A trespasser who travels on a train without permission, against the directions of railway servants, and without paying the fare cannot recover damages for an accident caused by the negligence of railway servants.

Kapur, J.

1. This is a defendants appeal against a judgment and decree passed by Mr. Ishar Singh, Sub-Judge 1st Class, Karnal dated 16th of March 1950 decreeing the plaintiffs suit for damages for causing the death of Sohan Singh Nanda as a result of collision between two trains belonging to the defendants,

2. Sohan Singh Nanda belonged to some place in the Rawalpindi District but before the partition he had come to stay in Amritsar where he had started business, and according to the plaintiffs he was carrying on extensive business. On 6th October 1947 he started from Amritsar to go to Delhi and it is stated that he reached Ambala Cantonment before 10th of October on which day he, it is alleged, boarded a train which was going from Ambala Cantonment station to Delhi. Although there is a conflict of testimony, but the evidence of the guard D. W. 3 Kundan Lal shows that the train consisted of 36 wagons in all of which one was a passenger bogie, which was used for the military escort and the rest were goods wagons. Assistant Station Master Jamiat Ram D. W. 1 who was in Ambala Cantonment at the time has also stated that the train in dispute was a goods train and a passenger bogie used to be attached to such trains for the convenience of the military escort.

3. The plaintiffs case is that Sohan Singh Nanda along with other relations had got into this train and there was a collision at 10-30 p.m. on 10th of October 1947 near mile No. 77 between Tarauri and Karnal Railway Stations. Twenty-four persons were killed and 110 were injured. The re-port of the accident is Ex ibit D-l which is printed! at page 83 of the paper bonk. The train in which Nanda is alleged to have travelled was D-32 Down Goods Train and according to Exhibit D-l the collision occurred because both trains were started from the opposite stations and there was a single line operating.

4. The suit was filed on 8th of October 1948 in which it was alleged that Nanda who had been doing a fairly remunerative kind of business was killed as a result of an accident which was due to "the wilful misconduct, gross negligence, criminal failure to perform official duties and mismanagement of the administrators of the Eastern Punjab Railway Authorities" and therefore the railway were "guilty of misconduct or committed gross negligence and criminal default in the performance of official duties". It was also alleged that the deceased was carrying about Rs. 5,000/- cash and a cheque and they had also been lost. The plaintiffs claimed Rs. 1,00,0007- as damages.

5. The defence was that Nanda did not travel by the train and was riot killed as a result of an accident and also that even if he did travel it was without authority and without payment of any fare and without permission and consent of the railway servants and in spite of warning and that he travelled at his own risk and the railway were therefore not liable. "

6. The Union admitted that there was a collision which must be taken to be due to the negligence of railway servants as indeed that is the law,

7. On the other issues it was held that Sohan Singh Nanda did travel by the train and he died as a result of a collision, that he travelled without permission, and the railway did not acquiesce" in his travelling. In other words, there was neither explicit nor implicit consent of the railway in regard to Nandas travelling by that train. The Court held that Section 82-A of the Railways Act applied but Nanda was not travelling after obtaining a proper ticket and on the findings lie decreed a sum of Rs. 10,000/-which is the maximum allowed under Section 82-A of the Railways Act The Union have appealed to this Court.

8. Three points have been raised: (1) that there is no proof of death of Nanda in the accident, (2) that Nanda was a trespasser; lie travelled neither with the consent of -the railway nor at their invitation nor was he a licensee and even If there was neglience oh the part of the railway the plaintiffs were not e