' SYED SAEED-UD-DIN NASIR, J.---The plaintiff has filed the present suit for recovery of amount Rs.64,00,000 under the Fatal Accident Act, 1855 with the following prayers:-- (a)"A decree in the sum of Rs.64,00,000 against the defendants who are liable jointly and severally to pay the said sum to the plaintiff on account of damages/compensation.
(b)Interest at the rate of 15% per annum on the amount claimed in clause-(a) above from the date of the filing of the suit till realization of the decretal amount be awarded.
(c) Cost of the suit may be awarded to the plaintiff.
(d)Any other relief or reliefs that this Hon'ble Court may deem just and proper under the circumstances of the case be granted."
1. The brief facts of the case are that the plaintiff got severe injuries in the traffic accident which took place on 3-2-1989 within the area of Gulzar-e-Hijri Police Station, Karachi. The defendants No.1 and 3 were the owners of the bus bearing Nos.958-974. The defendant No.2 was the driver of the said bus and as such was the servant of the defendants Nos.1 and 3 at the time of accident i.e. On 3-2-1989. The defendant No.2, servant/driver of the defendant No.1 while driving the bus bearing Nos.958-974 in a rash and negligent manner on superhighway when reached pumping house dashed against a trailer in bid to over-take another vehicle in very high speed and consequently the bus turned turtle on the other side of the road and six passengers of the bus got fatal injuries and died and many received injuries including the plaintiff. The injuries to the plaintiff were caused by the actionable wrong, negligence, default and wrongful act of the defendant No.2 the servant/employee of the defendant No.1 as such the defendant No.1 is legally liable to pay the compensation/damages to the plaintiff besides the defendants are liable jointly and severally to pay the compensation/damages to the plaintiff.
2. It is further stated in the plaint that the besides minor grazing wounds and some hidden injuries, the plaintiff has got the following major and visible injuries:
(i) Fracture (dis-location) of the tenth dorsal vertebra.
(ii) Compressed fracture of vertebra column.
(iii) Absolute damage of spinal resulting in total spinal syndrome below the thorax segment.
(iv) Deformity of spin causing considerable pain.
(v) Head injury causing nine stitches in the head.
(vi) Paraplegia and loss of sensation.
(vii) Dislocation of jaw.
' The above said injuries have considerably affected the plaintiff and resulting in the following damages.
GENERAL DAMAGES
3. It is further stated in the plaint that the plaintiff has become a complete paraplegic below tenth segment and complete loss of sensation below waist. He has left by paralyzed below waist and spastic involuntary movement had also developed in limbs resulting in total paralysis of bladder and bowels and he is absolutely not in control of the bladder and spinal injuries has resulted in any paralyzed of abdominal muscle and also all muscles of limbs. The total paralysis of both the legs has made him dependent upon other and for the whole life he will not be able to walk and would have spent rest of his life in the self propelled wheel chair and for the practical purpose he has become chair ridden. On account of lack of control over his bladder he had to be turned trice a night because of the danger of the bedsores. He cannot do this himself because he cannot manipulate his legs and if the upper part of his body is turned without his legs, there is really danger of bones being broken and for that purpose he will be required to employ some nurse or service boy for both the day and night in order to assist him in natural calls, in this work for which he will definitely require to spend Rs.2000 per month. On account of fracture and dislocation of spine from tenth vertebra, the plaintiff has become an impotent and his sexual functions are absolutely atrophied. In that way he had to leave the idea of getting marriage with his girl friend as he does not want to impose upon her unnatural relationship. In this way he would never be able to enjoy the pleasure of marital life and certainly develop the feeling of depression as he can no more raise his generation due to defect in reproductive organ which will affect on his personality. This development of impotency has also led to drastic diminution in his future monetary prospectus as his girl friend (doctor) could have fetched to the plaintiff exchequer at least Rs.5000 per month, adding to the comfort and happiness of the life.
4. It is further stated in the plaint that there is very likelihood that due to spinal injuries he would have developed urinary tract infection in future and he has to take antibiotic constantly to prevent this from which he is very much allergic. The plaintiff, for the whole life would have very very restricted movement and he will not be able to move as before by virtue of being confined to the self propelled wheel chair. The plaintiff has also loss of the amenities of life, for example exercising, taking part in games, go on towards another which will develop the sense of disappointment and depression when he will see his friends to enjoy the above said amenities. The plaintiff needs great deal of attention and care. He cannot dress or undress himself. He cannot off course, get up and go down stairs on his own and he has to be carried up and down stairs by others. He is liable to bed sores and therefore, it is very important that he should be turned twice a night and so he is dependant for his natural calls upon others and it is impossible for him to do this on his own. As he cannot manipulate himself and in case, if the legs are not turned at about sometime as upper part of the body, there is very really risk of bone of being broken so there is no doubt that the plaintiff will require for the rest of his life a great deal of help and attention.
5. It is further mentioned in the plaint that loss of sensation of lack of control over bladder and bowels will only permit him to attend or set any company of friends because in voluntary frequent discharge of urine and motions will make him target of humiliation, disgrace and ridiculous figure in the eyes of his friends so he prefers to confine himself in four walls in the room and this isolation has badly affected his personality causing him to be reiterated and morose. The plaintiff underwent enormous pains, sufferings and discomfort on account of above mentioned injuries and expectancy all his life has been shortened. Thus in short, the accidental injuries has made the plaintiff wreck who can do nothing for himself and convert him into slowly dying man with absolutely dull prospectus of successful and happy life. This injury has rendered the plaintiff so disappointed from his life that he has made couple of attempts of commit suicide in order to get rid of this accompany troubles, pains suffering but was saved.
SPECIAL DAMAGES
6. It is further stated in the plaint that the plaintiff has to undergo to remain confined to hospital for more than four months but when it seemed that he is not recovering any more he preferred to stay at home with a disappointed heart. The plaintiff underwent several medical checkups, medical treatment, operations and ultrasound and physiotherapy from many well known clinics and surgeons which brought him under heavy debt of friends relatives. He had to purchase wheel chair and artificial limb and another necessary instruments in order to keep himself in a normal way which also costed him heavily. The plaintiff has to drive on ambulance or taxi for all practical purposes causing him heavy financial liability and in future he will also keep of engaging taxi or ambulance for the purpose of movement from one place to another.
7. It is also stated in the plaint that the plaintiff was a man of a very remarkable character and courage and was having most attractive personality with the shining spirit. Prior to the accident he was working as Sub-Engineer (Mechanical) in Highways Department, Government of Sindh and was earning Rs.1500 per month. Besides, he used to earn Rs.500 to Rs.600 in terms of overtime. He is well educated and well qualified fellow and have a degree of bachelor of Technology (Mechanical) from the Government College Hyderabad. He also has a diploma in Mechanical technology. He was very much enthusiastic and was determinant to go abroad within couple of years in order to do M.S.(Mechanical) and he could have been the advisor of certain foreign firms in mechanical field or in industrial units somewhere abroad, and could have been earn Rs.40,000 to Rs.50,000 per month. In addition to job in Highways Department, he used to do the part time work of mechanical character in a workshop and used to earn Rs. l00 to Rs.150 per day. Besides, he used to give tuition thrice a week on alternate day to more than dozen students of his locality and used to earn Rs.1200 to Rs.1500 per month. Before the accident he was very healthy, and having very sound physic and could have survived upto 75 years. He was having a romance with the medical student to whom he wished to marry who also could have become a supporting hand of monetary character in future after marriage. He was likely to get married with same girl friend (doctor) very soon but above said accident has drastically spoiled his academic career and has also made his life a thorny affairs with plenty of unhappiness, disappointment, displeasure, sufferings and misery resulting in an isolated and dull life. He was also very good sportsman and was very much fond of exercising and swimming. He also used to take part in different competitions of athletic nature.
8. Mr. Abdul Qudoos Abbasi son of Muhammad Malook, Secretary of (SRTC) Hyderabad, defendant No.2 filed written statement in which he has raised preliminary objections i.e. (I) That the suit as framed is not maintainable, (II) that the plaintiff has no cause of action against the defendants and (III)That the suit is not competent in view of Section 67(g) of the Motor Vehicle Ordinance. The Secretary to defendant No.2 submitted in the written statement that the Corporation of defendant No.1 is being financed by the Sindh Government as such the liability, if any, with regard to any bus is that of Government. He further submitted that the plaintiff has not described the particular of the bus. He denied that the defendant No.1 was driving the bus in question rashly and negligently and thereby dashed against the trailer in bid to overtake another vehicle in a very high speed as alleged. He also denied that the passengers injured and died due to rash and negligent driving of defendant No.2 as alleged. He also denied that the alleged injuries were caused due to negligence, default and wrongful act of defendant No.2 as alleged. He also denied that the defendant No.1 is liable to pay compensation and damages to the plaintiff as claimed. The Secretary to defendant No.1 further submitted that the plaintiff has not suffered on account of rash and negligent act of defendant No.2 as alleged and as such the compensation thereon is not maintainable. He also submitted that on one hand the plaintiff has claimed himself as pauper and on the other hand he has claimed relationship with the doctor who is said to be his girl friend. He also denied that the plaintiff was earning Rs.1500 per month and Rs.500 to Rs.600 as overtime as alleged. He submitted that the plaintiff is not entitled to claim damages and compensation from the defendants. The damages and compensation are, accordingly, as claimed, not admitted. He further submitted that the plaintiff is neither entitled to claim so-called general damages nor so- called special damages from the defendants. He further submitted that the plaintiff has no cause of action against the defendants. He further submitted that the plaintiff is not entitled to the reliefs claimed by him and prayed that suit be dismissed.
9. Upon pleadings of the parties following issues were framed by the Court vide order dated 25-10- 1992:--
(1) "Whether the suit is competent in view of Section 67(g) of the Motor Vehicle Ordinance?
(2) Whether the defendant No.1 is financed by Government of Sindh, of suits effect?
(3) Whether the severe injuries as mentioned in para 5 of plaint were caused to the plaintiff by the rash and negligent driving of the bus bearing Nos.958-974 on 3-2-1989 by the defendant No.2 during the course of employment of the defendant No.1, if so, what is its effect?
(4) Whether the defendants are liable to pay the special and general damages as claimed in para 5 of the plaint jointly and severally? Or what was the earning of the plaintiff at the relevant time?
(5) Whether the plaintiff is entitled to profit at the bank rate?
(6) What should the decree be?"
10. It is pertinent to mention here that plaintiff moved an application for joint trial of all suits and treat the evidence of leading Suit i.e. Suit No. 510 of 1989 as common in all cases, which was accordingly granted by consent and Hon'ble Court was pleased to pass an order on 9-3-1994 as follows:-- "By consent this application is granted. Suits No. 511/89, 512/ 89, 159/90, 1083/91 and 149/92 shall be tried together. Suit No. 510/89 shall be treated as leading Suit This Order will be read as Order in the above suits"
11. However, upon perusal of the evidence file it transpired that each plaintiff has adduced separate evidence, whereas the defendant has examined only one witness D/W-1 whose evidence can be treated as common in all the suits.
12. The description of evidence relevant for the Suit No. 510 of 1989 produced by the plaintiff along with respective documents is given as under:-- ' P.W.8. Syed Farrukh Saeed Alam Plaintiff in Suit No. 149/1992 {{TABLE}} Exh.P/66 r I.D. Card of plaintiff Exh.P/66 and 68 Diploma of Associate Engineer and B-Tech Degree Exh.P/69 Certificate of Disability Exh.P/70 Death Certificate of Syed Muhammad Alam Exh.P/71/1 to File of Medical 177 Documents.
Exh. P/71/1 to Receipts of Medical 105 treatment P.W.2 Abrar Hassan Police official who produced:-- Exh. P/6 Examination in Chief.
Exh.P/7 attested copy of FIR No. 19/89 Exh:P/8 Exh.P/9 Exh.P/10 Exh.P/11 Exh.P/12 certified copy of FIR No. 19/89 attested copy of Charge Sheet certified copy of Charge Sheet Sketch of place of occurrence Memo of Inspection Exh.P/13 attested copy of Memo of Inspection PW-1 Syed Farukh Saeed Alam (Eye Witness).
Exh. P/5 Examination in Chief {{TABLE}}
13. The defendants examined only one witness DW-1 namely Yar Muhammad who represented himself to be the Focal Person of defendant No.3. He did not produce any document but was crossed examined at length. Neither the driver nor the conductor or any independent passengers or any member of the public present on the site were examined. The defendants also failed to produce the departmental enquiry report though admittedly held to investigate the accident.
ISSUE NO.1
(1) "Whether the suit is competent in view of Section 67(g) of the Motor Vehicle Ordinance?
14. The burden of this issue is on the defendants as they have asserted the above plea but they have failed to produce any cogent material to positively justify the issue in their favour. However it may be added that the liability arising out of Fatal Accident Act is an independent statutory liability which is based on element of negligence, default and wrongful act. The compensation amount under Section 67 (g) of MVO for causing injuries specifies only Rs.10,000 as compensation payable for more than one injury vide Thirteenth Schedule, which is no fault liability regardless of any negligence element and therefore does not affect the liability arising out of Fatal Accident Act primarily based on negligence. The present suit is very much maintainable. This issue is answered in Negative.
' Reliance for this proposition and to support the negative finding on the issue is placed on:-
1. 1988 CLC 48
2. Upheld by DB 1988 MLD 582 1984 CLC 2830 ISSUE No.2
2. Whether the defendant No.1 is financed by the Government of Sindh, if so, its effect?
15. This issue can simply be decided by own admission of the defendant witness DW-1 (Yar Muhammad) the sole witness (Evidence at Page No.241 of Commissioner's Evidence file) who represented himself from Transport Department of Government of Sindh categorically admitted that the bus which was involved in the accident belonged to SRTC and he further proceeded to give entire description of the accident as per record of enquiry carried out by the department and says that the Fitness Certificate of the bus was in the bus at the time of accident. He also admitted that no major damage was caused to the SRTC bus involved in the accident. Regarding the defendant No.2 who was the driver allegedly driving the SRTC bus at the time of accident was stated by the said DW1 to be retired normally after the incident and all his dues were paid to him.
This shows that the ownership of the SRTC bus involved in the accident and the factum of defendant No.2 driving the said bus at the time of accident is proved and also admitted in the above terms. Besides, the plaintiff has produced eye-witnesses namely Syed Farrukh Alam (P.W.1) and had also examined the police officer namely Abrar Hassan (P.W.2) who has produced number of documentary evidence to the effect of proving the ownership of the SRTC bus and also driving by the defendant No.2 at the time of accident (Exh-P/7 and P/8-FIR) (Exh P/9 and P/10-Charge Sheet ) (Exh-P/11, P/12, P/13- Sketch of occurrence, Memo of Inspection and its attested copy) which went unrebutted and unchallenged whereby proving the aforesaid facts. Thus in view of above circumstances the issue No.2 is answered in affirmative. ISSUE No.3 ' Whether the severe injuries as mentioned in para 5 of plaint were caused to the plaintiff by the rash and negligent driving of the bus bearing No.958-974 on 03.2.1989 by the defendant so, what is its effect?
16. The pleadings as contained in para 3 of plaint and also evidence of the plaintiff P.W.3 Ayesha in Suit No.510/89 and P.W.1 eye-witness Syed Farrukh Saeed Alam sufficiently succeeded to prove the following facts on record, which are relevant and important for the determination of issue of negligence:
(i) The factum of ownership of the bus bearing Nos. 958-974 by SRTC.
(ii) The driving of said bus by the defendant No.2 during the course of employment of defendant No.1 is also admitted by the defendants.
(iii) The factum of accident in question resulting into death/injuries of above mentioned persons in the said accident is also proved and rather admitted by defendants witness DW-1.
(iv) The collision is also admitted but the defendants had tried to give their own version of accident from the mouth of the defendant No.1 though specifically not pleaded and tried to shift the negligence on the trawler driver.
17. In these circumstances the only fact which is disputed by the defendants is the manner in which the accident had taken place and rather the defendants have proceeded to advance a version of the accident through DW-1 who is neither eye witness nor signatory of written statement, which is contrary to the version of the plaintiff and also not specifically pleaded by the defendant in their written statement.
18. The learned counsel for the plaintiffs Mr. Nasir Maqsood has argued with vehemence that the Jurisprudence on accident cases had been crystallized on point that when the accident is admitted, the presumption of negligence will arise whereafter the burden shifts upon defendant to show that they were not negligent.
' This proposition, according to the learned counsel for the plaintiff is conclusively decided by the Supreme Court in its Judgment reported in 2006 SCMR 207 at para 9: "It is settled proposition of law that it is the duty of the plaintiff to prove the factum of the accident whereafter the burden is shifted upon the defendant to prove that the accident occurred not due to his or their negligence."
19. The learned counsel for the plaintiff further contends that in addition to the above principle to further facilitate to lessen the burden of proof on the plaintiff as the plaintiff in such circumstances are/ were not able to produce any evidence as to why or how occurrence took place and more so when the occurrence is such that it would not have happened without negligence and the thing which inflicted the damage was under the sole management and control of the defendant, the jurists have invoked and coined a new rule of evidence i.e. Res Ipsa Loquitur and in the set of circumstances as that of the present this rule was perfectly applicable and had been applied in number of cases pertaining to the fatal accidents and in such case when the defendant takes plea that the accident occurred on account of negligence of deceased himself then it was their duty to produce evidence to show that there was no default and omission on their part.
20. In order to fully appreciate the applicability of principle of res ipsa loquiture in present case, it will be F advisable to see how this important principle had been applied in fatal accident cases in Pakistan. The learned counsel for the plaintiff has placed reliance on the following case-law to support his arguments:-
(1) 1982 CLC 1120 (P.1122)A, Mrs. Gulbano v. Muhammad Ramzan (Justice Saleem Akhtar)
(2) 1982 CLC 1228 [PP.1230] A&B Mst. Zebunnisa v. Sindh Road Transport Corporation (Justice Saleem Akhtar)
(3) 1982 CLC 1703 [P.1707] Mrs. Nimmi Francis v. Muhammad Saeed Qureshi (Justice Saleem Akhtar)
(4) 1987 MLD 898 [P.899] Abdul Hague v. Pakistan Railways Telecommunication Department (Justice Saleem Akhtar)
(5) 1987 MLD 2402 [P.2404] Para-4 Spin Gul v. Lkramul Haq (Justice Saleem Akhtar)
(6) 1989 CLC 2153 [P.2156] A Hayat Services (Pakistan) Ltd., v. Kandan (Justice Saleem Akhtar and Justice Imam Ali Kazi)
(7) PLD 1991 Karachi 291 [P.295] Kazi Arifuddin v. Govt. Of Sindh (Justice Syed Hyder Ali Pirzada)
(8) 1993 SCMR 848 [P.855] A Pakistan Steel Mills Corporation v. Malik Abdul Habib (Justice Ajmal Mian, Justice Sajjad Ali Shah and Justice Saeeduzzaman Siddiqui)
(9) 1995 MLD 633 [P.636]A Mst. Sakina v. National Logistic Cell (Justice Abdul Rahim Kazi)
(10) 1997 CLC 615 [P.619] Anisur Rehman v. Govt. Of Sindh (Mrs. Justice Majida Razvi)
(11) 2000 CLC 381 [P.385] Bibi Khaida v. Govt. Of Sindh (Justice Rashid Ahmad Rizvi)
(12) 2000 CLC 111 [P.115] Roshan Vai v. Pakistan Steel Mills Corporation (Justice Rashid Ahmed Rizvi)
(13) 2001 CLC 913 [P.916] ABC Ashiq Masih v. Abbot Laboratories Pakistan Ltd. (Justice Zahid Qurban Alvi)
(14) 2001 CLC 928 [P.931] BC Mst. Nusrat Irfana v. Federal Government of Pakistan (Justice Zahid Qurban Alvi)
(15) 2001 MLD 1845 [P.1849] BCD Shoukat Ali v. KESC (Justice Zahid Qurban Alvi)
(16) 2001 YLR 821 [P.825] B, Shamim Akhtar v. Muhammad Arif Baloch (Justice Hamid Ali Mirza)
(17) 2003(sic) MLD 39 [P.46] at Para-14 Mst. Sabira Khatoon and others v.. Muhammad Akram Siddiqui and others ((Justice Zahid Qurban Alvi)
(18) 2004 MLD 491 Aijaz and others v. KTC (Justice Maqbool &gar)
(19) 2004 MLD 361 Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation (Justice Sabihuddin Ahmad and Justice Amir Hani Muslim)
(20) PLD 1960 Karachi 712 at (B&C) Ursulina D 'Lima v. Orient Airways Ltd. (Justice Wajihuddin)
(21) PLD 1964 Karachi 72 at 75,76 and 77 (A) Kulsoom v. Jalil Ahmed Khan (Justice Qadeeruddin)
(22) PLD 1964 Karachi 72 at 75, 76 and 77 (A) Kulsoom v. Jalil Ahmed Khan (Justice Qadeeruddin)
(23) PLD 1966 Karachi 850 at 592 and 593 Para (14), K.L. And M v. Ursulina D.Lima (Justice Qadeeruddin and Justice Illahi Bux Khamusani (D.B.).
(24) PLD 1970 Lahore 442 at 447 C Din Muhammad v. Faqir Muhammad (Justice A.R. Sheikh and Muhammad Afzal Khanji)
(25) PLD 1977 Karachi 685 at 687 (A) Mst. Momma Bai v. Ghulam Muhammad (Justice Naimuddin)
(26) PLD 1981 Karachi 561 at 566, 567 and 568 Nasreen v. Quality Steel and others (Justice Saeeduzzaman Siddiqui)
(27) 1984 CLC 2071 at 2075 Paras 9, 10 Quality Steel v. Nasreen (Justice All Nawaz and Justice Zahoor-ul-Haq (D.B)
(28) 1988 CLC 525 at 529 and 530 (C&D) Kandan v. Al Hayat Services (Pvt.) Ltd. (Justice Ahmed Ali U. Qureshi)
(29) 1988 CLC at 898 899 Mst. Kamina v. Al-Amina Goods Transport Agency (Justice Syed Abdul Rehman)
(30) 1988 MLD 1236 TO 1239 Khatoon v. Noor Sher Khan (Justice Haider All Pirzada)
(31) 1989 CLC 229 at 232, 233 and 234 Vucar Ahmed v. Blue Lines (Pvt.) Ltd. (Justice Abdur Rehman)
(32) 1989 CLC 2153 at 2157, 2158 and 2159 Al-Hayat Services v. Kandan ((Justice Saleem Akhtar)
(33) 1989 CLC 2218 at 2215 and 2226 Pare (13) Mst. Nafisa Begum v. Muhammad Ismail (Justice Wajihuddin Ahmad)
(34). 1989 MLD 1228, 3533 at 1231 and 1232 (C&D) Farrukh Ahmed v. M.D. Pak Arab Refinery (Justice Haider Ali Pirzada)
(35) 1990 CLC 404 at 413 and 414 (C) Govt. Of Punjab v. Mst. Kamina (Justice Haider All Pirzada and Justice Allah Dino Memon (D.B.))
(36) PLD 1991 Karachi 291 at 295 (A) Qazi Arifuddin v. Govt. Of Sindh (Justice Haider All Pirzada)
(37) 1992 SCMR 1715 at Para (3) 1720 (B) Mst. Kamina v. Al-Amin Goods Agency (Justice Ajmal Mian, Justice Sajjad All Shah and Justice Saleem Akhtar (Author))
(38) 1993 SCMR 848 at 855 and 856 (Paras 12-13) Pakistan Steel Mills Corp. Ltd. v. Malik Abdul Habib, (Justice Ajmal Mian, Saijad All Shah and Justice Saeeduzzaman Siddiqui)
(39) 1994 CLC 1903 at 1908 (E) lqbal Hussain Jaffery v. KESC (Justice G.H.Malik)
(40) 1994 MLD 1495 [P.1498]13 Hassan Nawaz Khan v. Municipal Corporation Multan (Justice Mian Saeedur Rehman Faarrukh).
(41) 1995 CLC 83 Road Transport Board NWFP v. Mst. Gul Zarina (Justice Jalaluddin Abbasi and Justice Mrs. Khalida Rashid)
(42) 1995 MLD 1922 at 1928 [D] Amina v. Govt. Of Pakistan (Justice G.H. Malik)
(43) MLD 1913 at 1918, 1919, 1920, 1921 [A,B,C,& D) Nisar Ahmed v. Mst. Uroos Fatima (Justice Hamid Ali Mirza)
(44) 1997 CLC 955 at 959 (Para-11) Mst. Shamim Akhtar v. Javedan Cement (Justice Rana Bhagwandass)
(45) 1997 CLC 507 at 512 (Para-14) Karim Bux v. KESC (Justice Rana Bhagwandass)
(46) (sic) MLD 2308 at 2321, 2334,2341,2343 [C,D,G, & H] Shah Bashir Alam v. Arokey Chemical Ind.
Ltd. ( Justice Nasir Aslam Zahid)
(47) 1998 CLC 199 at 204 [A] Punjab Road Transport Corporation Lahore v. J. V. Gardener (Justice Malik Muhammad Qayoom and Justice Saeed-ur-Rehman Farukh)
(48) 1999 MLD 768 Govt. Of Pakistan and others v. Ishrat Begum and others (Justice Amjida Razvi and Justice S. Saeed Ashad)
(49) 2000 YLR 1669 Mirza Muhammad Qasim Baig and others v. Government of Sindh through Secretary Ministry of Local Self Government and 2 others (Justice Ata-ur-Rehman).
(50) 2004 MLD 491 Aijaz and others v. KTC (Justice Maqbool Baqar)
(51) 204(sic) MLD 361 Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation (Sabihuddin A hmad and Amir Hani Muslim JJ.)
21. The learned counsel for the plaintiffs further contends that on the basis of the above principles, the plaintiff had to prima facie show the factum of the accident and thereafter the defendant had to come forward with the evidence to show that the accident was not due to their negligence.
22. In the instant case the plaintiff apart from successfully proving the factum, of accident had also produced credible trustworthy and cogent evidence both oral and documentary to reflect the element of lack of care in operating the bus by the defendant No.2.
23. The plaintiff examined himself as the eye-witness P.W.1, who was also the passenger and had been traumatically injured in the accident and also eye-witness in other connected suits i.e. Suits Nos.510/89, 511/89, 512/89, 159/90 and 1083/92 had categorically deposed in his evidence i.e. Exh- No.5 as under:-- "On 3-2-1989 I was travelling in a bus bearing registration No.958- 974 along with my mother from Karachi to Hyderabad. Before reaching the Toll Plaza, the driver was driving the bus in a very fast speed and the passengers were demanding from him to slow down the speed. It appeared as if the driver was driving the bus under intoxication. At some distance from the Toll Plaza he attempted to overtake another bus and as a result the bus collided with a long trawler coming from the opposite direction. As a result the bus turned turtle and fell down on the Katcha land on the right side of the road. It fallen down at a distance of about 30 yards from the place where it had collided with the trawler. The trawler did not fall down and remained at the place where it had collided with the bus. My mother received head injuries and her entire right hand was fractured. On the third day of the accident, she died in Abbasi Shaheed Hospital due to the injuries, suffered by her in the accident. I also received ten multiple injuries on my spinal cord, due to which my body below abdomen has been completely paralysed. My urinary system also suffered injuries and urine keeps on passing on its own and I have to use urine bag constantly. Similarly my lower intestine, have stopped functioning and stools pass on continuously.
' The bus belonged to Sindh Road Transport Corporation accident had taken place by the negligence of the bus driver."
24. The above said eye-witness was cross-examined on behalf of the defendant No.1 but his evidence on the material aspect of the negligence could not be displaced and shaken and the defendants failed to cross-examine on the most of the material aspect of the evidence tending to reflect the lack of care and diligence on the part of driver in causing the said accident. Rather the evidence of the said witness was further affirmed in the cross-examination as reflected from the following question(s) and answer(s) in the cross-examination: ' Q. Is it correct that Oil Tanker while overtaking the trawler came on the wrong side of the road facing the bus?
' Ans. It is incorrect ' Q. Is it correct that driver of the bus applied the brake to avoid the collision with the trawler?
' Ans. It is incorrect.
25. The plaintiff also examined P.W.2, Abrar Hassan the Police Officer who produced the (Exh-P/7 and P/8- FIR) (Exh- P/9 & P/10-Charge Sheet ) (ExhP/11, P/12, P/13- Sketch of occurrence, Memo of Inspection and its attested copy) which cumulatively proceed to prove and support the case made out by the plaintiff on the point of negligence.
' The plaintiff Ayesha P.W.3 in her evidence at Exh-14 had given the details of the place of occurrence which she observed when she visited the place after accident.
"On the next day I along with my brother went to place of accident and saw the bus lying overturned on the wrong side of the road in between Gulzar Hijri Police Station and Toll Plaza.
The bus was lying for about 20 feet away from road Father of my husband expired during the funeral of my husband 25(sic). In the above case, one of the passengers namely Syed Muhammad Ali whose minor son had also expired in the accident being plaintiff in Suit No. 159 of 1990 had also been examined as eye witness and connected matters. He had been examined as Exh.27.(at page 15 of Commissioner's evidence file ) by way of affidavit in evidence and had categorically stated in para 5 to 8 therein that:
5. That on 3-2-1989 I was travelling along with my wife Nahid Ali and my two children namely Sumera aged 3 years and Muhaib Ali aged 4 months on bus No.958- 978 belonging to the Sindh Road Transport Corporation from Karachi to Hyderabad.
6. That in the night when I was proceeding from Karachi to Hyderabad on the said SRTC bus via Super Highway I and other passengers noted that the driver of the said bus was driving in very fast speed and it appeared that he had lost the control of the bus. The passengers started shouting and demanding the driver to slow down the speed but he did not listen to any body and continued to drive rashly.
7. That I say that when the said SRTC bus No.958-974 reached near Pumping house on Super Highway at about 20:30 hours, the driver of the bus Ubaid Khan who was driving in a very rash and negligent manner, wrongfully and carelessly attempted to overtake another vehicle and in that attempt, the driver lost the control of the bus and owing to rash speed, dashed against a Trawler No. GLT5872 which was coming from the opposite direction. Consequently, the bus turned turtle and ultimately fallen down on the Katcha land on the extreme right side of the road at a distance of about 30 yards from the place where it had collided with the Trawler.
8. That more than two dozen passengers including myself got injuries and out of those injured five passenger succumbed to their injuries and were declared dead at Abbasi Shaheed Hospital where all the victims were taken for medical treatment.
26. The above material aspect of the negligence deposed by the above witness which is the natural account of the accident had not been denied in the cross examination and had rather affirmed when he stated as under:-- "It is not correct that trawler was coming from wrong side. It is not correct that driver of the bus was not in position to prevent the accident. It is not correct that accident had not occurred due to the mistake of the driver."
27. Besides, by virtue of the principle laid down by the Supreme Court in the case 2009 SCMR 207 supra at para-15 as reproduced above, defendants were obliged to show to the Court that the accident had not occurred on account of their negligence, once the plaintiff had prima facie proved the factum of the accident but in the instant case, the defendants had hopelessly failed to discharge the burden.
28. The defendants had failed to examine any evidence to disprove the element of negligence on the part of their driver. Only DW-1 Yar Muhammad was examined who was neither signatory of the written statement nor was eye-witness of the accident nor he had any personal knowledge about the facts governing the accident in question.
29. The said DW-1 had not only rebutted the evidence of negligence on the part of the driver produced by the plaintiff but rather had demolished the case made out by the defendant No.1 itself in its written statement.
30. The evidence of defendant No.1 (page No.241 of evidence file) was subjected to lengthy cross- examination wherein the DW-1 categorically stated about the following aspects in the given words:-- "It is correct that departmental enquiry into the incident was held The enquiry report is lying in the record of SRTC We issue fitness certificate before the bus goes out On road Fitness Certificate of the Bus was in the bus it is correct that all assets of the SRTC had been taken over by the Government of Sindh Obaid Khan driver normally retired after the incident."
31. In his examination in chief the DW-1 has admitted the factum of accident, on the said date, factum of deaths of the passengers and personal injuries, the factum of collision taking place between the SRTC Bus and the trawler coming from opposite direction. But the DW-1 had only disputed the element of negligence in the following words "The accident had taken place due to the fault of the trawler driver who dashed the trawler into, the bus, which was plying on its side and was in normal speed. "
32. This version of the accident which is contrary to the version advanced by the plaintiff as well as contents of the written statement filed by the defendant itself had proceeded to impose the burden upon the defendant to show that the accident. Resulting into injuries to plaintiff was not caused due to lack of care on the part of their driver and had been caused in the manner suggested by the defendants in the above narration.
33. The evidence on record clearly reflects the defendants not only failed to support the contents of its own written statement but rather gave mutually destructive evidence which demolished its own defence.
34. The defendant though admitted that enquiry report was conducted into the accident, failed to produce the findings of the said enquiry report either at the time of filing written statement or at the time of... Evidence.
' The defendants failed to examine the enquiry officer who carried out the investigation into the accident, while there is nothing on record to show. Any justification for his non production. In addition to the above DW-1 admitted that SRTC issue fitness certificate before the bus goes on the road but it was not produced and the same was justified by saying that it was in the bus which is incredible as the defendants ought to have retained its copy in its file or could have produced the same by summoning the certificate issuing authority to prove that the bus was perfectly fit and road worthy. But again for the reason best known to the defendants, no attempts were made to produce the above evidence in support of their version and to rebut the case put up by the plaintiff.
35. It was categorically admitted that the bus in question belonged to SRTC and the driver Obaid Khan was their driver who retired normally after the accident but in the written statement the defendant had not admitted these facts.
36. The defendants have therefore, not been able to discharge successfully the burden of proof shifted upon them and therefore the version given by the plaintiff is liable to believed being natural and credible which stood unrebutted on the aspect of negligence. The evidence of eye witnesses who were present in the bus at the time of accident and also been affectees of the accident had also gone unchallenged and had rather been affirmed in cross examination lead to the conclusion that the accident took place due to the negligence of the SRTC bus driver during the course of employment of SRTC now taken over by the Government of Sindh i.e. Defendant No.3 and saddled them with the liability.
37. Apart from the above evidence, the circumstantial evidence and the manner in which the accident had taken place also proceed to fix the liability on the defendants and establish negligence by virtue of invoking the principle of Res Ipsa loquitor. This principle is applied when the circumstances of the accident are most consistence with the existence of negligence and literally means (the thing speaks for itself). Here the site sketch, FIR, Memo of site inspection, newspaper clipping are sufficiently indicating that a bus coming from Karachi to Hyderabad near toll plaza in an excessively high speed in an attempt to overtake came on the wrong side and hit a trawler coming from opposite direction and the driver lost the balance and the bus turned turtle and could only halt after twenty seven to thirty yards on Katcha from the main highway after taking couple of turns. This caused fatal injuries to the passengers and resulted in heavy loss of lives of the passengers and severe personal injuries. This obviously does not happen in ordinary course of events and thus when happens sufficiently speak of negligence.
38. The above said witnesses were cross-examined by the defendants but the evidence of the said witness on the material aspect pertaining to the rash and negligent driving of the bus by the defendant No.2 and consequent injuries to plaintiff in question owing to such carelessness was not questioned/challenged and as such this omission to cross examine by the defendants would lend support to the case of the plaintiff.
39. It is cardinal principle of evidence that:- "Omission to cross-examine a witness on a material part of his evidence gives rise to inference that truth of his statement has been accepted. Such unchallenged statement of witness should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence".
40. The above proposition was discussed in the following judgments:-
(i) 1991 SCMR 2300
(ii) 1997 MLD 2013 [P.2016] A
(iii) 1988 MLD 1651 [P.1656]
(iv) 1997 CLC 1517 [P. 1520, 1521, 1522] A, B & 40(sic). Besides that, the plaintiff has also brought on record the documentary evidence reflecting the negligence on the part of defendant No.2 in the shape of FIR; Site inspection, Newspaper clipping which were also exhibited without any objection on the part of defendant and as such no cross-examination was done regarding the contents of these documents and neither the defendants produced any documentary evidence to controvert the facts established by the above mentioned documentary evidence.
41. It has been held by the Supreme Court in a reported judgment viz: 1998 SCMR 753 [A. 755] B that "mere oral assertion is not sufficient to rebut documentary evidence".
"Statement made on oath had at least to be contradicted on oath so that the comparative credibility of the one over the other could be judged".
42. Therefore, the principle of Res Ipsa Loquitor is, attracted in present case with full vehemence and is sufficient to saddle the defendants with liability of compensation owing to act of gross negligence.
43. The defendant had only attempted to take shelter behind the plea that the driver was acquitted in the criminal case but this plea was also devoid of force at all Factually, the defendants had failed to bring anything on record any documentary evidence on record as to how, when and on what ground the driver, was acquitted. There is no proof to show even whether he was acquitted or not, defendants had not deliberately called the record from the Court dealing with criminal case to prove their defence. But even otherwise, if it is assumed that the driver was acquitted, that is also not going to rescue the defendant from liability. This plea had been taken frequently in such cases on behalf of the owners and drivers involved in the accident in number of cases, but it had always been rejected on the ground that any determination with regard to the guilt of the offence by the court dealing with criminal case in accident matter had nothing to do with the determination of the civil liability by the civil courts dealing with the cases of damages filed under the provisions of Fatal Accidents Act, 1855. The conviction in the criminal cases is based on the evidence beyond all reasonable doubt but in the civil cases merely preponderance of probability is enough to establish the liability in negligence. Thus, in the present case the preponderance of probability lies in favour of establishing the element of negligence on the part of driver in view of the evidence discussed and referred hereinabove. The law is settled in this regard vide various Judgments passed by Honourable Supreme Court and also by High Court of Sindh, the reliance can be placed on; ' 2009 SCMR 1005 2004 MLD 491
44. The learned counsel for the plaintiff has argued that it is a cardinal principle of law that the plea raised in the written statement would have no effect in absence of evidence in proof of the same.
More so, averments in the pleadings would not constitute evidence unless they are proved by evidence and as such this invites serious consequences.
' He relied upon the following judgments in support of the above arguments--
(i) 1998 MLD 1122 [P. 1125]A
(ii) 1986 MLD 1613 [P. 1616]A
(iii) 1988 MLD 1651 [P.1657]D&E Head Note (d)
(iv) PLD 1983 CLC 244 [P. 249]B Messrs United Bank Ltd. v. Interior Decoration and Design Association.
(v) 1984 CLC 3172 [P. Headnote "A"
(vi) 1987 CLC 933 [P. 937]A&B Punjab Road Transport Board v. M. Muhammad Sadiq D.B. Judgment
(vii) 1988 CLC 2063 [P. 2066]A Qadri Brothers Foundry and Workshop v. Mst. Safia
(viii) 1995 CLC 1714 [P.1717]D Chaman Baig v. K.T.0
45. The learned counsel for the plaintiff further contends that in addition to that, the non- production of the driver, the defendant No.2, being the best evidence in the circumstances was also not produced and as such this default of withholding the best evidence proceeds to raise adverse inference against the defendants. This aspect was taken care of in Division Bench Judgment of this Court. He placed evidence on the following case-law on this point:- (i)PLD 1965 Karachi 127 at 132 Para.14, 15 and 16.
(ii) PLD 1965 (West Pakistan) Karachi 127 [P.132] Paras.14, 15 & 16. (D.B. Judgement).
(iii) PLD 1982 (Karachi) 236 [P.238] Para-4
(iv) PLD 1964 (Karachi) 72 [P.77].
(v) 1982 CLC 1228 [P.12301.
(vi) 1987 CLC 933 [P. 937](A)
(vii) 1995 CLC 1714 [PP.1717,
(viii) 1718]B,C&D
(ix) 2004 MLD 491
46. Besides withholding of the enquiry conducted by the defendant into the accident as admitted by the defendant No.1 in the cross-examination also raises an adverse inference against the defendants and it can safely be presumed that the same had not been produced because it would have gone against them.
' Reliance in this regard is placed on:--
(i) 1995 MLD 1922
(ii) 1991 SCMR 2126
47. The upshot of above discussion is that since the statement of eye-witness to the accident Syed Farrukh Alam P.W.1 the plaintiff himself deposed in his examination to prove the factum of rash and negligent driving leading to the death of the deceased in question had not been challenged and could not be shaken, the non-rebuttal of the plaintiff evidence by the defendants, non production of the driver into the witness box, withholding of enquiry report are sufficient enough to saddle the defendants with the liability of the compensation and as such in view of the pleadings and the evidence produced on record the issue of negligence i.e. Issues No.3 is answered in affirmative.
' ISSUE No.4
4. Whether the defendants are liable to pay the special and general damages as claimed in para 5 of the plaint jointly and severally? Or what was the earning of the plaintiff at the relevant time?
5. Whether the plaintiff is entitled to profit at the bank rate?
6. What should the decree be?
48. These issues deal with the quantum of damages as such the following statement of claim will depict the entitlement of plaintiff and other legal heirs as compensation/damages allowable under the Fatal Accidents Act for the loss of present and expected pecuniary benefits by the death of deceased in question.
49 Learned counsel for the plaintiff contended that the plaintiff has got severe injuries in said traffic accident and claimed damages as under:-
50. Plaintiff has to undergo special medical treatment and had to remain to confine to hospital for more than four months but when it seemed that plaintiff is not recovering any more plaintiff preferred to stay at home with a disappointment heart. Plaintiff underwent several medical J check up, medical treatment, operations and ultra sound and physiotherapy from many well known clinics and surgeons which brought plaintiff under heavy debt of friends/relatives. Plaintiff is till date visiting the different doctors and hospitals for the treatment of infections and diseases caused to plaintiff due to the injuries caused in the accident and as such plaintiff is bearing heavy cost on his treatment. Plaintiff had to purchase wheel chair and other bowels and other necessary instruments in order to keep himself in a normal way which also costs him heavily. Learned counsel for the plaintiff also contended that plaintiff has to drive on ambulance or taxi for all practical purposes causing plaintiff heavy financial liabilities and in future plaintiff will also keep off engaging taxi or ambulance for the purpose of movement from one place to another.
51. Learned counsel for the plaintiff further contended that the plaintiff was a man of very remarkable character and courage and was having most attractive personality with the shining spirit. Prior to the accident plaintiff was working as Sub-Engineer (Mechanical) in Highway Department, Government of Sindh and was earning Rs.1500 per month. Besides, plaintiff used to earn Rs,.500 to Rs.600 in terms of overtime. Plaintiff is well educated and well qualified fellow and have a degree of Bechelor of Technology (Mechanical) from the Government College, Hyderabad.
Plaintiff also has a diploma in Mechanical Technology. Plaintiff was very much enthusiastic and was detriment to go abroad within couple of years in order to do MS. (Mechanical) and plaintiff could have been the advisor of certain foreign firms in mechanical field or in industrial units somewhere abroad and could have been earned Rs.40,000 to Rs.50,000 per month. In addition to the plaintiff used to give tuition thrice in alternative day to more than dozen students of his locality and used to earn Rs.1200 to Rs.1500 per month. Before the accident plaintiff was very healthy and having very sound physics and could have survived upto 70 years plaintiff was having a romance with the medical student to whom plaintiff wished to marry who also could have become a supporting hand of monetary character in future after marriage. Plaintiff was likely to get married with same girl friend (doctor) very soon but above said accident has drastically spoiled his academic career and has also made his life a thorny affair with plenty of unhappiness, disappointment, displeasure, sufferings and misery resulting in an isolated and dull life. Plaintiff was also very good sportsman and was very much fond of exercising and swimming. Plaintiff also used to take part in different competitions of athletic nature.
48(sic). It is further contended that the plaintiff claims a sum of Rs.64,00,000 as damages/compensation against the defendants which is just and reasonable. !The defendants failed to settle his claim, therefore, the plaintiff filed the present suit for the recovery of damages against the defendants who are liable to pay the same jointly and severally.
52. On the basis of above parameters the following statement of claim is prepared to reflect the entitlement of the plaintiff under the law.
(i) Mental shock, agony, Rs.300,000 mental torture, Inconvenience, lack of charm of life.
(ii) Shortening expectancy of Rs.200,000 life.
(iii) Loss of amenities Rs.300,000
(iv) Sense of deterioration and Rs.300,000 deprivation and charges of being beggar.
(v) Damages of dependency for Rs.400,000 the whole life and permanent disability
(vi) 'Damages for permanent Rs.200,000 discomfort and infirmities.
(vii) Los of pleasure of marital Rs.500,000 life.
(viii) . Loss of prospectus of Rs.500,000 having a child and being a father.
(ix) Damages for restricted Rs.300,000 movement.
' SPECIAL DAMAGES:
(i) Past medical expenses Rs.10,00,000 and special food.
(ii) Prospective medical Rs,600,000 expenses and Special food including medical treatment abroad.
(iii) Transportation charges on Rs.300,000 taxi (past and prospective).
(iv) Past and present loss of Rs.15,00,000 earning ' TOTAL:- Rs.64,00,000 In view of the above, I hold that the plaintiff has discharged the onus in regard to proving issues Nos.4, 5 and 6 which are answered in favour of the plaintiff and the suit of the plaintiff is decreed as prayed in the sum of Rs.64,00,000 in the aforementioned terms along with interest/mark up at the rate of 15% on the decretal amount per annum from the date of institution of the suit till realization of the same and defendants are liable jointly and severally to pay the decretal amount. The Government of Sindh is given 30 days' time to satisfy the decree inasmuch as more than 20 - 25 years have passed since the sustaining of injuries by plaintiff, which rendered by him unable to earn his livelihood, failing which defendants will be responsible to pay a further amount of Rs.
5,00,000 on account of the punitive and exemplary damages in addition to the compensation granted.
' Interest/mark-up at the rate of 15% per annum on the decretal amount is being awarded as held in PLD 1997 Karachi 253.