Abdul Rasheed Khanzada & another vs Federation of Pakistan & others

MUHAMMAD JAFFER RAZA - J : This is a claim for recovery under Fatal Accident Act 1855 ("Act"). It is argued by learned counsel for the Plaintiff that the tragic traffic accident occurred on 06.04.2011 within the area and territorial jurisdiction of P.S. Shahrah-e-Faisal. The said accident involved Munazza Rasheed aged 20 years ("Victim") and her mother Zarina Parveen ("Plaintiff No.2"). It has also been stated that the victim had died as a result of said tragic accident, however, Plaintiff No.2 sustained injuries which are subject matter of another suit bearing No.1127/2011. According to the learned counsel for the Plaintiff the vehicle in question bearing No.GA-9381 was driven by Defendant No.3 and owned by Defendant No.2 who was also the employer of Defendant No.3. It has been alleged by learned counsel for the Plaintiff that the vehicle was driven by Defendant No.3 at the time of accident in a manner which can only be described as rash, negligent and careless and as a result the injuries to the victim proved to be fatal. Learned counsel for the Plaintiff has also argued that FIR No.316/2011 was also registered under Section 320 and 337-G PPC with the relevant Police Station. It has also been argued that the Defendant No.2 is vicariously liable for the said tragic accident committed by the driver i.e. Defendant No.3. The age of the victim at the time of death was 20 years and she was a pre-medical student and the breakup filed by the learned counsel for the Plaintiff which is reproduced as follows:- STATEMENT OF CLAIM

1. Name of the deceased Munazza Rasheed 2.Date of the incident/death 06.04.2011 3.Age of the deceased 20 years Names and Ages of Legal Heirs S.NO. NAME RELATION AGE AT THE TIME OF ACCIDENT i. Abdul Rasheed Khanzada Father 55 years ii. Zarina Parveen Mother 45 years Quantum of Damages:

1. Average life span in Pakistan: [on the basis of preponderance of Authorities (2020 M LD 1393)]72 years 2.Age of the deceased: 20 years 3.Loss of pecuniary benefits for [72-55] 17 years Average monthly income of the deceased @ Rs.

30,000/- per month and as such for 02 year comes to (30,000 X 12 X2)

Rs.7.20,000/- Average monthly income of the deceased @ Rs.

50,000/- per month and as such for 05 year comes to (50,000 X 12 X 5)

Rs.30,00,000/ Average monthly income of the deceased @ Rs.

100,000/- per month and as such for 10 year comes to (100,000 X 12 X 10)

Rs.12,000,000/ Net Income Loss Rs.15,720,000/ 5.1/6 Less on account of personal expenses 15,720,000/-26:20.000 Rs.13,100,000/ 6.Damages in favor of Father for loss of Association, love affection Rs.20,00,000/- FURHER ADD: Rs. 50,000/-on account of funeral Expenses Rs.50,000/- Punitive Damages/aggravated damages Rs. 20,00,000.00 Total: Rs.17,150,000.00

2. The Plaintiff seeks a decree for the sums mentioned in the following prayers:

(a) A decree in the sum of Rs. 1,65,00,000/- against the defendants to pay the said sum of damages/compensation to the plaintiffs or any other amount this Honourable Court may deem fit in circumstances of the case.

(b) Profit/mark up at the rate of 21% per annum on the amount claimed in Clause (a) above from the date of the filing of the suil till the date of realisation of the decretal amount which the plaintiffs would have earned had the defendants paid the said amount.

(c) Cost of the suit may be awarded to the plaintiffs.

(d) Any other relief or reliefs that this Honourable Court may deem just and proper under the circumstances of the case be granted.

3. In response written statement was filed on behalf of Defendants 1 and 2. In the said written statement at paragraph No.1 the Defendants have admitted to the occurrence of the accident.

However, they have denied that any sums are due to the Plaintiffs. They have further taken the plea in the written statement that the criminal case mentioned above was dismissed and the accused person in the said criminal case i.e. Defendant No.3 was acquitted on merits vide judgment dated 10.05.2014. It is most important to note that no other plea has been taken by the said Defendants except the one mentioned above in reference to the criminal case resulting in favour of Defendant No.3. It is also important to note that the Defendant No.3 did not file his written statement.

4. Thereafter following issues were framed by the Court on 19.09.2019:

1. Whether the suit is maintainable and competent against the Defendants?

2. Whether after the acquittal of Defendant No.3 on merits in Criminal Case (FIR No.360 of 2011) at Police Station Shahrah-eFaisal, Karachi, vide Judgment dated 10.05.2014, the suit is competent for "Personal Criminal Liability"?

3. Whether the death of deceased, namely, Munazza Rasheed was caused on account of negligence of the Defendants on 6th April, 2011, as alleged, if so, its effect?

4. Whether the Defendants are liable jointly and severally to pay compensation to the Plaintiff and another legal heir, if so, to what extent?

5. Whether due to negligence acts of Defendants No.2 and 3, the Plaintiff-Zarina Parveen has sustained injuries for which she should be compensated, if yes to what extent?

6 What should the decree be?

F I N D I N G S ISSUE NO:1 In Affirmative ISSUE NO:2 In Affirmative ISSUE NO:3 In Affirmative ISSUE NO:4 In Affirmative ISSUE NO:5 Answered accordingly ISSUE NO:6 Suit of the Plaintiff is decreed to the extent of Rs. 16,500,000 with interest at the rate of 15% per annum from the date of the decree till realisation.

The findings on the above issues are as under: - Issue No.1

5. This issue need not require a detailed deliberation as the factum of accident has already been admitted by the learned counsel for the Defendants. It has also very categorically been admitted that the vehicle was owned by Defendant No.2 and operated by Defendant No.3, who at all relevant times was an employee of Defendant No.2. The fatality is also not disputed hence this case squarely falls under the Act.

Issue No.2

6. The burden to prove the incompetency of the instant suit rests squarely on the Defendants and the said issue requires a detailed deliberation. The learned counsel for the Defendants has specifically raised the ground of acquittal of Defendant No.3 in the criminal case mentioned above.

The learned counsel has argued that after the acquittal in the criminal case against Defendant No.3 the instant suit is liable to be dismissed.

7. Conversely the learned counsel appearing for the Plaintiff has argued that acquittal in the criminal case does not warrant a dismissal of the suit as the standard of proof required in both cases is considerably different.

8. The finding on the said issue is as under.

9. The plea taken by the learned counsel for the Defendants with regard to the acquittal in criminal case has already been answered in Civil Suit No.11/2011 authored by me in which in paragraph No.2 it was specifically held that the burden to prove in criminal is beyond all reasonable doubt and the standard of proof required in civil proceedings (more particularly in a case under the Fatal Accidents Act) is drastically different and lower. Relevant Paragraph of the said judgment is reproduced as under: - "Both the matters i.e. civil and criminal cases emanate from the same cause i.e. the accident due to the alleged rash and negligent driving. It is settled law that a burden to prove in criminal is beyond all reasonable doubt and the standard of proof required in civil proceedings (more particularly in a case under the Fatal Accidents Act) is drastically different and lower. Reference in this regard can be made to a recently pronounced judgement of the Honorable Supreme Court of Pakistan in the case of Salman Ashraf Versus Additional District Judge, Lahore etc^[1] where it was held in paragraph No. 14 as follows: - "14. Needless to mention that the standard of proof required in civil and criminal proceedings is different. In the former, a mere preponderance of probability is sufficient to decide the disputed fact but in the latter, the guilt of the accused must be proved beyond any reasonable doubt.

There are, therefore, chances of giving divergent judgments by the civil and criminal courts on the facts that give rise to both civil and criminal liabilities."

"In other words, it is entirely possible for a civil case to succeed on the same facts, grounds and evidence and for a criminal case to fail because of the different standard of proof required. For the purposes of an analogy, it is legally conceivable for the Plaintiff to be granted damages under the Defamation Ordinance 2002 and for the same plaintiff to fail as a complainant in a criminal motion on the same facts under Sections 499 and 500 PPC. This is even more apt in the cases involving fatal accidents due to the scheme coined under the Fatal Accidents Act 1855 (Act). The scheme, as has been held by me in the case of Ghulam Yaseen and others versus Hussainullah^[2], is inimitable. It was held in Paragraph No.5 as under: - "5. The burden of proof in a case of fatal accident is unlike the burden which a Plaintiff ought to discharge under an ordinary civil suit and drastically different than the burden the complainant is expected to discharge in criminal proceedings. Considering the fact that the criminal proceedings in relation to the same proceedings are pending, no further deliberation on the same is warranted.

Generally, in a suit for damages the burden is upon the Plaintiff to prove negligence. In cases of fatal accident this may cause hardship to the Plaintiff who in any event is bereaved. To add this additional burden to prove negligence would therefore be unconscionable and unwarranted. The honorable superior courts have over the years adjudicated that the maxim of "res ipsa loquitur"

(thing speaks for itself) is applicable in cases of fatal accidents. In other words, in such a case once the Plaintiff establishes the factum of accident the burden to show the absence of negligence shifts upon the Defendant. Moreover, the Defendants in such circumstances have the onus to disprove and break the chain of causation between the accident and the ultimate death."

(Emphasis added)"

10. In light of what has been stated above, the suit is maintainable against the Defendants and this issue is answered in the affirmative.

Issue No.3 and 4.

11. The issues having a deep nexus can conveniently be dealt with together. The finding on issue number 3 will inevitably trigger the finding on the succeeding issue. The burden to prove issue number 3 is initially on the Plaintiff. However, it is only to the extent of factum of accident. Thereafter the burden shifts to the Defendants to prove absence of negligence.

12. The Plaintiff No.1 filed his affidavit-in-evidence before the learned Commissioner and reiterated the contents of the plaint. It is also at the stage pertinent to mention that the Plaintiff No.2, prior to the evidence being recorded in the case, also expired and hence did not step into the witness box.

The Plaintiff No.1 was cross-examined by the advocate for the Defendants. Thereafter, the Plaintiff also filed affidavit-in-evidence of one witness namely Syed Muhammad Raza. The said individual was an eye witness to the tragic accident and he categorically stated that the victim and Plaintiff No.2 were involved in the accident in front of his eyes. Learned counsel for the Plaintiff stated that the claim of Plaintiff No.1 has been substantiated specifically in light of the fact that the Defendant had admitted to the factum of evidence. Moreover, the learned counsel has also stated that the eye witness account of Plaintiff witness No.2 clearly demonstrate that the death of the victim was caused due to rash and negligent driving by Defendant No.3.

13. Thereafter, affidavit-in-evidence was filed on behalf of Defendant No.3 (driver of the vehicle). It is contended by learned counsel for the Defendants that the Plaintiff has been unable to make out a case and the accident occurred due to the fault of the victim and Plaintiff No.2 and not the driver i.e. Defendant No.3. It is further contended that the Defendant No.3 was driving the vehicle well within the limits defined in the area. It is further contended by learned counsel for the Defendants that the victim and Plaintiff No.2 were crossing a busy road and did not use the Zebra-crossing or pedestrian bridge designed for the said purpose. Thereafter one Adil Nawaz appeared and filed affidavit-in-evidence before the learned Commissioner. The said individual according to learned counsel for the Defendants was Assistant Director (Admin) of Defendant No.2. The said witness according to the learned counsel for the Defendants reiterated the stance of Defendant No.3 and also stated that the vehicle belonging to Defendant No.2 was in good working condition and there is no liability of the Defendants. The Defendants have also produced another witness namely Qurban Ali Channa. The said individual was posted at the Headquarter of Defendant No.2 and performing his duties accordingly. The said witness filed his affidavit-in-evidence and confirmed that the vehicle in question is owned by Defendant No.2 and that Defendant No.3 was at all relevant times the employee of Defendant No.2. The said witnesses interestingly also mentioned that a departmental enquiry was held, but was unable to disclose anything further regarding the outcome of the said enquiry. Regarding the incident the said witness in his cross-examination voluntarily stated that it was "just an accident" and thereafter denied any compensation to the Plaintiffs.

14. My finding on the issues is as follows.

15. It is evident that the tragic accident occurred on 06.04.2011 and the vehicle was owned by Defendant No.2 and driven by Defendant No.3. The said factum of accident has been admitted by the Defendants and therefore requires no further deliberation. It is settled principle of law that in cases of fatal accident the burden to prove is on the Plaintiff is on the lower side and the Plaintiff in such cases only has to prove the factum of accident and the burden of the point of negligence rests entirely on the Plaintiff. The factum of accident has been categorically admitted not just in the written statement but also by the witnesses of the Defendants who have appeared for their examination therefore the burden to prove the absence of negligence rests entirely on the Defendants. I have examined the cross-examination of the Defendant No.3 namely Mairaj Ahmed.

In the said cross-examination the said witness who was also the driver of the vehicle admitted to the factum of evidence admitted as under: "It is correct that the incident/accident was took place on 06.04.2011 near Alladin Park main Rashid Minhas Road, Karachi, about 7:45 A.M. or 8:00 A.M. (morning) by vehicle Suzuki Hi-Roof having registration GA-9381."

16. He further stated that he was driving the vehicle at normal speed about 40 to 45 k.m. per hour.

The said witness interestingly did not file his driving license and feigned ignorance as to whether his driving license was renewed. The relevant part of his cross-examination is reproduced as under: "I am still driving the vehicle having driving license but not filed with my affidavit-in-evidence.

Since the year 1989 I do not remember when I renewed my driving license about at the time of accident my license was already renewed. But I cannot tell the date of my last driving license renewed when I visited driving license office for renewal of my driving license."

17. The said witness also made an attempt to shift the burden to the of the accident on the victim and Plaintiff No.2 by stating that the victim and Plaintiff No.2 trigged the said accident by refusing to use the pedestrian bridge. Relevant part is reproduced as under: - "The people used to cross the road by foot and there is also pedestrian bridge where accident was took place. The pedestrian bridge was existed near place of accident at the time of accident.

The accident was took place near in front of Toyota Eastern Motors. I never observed the peoples despite of existence of pedestrian bridge used to cross the road by foot. There was not fence between two roads."

18. Interestingly the said witness in the same breath admitted that the accident took place due to his negligence and rash driving and later contradicted himself. Relevant parts of his cross- examination are reproduced below: "The accident took place due to my negligence and rashlessness, voluntarily says that Mr. Mansoor Pasha also would state what I can stated. Mr. Mansoor Pasha is not in service. It is incorrect that the accident took place due to only negligence or my recklessness and recklessness driving." (Emphasis added)

19. The counsel for the Defendants during the course of his arguments most vehemently stated that the Defendants are not liable to pay any compensation to the Plaintiffs for the reasons that the victim was the responsible for such accident. Without using the terminology, the learned counsel alluded to the concept of "contributory negligence". Learned counsel made an attempt to shift the entire burden on the Plaintiffs. It is most noteworthy that the said defence was not taken in the written statement and the said plea was only taken during the cross-examination. Even otherwise, the factum of the incident is admitted by the Defendants. The Defendant No.3 (driver) has very categorically admitted the negligence and rash driving as is evident from his cross-examination reproduced above. Therefore, both the issues are answered in the affirmative.

20. At this stage it will be beneficial to elaborate on the concept of contributory negligence and how the same will plays out in the determination of damages, if any. The meaning and nature of contributory negligence has been elaborated in the invigorating professional treatise by B.M.

Gandhi in "Law of Torts"^[3] as:- "Contributory negligence is carelessness by a plaintiff which has contributed to and is in whole or in part the cause of the injury or harm he complains of, as having been caused to him by the defendant's fault. It is one's failure to avoid getting hurt by the defendant or it is the fault of the claimant in the very occurrence of the accident.

"As per the Law Reform (Contributory Negligence) Act, 1945 if the plaintiff is partly at fault his claim is not defeated but the damages recoverable are to be reduced to such an extent as the court or jury thinks just and equitable having regard to the claimant's share in the responsibility for the damage."

21. Clerk and Lindsell on Torts^[4] elaborates on the concept in the following words: - "The defence of contributory negligence is available whenever the claimant's own negligence contributes to the damage of which he complains. It is not limited to cases where the claimant's fault contributes to the occurrence inflicting that damage. Contributory negligence is thus relevant, even where the defendant is solely responsible for the incident in which the claimant suffers injury, if the negligence of the claimant contributes to the extent or nature of his ensuing injuries."

22. The Canadian Supreme Court in the case of Clements v. Clements^[5] described the concept as under: - "^[12] In some cases, an injury-the loss for which the plaintiff claims compensation-may flow from a number of different negligent acts committed by different actors, each of which is a necessary or "but for" cause of the injury. In such cases, the defendants are said to be jointly and severally liable. The judge or jury then apportions liability according to the degree of fault of each defendant pursuant to contributory negligence legislation."

23. In English law the concept was explicated in the case of Nance v British Columbia Electric Railway Co Ltd^[6]. At 611 it was held as under:- "But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full."

24. In our jurisdiction the concept was elaborated upon by the Honourable Supreme Court in the case of Federation of Pakistan through secretary Railways and another versus Hafiza Malika Khatoon Begum and others^[7]. In paragraph number 6 the court held as under: - "The plea of contributory negligence raises the question of fact which should be proved by the party alleging it. It should be established that the plaintiff had failed to take reasonable care for his safety. The defence of contributory negligence arises where damage is caused partly by the negligence of the person who suffers and partly by the fault of the alleged wrong doer. This is a delicate issue but the legal principles that if contributory negligence is established the plaintiff's claim for damages shall not be defeated but the damage shall be reduced as the Court may think just and equitable considering the plaintiff's 'share in the responsibility for the damage' and circumstances of the case. The petitioners have failed to establish facts necessary to prove contributory negligence."

25. For the purposes of the present lis it is imperative to note that the plea was not taken by the Defendants in the written statement and was belatedly taken at the stage of examination. Even otherwise, the Defendants through evidence were unable to establish any contributory negligence on part of the Victim or Plaintiff No.2. The burden of the same fell squarely on the Defendants and the said Defendants were unable to discharge it. Therefore, I am not inclined to decrease the quantum of damages sought on that count.

26. The Learned counsel for the Defendants has during the course of arguments relied upon the following judgments:

1. Zahid Hussain Awan v United Bank Limited through President, Karachi and another^[8]

2. Wazir Hussain v Karachi Transport Corporation through Chairman and 2 others^[9]

3. Shamim Akhtar v Muhammad Arif Baloch and others^[10].

4. Aijaz and 6 others v Karachi Transport Corporation through Chairman Director or Secretary and 2 others^[11].

5. Nabi Bakhsh v The State^[12].

27. The case law relied upon by learned counsel for the Defendant is distinguishable for the following reasons: Zahid Hussain Awan (supra). The said case related to malicious prosecution and dealt with abetment of suit in circumstances in which the Plaintiff has passed away. Learned counsel for the Defendants has argued that due to the death of the Plaintiff No.2 the suit should stand abated. In this respect it is held that the Plaintiff No.1 (father of the victim) is still alive and hence the judgment as cited above is not applicable to the facts of the instant case. It is specified that no adjudication is being made on abatement in cases of fatal accidents and that may come up for adjudication in another case. Wazir Hussain (supra). This case is also not helpful for the Defendants. The Divisional Bench of this Court held as under: "It was held that once accident is admitted and proved, burden of proof is on defendant to prove absence of negligence is on defendant. In instant case, defendant failed to produce best evidence. Neither the driver nor conductor nor any other person riding the bus at the time of accident was produced in such cases drawing adverse presumption is but natural.

"The respondent was under obligation to prove the diligence of the driver but he has failed to satisfy the Court on this point in issue. Mr. Abdul Jabbar Lakho, learned A.A.-G. has not denied the factum of death of appellant's son in the road accident with the bus of respondent No.1 and he has also not cited any case-law which may have supported the case of respondents." Shamim Akhtar (supra). This case also does not advance the cause of the Defendants for the reason that it was held that carelessness of the deceased, the onus of the same fall on the Defendants. It has been established above that no such plea was taken in the written statement and the driver has admitted his negligence in his cross-examination. Aijaz & 6 others (supra). This case is also of no assistance of learned counsel for the Defendants.

To the contrary the said judgment relied upon by the learned counsel for the Defendant states as follows: "In the instant case all that was required by the plaintiff was to establish that the death of the deceased was caused by an accident involving the bus owned by defendant No. 1 and driven by defendant No.2. the employee of the former. Upon proving such unfortunate occurrence by the plaintiffs, the defendants were to prove that the accident has not occurred as a result of negligence and rashness on the part of defendants. However, as observed earlier, the plaintiffs have not only proved the occurrence of the fatal accident but have fully established through their witnesses that the same has occurred on account of rash and negligent driving by defendant No.2, whereas absolutely nothing was brought on record by the defendants, so as to establish that accident was not caused due to rashness and negligence on the part of the defendant No.2. With regard to the contention of the contesting defendants, as raised in their written statement, that the reading of the plaint itself shows that the deceased himself was at fault. It may be noted that there is nothing in the plaint which could possibly impute negligence on the part of the deceased.

Nor has it, even otherwise, been explained as to how and in what manner any contributory negligence could possibly be attributed to the deceased. However, during his cross-examination, the plaintiffs' witness Mohammad Zaman, has stated that the deceased was standing at the front door of the bus, but such fact also would not absolve the defendants of their liability as the defendant No.2, being in control of the bus could have easily avoided the accident, just by driving the same with ordinary care and caution and was by no means prevented by the deceased in doing so. The defendant No.2, however, despite having overloaded the bus, in violation of Traffic Rule, drove the same in such a negligent manner, that resulted in the accident, causing death of the deceased. In the case of Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1997 Kar. 253, this Court, relying on a judgment of a Division Bench of Karnataka High Court, in the general Manager Bunglore Transport Service v. Narasima Haiah and others AIR 1977 Karnataka 6, wherein it was held that in case it is found that the negligent act or omission of a deceased driver was the appropriate cause of the accident, it will not be a valid defence to show that the person injured was also negligent unless it is established that the person injured had made it extremely difficult for the other to avoid the accident. rejected the plea of contributory negligent." Nabi Bakhsh (supra). This case is also misconceived as the judgment was passed in a criminal case and it was held that the prosecution was to prove the guilt of the accused beyond of reasonable doubt and therefore the reliance on the said judgment is misconceived.

Issue No.5.

28. The said pertains to the injuries sustained by Plaintiff No.2 which is the subject matter of suit 1127/2011, therefore no adjudication is warranted. The issue is answered accordingly.

29. I have examined the statement of claim filed by the learned counsel of life cannot be monetarily compensated, I am inclined to decree the suit in favour of the Plaintiff.

30. In light of what has been held above the suit is decreed in the sum of Rs. 16,500,000 against Defendants No.2 and 3, jointly and severally, along-with mark up at the rate of 15 % from the date of the decree till realisation.

Office is directed to prepare the decree in favour of the plaintiff in the above terms.