This is a claim for Rs, 1,50,000 under the Fatal Accidents Act, 1855. The plaintiffs are the parents and sole legal heirs of Salim deceased who was killed in an accident in Karachi on 4th February 1965.
According to the plaint Salim deceased to whom I shall hereafter refer as the deceased, was going in a rickshaw on 4th February 1965 from Nazimabad to Gandhi Garden. The rickshaw was proceeding at reasonable speed over Lasbella Bridge when at about 1-10 p.m. a bus bearing No, KAT 9111 (to -- which I shall refer as the said bus) collided with it. In consequence of the collision the deceased was thrown out of the J rickshaw and was severely injured. He was taken to hospital and died of his injuries on the same day. At the time of the incident the said bus was owned by the second defendant and was being driven by the first defendant who was employed as a driver by the second defendant. The deceased was only 21 years at the time of his death and was in excellent health and used to carry on cloth business in Bohri Bazar, Karachi. His business was very successful and as a dutiful son he was paying his parents Rs, 1,000 every month out of his earnings.
As his death was caused by the negligence of the defendants, the plaintiffs, who have suffered on account of that negligence, have filed this suit for the recovery of a sum of Rs, 1,50,000 with costs and interest from these two defendants.
2. The first defendant has not filed a written statement and the case has proceeded ex parte against him. The second defendant has filed a written statement in which he had pleaded only that he did not own the bus which had collided with the rickshaw in which the deceased was travelling, therefore, he had no knowledge of the accident and did not admit the allegations in the plaint. He had also denied in this written statement that the first defendant was his driver. In view of the allegation of the second defendant in his written statement that he did not own the bus responsible for the accident, the plaintiffs made enquiries and filed an amended plaint impleading the third and fourth defendants. According to this amended plaint, the second defendant carried on business in the name of the 4th defendant, and had, in his name, hired the said bus from the third defendant, who was its owner and as the first defendant was employed by the second defendant, all the defendants were liable to the plaintiffs.
3. I am not able to understand why the 2nd defendant was impleaded twice, as defendant No, 2 and as defendant No,
4. Naturally he took advantage of this opportunity to file another written statement and in this written statement he pleaded, what he had suppressed in his earlier written statement, that he had hired the said bus from the third defendant, and this averment is supported by the third defendant's written statement. In his written statement the third defendant has denied all the allegations in the plaint for want of knowledge and has pleaded that he had hired the said bus to the second defendant under a contract which was in the nature of a hire purchase agreement. He has further pleaded that the first defendant was not employed by him and had never been employed by him, therefore he has repudiated liability for the accident and its consequences. As the said bus was insured with the 5th defendant, on 15th March 1968, the plaintiffs applied that the notice of the suit be sent to the 5th defendant under section 96 of the Motor Vehicles Act, 1939. This application was allowed, and in due course the 5th defendant filed its written statement. It has denied the allegations in the plaint and advanced various pleas in this written statement. . But as its defence is limited by the provisions of section 96 of the Motor Vehicles Act, I shall refer here only to those pleas in the 5th defendant's written statement which arise out of section 96. These pleas are the said bus was operating without a valid route permit, that its insurance policy had been issued only to the third defendant, and that it was not aware of its transfer by the third defendant to the second defendant, therefore this amounted to a material non-disclosure on the part of the third defendant and to a breach of the conditions of the insurance issued by it. It also submitted that the first defendant did not have a driver's licence, therefore, in view of these pleas it has repudiated liability.
3-A. On these pleadings, a large number of issues were framed. Later some of these issues were dropped and I have re-grouped and re-numbered the issues which remain as follows (I) 1hi hether the plaintiff's sonSalm was killed on February 4th, 1965 as a result of negligence of the defendants?
(2)Whether the bus collided with motor-cycle rickshaw in which the deceased was riding in consequence of the negligence of defendant No, 1?
(3)Whether the deceased was paying Rs, 1,000 to the plaintiffs?
(4)To what relief are the plaintiffs entitled?
(5)Whether bus No, KAT 9111 was being driven at the time of the accident by defendant No, 1 in the course of his employment as its driver in the service of defendants Nos, 2, 3 and 4?
(6)Whether the suit is within limitation and whether it is bad for non-joinder of necessary parties?
(7)Whether the defendant No, 3 had delivered the bus to defendant No, 2 as proprietary of defendant No, 4 under contract of hire-purchase? If yes, its effect and whether transfer was with notice to the defendant No, 5?
(8)(a) Whether defendant No, 5 in law is not liable under the policy of insurance?
(&) (b) Was defendant No 1 holding a driving licence at the relevant time?
(8) (c) Whether the bus had a valid route permit at the relevant time?
I shall now examine the evidence produced by the parties on these issues.
4. Issues Nos, 1 and 2. --As both these issues relate to the manner in which the death of the deceased occurred, it will be convenient to consider them together. It is common ground between the parties that the accident occurred on I dd day shortly after 1 p.m. on Lasbella Bridge. This bridge has four lanes of traffic, two are for traffic going to Nazimabad and two are for traffic going to Lasbella. The rickshaw in which the deceased was travelling was going in the direction of Lasbella, whilst the said bus was going in the opposite direction, namely, Nazimabad, and there are different versions of the manner, in which the collision between these two vehicles took place. I shall now examine these different versions, but at the outset I have to observe that, although there must have been heavy traffic at the time of the accident, the parties have produced very scant evidence in support of their respective contentions.
5. The plaintiffs' version is based on the evidence of their son-in-law, P. W. Kasimali. P. W. Kasimali was with the deceased in the rickshaw at the time of the accident and he has said in his evidence that the rickshaw was going at a speed of about 20 miles per hour in the direction of Lasbella. It was in the first lane of traffic for traffic going in that direction when suddenly the said bus, which was being driven very fast and recklessly, came and hit it, in consequence of which the deceased was thrown out, received injuries and died in the course of the same day. According to 'the police version, the rickshaw was not in the first but in the second lane of tranffic for traffic going to Lasbella. This version is based on the evidence of D. W. Amir Nawaz, Sub-Inspector, who prepared a plan of the accident (Exh. 13) about three to four hours after the occurrence. He has said in his evidence that he had prepared the plan of the accident on the basis of his own measurements and he has emphatically said that the rickshaw was in the second lane of traffic for Lasbella, and the said bus came and hit it in that lane so that it "was on the wrong side of the road". Finally, the second defendant's version is that the rickshaw was being driven recklessly, and that, in order to overtake two other rickshaws, which were ahead of it, it had crossed over into the lane of traffic for traffic going to Nazimabad, therefore it had collided with the said bus which was going to Nazimabad and was in its proper line of traffic. This version is based on the evidence of D. W.
Muhammad Rafiq, and the point for determination under these issues is which of these three versions is correct.
6. D. W. Mohammad Rafiq was not a witness of truth and I have not been impressed by his evidence at all. He first pretended that he could not read the police plan of the accident (Exh. 13).
But when he thought this might damage the second defendant's case, he changed his mind and said that he could read it. Although he had given evidence in favour of the first defendant in the Magistrate's Court, he professed in this Court not to know even the name or the whereabouts of the first defendant. I am not able to believe this, and when he was questioned as to why he had gone to give evidence in the Magistrate's Court he said it was because be had seen the A. S. I. talking with the rickshaw driver. As no question was put to D. W. Amir Nawaz about his alleged partiality to the rickshaw driver, I have no doubt that D. W. Muhammad Rafiq's explanation of his conduct was false. Additionally, in order to explain his presence at the occurrence he said that he had a shop about a furlong and a half from Lasbella Bridge. Yet he was unable to say even roughly what the width of the Bridge was. Finally, he was definite that only the deceased was in the rickshaw and that P. W. Kasimali was not in the rickshaw. I am satisfied that P. W. Kasimali was in the rickshaw and having watched P. W. Muhammad Rafiq, I have no doubt that he was not a witness of truth.
Therefore as P. W. Kasimali has denied the allegation that the richskaw was in the wrong lane of traffic at the time of the accident because it was overtaking other rickshaws, although P. W.
Kasimali was not a disinterested witness, I prefer his evidence at least to that of D. W. Muhammad Rafiq.
7. However, P. W. Kasimali's evidence that the rickshaw was in the first lane of traffic going to Lasbella is inconsistent with the plan prepared by D. W. Amir Nawaz (Exh. 13), and I see no reason to prefer his evidence to the impartial version of the accident, as given by D. W. Amir Nawaz, even though the plan prepared by him was on the basis of investigations and enquiries subsequent to the accident. Mr. Rahimtoola submitted that I should accept P. W. Kasimali's evidence unless there was any reason to think that it was unreliable in any way, and that I should not reject it merely because he was a close relation of the deceased. I agree with learned counsel that P. W. Kasimali's evidence should not be rejected merely because he was the deceased's brother-in-law. But in order to support the claim of the plaintiffs, he said that the deceased was supporting the plaintiffs by giving them Rs, 1,000 every month. For the reasons which I shall presently give, this claim appears to me to be false, therefore as P. W. Kasimali went out of his way to support a false and exaggerated claim this is a circumstance which affects his veracity. Additionally, he admitted in his evidence that one Ashiqali, a friend of the deceased, had witnessed the accident. Yet the plaintiffs neither examined the said Ashiqali nor the rickshaw driver. Their failure to examine these witnesses, especially the rickshaw driver, leads to an adverse inference against P. W. Kasimali's version of the accident, and in all the circumstances discussed, I prefer the police version of the accident.
8. As, according to the police version and the evidence of D. W. Amir Nawaz, the said bus was in the wrong lane, Mr. Shibli submitted that driving in a wrong lane, of traffic by a vehicle did not amount to any offence, therefore even if D. W. Muhammad Rafiq had given false evidence, the mere fact that the said bus was in the wrong lane of traffic did not mean that it was being driven negligently. I am not able to agree with the view that driving in the wrong lane of traffic is not necessarily a criminal offence. However I am not dealing with criminal liability in this case; and, as the said bus was in the wrong lane of traffic, it means that it was on the section of the Bridge normally used by traffic going to Lasbella and not to Nazimabad. Its presence in that lane of traffic itself constituted a danger to traffic going to Lasbella, as the rickshaw was, therefore, in the absence of any explanation, the fact that the bus was in the wrong lane of) traffic is prime facie evidence that it was being driven negligently.
That presumption could easily have been rebutted by evidence, as it is obvious that in the circumstances, the accident must have been seen by many other persons. The second defendant only examined a witness who was thoroughly dishonest and did not examine even the driver or the conductor of his bus. In order to justify his failure to examine the first defendant, he has denied in his evidence that the first defendant was his driver. He has said that he did not know the first defendant and that one Shah Baz Khan, now dead, was his driver. He has further said that on the day of the accident this Shah Baz Khan had taken the said bus from the garage for driving it. But having received a message that his wife was ill, he had gone home and told the first defendant "to drive the bus back to the garage and the accident took place on the way". I was not impressed by the second defendant's evidence. First of all, as he was plying the bus on a commercial basis he was required to keep registers of his drivers and he said that he had kept the registers but they were no longer with him. As the suit was filed within one year of the accident, I find it impossible to believe the second defendant's statement that he had destroyed his registers. I have no doubt that he has deliberately suppressed these registers, therefore, I am not able to believe his statement that the first defendant was not his driver. Additionally, the burden of proving that the first defendant was not his driver was heavily on him. He was therefore required to examine the alleged Shah Baz Khan. He did not examine Shah Baz Khan, and to explain his failure so to do, he stated that Shah Baz Khan had died in 1968. But as no death certificate of Shah Baz has been produced, I am not able to believe the second defendant's evidence at all. I have no doubt that the first defendant was the second defendant's bus driver, therefore he could easily have examined him, and as he has not done so, he has not been able to explain the reason why the said bus was in the wrong lane of traffic. In view of the absence of any explanation in this respect the plaintiff has proved that the said bus was being driven negligently at the time of the accident.
9. Mr. Shibli then tried to argue that, according to the plan (Exh. 13) the point where the accident occurred was not in the second lane of traffic, but, was on, so to say, the third lane of traffic, from Lasbella so that the bus was in its own lane of traffic. Mr. Shibli also argued that the distance between the point where the collision took place and the point where the rickshaw was found by the police was so great that this proved that it was being driven rashly and negligently, and that the rickshaw and not the said bus was in the wrong lane of traffic. The short answer to these arguments is that not only were no such pleas advanced by the second defendant in his two written statements but he has also not dared to put this version of the accident to D. W. Amir Nawaz. I have, therefore, no doubt that the said bus was in the wrong lane of traffic at the time of the accident. Mr. Shibli then stated that the first defendant had been acquitted in the Magistrate's Court, therefore his acquittal by a competent Court disproved the allegation of negligence against him and, as the burden of proving negligence was on the plaintiff, the plaintiff had failed to prove its case. I am not able to agree with this argument. The burden of proving negligence in a criminal prosecution is much heavier than in a claim under the Fatal Accidents Act, therefore whatever be the position, when a person is convicted of negligence by a criminal Court, the fact that he has been acquitted for rash and negligent driving under the Penal Code is irrelevant to the question of negligence in a civil action for negligence.
10.Finally, Mr. Shibli submitted that Pakistan had no longer any law of Tort, and that though the Fatal Accidents Act was still on the statute book, it had been impliedly repealed by Article 130 of the 1962-Constitution, therefore, according to learned counsel, the only remedy of the plaintiff was to prosecute the first defendant for offences, if any, under the Pakistan Penal Code. In support of this argument, learned counsel relied on the observations of Qadeeruddin, J., as he then was, now the Chief Justice, in General Manager, North Western Railways v. Sher Mohammad . The observations on which learned counsel relied, state :- "The revolution (of 1958) marks a complete break in the continuity of the association of the British Crown with Pakistan. It demarcates the establishment of a new alliance with the United Kingdom without any allegiance to the British Crown. Common Law is no longer the reservoir of our law and Article 130 of the present Constitution completes its disconnection as a source of our law. It enjoins an important change in the administration of law. . . ."
Learned counsel did not care to see that these observations had reference to the very narrow question which was raised by the appellant in the judgment cited. The question in the judgment cited was whether a suit for arrears of salary by a Government servant could be decreed against the Government, and the appellant had contended that, according to the common law, salary was the bounty of the Crown, therefore a suit for arrears of salary could not be decreed. the observations quoted had reference to this argument and the peculiar facts of that case. But unlike that case, in the instant case, the applicability of the principles of the common law is implied in the very provisions of the Fatal Accidents Act, therefore, the judgment cited is distinguishable. I may also observe here that this Court has, on many occasions after the abrogation of the Old Constitution in 1958 and the promulgation of the 1962-Constitution, decreed claims under the Fatal Accidents Act on the basis of the common law (See a Division Bench judgment of this Court in Zebunnisa v. Mohammad and others , therefore learned counsel's argument that the Fatal Accidents Act should be treated as if it had been repealed or, as he put it, treated as a dead letter, is frivolous.
11.No other arguments were advanced on these issues. Accordingly, I hold that the said bus collided with the rickshaw in which the deceased was travelling on account of the negligence of the first defendant.
12. Issues Nos, 3 and 4.--The question for consideration under these issues is whether the deceased was paying the plaintiffs Rs, 1,000 a month as claimed by them and, if not, whether they are entitled to any compensation. The main evidence on these issues has been given by the first plaintiff, who was the deceased's father. He has said in his evidence that, at the time of death, the deceased had a Kariana shop and a cloth shop in Bohri Bazar, that his monthly income was Rs, 2,000, and that he used to pay him Rs, 1,000 every month. I may quote here a short passage from the first plaintiff's evidence :1 2 "He (the deceased) was born in 1945. He was in very good health at the time of his death. He was in the cloth business at the time of his death and he had a shop in Bohri Bazar. He was earning more than Rs, 2,000 a month. He used to give us a minimum of Rs, 1,000 per month."
The first plaintiff has further stated that he had himself carried on business until 1960, and that the deceased had joined him in business and taken it over on his retirement. He has further said that the total capital investment by Salim in his cloth business was Rs, 55,000 when he had commenced it and that he had given him Rs, 20,000, whilst the second plaintiff had also given him some thing. However, strange it may seem, he could not remember what his wife, the second plaintiff, had given to the deceased nor how the deceased had obtained the balance of Rs, 35,000 to make up his initial capital investment of Rs, 55,000. Further, he (the first plaintiff) admitted in evidence that in addition to the deceased, he bad four other sons two of whom were older than the deceased. As he had other sons, it is obvious that the other sons also might have been supporting the plaintiffs, but they were not examined. In these circumstances, it was incumbent on the plaintiffs to prove beyond doubt that the deceased, who was only 21 years old, was really earning Rs, 2,000 per month and was the sole owner of the Bohri Bazar cloth shop as claimed by him. But, according to the copy of the lease of this shop (Exh.17) which he produced the shop had been leased to deceased and two other brothers of the deceased, namely, Daudali and Akberali. This evidence would suggest that, if the deceased had any share in the shop, it was only a third share.
The first plaintiff was therefore cross-examined on this aspect of the case, and he said that the names of Daudali and Akberali had been inserted in the lease (Exh. 17) on legal advice. But as neither the Advocate who drafted the agreement nor Daudali nor Akberali have been examined, I am not able to believe the first plaintiff's evidence, the more so, as for instance, he professed not to know what his first son Sherali was doing, and he could not remember anything detrimental to his interest. The plaintiffs have therefore failed to prove that the deceased was the sole owner of the Bohri Bazar shop. Again, assuming that the plaintiffs were not able to examine their sons Daudali and Akberali to prove that the deceased was the sole owner of the Bohri Bazar shop, they could at least have produced his books of account to prove their claim that he was earning Rs, 2,000 per month and, as their claim has been challenged by all the defendants, their failure to produce these books of account leads to a very strong inference against it. I had therefore pointed out to Mr. Rehimtoola that I would, if necessary, give the plaintiffs time to produce the books of account of the deceased. But they were never produced, therefore the learned counsel for all the defendants rightly pointed out that this leads to an adverse inference which is fatal to their claim.
13.Mr. Rahimtoola knew that the failure of the plaintiffs to produce their books of account would lead to a strong adverse inference against them. However, he submitted that, as income-tax was not payable by persons whose income did not exceed Rs, 6,000 per year the deceased was not required to keep books of account, therefore no adverse inference should be drawn against the plaintiffs for not having produced the books of account. In the first place, the first plaintiff has admitted that the deceased had some books of account, secondly learned counsel's justification of the failure to produce books of account is fatal to the claim of the plaintiffs that the deceased was earning Rs, 2,000 per month.
14.Additionally, the first plaintiff has admitted that he used to carry on business in cloth and that he had given the deceased a sum of Rs, 20,000 when he had retired from the cloth business. In these circumstances, learned counsel for the defendants submitted that the inference to be drawn from the plaintiffs' failure to produce books of account was that the deceased never had a business of his own, and that he was only employed by his father, therefore no loss had accrued to the plaintiffs on account of his death. In order to meet this difficulty, Mr. Rahimtoola submitted that even if the deceased was an employee of the first plaintiff, as his child, he was rendering him services and, under the common law a parent is entitled to recover compensation for the death of his child on the footing that the death deprives the parent of the services of his child. Learned counsel's statement about the rights of the parent under the common law is correct provided that the child is a minor. But Mr. Shibli pointed out that the question whether the deceased was rendering services to the plaintiffs was a question of fact which had not only not been pleaded but was inconsistent with the averments in the plaint, therefore he submitted that learned counsel's argument was not fit to be entertained. As the' deceased was born in 1945, he was a major at the time of his death so that there is no presumption that he was rendering any services to either of the plaintiffs. In these circumstances, in order to recover compensation for loss of services, the plaintiffs should have pleaded in their plaints that the deceased was rendering them services and, as they have not done so, Mr. Rahimtoola's argument cannot be entertained.
15.Finally, Mr. Rahimtoola submitted that even if the plaintiffs had completely failed to prove that the deceased was making any payment or rendering any services to them they were still entitled to compensation under section 2 of the Fatal Accidents Act, and in this connection he relied on the observations of the Supreme Court in Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman . On the other hand, learned counsel for the defendants submitted that, as an adverse inference had to be drawn against the plaintiffs for suppressing the books of account of the deceased, they were barred even from obtaining compensation under section 2 of the Fatal Accidents Act. An adverse inference has to be drawn against the plaintiffs for suppressing the books of account of the deceased. But as the Bohri Bazar shop had been opened only 10 months before the death of the deceased and in view of his youth, the suppression of the books of account by the plaintiffs might not be fatal to their claim. Even if the deceased was working for his father at the time of his death, or even if he was not successful in his business as he was a young man, he would have lived and worked and improved his prospects and supported his parents, therefore, in view of the judgment cited, some compensation would be due to the plaintiffs provided they have not benefited on account of the death of the deceased.
16. I may observe here that the judgment cited has some similarity to the facts of the instant case with regard to this argument of learned counsel. The plaintiffs in the judgment cited were the parents of a girl of 6 who had been killed by a bus. In these circumstances, it was not possible for them to give any evidence of her earnings. But as they had proved that the deceased child "had a rare talent for dancing", the East Pakistan High Court came to the conclusion that on account of this rare talent she would have earned about Rs, 400 to Rs, 500 a month and given her parents Rs, 100 a month, therefore their claim was decreed in the sum of Rs, 10,000, and this judgment was upheld by the Supreme Court. The judgment supports learned counsel's argument that the plaintiffs' claim should not be totally rejected merely because they have not produced evidence of the actual income earned by the deceased before his death. But, as I have said, the compensation awarded in the judgment cited was only Rs, 10,000. I therefore enquired from Mr. Rehimtoola whether this was the amount sought by the plaintiffs. He submitted that this amount was far too low. But he was not able to specify what amount should be decreed, and the reason for this was that the plaintiffs had notonly suppressed evidence of the earnings of the deceased but they have also not given any evidence to show that he was particularly talented or that he had any special ability. However, 1 find that the first plaintiff has said that the income of the Bohri Bazar shop, after the deceased's death, was about Rs, 300 per month. As the deceased had not completed even his school education, if he had lived, at the highest, this would have been his monthly income. Mr. Rahimtoola then submitted that even with average ability the deceased earnings would have increased over the years. That is true. But, as he would have married and had his own family, his personal liabilities would also have increased, thereby affecting the assistance which he could give to his parents. In these circumstances the plaintiffs cannot possibly obtain more than about Rs, 10,000 for compensation under the Fatal Accidents Act.3 17.However, the plaintiffs are the sole heirs of the deceased, therefore they inherited both the cloth shop and the kariana shop on his death. The first plaintiff has himself said that the initial investment in the cloth shop was Rs, 55,000. But then in cross-examination he said that the shop had not done well and the value of its stocks had fallen to Rs, 40,000. This statement about the fall in the value of the stocks of the shop was elicited in Mr. Arfin's cross-examination. Mr. Rahimtoola had rightly objected to this cross-examination. But, as he found that parts of the cross- examination supported his argument, he relied on it. I shall therefore assume, as correct, the first plaintiff's statement that the stocks of the cloth shop had, on the date of the death of the deceased, fallen to Rs, 40,000 or even less than that. But the deceased also had a kariana shop, the lease-hold of which alone must have been valuable. Mr. Rahimtoola submitted, on the basis of the first plaintiff's statement in his cross-examination to Mr. Arfin, that the first plaintiff had returned the kariana shop to the landlord. Even if I accept this statement as true, the first plaintiff has also said that the stocks in this shop were worth Rs, 10,000 at the time of the death of the deceased and that he had sold them for Rs, 6,000. Although he had been a businessman, he did not produce any independent evidence about the sale of these stocks, and he seemed to me far too shrewd a man to sell off stocks at a loss when he was returning the shop premises to the landlord. I have therefore no doubt that he had sold the stocks of the kariana shop for more than Rs, 10,000, and this means that the plaintiffs have inherited at, least Rs, 50,000 on account of the untimely death of the deceased. As this amount far exceeds any possible assessment of their, loss under the Fatal Accidents Act, their suit must fail unless they are not liable to adjust the benefits received by them on account of the death of the deceased against their claim for his death. Reason and equity require that they should account for this benefit. As observed by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. "the damages (for death) are to be assessed on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered : Grand Trunk Railway Co. of Canada v. Jennings . The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death".
18.However, Mr. Rahimtoola, learned counsel for the plaintiff, submitted that the common law was changing. In this connection he referred me to the provisions of the English Fatal Accidents Act, 1959. I may explain here that in assessing damages for death under Lord Campbell's Act, 1846 (which corresponds to our Fatal Accidents Act, 1855) the English Courts used to take into account any sum payable on the death of the deceased under any contract of insurance, and this principle has always been followed by this Court. This principle has been altered in England and I may observe here that the first inroad on this principle was made by the Fatal Accidents Act, 1908 and not 1959. Be that as it may, section 2 of the English Fatal Accidents Act, 1959 declares that in assessing damages under it no deduction shall be made from the damages not only of insurance money but of pensions and gratuities. According to learned counsel, as the principles of the common law have been modified by the 1959-Act, they should no longer be treated by this Court as principles of equity, justice and good conscience, therefore the plaintiffs were entitled to damages, although they had inherited the entire capital of the deceased from the income of which he had been giving them an allowance. I am not able to agree with learned counsel's submission that because the English Parliament has modified the principles of the common law, therefore those principles have automatically ceased to be principles of enquity, justice and good conscience. There may be occasions when this conclusion might be correct, but in the instant case, I have no doubt that the principle that the damages claimed by a plaintiff under the Fatal Accidents Act should not be computed without reference to the benefits derived by him from the4 5 death of the deceased is a principle of equity, justice and good conscience. I may also observe here that whilst the position may well be different when the claimants, under the Fatal Accidents Act, are the widow or the children of a deceased, in the instant case, the plaintiffs are the parents of the deceased and but for his untimely death, they would never have been able to inherit his estate.
In these circumstances, I cannot see any equity in their favour. As Mr. Rahimtoola laid so much stress on the current developments of the Common Law, I may quote here a passage from Mayne "On Damages" with regard to the rights of the parents of a deceased. In para. 845 of the 12th Edition the learned author has stated : "Cases will also arise where, but for the death, the dependants would probably never have received the estate: this will be so, for instance, in the case of a claim by aged parents who would otherwise in all probability have pre-deceased their child. In such a case it would be proper to deduct something approaching the whole amount of the estate received by the parents; the value of the acceleration is irrelevant here. And intermediate cases can readily be imagined.
Lastly, where the deceased's sole property consists of unearned income out of which he supported the dependant and the whole estate from which he derived this income passes to the dependant, the dependant's claim fails as there is no pecuniary loss. All that the dependant could lose was the support from that income, and since the death he has the income himself."
As I have observed, according to the first plaintiff, the deceased used to earn Rs, 2,000 a month from his shops, and give them (the plaintiffs) only Rs, 1,000 a month, therefore as they have inherited the entire capital of the deceased, I do not think they are entitled to any relief irrespective of the question whether their allegation that the deceased was supporting them be true or not.
Accordingly, I decide both these issues against the plaintiffs.
19.Issue No, 5.--For the reasons which I have given in para. 8 1 have no doubt that the first defendant was driving the said bus at the time of the accident in the course of his employment as the second defendant's driver, and the second defendant is clearly liable for the consequence of the accident. However, the second defendant was not the owner of the said bus, and as the third defendant was admittedly its owner at the time of the accident, the further question for consideration is whether he is also liable for the negligence of the first defendant.
20.Both Mr. Shibli and Mr. Rahimtoola argued that because the third defendant was the owner of the said bus, the first defendant must be deemed to have been in his employment. In support of this argument Mr. Shibli could only refer me to the definition of 'owner' in subsection (24) of section 2 of the West Pakistan Motor Vehicles Ordinance, as promulgated on 8th June 1965. I do not think the object of this Ordinance was to change the law of Master and Servant, therefore the definition is not relevant to the point under determination before me. However, it is not necessary to consider this definition because the Ordinance itself came into force after the said accident. As the definition in this Ordinance is therefore not relevant, Mr. Ali Raza, who appeared on behalf of the third defendant, submitted that the third defendant had delivered the said bus to the second defendant under a hire purchase agreement, therefore he had ceased to be its owner within the meaning of section 2 of subsection (19) of the Motor Vehicles Act, 1939. As this Act deals with the insurance of Motor Vehicles and the liability of insurers, its provisions are relevant to the question under consideration, and I shall examine the definition of 'owner' in this Act. This definition reads as follows : " 'Owner' means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement."
In order to claim the benefit of this definition, the third defendant has to show that he had delivered the said bus to the second defendant under a hire purchase agreement. The agreement between the defendants is Exh. 28 and under it the second defendant was to pay the third defendant Rs, 3,000 per month as the hire of the said bus, and during the pendency of this agreement he was responsible for all taxes and liabilities whatsoever in respect of the said bus. As the second defendant has admitted in his evidence that he had sold off the said bus, Mr. Ali Raza submitted that his agreement was a hire-purchase agreement. Mr. Shibli rightly pointed out that the agreement (Exh. 28) was an agreement for hire simpliciter and could not be treated as a hire- purchase agreement, therefore the definition quoted above is not, in terms, applicable to the instant case. But merely because the third defendant's case is not supported by the provisions of the Motor Vehicles Act, it does not follow that he should be made liable for the first defendant's negligence. He can be liable only on the basis of the principle of vicarious liability, and no attempt has been made to show how he could be liable on this principle.
21. The principle of vicarious liability is based on social convenience and rough justice. In Imperial Chemical Industries Ltd. V. Shat well . Lord Pearce has summed up the development of the principle of vicarious liability at p. 685 as follows : "The doctrine of vicarious liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it. The doctrine maintains that liability even in respect of acts which the employers bad expressly prohibited (See Canadian Pacific Railway v. Lockhart 1942 A C 591) and even when the employers are guilty of no fault themselves."
I am in respectful agreement with these observations and the question is whether the first defendant can be deemed, even by a legal fiction, to have been in the third defendant's employment at the time of the accident merely because the third defendant was the owner of the said bus. The answer depends on when a person becomes the servant of another in law. In consequence of the doctrine of vicarious liability developed by the common law, the legal meaning of the word 'servant' is much wider than its ordinary meaning. Salmond has defined a servant in the 16th Edition of his Law of Torts (609) as follows : "A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done."
In the instant case, under his agreement with the second defendant (Exh. 28), the third defendant did not have any share in the profits or the running of the said bus, and he was only entitled to a monthly rent for its hire. He also did not have under this agreement any control whatsoever over the said bus which was vested exclusively in the second defendant. As he had neither any control over the said bus nor any share in the profits of running it, I cannot see any principle of reason or equity on which he can be held liable for the first defendant's negligence. This is also the view of Salmond who has pointed out at page 616 of the same book with regard to the bailment of motor vehicles as follows : "The owner will escape liability, however, if he can show that the motor-car has been lent or hired for purposes in which he has no interest or concern. In such a case the driver is the owner's bailee and not his servant."
22.I also find that my view is supported by two English decisions. In Daniels v. Vaux the facts were that the defendant had lent an M. G. car to her son, who had driven it negligently and knocked down a policeman on duty on the highway. As he died, the plaintiff filed a suit under Lord Campbell's Act for the recovery of damages against the defendant. The defendant pleaded that she was not liable, as she had bailed the car to her son who was driving it at the time of the accident. This plea was accepted by Humphreys, J. who dismissed the claim. A similar question came up for consideration before the Court of Appeal 15 years later in France v. Parkinson . The6 7 8 facts of that case were that the plaintiff's car had collided with the defendant's car in the middle of a highway, therefore, according to the settled view of the English Courts, the drivers of both vehicles were equally negligent. The plaintiff was in his car at the time of the accident. But it was being driven by another person to whom he had hired it out at the time of the accident. He therefore sued the defendant for damages and in allowing his claim Somervell, L. J. observed at page 740 : "Counsel for the defendant sought to raise in this Court the question whether it was the hirer who was driving the car--whether it might not have been delivered back to the plaintiff and been driven by one of his servants. We ruled that that point could not be taken, and the case proceeded on the basis that the car was being driven by the hirer. In those circumstances it is not disputed that the plaintiff was in the same position as a passenger, and, therefore, even if the driver of the car had been negligent, so long as the plaintiff can establish some negligence on the defendant's part he could claim all his damages."
I agree with the view taken in these judgments. The first defendant cannot therefore be said to have been in the third defendant's employment at the time of the accident and merely because the third defendant was the owner of the bus when the accident took place, he is not liable to the plaintiffs for any damages.
23.Issue No, 6.--A suit under the Fatal Accidents Act has to be filed within one year of the accrual of the cause of action under Article 21 of the Schedule to the Limitation Act, 1908. As the suit against the third defendant was admittedly filed long after the expiry of the statutory period of limitation, Mr. Shibli argued that the third defendant was a necessary party to the suit and, as he had been impleaded after the claim against him had become time-barred, according to learned counsel the suit itself was bad for non-joinder of a necessary party. This argument was advanced on the ground that the third defendant was liable for the negligence of the first defendant on the basis of the principle of vicarious liability. As I have held under the 5th issue that the third defendant is not liable to the plaintiffs, he has been wrongly impleaded, and the question whether the suit against him was within time or not is irrelevant. As it is not disputed that the suit against the first two defendants was filed within time, I decide this issue in the plaintiff's favour.
24.Issue No, 7.--As I have explained in my discussion of the 5th issue, the third defendant was the owner of the said bus and he had delivered it to the second defendant under an agreement of hire and not of hire-purchase. However, the said bus had been insured in the third defendant's claim, and the next point for determination is whether the 5th defendant can repudiate liability because of its plea that the third defendant had transferred the said bus to the second defendant without notice to it.
25.On the assumption that the hire agreement amounted to a transfer of the said bus, the burden of proving that it had been transferred without notice to it was entirely on the 5th defendant. Here I have to observe that the accident occurred after the policy had been renewed by the 5th defendant on 30th November 1964, and the address of the third defendant on its renewal was changed to that of the 4th defendant, which is the name under which the second defendant carries on business. In these circumstances, it is difficult for me to believe that the 5th defendant was not aware that the bus was being operated on its route permit by the second and not by the third defendant. Further, the question was one of evidence and Mr. Muhammad Khurshid Alam, who gave evidence on behalf of the 5th defendant, admitted that the insurance policy was renewed on 30th November 1964 not by him but by an agent of the 5th defendant, one Mr. Ovais-ur-Rahman.
The second defendant has said in his evidence that he had paid the insurance premia to the 5th defendant's agent who was fully aware that he was running the said bus. Mr. Arfin criticised the second defendant's evidence because he had not produced his account books to prove the alleged payments. But it is the common case of both defendants Nos, 2 and 3 that the second defendant had paid the insurance premia for the said bus on the renewal of the insurance policy of 30th November 1964. In these circumstances, the defendant No, 5 should have examined its agent, the more so as for the reasons which I shall presently give, Mr. Muhammad Khurshid Alam was not a witness of truth. The failure of the 5th defendant to produce its agent for examination leads to a very strong adverse inference against its plea, and in the circumstances discussed, I have no doubt that the hire of the said bus was not only with notice to the 5th defendant but with its full knowledge. Accordingly, this issue is decided against the 5th defendant.
26.Issue No, 8.--Issue No, 8(a) is a general issue, therefore I have first to consider issues Nos, 8(b) and 8(c).
27.The question for determination under issue No, 8(b) is whether the first defendant was holding a driving licence at the relevant time. This has reference to the provisions of section 96 of the Motor Vehicles Act under which an insurer can repudiate its liability on its insurance policy if the vehicle insured is driven at the time of the accident by a person who does not hold a driving licence. But, in order to advance this plea, it has to reserve its right in this respect to the insurance policy issued by it, therefore in order to succeed under this issue, the 5th defendant has to produce and prove the insurance policy issued by it in respect of the said bus. The practice of insurers is to issue the policy to the assured and to preserve the duplicate. As in the instant case, the second and third defendants did not produce the original insurance policy, the 5th defendant was entitled to produce the original copy of its policy, and Mr. Muhammad Khurshid Alam was examined in order to produce this duplicate policy. But a duplicate does not mean a duplicate of a duplicate and, in the absence of cogent evidence to show that the duplicate has been lost, the duplicate of a duplicate is not admissible. This is elementary law. But it has to be referred to on account of the shocking conduct of Mr. Muhammad Khurshid Alam. In producing its copy of the renewed insurance policy, Mr. Muhammad Khurshid Alam said in his evidence : "I produced the duplicate of the original insurance policy of Bus No, KAT 9111 (Exh. 31)". When the witness was cross-examined on the question whether the policy produced (Exh. 31) was the original duplicate, he emphatically repeated that it was the original duplicate. Thus he said : "The duplicate of the policy which is kept on our record is the carbon copy of the original. Exh. 31 is the carbon copy of the renewed policy".
These words clearly mean that the policy produced by the witness was the original duplicate. After this categorical statement, he turned round and said : "I correct myself and say that it (Exh. 31) is only a true copy of the duplicate". It is therefore clear that he deliberately and dishonestly tried to pass off an inadmissible document (Exh. 31) as admissible. I take a very serious view of his conduct, and although I have decided not to prosecute him for perjury I have no doubt that the 5th defendant cannot be allowed to benefit from the attempted fraud of its witness by relying on an inadmissible document. I therefore hold that the copy of the insurance policy (Exh. 31) produced by Mr. Muhammad Khurshid Alam is not admissible and, as the 5th defendant cannot rely on it, it has failed to make out any case under this issue. Accordingly, I decide the 8th issue against the 5th defendant and if the plaintiffs had been entitled to recover compensation, it would have been liable to them in accordance with the provisions of section 96 of the Motor Vehicles Act. However, as I have held that the plaintiffs have not been able to prove any loss, the suit is dismissed. But in the circumstances of the case I do not make any order as to costs. PLD 1966_Kar. 483 PLD 1965 Kar. 127 PLD 1969 SC 565 1942 A C 601 13 A C 800 1965 A C 6561 2 3 4 5 6