' B. G. N. KAZL J.-Richard Benjamin Wheeler Haines, has filed L. P. A. Against the judgment and decree of this Court dated 23-3-1970 in Suit No, 71/65 on the original side. Respondents_ Nos. 1, 2 and 3 were defendants in the suit.
2. The facts of the case as stated by the appellant are as under :-
3. The appellant was employee of the British Council, Karachi. On 26th February 1965 at about 11 p.m. He was going on his scooter from the city side to Clifton on the main Clifton Road. When he reached near the Columbus Hotel, a book he was carrying fell down. He turned back and parked his Scooter at the side of the road to pick up his book and while he was starting his Scooter after having picked up the book, a Car No, K. A. D. 764 being driven in a rash and negligent manner by respondent No, 1 who was driver and servant of respondent No, 2 hit the Scooter with the result that he and his Scooter were thrown about 30 yds. Away from the place of impact and he received injuries including comminuted fractures in both legs. He was taken to the Civil Hospital, Karachi where an emergency operation was made by Surgeon Rahim. He remained in the Civil Hospital until 5-3-1965 on which date he was flown as a stretcher case accompanied by nursing ascort on the flight from Karachi to London for further treatment.
4. He remained under treatment in St. Thomas's Hospital up to middle of May 1965. He was readmitted in the same Hospital in September 1965, and had another operation for bone graft and remained in the hospital for another month under treatment and suffered pain for considerable time thereafter. It is the case of the appellant that he feels pain even now and as a result of the accident he suffered great bodily pain and agony besides inconvenience and loss of enjoyment of life. He was totally disabled for more than three months and partially disabled for another six months.
5. In the suit filed by him the appellant had claimed Rupees One lakh as general damages and Rs, 40,000 as special damage. Respondent No, 2, who was the employer of respondent No, 1, was vicariously liable for torts of his servant due to whose negligence and rash driving the appellant had suffered the injury and respondent No, 3 is the Insurance company with whom the car driven by respondent No, 1 was comprehensively insured; and therefore they had been made parties to the suit.
6. The learned Single Judge of this Court (as he then was) who had tried the suit had framed the following issues on the basis of the pleadings of the parties.
"(1) Whether the suit is barred by limitation ?
(2) Whether the plaintiff was driving the Scooter at the time of accident ?
(3) Whether Car No, K. A. D. 764 was being driven rashly and negligently by defendant No, 1 or whether the plaintiff himself was responsible for the accident ?
(4) Whether the defendant No, 2 is vicariously liable for the torts of defendant No, 1 ?
(5) Was the plaintiff totally disabled or partially disabled and to what extent ?
' Whether the plaintiff has suffered general and special damages as claimed ?
(7) Whether the liability of defendant No, 3 is limited in terms of section 95 of the Motor Vehicles Act and to what extent ?
(8) Whether the plaintiff is entitled to reliefs claimed in the suit ? "
' The decision of Issues Nos. 1 and 2 was in favour of the plaintiff-appellant. With regard to Issue No, 1 the learned Judge held that the defendant respondent No, 2 was vicariously responsible for the fault of his servant committed during the course of his employment and in performance of his duty but it was further held that since three was no finding with regard to Issue No, 3 that the car was being rashly and negligently driven by defendant No, 1 the question of vicarious liability of defendant No, 2 did not arise. With regard to Issue No, 5 it was held that the evidence did not show that the plaintiff was totally disabled or partially disabled as no such permanent disability had been proved. It was further held that the disability was only during the period that the plaintiff remained under treatment till he was finally cured although some times he feels pain occasionally while walking.
7. With regard to general and special damages the learned Judge held the special damages as shown in respect of salary and allowances for the period when the plaintiff had to remain off duty, medical expenses, return air passage Karachi to London,, repairs to Scooter an amount of Rs, 40,000 was correctly claimed. The objections that the appellant plaintiff had received all the amounts from his employer and therefore could not claim the same and that the fare claimed by the plaintiff himself and the escort was not justified; were considered to be improper. The learned Judge observed that since the plaintiff belonged to England there could be no objection if he had gone home for further treatment and it was for plaintiff to decide as to where and what sort of treatment he should avail of.
8. However, with regard to general damages on the ground of mental and physical suffering and temporary impairment of working capacity it was held that since the plaintiff was fully cured the amount claimed as general damages was too excessive. It was held that the amount of Rs, 20,000 was reasonable and could be claimed in the case.
9. With regard to Issue No, 7 which mainly concerns respondent No, 3 contention that section 95(1)
(b) does not limit the expenses to those actually incurred on death or bodily injury and it was held that the liability of the Insurance Company is co-extensive subject to the condition that the consequences are attributable to the tort. It was observed as under :- "It cannot be said that the pain and inconvenience are not the natural and direct consequences of the bodily injury sustained by the victim."
10. The appellant has brought the appeal on the following main grounds:- "(i) That the testimony of eye-witness Mr. Shiawax. K. Canteenwalla should not have been disbelieved and incidentally the observations giving weight to the circumstances, INTER ALIA 'that the D. I.-G. Was not examined or there was nothing to show how the plaintiff was able to find witness Shiawax K. Canteenwalla or that the plaintiff did not even talk about the presence of the witness should not have been made.
(ii) That the learned trial Judge had not given due weight to the fact that respondent No, 1, the driver had already been convicted in criminal Court for rash and negligent driving in connection with the accident."
11. We have carefully considered these grounds which we do not find to be adequate and sufficient to differ from the decision arrived at by the learned trial Judge. As pointed out in the judgment under appeal the name of Mr. Shiawax K. Canteenwalla did not transpire in the investigation done by the police although other witnesses were mentioned in the challan presented before the criminal Court by the Investigating Police. The alleged sole eye-witness examined in, support of his case for the .First time recorded his deposition in the High Court on 28-5-1978 more than three years after the accident. He did not mention the name of the only eye-witness of the incident according to the police namely witness Daya or witness Fakir Muhammad, Sakhi Jan and Matiullah, who were examined in the criminal Court as appears from the copy of the judgment which is an exhibit on the record. The witness did not claim to even know the appellant previously and as rightly observed by the learned trial Judge there is no explanation whatever to show as to how the appellant who according to his own admission does not remember anything with regard to the incident, could avail of the evidence of the witness. There is no doubt about the occurrence of the accident and the consequent injuries caused to the appellant. However it was the consistent stand on behalf of respondent No, 2 that the driver of the car was driving the car very cautiously on the correct side of the road at a normal speed when the Scooter without any signal stopped abruptly with the result that in spite of the best efforts of the car driver be could not avert the accident. It is true that respondent No, 1 who was defendant No, 1 in the suit was ex parte but defendant No, 2 in his pleadings had asserted as stated above. The burden of proof that that defendant No, 1 was driver in rash and negligent manner which resulted in the injuries for which damages are being claimed was on the appellant-plaintiff. It was for him to produce the best evidence available specially in view of the fact that he himself asserts that due to loss of memory he does not remember anything about the actual details of the accident. In the aforesaid suit filed for damages it has independently to be proved that there was liability of the defendants for payment of the same. As already stated no proper evidence with regard to the negligence on the part of respondent No, 1 was led and therefore th onus of proof was not satisfactorily discharged. The mere fact that th respondent No, 1 was convicted for rash and negligent driving in criminal Court does not in any way lessen the burden of proof on thi part of the plaintiff specially as the witnesses appearing in the criminal proceedings were not considered suitable for examination for dischargin the burden of proof. As already stated the findings of the learned trial Judg therefore, under the circumstances were just and proper.
11. With regard to the the liability of the Insurance owner of the vehicle to the Motor Vehicles Act which respect of any such liability clause (b) of subsection (1) of contention raised by the respondent No, 3, Company is co-extensive with that of the extent provided for in section 96 of the inter alia provides that if judgment in as is required to be covered by a policy under section 95 (being a liability covered by the terms of a policy) is obtained against any person insured by the policy, then notwithstanding, that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of the section pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder as if he were the judgment-debtor in respect of the liability, together with any amount payable in respect of interest on that sum by virtue of any enactment relating to interest and insurer to whom the requisite notice has been given shall be entitled to be made a party thereto and to defend the action on any of the grounds enumerated and no other.
13. For the foregoing reasons the appeal is dismissed with costs.