( 1 ) THIS is plaintiff-firm's appeal against the dismissal of its suit for damages.

( 2 ) MANILAL alias Manibhai (P. W. 4) booked 52 bags of tobacco on 11-7-1947 at bhaili station on the Gaekwar Baroda State Railway for transport to Damoh on the great Indian Peninsula Railway. The consignee was the plaintiff. It was not disputed before us that the consignment reached Pratapuagar on the Bombay baroda and Central India Railway without any damage and was despatched from that station on 12-7-1947 without delay. The consignment was placed at that station in wagon No. N. W. R. 37414 and travelled throughout in that wagon to damoh. The wagon reached Ujjain on 19-7-1947, Bina on 9-8-1947 and Sagaron 12-8-1947. There was no remark about any damage in the summary books of these railway stations. When the consignment was unloaded at Damoh on 16-8-1947, it was noticed that 39 bags were completely damaged by rains and only the remaining 13 bags were in a good condition. The loss was estimated at Rs. 4,923 and is not in dispute. The plaintiff, had paid Rs. 2,430-10-0 on account of excise duty. The proportionate duty on 39 bags was Rs. 1,898-14-0, which was claimed by the plaintiff besides Rs. 4

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