Law: Evidence Act, (1 of 1872)

Section: 106

Law: Contract Act, 1872

Section: 151

Carrier of goods-Railway-Liability of, for non-arrival of goods-Negligence-Burden of proof-Issues involved-Proof of circumstances attending loss-Burden on Railway-Proof of negligence-Burden on plaintiff-Evidence Act (I of 1872), S. 106-Contract Act (IX of 1872), S. 151. In a suit for damages for non-delivery or loss of goods against the Railway the manner of the loss as well as the conduct of the defendant Railway and its servants is a matter to be proved by the defendant and the plaintiff is then to satisfy the Court that loss was the result of lack of due diligence. There should .be a composite issue on these questions consisting of the two following parts:-(a) What did the defendant do in order to discharge its duty as bailee of the goods in question ? (b) Was loss of goods the result of lack of due diligence on the part of the defendant? Under the first part of the issue the defendant will have to place on the record the material in its possession with respect to the manner in which loss has occurred and will also have to prove all the steps and precautions taken by it or its servants to prevent loss. The defendant will have to lead direct evidence but may also rely upon such presumptions as are permissible in law. On the facts which may be proved under this part of the issue it will be for the plaintiff to show that the conduct of the defendant and its servants does not amount to such care as is required by section 151, Contract Act. When the onus of a fact is on a party and the fact is not proved the result is that for the purpose of decision that fact is to be regarded as non-existent. If we apply section 114 we may only make a presumption that the evidence if produced would go against the party that withheld. If we apply section 106, there is an adverse finding as to facts. Reasoning of A I R 1917 P C 173 explained. JUDGMENT KAIKAUS, J.-This appeal has been preferred by Federation of Pakistan against whom Fazal Karim respondent has filed a suit claiming a sum of Rs. 832-15-0, the value of a case of leather shoes which was delivered to the North Western Railway at Karachi to be carried to Sargodha. The suit was dismissed by the trial Court but has been…

Deprecated: trim(): Passing null to parameter #1 ($string) of type string is deprecated in /home/digixyei/sldsystempk.com/view/master-layout/view_case.php on line 492