MAHARASHTRA STATE ELECTRICITY BOARD BOMBAY Vs. UNION OF INDIA
LAWS(BOM)-1972-8-6
HIGH COURT OF BOMBAY
Decided on August 16,1972

MAHARASHTRA STATE ELECTRICITY BOARD, BOMBAY Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) THESE revision applications are being disposed of by a common judgment, for there is only one common question raised therein. In all these revisions Maharashtra State Electricity Board being consignee filed Civil Suits against the Union of India for the Central Railway for recovery of the claims on account of short deliveries of slack coal from various places to the Paras Railway Siding located in district Akola.
(2.) IT is found out in each case by the learned trial Court that there had been in fact short deliveries which are from the period of July 1962 to February 1963 in all these cases. It is also not disputed that the goods were so carried at the owner's risk and no special payment was made to the Railways. The learned trial Judge, however, took the view that the plaintiff failed to establish, as required by Section 74 (3) of the Indian Railways Act, that this short delivery was due to the negligence of any the servants of the Railways. In view of this finding, the learned Judge dismissed all these suits.
(3.) IN these revisions the only question that was canvassed by the learned advocate Shri Golwalkar related to the requirement of the proof under Section 74 (3 ). He pointed out to me that in these trials evidence was let in to establish that the Paras Railway Siding Yard was a place which was not properly guarded and further that there were reports of thefts from time and again. He referred to me to the evidence in the case leading to Civil Revision Application No. 347 of 1966. That evidence, briefly stated, is of a very general character and merely indicates that there had been thefts of coal and some complaints were made to the authorities. All this evidence, however, does not in any manner connect the present wagons nor reveal any story about the theft from the Railway Siding. Mr. Folwalkar states that there is no direct evidence whatsoever relating to the shortages and the cause of those shortages as far as these six cases are concerned. He argues, however, that the fact of shortages is proved. It is further proved that the Railway Siding which was in the charge and control of the common carrier, the Central Railway was vulnerable. He further says that the evidence of theft or the complaints relating to thefts are also on record. The Railways on the other hand, though being the person having special knowledge of all these circumstances, have not come out nor have produced any documents. According to Mr. Golwalkar, therefore these four factors are sufficient to discharge the burden cast upon a plaintiff by virtue of sub-section (3) of S. 74. In that view, he says that it should be held that these are the short deliveries referable to the carelessness or negligence of the employees of the Central Railway.;


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