This Letters Patent appeal is directed against the judgment and decree of Mehrotra, J., as he then was, in First Appeal No. 17 of 1956, confirm­ing the judgment and decree of the Subordinate Judge, Upper Assam Districts, Jorhat, dated 17th September 1955.

(2) The facts of the case that require to be,, briefly noticed:

The plaintiff is the owner of a motor lorry, bearing No. ASJ 2482, which on the day of oc­currence, that is on the 9th September 1950, she had used to carry chests of tea from the Amguri Tea Estate to the Niamati Steamer-ghat under an arrangement with the said Tea Estate authorities. The lorry was loaded at the relevant time with 60 chests of different varieties of tea weighing in all 77 maunds. As the truck was proceeding from the Tea Estate in question to the Niamati Steamer-ghat it had to pass over a level crossing near the Amguri Railway Station, the road running roughly from south to north passing over the rail­way track which was west to east. As the lorry came on to the level crossing the 11 Up passenger _ train, which was coming from the western direc­tion towards the Amguri Railway Station, hit the back portion of the lorry, which resulted in the lorry being dragged to a certain distance and ul­timately falling into an adjacent ditch. The lorry was damaged, and some of the tea chests had fallen down on the ground with some of the tea leaves scattered all over the place. According to the plain­tiff's case there was no indication of the train having been late; there were no warnings; there was no gate at the level crossing; there was no whistling and the train came all of a sudden and hit the lorry. Near about the level crossing were situate four rice mills besides a number of shops. There were also high trees and shrubbery obstruc­ting the view of the on-coming train from the per­sons passing over the level crossing. There is also a curve in the railway line towards the west of the level crossing and that on account of this bend, and the obstruction caused by the buildings and trees, the train approaching from the western direc­tion could not be seen by the pedestrians or persons passing along the road till they reached the level crossing.

The plaintiff accordingly claimed that the de-dendant-Railway Administration was negligent in not maintaining gates at the level crossing in ques­tion which was frequently used by passing lorries, cars and other vehicles and by not maintaining any signs in the place or other warnings to indicate to the persons using the level crossing that a train was approaching and that they had to be careful. It was also claimed that the 11-Up passenger train, which was due to arrive at the Amguri Railway Station at about 11.30 A. M., was running unusual­ly late that day and it was at 1.30 P. M. that the accident took place as the train was approaching the Amguri Railway Station. Due to the accident the lorry in question was badly damaged and the tea, which the lorry was carrying, had also been damaged, and, the plaintiff, therefore, made a claim for a sum of Rs. 5,000/- towards the damage to the lorry in question and a sum of Rs. 3.412/14/-towards the cost of tea lost or damaged on account of the accident, and on this total sum of Rs. S,412/14/- interest at the rate of 12 per cent per. annum from 9.9.50 till the date of the suit, Rs, 1.008/-.

(3) This claim was resisted by the Assam Rail­way Administration and the Union of India who filed a joint written statement wherein while ad­mitting that undoubtedly some damage was done to the lorry as also to some of the tea chests and some quantity of tea, disputed the correctness of the amount claimed towards the damage. They resisted the plaintiff's claim mainly on the ground that they were not negligent and that the accident was in fact caused by the negligence of the driver of the lorry who had recklessly come up on the railway track without due care and caution against an approaching train. They further claimed that the engine dr