CPC, are served?
(7) Whether the plaint is signed and verified by a competent officer?
(8) To what relief?
9. The evidence of P.W.1 and D.Ws.1 to 3 had been recorded and Exs.A.1 to A.9 and Exs.B.1 and B.2 were marked and ultimately, the Trial Court decreed the suit as referred to supra and hence, the present appeal is preferred.
10. In the light of the respective pleadings of the parties, the issues settled, the evidence available on record and the findings recorded by the Trial Court, the following points arise for consideration in the present appeal:
(1) Whether in the facts and circumstances of the case, the findings recorded relating to the liability of the Railways in relation to the suit transaction to be confirmed or liable to be set aside?
(2) If so, to what relief the parties are entitled to?
11. Point No. 1: P.W.1 deposed that he has been working as Divisional Engineer in the plaintiffs company at Ramagundam from 1989 and earlier he worked as Executive Engineer (Stores) at Yellandu from 1982 to 1985. This witness also deposed that he is acquainted with the facts of the case. The plaintiff placed an order with the 3rd defendant i.e., the second respondent in the appeal for supply of 400 cartons of Ajax explosives, each carton weighing 25 Kgs., in March, 1984. The 3rd defendant transmitted the consignment from Gomia of Bihar District to Singareni Railway Station by goods train. The consignment arrived at Singareni Railway Station on 5-8-1984 and they had visited the Railway Station for receiving the consignment. Earlier on that day, J. Paul, Explosives Clerk of their Stores, inspected the consignment and found that some cartons were soaked with water and reported the matter to him. He visited the Railway Station and requested the Station Superintendent of Singareni Railway Station to give open delivery of consignment and he effected open delivery. At the station itself, they found 180 cartons soaked with water and unfit for use and he refused to take delivery of the same. On 5-8-1984 the Station Superintendent wrote a letter to G.S.R. Gomia and Y.S.R., Bhadrachalam Road Station and other Officers including Inspector of Explosives, Hyderabad and 3rd defendant stating that “Wagon No. SC.CG.11693 booked under invoice No. 9 R.R. No. 014010 of 18-6-1984 Ex-Gomia to S.Y.I. containing explosives (Ajax) arrived by D.M.S.Y.I. Special from B.D.C.R. of 4-8-84 at 1615 hours with both sides I.R.L. wire seals and without pad-locks both sides. Wagon opened and found 400 cartons explosives correct. Cartons on both door ways drenched with water. Bottom layer all over the wagon wet. Monsoon precautions and observed. 180 cartons explosives kept for open delivery in the same Wagon. Please arrange Controller of Explosives immediately HUSSAL in the interest of public safety. RPF not available.” A copy of the said letter was transmitted to them, which is marked as Ex.B.1. Loading of the consignment into the wagon was the responsibility of the consignor, the 2nd respondent herein, the 3rd defendant in the suit. Unloading of the consignment from the wagon at the Station of destination is the responsibility of the 1st defendant-plaintiff. The plaintiff paid the values of the total consignment and bore freight charges also. On 24-12-1984, a joint inspection of 180 cartons was made by the Area Officer of Bhadrachalam Road Station and a representative of the 3rd defendant, who had been nominated by the Controller of Explosives and himself. They opened 180 cartons and found 19 cartons in good condition and fit for use and separated them from the remaining cartons and the remaining 161 cartons were declared as useless and unfit for use. Ex.A.1 is the joint inspection Report signed by them, dated 24-12-1984. The Station Superintendent of Singareni Railway Station submitted a Survey Report to the 3rd defendant and the plaintiff stating that the carton on both the door ways drenched with water. Bottom layer all over the wagon found wet. 220 cartons delivered in good condition and 180 cartons kept for open delivery in the same wagon. 19 cartons delivered after segregating from 180 cartons at the time of open delivery by the Area Officer, BDCR station and IEL representative Mr. Gopalam on 24-12-1984. A copy of the said letter was marked as Ex.A.2. Subsequently, 161 cartons were destroyed under the supervision of Controller of Explosives on 29-4-1989. This witness also further deposed that the Deputy Chief, Finance and Accounts of plaintiff company wrote a letter to the 2nd defendant brining all these facts to his notice and claiming a sum of Rs. 52,176-48 ps., being the value of 161 damaged cartons. Ex.A.3 is the copy of the letter. The 2nd defendant wrote a letter repudiating their claim. The plaintiff issued a notice calling upon the defendants to pay the said sum with interest. Ex.A.4 is the copy of the same. The 2nd defendant gave a reply repudiating the claim. Ex.A5 is the reply notice of the 2nd defendant. Ex.A.6 is the postal acknowledgment of D.1.
12. DW.1, no doubt, admitted all the respects. But, however, deposed that the Railway is not responsible for the damages caused since the material was allowed under ‘L’ and u condition which means Loading and Unloading by consignor and consignee. They do not see the condition of the goods. They only count the number of articles. It is the duty of the consignor to check the carriage and load the goods and hence the Railway is not liable to pay any amount.
13. D.W.2 deposed that he worked as Area Officer, Bhadrachalam Road Railway Station from 1984 to 1989 and he also deposed that the commodity was Ajax which was packed with external wooden cases and water proof material to prevent the explosives being damaged. This witness deposed that as per the red tariff of explosives, carriage for carrying of explosives, a declaration has been made by the party that the consignment has been packed and marked in accordance with the Rules as laid down in the red tariff. Ex.A.9 contains a certificate. This witness also further deposed about loading and unloading conditions governing the parties and the red tariff of Railway Conference Association and the other aspects. The packing conditions had not been in accordance with Rules according to this witness.
14. D.W.3 deposed that he knows 3rd defendant company and he is working as Assistant Distribution Officer at factory in Gomia in Bihar State. The witness, no doubt, deposed that in 1984 they supplied explosives to the plaintiff company at Yellandu and had deposed about other details. This witness deposed about Ex.B-2 Railway Receipt and also deposed that they came to know subsequently that some contends sent by them were damaged due to rain water and there may be holes in the wagon, through which rain water might have entered into the wagon and damaged the contents therein and they are not responsible for the damaged contents during transit. The Railway authorities would be alone responsible. This witness also deposed that there is standard package system, called as Fibre Board Card Board Boxes, to be followed as per Explosive Rules and they had sent the goods in perfect condition. Ex.B.1 is the letter from Station Superintendent, Singareni Collieries to S.C. Railways to G.S.R. Gomia.
15. In substance, the stand taken by the 3rd defendant is that the goods were packed properly and they were sent by the goods train and subsequently, the 3rd defendant came to know that there was some damage and it is the responsibility of the Railways and this stand taken by the 3rd defendant, in fact, was accepted by the Trial Court and the suit was dismissed as against the 3rd defendant. The 3rd defendant is shown as 2nd respondent in the appeal and the appeal was dismissed for default against the 2nd respondent and the same had attained finality.
16. The other aspect which had been argued in elaboration is the liability of Railways to pay the amount claimed by the 1st respondent-plaintiff in the peculiar facts and circumstances of the case. The evidence of D.W.1 and D.W.2 had been very carefully scrutinized by the Trial Court in this regard. No doubt, certain objections relating to the nature of pleading of the parties and the competency of the parties to sign the pleadings also had been canvassed in elaboration and the same had been dealt with in detail by the Trial Court. Section 200 of the Railways Act, 1989 (Act No. 24 of 1989) had repealed the Indian Railways Act, 1890. However, the said Act came into force long after this transaction, no doubt, during the pendency of the suit. Sections 72 and 73 of the Indian Railways Act, 1890 read, as hereunder:
72(1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872 (IX of 1872).
(2) Omitted
(3) Nothing in the common law of England or in the Carriers Act, 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a railway administration.
73 (1) The responsibility of a railway administration under Section 72 for the loss, destruction or deterioration of any animal delivered to the administration for carriage by railway shall not exceed the amount respectively specified in column two against the item relating to the animal in column one of the First Schedule, unless the person delivering the animal to the railway administration declares in writing a higher value in the forwarding note and has paid or engaged to pay to the railway administration a percentage specified by it upon the excess of the value so declared over the respective sums mentioned in the second column of the said Schedule.
(2) Where such higher value has been declared, the railway administration may change, in respect of the increased risk, a percentage upon the excess of the value so declared over the respective sums aforesaid.
(3) Nothing contained in this section shall render the railway administration liable for any damage or loss arising from fright or restiveness of the animal.
17. It is, no doubt, true that some Tariff Rules had also been relied upon. Section 151 of the Indian Contract Act, 1872, dealing with care to be taken by the Bailee reads as under:
“In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed.”
Section 152 of the said Act deals with Bailee when not liable for loss, etc., of thing bailed, and the same reads as under:
“The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151.”
Likewise, Section 161 of the Act dealing with the Bailee’s responsibility when goods are not duly returned, reads as under:
“If by default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods form that time.”
18. In Firm of Chabildas Manidas v. Union of India (in Second Appeal No. 130/78, dated 27-8-1979), a learned Judge of this Court while dealing with Section 73 of the Indian Railways Act, 1890, held as under:
The law enjoins upon the Railway Administration and its servants to evince great responsibility in carrying goods or animals entrusted to the administration for carriage on payment of the prescribed charges and the goods or animals shall have to be carried with proper care and without any negligence or misconduct. Even Section 77-C does not completely absolve the Railway Administration of its responsibility when any goods tendered to the railway administration to be carried by the Railway are in a defective condition or are defectively packed or packed in a manner not in accordance with the general or special order issued under Sub-section (4) of Section 77-C. Consigning the goods in a defective condition or packing the goods defectively or improperly without confirming to the prescribed manner by itself is a mere act of negligence on the part of the consignor and it is attracted by Section 73(f) of the Act. In such a case, it would not be suffice if the Railway Administration simply proves that the damage to the goods entrusted to it for carriage arose from the defective condition or the defective or improper packing of the goods by the consignor. The mere fact of the defective condition or the defective or improper packing of the goods being recorded by the consignor or his agent in forwarding note does not make any difference in regard to the general liability of the Railway Administration under Section 73 of the Act. The recording of the fact on the forwarding note by the consignor or of his agent merely absolves the Railway Administration from the burden of proving that fact and nothing more. That fact might amount to negligence on the part of the consignor, as contemplated in Section 73(f) and it would be necessary for the Railway Administration to prove not only that the damage or deterioration arose on account of the negligence act or omission of the consignor or his agent but also that the Railway Administration used proper care and reasonable foresight in carrying the goods. If the Railway Administration seeks to take recourse to Section 77-C so as to shift the burden of proving negligence or misconduct on its part on the consignor it becomes necessary for Railway Administration to satisfy the Court that the requirements of Section 77-C have been strictly complied with. Section 77-C can be invoked only when the exact defect and its probable consequence are both recorded on the forwarding note. When the probable consequence of a particular defect is deterioration or damage, the administration cannot invoke the provision if there is leakage or wastage.”
In Union of India, represented by the General Manager, South Central Railway, Secunderabad, Andhra Pradesh v. Gajanand Oil and Dal Mill Merchants and Commission Agent through Srigovind, 1984 (1) ALT 284, a learned Judge of this Court while dealing with Section 73(d) of the Indian Railways Act, 1890, held as under:
“Section 73 of the Indian Railways Act deals with the general responsibility of a railway administration as a carrier of animals and goods. A railway administration is charged with responsibility, thereunder for the loss, destruction, damage, deterioration or non-deliver, in transit of animals or goods delivered to the administration to be carried by railway. The liability ceases to exists in nine categories of cases. One such category is where the loss, destruction, damages deterioration or non-deliver of the goods is due to seizure of the goods under legal process. The railway administration claiming exemption, must however prove that it has used reasonable foresight and care in the carriage of the animals or goods. The words “foresight and care” are of wide amplitude and should not be understood to apply to the carriage of the goods only. In the case of non-deliver of the goods due to seizure of the same under legal process the ‘care’ to be exhibited by the railway administration takes within its ambit an obligation to intimate the factum of seizure of goods to the consignor/consignee within a reasonable time from the date of seizure so as to pursue his lawful remedies to recover the goods from the concerned authority that seized the goods under legal process.
The learned Judge also held that the appellant Railway did not send any intimation whatsoever to the respondent appraising the respondent of the fact or seizure of the goods. Therefore, the railway cannot escape the liability for non-deliver of the goods.”
In The Andhra Pradesh Paper Mills Ltd., Rajahmundry v. The Union of India, rep. By the Gen. Manager, South Central Railway, Secunderabad and Ors., 1988 (1) ALT 453 it was held as hereunder:
“The acts of agitators do constitute rioting. Therefore, it comes within the fold of Section 78(c)(ii) of the Act. It is also a civil commotion because several people pulled down the driver from running trains from the engines; assaulted the crew and set fire to several wagons. Therefore, it comes definitely within the meaning of civil commotion. In this case, it is proved as a fact that the goods were destroyed as a result of setting ablaze to the goods wagons and accordingly the loss or damage to the goods has been occasioned on account of civil commotion committed by the unlawful assembly of the agitators. Accordingly, Section 78(c) absolves the Railway Administration from fastening the liability on account thereof.”
In Gudur Krishna Reddy v. Union of India and Anr., AIR 1965 AP 263, while dealing with the aspect of negligence on the part of railway, it was held that onus of proof is on the plaintiff-consignor and the Railway not producing any evidence to show how it dealt with consignment and the plaintiff producing some evidence of negligence, Court can hold railway negligent. In The Union of India owning South, Eastern Railways, by their General Managers, Madras v. Radhikaran Satyanarayana, AIR 1959 AP 17, it was held that Sub-section (3) of Section 72 of the Indian Railways Act, 1890, excludes the railways from responsibility as common carries and therefore, it is clear that the railway administration will not share any responsibility as insurers but only as a bailee. In Union of India owning Southern Rly., Represented by its General Manager at Madras v. Chekka Ranganayakulu and Sons rep. By Chekka Ranganayakulu, AIR 1964 AP 477, it was held as hereunder:
“Section 72 of the Indian Railways Act which contains the measure of the general responsibility of the railway administration runs as follows:
(1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872. (2) x x x x (3) Nothing in the common law of England or in the Carriers Act, 1865, regarding the responsibility of common carriers with respect to the carriage of animals or goods, shall affect the responsibility as in this section defined of a railway administration. In this enquiry we are not concerned with Section 77, which is the successor of Section 72 inserted into the Act in 1961, since we are governed by Section 72, which was in existence at the time when the causes of action for these claims arose. Further, there is no substantial difference between these two sections and as such it is immaterial which of the two applies. Section 151 of the Indian Contract Act recites: "In all cases of bailment the bailee is bound to take as much care of gods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value of the goods bailed." It is manifest from the statutory provisions quoted above that the responsibility of the Railway is measured by the test formulated by Section 151. It is not an unqualified liability. The administration can claim immunity if it can prove that it had taken such care of the goods entrusted to it which a reasonable man or a man of ordinary prudence would have taken.
Indisputably, the onus is on the administration to prove that it was not negligent, i.e., it had not omitted to do anything which a reasonable man would do, or did not do, something which a prudent and reasonable man would not have done. But when once it is able to establish that everything that is possible had been done in regard to the consignments that were made over to it for carriage, it absolves itself from all responsibility.”
19. The Railways in the present case, no doubt, examined D.Ws.1 and 2 and the stand taken by the Railways is that they are not liable for the reason that it was just under the condition of Loading and Unloading and the standard of packing is not in accordance with Rules and proper care and caution had not been taken in this regard. But, it is pertinent to note that the plaintiff instituted the suit even as against the 3rd defendant and clear findings had been recorded by the Trial Court in this regard and the Railways alone ultimately had been held liable and the suit was decreed as against the Railways. In the light of the provisions of the Indian Contract Act and also the general liability of the Railways as specified under Sections 72 and 73 of the Indian Railways Act, 1890, and also in the light of the nature of evidence which had been let in by the Railways and the clear proof established by the evidence of P.W.1 and also ‘Ex.A.’ series marked in this regard, the findings recorded by the Trial Court cannot be found fault, in any way, and hence, the said findings are hereby confirmed. As already referred to supra, as against the 3rd defendant, the suit was dismissed, and as against the 2nd respondent-3rd defendant, the appeal was dismissed for default. Hence, viewed from any angle, this Court is of the considered opinion that the findings need not be disturbed in any way.
20. Point No. 2: It is, no doubt, true that certain other objections also had been raised but in the light of the reasons in detail recorded by the Trial Court, the said questions need not be seriously adverted to, inasmuch this Court is of the opinion that the Railways cannot escape the liability on the pretext of either of Tariff Rules or by throwing the blame on the 3rd defendant. Hence, the appeal is devoid of merit and bound to fail and accordingly, the same shall stand dismissed. But, however, in the peculiar facts and circumstances of the case, this Court makes no order as to costs.