A driver of a truck crossing a level crossing is not guilty of contributory negligence if the gate of the level crossing is open, there is no warning signal, and the engine is moving in the reverse direction without lights.

( 1 ) THIS is defendants appeal from the judgment and decree of a learned Subordinate Judge 1st Class, Delhi, granting to Ham am Singh plaintiff a decree for Rs. 10,000. 00 with costs and against the Union of India and the General Manager, Northern Railway, New Delhi, in a suit brought in forma pauperis.

( 2 ) ACCORDING to the allegations in the plaint, on 16-3-1952 at about 4 A. M. , railway engine No. 1175 belonging to the defendants attached to the refuse train coming without light from Badli railway station smashed against the plaintiff s truck No. D. L. B. 1946 at level crossing gate No. CI-2 in mile No. 2/15 on Delhi Kamal railway line. This accident occured as a result of gross negligence on the part of the defenants employees, namely, the driver of the engine and the gate-man at the level crossing gate. The gate-man on duty had not closed the gate of the level crossing to indicate the arrival of the train, nor was there any signal to indicate this fact. Indeed, the gate-man on duty was, according to the plaintiff s allegations, sleeping at the time. The railway engine was moving in the reverse direction without lights. Even whistling was not sounded by the engine and there was no warning given when the engine was to cross the gate. As a result of this accident, two persons actually died and several others received injuries. The truck in question was completely smashed and had become a total wreck which was not capable of being repaired.

( 3 ) IN the written statement, the defendants raised two preliminary objections, one of them being the usual objection of invalidity of notice under section 80, Code of Civil Procedure. According to the other objection, no suit lay against the General Manager and it was urged that the suit against him should be dismissed with costs. So far as the factum of accident is concerned, the averments in paragraphs Nos. 2 and 3 of the plaint were admitted to that extent. According to the plea in defence at the time of accident, green light was clearly visible from the signal indicating the arrival of the train and this could be seen from a distance of more than half a mile. The truck driver could have avoided the accident if he had been vigilant and taken precautions to see the signal. The driver, so proceeds the plea in defence, did not possess a licence for driving the motor track. The accident thus occurred on account of contributory negligence of the driver who tried to pass the gate even when he could see the approaching engine. Want of efficiency as a driver in driving the truck was to a great extent a contributory factor. It is principally on these pleas that the liability of the defendants was controverted. The invalidity of notice under section 80 Civil Procedure Code, was pleaded without giving details in support of the plea.

( 4 ) THE preliminary issue regarding maintainability of the suit against the General Manager was decided in favour of the plaintiff on 16-12-1954 and we have not been addressed with any arguments against that decision. On the merits, the following issues were framed :-

1. Whether the accident arose on account of the negligence of the employees of the defendants ? 2. Whether the driver had a motor driving licence ? If not, to what effect ? 3. Whether the driver was guilty of contributory negligence? If so, to what effect ? 4. Whether the plantiff is entitled to damages ? If so, to what extent ? 5. Whether a valid notice under section 80, Civil Procedure Code, was served upon the defendants ? 6 Relief. Issue No. 5 dealing with notice under section 80, Civil Procedure Code, was decided against the defendants because Exhibit P. 3, a copy of the notice, was produced on the record The defendant s counsel, according to the judgment of the Court below, did not care to advance any argument showing invalidity of the notice. At this stage, I cannot help observing what untenable pleas of this type, when urged on behalf of responsible departments of the State and on