The plaintiff's right to file the suit, negligence by the railways, and the validity of the notice served by the plaintiff were the central legal points established in the judgment.

( 1 ) THE present appeal has been preferred against the judgment and decree dated 3rd May, 1980 passed by the learned Additional District Judge in civil suit no. 117/1979 entitled Mohan Behari Jasod Kumari Versus Union of India and M/s Oswal Stores by the Union of India, defendant no. 1 in the suit.

( 2 ) M/s Mohan Behari Jasod Kumari, plaintiff, arrayed as respondent no. 1 herein, had brought the civil suit no. 117/1979 on the plea that it lodged two consignments with the Railway Administration at New Delhi for carriage and delivery to itself at Aluabari Road. These two consignments were duly accepted and booked at one rate which was the railway risk rate prescribed by the Railways for the booking of such consignments. It was contended that these suit consignments were clubbed with other two consignments which had been booked on 11th september, 1977. All four consignments were in perfectly sound condition at the forwarding station and were loaded and packed as per the railway rules. It was also contended that sufficient grass and husk dunnage were provided by M/s. Mohan Behari Jasod Kumari and that the containers in which the packing was done were brand new. The plaintiff further contended that the requisite conditions of P3 were fully complied with in all the four consignments.

( 3 ) ON the averment that consignments of oil were prohibited from loose/hump and rough shunting and alleging gross negligence and misconduct on the part of the Railway Administration/its servants, it was stated by the plaintiff that the consignments were handled roughly enroute. As a result the tins burst. There was also pitching and denting of the tins and heavy leakage of the oil. Layers were badly disturbed and signs of oil leakage were appearing on the roof of the wagon. The suit consignments were received at the destination station in a badly leaking condition.

( 4 ) THE plaintiff contended that this fact was brought to the notice of the authorities before the delivery and removal of the consignment from the Railway premises. As a result the plaintiff was granted open delivery of the suit consignments. A shortage certificate was also issued by the Railway authorities to the plaintiff. On assessment, though the actual loss was much more, the plaintiff was able to compute the following losses : consignment No. I : 120 tins were delivered in a badly burst, pitched and dented condition and contents were short by 1349. 9 Kgs. Consignment No. 2 : 105 tins were delivered in a badly burst, pitched and dented condition and contents were short by 1392 Kgs.

( 5 ) THE plaintiff claimed that on account of the aforesaid leakage and damage suffered, it lodged its claim for compensation and served the defendant no. 1 with a composite notice dated 26th November, 1977 under section 78 (B) of the Indian Railways Act of 1961 as well as Section 80 of the Code of Civil Procedure. The defendant no. 1 acknowledged the receipt of the said notice but the claim of the plaintiff was repudiated by the Railway Administration on baseless and flimsy grounds. The plaintiff contended in its plaint that there was presumptive proof of the railway s negligence and misconduct on account of the leakage in the suit consignment and that the defendant no. 1 was liable to compensate the plaintiff with a sum of Rs. 28,424/- The plaintiff abandoned the claim to the extent of Rs. 424/- and claimed recovery of Rs. 28,000/- only in the suit.

( 6 ) THE plaintiff claimed that it sold the suit consignment to M/s Oswal Stores who was arrayed as defendant no. 2 in the plaint (respondent no. 2 in the present appeal ). The consignment was sold with the terms and conditions that the loss in transit was to be borne by the plaintiff.

( 7 ) THE plaintiff also claimed that it had sent all the four railway receipts of the clubbed consignment through the bank against payment of the Hundi for the value of the goods to defendant no. 2. On learning of the heavy leakage in the suit consignment