1. ' Mrs. QAISER IQBAL, J----The plaintiff has resorted to file suit for recovery of Rs, 55,00,000 against the defendant on account of personal injuries.
2. ' Succinctly the facts leading to the case are that master Hammad now aged 9 years has filed through his father next friend Muhammad Sohail Khan that on account of a traffic accident on 19th December, 2000 with Awan coach driven by defendant No, 3 bearing Registration No,JE -1273.
3. Defendants Nos. 1 and 3 were the registered owners while defendant No,2 is co-owner of vehicle, under their instructions coach was driven reached near Qureshi Market at about 1430 hours, owing to negligence, driver caused traumatic injuries 'to the plaintiff. On main Chishti Nagar Road, on his way from Ittehad Town unlawfully dashed plaintiff in high speed for about a dozen feet ahead, along with the wheel. Plaintiff received traumatic injuries on his left leg, lower abdomen, left hip joint and fracture in albow. Uncle of the plaintiff reported the matter to the police. Victim was shifted to JPMC for emergency treatment remained hospitalized for two days on account of critical condition shifted to A.O. Clinic Nazimabad on 21st December, 2002. His left leg was amputated from the neck of the femur, remained hospitalized under the surgical care of Dr. S.M.A. Shah undergone operation of left hip joint, debridement of wound and multiple dressings thereafter shifted to Patel Hospital where the plaintiff remained hospitalized for seven months and was discharged on 29th September, 2001 subjected to skin grafting to the lower abdomen and both the ureters were implanted to colon, catheterized transverse colostomy was done. Thus plaintiff has become permanently disabled on account of traumatic injuries, resorted to file suit for general and special damages.
4. ' In written statement defendants Nos. 2 and 3 have admitted that defendant No,1 is owner of vehicle illegally impounded by the police after the accident. It is admitted that defendant No, 3 was driving the vehicle. After dropping the passengers on the bus stop defendant No, 2 moved the vehicle hardly put the same on the second gear, plaintiff suddenly came in front of the vehicle, applied breaks, vehicle was stopped, vehicle was already being slow, plaintiff was immediately lifted and removed to hospital. The accident did not occur due to rash and negligent driving on the part of the defendant No, 3, due to folly of the plaintiff unfortunate accident took place, victim was not accompanied by an elder person of his family. Plaintiff after the accident was shifted by the conductor of the defendant No, 3 to Abbasi Shaheed Hospital, against the medical advice to A.O.
5. Clinic to Patel Hospital. Defendant No, 1 did not file written statement, proceeded ex parte.
6. ' Upon the pleadings of the parties following issues were framed by the Court:---
(1) Whether the accident took place in the manner as alleged by the plaintiff, if so, its effect?
(2) Whether the defendant No, 3 was not rash and/or negligent in driving the vehicle?
(3) Whether the pleaded injuries were not the result of accident?
(4) Whether the loss pleaded to have been sustained by the plaintiff was because of grave negligence and inefficiency of the plaintiff's parents and the Doctor who attended him?
(5) Whether the defendants Nos. 2 and 3 are responsible for such accident? Or are liable to any damage or compensation as claimed by plaintiff?
(6) Whether the plaintiff is entitled for damage, if so, to what effect?
(7) What should the decree be?
7. ' I have heard Messrs Nasir Maqsood and S. Nasir Hussain Jafri learned counsel for the parties, perused the record.
8. Issue No,1 ' P.W. Abdul Majeed exhibit P/10 eye-witness of the incident deposed that he was sitting in the welding shop at about 2-30 p.m. Saw that coach bearing No, JE-1273 coming from Qureshi Market on its way from Jttehad Town towards Islam Chowk when reached near Qureshi *Jacket, the defendant No, 3 who was driving the vehicle in a high speed continued to drag the plaintiff for about a dozen feet ahead along with the wheel of the coach. He rushed on the spot found that Hammad received injuries on his lower part of the body and his left leg, lower abdomen and left hip joint appeared to have been traumatically damaged/fractured and his right elbow was also broken and the plaintiff was lying unconscious profusely bleeding. He evacuated the plaintiff to Abbasi Shaheed Hospital where doctor advised him to shift the victim to JPMC on account of critical position. In the meanwhile the plaintiff's uncle Sajid reached Abbasi Shaheed Hospital where both of them shifted the child to Jinnah Hospital where the attending doctor declared that his left leg had been crushed so badly that it would require amputation from the joint.
9. ' In order to prove the issue P. W. Sajid Khan uncle of the plaintiff was examined on the fateful day was performing duty at Iqbal Market at the watch shop at about quarter to three in the afternoon received massage from one Mumtaz that his nephew Hammad was critically injured in traffic accident under the wheels of the coach at Qureshi Market Sector 11 1/2 Orangi Extension Town and was removed to Abbasi Shaheed Hospital where he found that P.W. Abdul Hameed was attending doctors in emergency ward. Doctor advised them to shift the plaintiff to JPMC, where plaintiff was admitted and after consultation with his brother P.W. Sohail Khan plaintiff was shifted to A.O. Clinic for treatment. D.W. Muhammad Sabir Khan deposed that the vehicle was registered in the name of the defendant which was acquired by defendants Nos. 2 and 3 on installment basis driven by defendant No, 3 as driver while he was serving as conductor of the vehicle. He deposed when defendant No, 3 took start from bus stop at Qureshi Market suddenly the plaintiff emerged from nearby street came running on the main road while collided with vehicle. The speed of the vehicle was negligible, defendant No, 3 applied full breaks got the vehicle stopped. He lifted the boy who had sustained some injuries. He has emphasized that defendant No, 3 was neither negligent nor was driving the vehicle rashly. He stopped taxi immediately shifted the plaintiff to Abbasi Shaheed Hospital where he was attended to by the doctors.
10. ' Learned counsel for defendant has contended that accident had taken place in a manner contrary to what is stated by the plaintiff's witnesses. Vehicle was driven by defendant No, 3 with care and caution, the plaintiff collided, on account of the negligence of his parents, under the wheels and was slightly injured, conductor of the bus who shifted the plaintiff in the hospital due to minor injures. Conversely Mr. Nasir Maqsood has contended that accident took place on 19-12 2000.
11. In the written statement contesting defendants did not deny the factum of ownership of the vehicle which was driven by the defendant No,3. Consequently the accident took place on account of the negligence on the part of the defendant No,3. Consequently F.I.R No,330 of 2000 exhibit P/4 was registered at P.S. Orangi Town Extension District West under section 337-G of Qisas and Diyat Ordinance.
12. ' In view of the above evidence adduced by the parties I am of the view that accident took place in the manner alleged by the plaintiff.
13. ' Issue No, 1 is answered accordingly.
14. Issue No . 2 ' The onus of proof as to whether defendant No, 3 was rash and negligent in driving the vehicle was upon the defendant, vehicle was plied by the defendant No, 3 in routine he was aware of route, as vehicle was plied 3/4 times on the road. D.W. Muhammad Sabir after boarding passengers from the stop had seen victim from 10 to 12 paces as alleged. Speed of the coach was 20 to 30 miles at the time of incident. It was incumbent upon the defendant No, 3 to apply utmost care in. Driving.
15. Conversely defendant No, 3 Mir Hassan admitted that vehicle was driven by him and the plaintiff suddenly collided to coach sustained injuries on account of the greatest folly of his parents. Victim has allowed to remain on the road unattended. In the cross-examination he categorically stated that 30 to 35 passengers were travelling in mini bus, he was driving at the speed of 40 kilometers per hour and he had seen the victim when he was six paces away from him and after applying the breaks at such speed vehicle could stop 3 or- 4 paces away. The accident occurred on uneven place at small calvet upon Nullah. It was within his knowledge that the children residing in locality in routine used to cross road. In any view of the matter it is held with certainty that defendant No,3 was rash and negligent in plying vehicle, when accident occurred. Issue No, 2 is answered accordingly.
16. Issues Nos. 4 and 5 ' Much of the emphasis is laid by the learned counsel for defendant No, 3 that on account of the accident plaintiff had received injuries, described in para. 3 of the plaint as under:---
(1) Fracture of right elbow.
(2) Total disruption of bladder with right ureter stuck to right Iliac bone and left ureter to left iliac crest.
(3) Trauma to left groin.
(4) Removal of abdominal wall.
(5) Fracture in the neck of left femur.
(6) Vascular injures/wound in left femoral area.
(7) Multiple abrasion over abdominal wall.
17. ' On 21-12-2000 the left leg was amputated from the neck of the femur and the plaintiff remained hospitalized in the A.O. Clinic in ICU as well as General Ward for about more than two months and was discharged on 6-2-2001 as per discharge card Exh.7. Dr. S.M. Shah of A.O. Clinic, underwent three major operations for the treatment of open fracture in the neck of left femur and vascular injury as well as wound in the left groin region, later plaintiff was shifted to Patel Hospital remained seven months discharged in September, 2001, undergone five major surgical procedures. Left portion of groin and stool/urine is being discharged by the plaintiff in an adhesive colostomy bag.
18. Permanently disabled him on account of traumatic injuries.
19. ' Mr. S. Nasir Hussain Jafri has contended that injuries allegedly sustained by the plaintiff are not proved from the evidence adduced by the plaintiff, best evidence available was suppressed with ulterior motives. In the absence of the evidence pertaining to the injuries sustained by the plaintiff it cannot be held that onus was not discharged. In para.4 of the written statement contesting defendants have disputed by denying injuries sustained. It is added that due to plaintiff's own conduct incident occurred answering defendants are neither responsible nor could be held liable.
20. It is stressed by the learned counsel appearing for contesting defendants that on account of persistent shifting of plaintiff from one hospital to another against medical advice due to negligence of the parents of the plaintiff, loss was caused to the plaintiff.
21. ' It is revealed from discharge card exhibit P/7 of the A.O. Clinic that operation disarticulation through hip join was conduced in the hospital whereas Exh.P/8 issued by Dr. Muhammad Tufail FRCS of Patel Hospital indicates that on account of lower abdominal wall of the plaintiff and bowel was exposed, total disruption of bladder with right ureter struck to right Iliac bone and left ureter to left Iliac crest. Skin grafting was done to lower abdomen and both ureters were implanted to colon.
22. Plaintiff had transverse colostomy done, before he was shifted to Patel Hospital. He was also operated for his fracture of right elbow. In any view of the matter the pleaded injuries were result of traumatic accident whereby the plaintiff was victimized.
23. ' Mr. S. Nasir Hussain Jafri learned counsel for defendant has contended that the plaintiff has failed to produce any evidence pertaining to the injury sustained by him as well as medical treatment provided after he had sustained traumatic injuries. A photograph showing the healed position showing amputation of the leg exhibit P/9 has been produced by the plaintiff along with receipts exhibit P/1 to exhibit 9/76 taken on record subject to objection raised by the counsel appearing for the defendants Nos.2 and 3.
24. ' Adverting to the contributory negligence on the part of the plaintiff, it is urged that the parents of the plaintiff should have taken preventive measures to deter the minor from going out of the house, and to proceed towards the road. In case of Muhammad Moosa v. Karachi Water and Sewerage Board (1997 CLC 927), dilating on the issue it is observed:-- "Indeed it is highly difficult if not altogether possible to prevent the movement of minor and innocent children, from going out of the house which may lead to a wrongful restraint on free movement of such child and arrest his natural brought up healthy growth and nursing. The stand taken by the defendants on the face of it is not strange but also ridiculous in view of the uncontroverted evidence that the manholes were lying open for the last 2 and 3 days before the incident."
25. ' In case of Syed Iqbal Hussain Jaffari v. KESC (1994 CLC Karachi. 1903), following dictum has been laid down:-- "Duty to take care is, thus, an essential ingredient of the tort of negligence and unless such a duty is established, no case of actionable negligence can arise, 'Duty' connotes the relationship between one person and another, imposing on the one an obligation, for the benefit of that other, to take reasonable care in all circumstances; and it is a question of law whether or not a duty to take care exits in the circumstances of a given case. The principle for determining whether, in given circumstances, there was a duty to take care was formulated by Lord Atkin in the celebrated case of Donoghue v. Stevenson thus:-- ' Thus rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected which I am directing my mind to the acts or omissions which are called in question.
26. ' The principle, thus enunciated by Lord Atkin is now firmly established as a statement of general principle the application of which may be excluded only if there is valid explanation for exclusion. In Dorest Yacht Co. v. Home Office, Lord Raid said that when a new point arises, the law of negligence depends on the principle that one should not ask whether it is covered by authority but whether recognized principles apply to it; and went on to add--- ' Donoghue v. Stevenson may be regarded as milestone, and the well known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion."
27. ' In the absence of any evidence to demonostrate the consciousness, care, caution and sense of duty on the part of the defendants, plaintiff has suffered traumatic injuries.
28. ' In law plaintiff is entitled to the compensation for the injury sustained by him at the hands of the defendant No,3 who purportedly drove the vehicle rashly and negligently culminating in vital accident resulted into the injury caused to the plaintiff his left leg was amputated, victim had undergone several operations at A.O. Clinic as well as Patel Hospital. The plaintiff has claimed pain of injures, shocks, pain and agony in evidence which has produced through his natural guardian and father, he was paralyzed to move, offer prayers and ritual ceremonies was not in a position to lead a formal life on account of the persistent use of colostomy bag. Plaintiff is now aged about 9 years. He suffers the agonies of misery throughout his life, which shall restrict his movements. He has suffered loss of amenities and enjoyment and handicapped for the rest of his life. The losses plaintiff has sustained could not be estimated in terms of money. It is difficult for him to attend natural call and would not sleep and attending throughout his life.
29. ' As pointed out herein above there is ample evidence on record that the aforesaid injuries were caused to the plaintiff on account of rash and negligent driving of defendant No,3 who was serving as agent and servant of the defendants Nos.1 and 2 during the course, the case of the plaintiff is covered by vicarious liability. Much of the emphasis has been laid down by Mr. Nasir Maqsood upon the fact that the defendant No,3 was not holding a valid licence for driving the vehicle. It is not denied by the defendant No,3 that he was driving the vehicle on the fateful day when the accident occurred along with defence witness Sabir boarded the coach was acting as conductor. In any view of the matter, defendant No,2 is not liable to pay damages as the co-ownership of the defendant Nos.1 and 2 is not proved from the evidence of very high order. Issues Nos.4 and 5 are answered accordingly.
30. Issues Nos. 6 and 7 ' Advertent to the claim of shock, injuries, pain, mental agony sustained by the plaintiff for more than seven months when he remained indoor patient in the hospital undergone number of operations sustained in the traffic accident, he has sustained shock, physical pain and mental agony. In such situation the damages must compensate the injuries. As far as money is concerned, on account of the personal disability, pain, suffering loss, deprivation of the lively pleasure the plaintiff would be entitled to recover the damages.
31. ' The guideline laid down in the case of Abdul Qadir v. S.K Abbas Hussain and 2 others (PLD 1997 Karachi 566) laid stress that the duty of the Wrongdoers is to the extent that he could reasonably foresee that his failure to exercise duty and care be owed to public was likely to cause mental torture, shock, pain and damages to the claimants. Thus principle of duty and care, a person owed was considered in Heaven v. Pender (1883) 2 QBD 503, wherein it was observed that:- "Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger."
32. ' In the case of Mst. Zahra Zaidi v. M. Anwar Khan Ghori (2004 SC 223) it is held:-- "That in respect of the quantum of the damages to be awarded to the plaintiff, in fact there is no such yardstick to measure or assess the actual quantum of damages in respect of the mental torture sustained by a person while facing the agonies of frivolous litigation. Even if the plaintiff fails to prove the same, a suit is to be dismissed in such cases. Reliance is placed on the case of Muhammad Sharif v. Nawab Deen and another (PLD 1957 (West Pakistan (Lahore) 283, wherein kaikaus J, (as he then was) has held as under:-- "Damages" suit for---could not be demised solely on the ground that exact amount of damages is not proved."
33. ' Mr. Nasir Maqsood learned counsel for plaintiff has contended that after the inception, registration of first information report the onus has shifted upon the defendant to establish doctrine of Resipsa loquitur, (facts speaks for themselves) is attracted to the case. As observed earlier it has been established through the evidence on record that the accident resulted in the traumatic injuries caused to the plaintiff no account of rash and negligent driving of the defendant No,3, an employee of defendant No,
1. The evidence also proved the permanent disability sustained by the plaintiff on account of the amputation of his leg suffered pain and mental aguish he would suffer for rest of his life.
34. ' The plaintiff is entitled to damages, the question further requires determination is whether he is entitled for damages for pain, against the three defendants?
35. ' The plaintiff has claimed damages for permanent disabilities and consequent hardships and disadvantages that the plaintiff suffered and shall suffer for rest of his life and claim Rs,1 million as well as damages for loss of amenities, shortening of expectancy of life, abnormal looking amputated left leg, damages for injuries, shock, extreme physical pain and mental agony he would be required to employee a permanent attendant/nurse for loss of prospects of marital life, future and prospective loss of earning owning to the traumatic injures. It is true that on account of the permanent disability plaintiff has suffered pain, loss and enjoyment which cannot be calculated in terms of money, in such cases reasonable compensation has arisen and awarded by the Court to the plaintiff. There is no definite yardstick to assess exactly the damages for shock, physical pain and mental agony suffered by the plaintiff, but in my view the reasonable compensation would be Rs,100,000.
36. ' The plaintiff has claimed Rs,300,000 for the abonormal looking on account of the amputation of left leg which arouses aversion in the eyes of non-lookers and resulted in the feeling of depression and inferiority in the plaintiff. This fact is proved from exhibit P/9 and there is no reason to doubt the statement of the plaintiffs through his father and natural guardian claimed of Rs,300,000 for abnormal looking would be reasonable compensation for the permanent disabilities which in all times shall be visible to the others.
37. ' The plaintiff has sought claim of Rs,200,000 for restricted movement for loss of prospects of marital life on account of the traumatic injuries future and prospective loss of earning amounting to Rs,10,00,000. The plaintiff at the time of the accident was four years old now aged nine years. He is accepted to live up to the age of 60 years and would suffer rest of his life nor would be in a position to lead normal life, unfortunately the plaintiff on account of permanent disabilities shall suffer as appears from the evidence that; (a) his movement is restricted (b) he will not be able to perform Haj (c) he will not be able to enjoy social activities (d) he cannot perform martial obligation (e) he will be required to employ nurse. In any view of the matter plaintiff shall be entitled to Rs,100,000.
38. ' The claim on account of his left portion of groin stool/urine is being passed in an adhesive colostomy bag. The claim of the plaintiff on account of past and prospective medical evidence as the plaintiff has undergone major surgical operation in A.O. Clinic and Patel Hospital. He has sustained medical expenses including physiotherapy, colostomy bag and has claimed Rs,12,00,000 for past and prospective medical expenses as is evident from exhibit P/9-1 to P/9-76. In my view in the 'circumstances of the present case the plaintiff is entitled to make a claim of damages on account of the expected medical charges likely to be incurred by him for medical treatment to minimize the fact of the injuries suffered by him in the accident. The claim of Rs,300,000 made by him appears to be reasonable, same is hereby allowed.
39. ' As a consequence of the above analogy suit is decreed in favour of the plaintiff, against the defendants Nos.1 and 3 jointly and severally in the sum of Rs,8,00,000 with 14% interest from the date of decree till its realization, with costs.