S.K. MAL LODHA, J.—This appeal was allowed after hearing the learned counsel for the parties on February 25, 1982 mentioning that the reasons will be recorded later on.

2. I proceed to record the reasons. This appeal is directed against the judgment and decree dated September 22, 1970 of the District Judge, Partabgarh by which he maintained the dismissal of the suit of the plaintiff-appellant.

3. Initially, the averments may briefly be summarised. The plaintiff-appellant instituted a suit against the defendant-respondent Union of India (the owner of the Western Railway Administration) for damages amounting to Rs. 9994.27. The plaintiff owns a passengers Bus No. RJY 1848. This Bus was plied on Bhilwara-Chittorgarh road. It was alleged that near Medikheda village, the road crosses railway track. In other words, at that place, there is a public level crossing. The road is S like bend near the public level crossing, i.e., coming from towards Bhilwara upto Medikheda, the road runs along the railway towards west of it, then it bends towards east to reach the level crossing and having crossed again, bends towards south to continue its further course towards Chittorgarh. The road is a highway between Ajmer and Chittorgarh. The level crossing, according to the plaintiff at the relevant time, was an open and unmanned level crossing with no gate, no chain barrier, no watchman and there was absolutely nothing to caution the users of the road. 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 with the west of the railway track and towards the south of the level crossing, there are big trees, Imli, Neem and the like. Further south, a railway quarter was under construction at the relevant time which shielded the railway track on south from the vision of anybody approaching the level crossing from towards North. The plaintiff has stated that the train coming could not be seen by a diligent road user with all care and circumspection. On February 12, 1964, Bus No RJY 1848 owned by the plaintiff, was running on Bhilwara-Chittor Road. It left village Gangrar and was going towards Chittorgarh. At about 11.45 a.m. it reached Medikheda. As the Bus was crossing the level crossing track at Medikheda level crossing and when its major length had already cleared out. a goods train passed The engine of the goods train struck against the hind part of the Bus with great force. As a result of that, the hind part of the Bus was pushed off and it whirled It got entangled and it was carried along the train a few paces: jolted, swerved and then released. The Bus was damaged. The body was smashed, front glasses broken, front axil bent, ehassis bent, right disks cracked, right tyres bursted and springs broke. The goods train coming from Chittorgarh came in silently inasmuch as there was no whistling, no warning and no sound. Even the hissing sound was not heard. The damage of the Bus was the direct result of the negligence of the Railway Administration inasmuch as it failed in its legal duty to ensure reasonable safety to a user of the road at the level crossing. It failed to provide barriers, and allowed hedge, trees and railway quarter to obstruct a view of the track on south. The plaintiff has further alleged that the engine driver was negligent in driving through the level crossing at a top speed without even sounding a warning whistle. The plaintiff had spent a sum of Rs. 7494.27 on repairs and replacement of the damaged parts of the vehicle. It took about one month for the plaintiff to place the Bus on the road, which caused a further loss of Rs. 2500/- in earning. A notice under s. 80, C.P.C. was given to the Railway Administration The Chief Commercial Superintendent replied the notice repudiating the claim of the plaintiff. It was denied that the accident was due to any fault on the part of the Railway Administration or its staff. The plaintiff i

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