Law: Railways Act (IX of 1890)

Section: 76

Law: Evidence Act (I of 1872)

Section: 106

P L D 1956 Karachi 445         Railways Act (IX of 1890), S. 76-Suit against railway administration for compensation for loss of goods-Plaintiff though absolved under section of burden of proving how loss was caused-Whether also-absolved of the burden of proving want of diligence on part of railway in order to succeed.   Section 76 of the Railways Act although absolves the plaintiff of the onus of proving how the loss, destruction or deterioration was caused to his goods in respect of which he claims compensation, it leaves unaltered the plaintiff's onus of proving want of due diligence on the part of the railway.   Evidence Act (I of 1872), S. 106--Onus of proof when any fact is specially within knowledge of any person-Whether provision of section discharges a plaintiff claiming damage or compensation for loss of goods entrusted to railway, from proving want of diligence or negligence of the railway servants.   Under section 106 of the Evidence Act, 1872 when any fact is specially within the knowledge of any person, the burden of proving that fact is on him. So when a railway administration is sued for compensation and damages for loss of goods entrusted to it, it is for the Railway to call the material witnesses. But this provision of the law does not discharge the plaintiff from proving the want of due diligence, or (expressing otherwise) the negligence of the servants of the railway.   When, however, as in the present case no evidence had been led by the Railway to show how they dealt with the wagons containing the goods between the place of loading and the place of arrival, particularly whether and if so what checks there existed over the seal and rivets placed on the wagon during its journey, an adverse inference may be drawn under section 114, illustration (g) of the Evidence Act, that if the evidence had been led it would have been adverse to the railway.   Dwarkanath v. Rivers and Steam Co. A I R 1917 P C 173, Secretary of State v. F. 0. Ramdhandas A I R 1934 Cal. 151, F. 0. Kishandas v. Secretary of State A I R 1937 Sind 85, Chainchal Singh v. Emperor A I R 1946 P C 1 and Surat Cotton Spinning and…