1. This is a suit for recovery of Rs.1,00,()00 under the Fatal Accidents Act, 1855.
2. Mst. Attiya Rizvi wife of plaintiff No. 1 and mother of plaintiffs Nos.2 and 3, who are minors, met with her death on the 1 October, 1979 at about 230() his. In a fatal accident on 28-9-1979 at the crossing of Shah Abdul Latif Road Karachi due to collision between Jeep bearing No. 012-572 belonging to defendant No. 1 and a car bearing No. 625-453 being driven by the deceased who was proceeding from Tariq Road towards Khayyam Cinema. The deceased at the time of her death was 31 years old looking after the domestic affairs of the house, i.e. Cooking food, cleaning the house, teaching her children and also transporting the plaintiffs Nos. 2 and 3 from home to school and from school to home. The plaintiffs' case is that the above jeep was errand on 28-9- 1979 when accident took place and the said jeep was being driven rashly and negligently by the defendant No. 2 at high speed and seriously injured Mst. Attiya Farrukh Rizvi, who later on died in P.N.S. Shifa on 1-10-1979. Further in the accident the plaintiff No. 3 was also injured and the deceased's car was badly injured.
3. Defendant No. 1's case is that the accident occurred owing to the rash and negligent driving by the deceased. The further case of the defendant No. 1 is that alternative and without prejudice, the driver of the said car was guilty of contributory negligence. It is denied that the plaintiff No. 2 has been burdened with expenses of Rs.1,200 per month. It is also denied that the plaintiffs are entitled to damages of Rs.1,00,000 as claimed. Defendant No. 2 was absent and the suit was ordered to proceed ex parse against him. Defendant No. 3's case is that the accident occurred owing to rash and negligent driving by the driver of the other car hearing No. 625-453.st On these pleadings the following issues were framed on 5-2-1984:-- (1)Whether Mst. Attiya Farrukh Rizvi died on 1st October, 1979 as a result of rash and negligent driving of Jeep No. 012-572 by the defendant No. 2 which belonged to defendant No. 1?
4. (2)Whether defendant No. 2 was driving the aforesaid jeep in ordinary course of his employment with defendant No. 1?
5. (3)Whether the plaintiffs have suffered any loss and are entitled to compensation on account of death of Mst. Attiya Farrukh Rizvi?
6. (4)"Relief ?"
7. The following two issues were framed on 23-2-1988: "(1) Whether the suit is time-barred ?
8. (2)Whether the defendant No. 3 is liable to pay any amount?
9. The plaintiffs in support of their case have examined P.W.1 Farrukh Hamid Ri/,.i (Exh. 8) P.W. 2.
10. Muhammad Hussain son of Ghulam Jabbar (Exh.9). P.W. 3 M. Sarwar son of M. Alam, A.S.I. (Exh. 10)
11. P.W. 4 Khurram Younis soil of Muhammad Younis (Exh. 11). The defendants to support of their case have examined DA 1 R.F. Abbas son of Asghar A.I Abbasi (Exh. 12).
12. Issue No. 1: The most important question for consideration in this case is whether the deceased Attiya Farrukh lost her life on account of rash and negligent driving of Jeep No. 012-572 or contributed to the negligence by driving her motor car rashly and negligently as alleged by the defendants. P.W. 3 M.
13. Sarwar was the Enquiry Officer D.I.R. No. 338 of 1979 (Exh. 8/7). He made his inspection of the scene of occurrcncc His investigation revealed that deceased Attiya Farrukh was going on Anwar Adil Road from Khayyam Cinema to Tariq Road, the Jeep No. 012-572 was driven by defendant No.2 came on shah Latif Road from right side of the deceased and dashed away the car' resulting in the fatal accident. Anwar Adil Road is the,main road and Shah Latif Road on which the jeep was coming is a side road. Re inspected the spot on 28-9-1979 and prepared site plan (Exh. 10/1).
14. P.W. 4 Khurram Younis is eye-witness of the accident in question. He stated;-- I wag going towards Khayyam Cinema. When I reached the intersection of Shah Abdul Latif Road a Jeep came on Shah Abdul Latif Road. The deceased was driving car Fiat Car. The jeep and the Fiat Car had collision at the intersection. The jeep was driven at such high speed that it did not stop even after the collision arid hit the boundary of a house. After hitting the car I got down from my car and reached Fiat Car which had suffered the impact. I identified the injured lady Mst. Attiya Farrukh with a child in the car. I immediately went to the house of her father and informed him about the accident."
15. " ...It is correct that on account of the high speed of the Jeep when it crossed my way I stopped and this is the reason that I stopped. My speed at that time would be 20 to 30 miles per hour. When the jeep crossed me, I had also reached half way on the intersection. I noticed the jeep to my left just when it suddenly crossed me."
16. P.W.2 stated: .
17. "---------------My wife was driving the car on the main road while, all of a sudden, the jeep of the defendant No. 1 came out from the right hand side on the main road in fast speed and dashed against the car. The jeep after hitting the car went into the compound wall of the house which is at the corner of the road where the accident took place."
18. It was not suggested to P.W. Khurram Younis that the jeep was not driven in a rash and negligent manner. In fact there is no cross-examination on this aspect of rash and negligent driving.
19. As far as the defendants' evidence is concerned, the driver though served, remained absent. D.W.
20. No. 1 stated that on 28-9-1979 he was serving, with defendant No. 1. He was in the jeep which was involved in the accident. He was sitting next to the driver. He stated:-- I was going on Shah Abdul Lai if Road towards Shahrah-c-Quaideen from Telephone Exchange. It was a Friday on 28-9-1979. I did not see car coming from Tariq Road side at the intersection prior to intersection where the accident took place. It was 10 o'clock/a.m., to the morning. On most of these roads children were playing cricket on that day, When I reached the intersection where the accident took place, a car suddenly appeared from my left and collision took place. On account of this impact the jeep swum! Around, the driver of my jeep sustained minor injury on account of' this swinging of' the jeep, the lady driving the car suffered serious injuries and ultimately died."
21. He admitted in this cross-examination that jeep was coming from lane of Shah Ahdul Latif Road.
22. The lady was going on a road to their left. According to him, Shah Abdul Latif Road is the main road.
23. According to him, jeep was not at high speed and did not hit the car at all. He admitted that the jeep broke the wall of a bungalow. It is easy to answer` that upon the impact the axil of the jeep broke and it went free after the car having hit the jeep. Thus he threw the sole responsibility of the accident on the deceased. The driver remained absent.
24. On the evidence produced before me, I am fully satisfied that the cause of the accident which resulted in Mst. Attiya Farrukh's death was the negligence of defendant's driver. The version of the eye-witness produced on behalf of the plaintiffs proves beyond doubt that the jeep in dispute was running at a very high speed and the accident in question took place on account of the rash and negligent driving of jeep belonging to the defendant No.1.
25. The evidence of P.W. 3 and the site plan (Exh. 10/ 1) produced clearly show that Shah Abdul Latif Road is not a main road but Anwar Adil Road is a main road. Statement under section 161, Cr.P.C. Of D.W. No. 1 was not recorded. He was not examined in criminal Court. The statement of the plaintiffs witness who saw the accident is most convincing and proves to the hilt that the jeep belonging to the defendant No. 1 was running at a high speed and the accident in question took place on account of rash and negligent driving of the jeep. The learned counsel for the defendant No. 1 has not been able to satisfy me why the evidence of the plaintiff's eye-witness should not be believed and accepted in proof of the plaintiffs' case. He is disinterested person and he is supported by P.W.
26. 3 who investigated the criminal case and this is no doubt iii my mind on their statements that Muhammad Ashfaque was driving the jeep at a high speed.
27. The other aspect of the case is that the plaintiffs did not lead any direct evidence as to how the accident occurred. No eye-witness was examined. But P.W. 4 who knew the deceased Mst. Altiya who went to the spot after the accident was examined. He stated that the jeep-and the Fiat Car had collision at the intersection. The jeep was driven at a high speed and that it did not even after the collision stop but hit the boundary wall of a house. D.W. 1 stated that on account of this impact the jeep swung around. He admitted that the jeep broke the wall of the bungalow. It was not suggested to P.W. 3 that the Jeep was not driven in a rash and negligent manner. In fact there is no cross-examination on this aspect of rash and negligent driving.
28. I find from the evidence of P.Ws. 2 and 4 that the jeep dashed against the car and it wits for the defendants to establish that the deceased was driving at the high speed. The defendants have led no evidence. It may at once be stated that though the defendants had pleaded that the deceased Mst. Attiya caused the accident. The burden rests on the defendants, their plea for the sake of argument that there is no eye-witness and therefore the question is whether from the facts established the case of rash and negligent act can be inferred.
29. The normal rule is that it is for the plaintiffs to prove negligence but as in some cases considerable hardship is caused to the plaintiffs as the true cause of the accident is not known to them but is solely within the knowledge of the defendants who caused it, the plaintiffs can prove the accident but cannot prove how it happened to establish negligence on the part of the defendants. This hardship is sought to be avoided by applying the principle of res ipsa loquitur he general purport of the words res ipso loquitur is that the accident "Speaks for itself' or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiffs to prove the accident and nothing more. It will then for the defendants to establish that the accident happened due to some other cause than their own negligence. Salmond on the law of Torts (15Edition) at page 306 states that "the maxim res ipsa ioquitur apples whenever it is so improbable that such an accident would have happened without the negligence of the defendants that a reasonable Jurv could find without further evidence that it was so caused". In Halsbury's Laws WEngland, 3rd Eign, Volume 28 at page 77, para. 79 the position is stated thus:? `An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occur wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence" tells its own story o negligence on the part of the defendant, the story so told being clear unambiguous---------------."
30. Where the maxim is applied the burden is on the defendants to show either that in fact they were not negligent or that the accident might more probably have happened in a manner which did not connote negligence on their part. For the application of the principle, it must be shown that the jeep was under the management of defendant No. 1 and that the accident is such as in ordinary f course of things does not happen if those who had the management used proper care. Applying the principles stated above, I have, to see whether the requirements of the principle have been satisfied. There can be no dispute that the jeep was under the management of the company's driver and from the facts disclosed by P.W. 4 Khurram Younis that the jeep was driven at such high speed that it did not stop even after the collision and hit the boundary wall of a house The learned counsel for the defendant No. 1 submitted that the deceased Attiya was driving at a high speed. I am unable to accept the plea that Mst. Attiya was driving at a high speed. From the description of the accident given by P.W. Which stands unchallenged that the Jeep was driven at a high speed and that it dici not stop even after the collision and hit the boundary wall of a house. On the fact made out the doctrine is applicable and it is for the defendants to prove that accident (lid not cake place due to their negligence. This they have not attempted to do. Accordingly I hold that the accident to question was caused clue to the rash and negligent driving of the defendant No. 1's driver and deceased Mst. Attiya was not driving her car rashly or negligently and she did not contribute to the negligence and was not responsible for the accident involved in this matter Issue No. 2 D.W. 1 stated that on 2h-9-1979 he was in the jeep which was involved in the accident. The defendant No. 2 was the driver of defendant No. 1. The defendant No. 2 was driving the jeep and he was sitting next to him on the front seat. Accordingly hold that jeep hearing No 012-572 was being driven by the driver of defendant No. 1 in the course of employment.
31. Issue No. 3 Mr. G. H. Malik, the learned counsel for the defendant No.1 contends that as deceased is a woman and as admittedly she was doing only household duties and also transporting plaintiffs 2 and 3 from home to school and school to home and was not earning member of the family, no pecuniary loss was suffered by the plaintiffs by reasons of her death and so damages cannot be awarded under the Fatal Accidents Act.
32. Before dealing with this submission, it is necessary to deal with the liability of a person in tort for the death of another, caused by the negligence of the former. Under the English common Law, the general rule, applicable to torts is that a personal action dies with the person. Actio Personalis Moritur cum Persona. No executor, administrator or a legal representative could sue or be sued for any tort committed against or by the deceased in his lifetime. In the words of Viscound Simon L.C.
33. Thus maxim is both obscure in origin and inaccurate in expression. Any how, this common law rule was in effect swept away by the Law Reforms (Miscellaneous Provisions) Act, 1934 which providedth subject to important exceptions, that on the death of any person, all causes of action vested in him shall survive for the benefit of his estate. Accordingly if an individual is injured by accident due to the negligence of another person, the claim for damages does not abate at his death but survives for the benefit of his estate and can be enforced in an action brought by his person' representative.
34. Similarly,- the representatives of the deceased could not under the common law sue in their own rights for loss resultant to them from his death. This was the rule propounded by Lord Earl Loreburn in Baker v. Bolton (1808) 1 Camp 493. This was based not on the principle Actio Personalis Moritur cum Persona but on the principle that in a Civil Court the death of a human being could not be complained as an injury. This rule was upheld in subsequent cases. A determined attempt was made before the House of Lords to Admiralty Commissioners v. S.S: Amerika, 1917 A.C. 38 to depart from this rule. But the House of Lords after a review of the cases came to the conclusion that there was no reason to disturb the rule of law which had been so long recognised in the English Courts, though it may appear anomalous to the scientific jurist.
35. This rule has, however, been greatly modified the Fatal Accidents Act of 1855 which provided that whenever the death of a person is caused by the wrongful Act, neglect or default of another, such as would (if death had ensured) have entitled the injunwd person to sue and recover damages in respect thereof, then the person would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and, although the death shall have been caused under such circumstances as amount to a felony. Though die Act is silent as to what is recoverable, it has been held `that under this Act the damages must awarded with reference to a reasonable exception of pecuniary benefit which could result from the circumstances of the life. The relations can recover nothing in the nature of solatium for mental suffering and anguish for the loss of the deceased.
36. As is well-known subject certain exceptions, the Law of Tort as administered in Pakistan, is the same as the Law of Tort in England. Hence the position in undivided India and now in Pakistan at first was the same as the ordinary Law of Tort is England. Subsequently, as in England, the law was modified by the Fatal Accidents Act, 1855. Section 1-A of the Fatal Accident Act is in the same terms as the provisions of the Fatal Accidents Act in England. Section 2 of the Act corresponds to the law of Reforms (Miscellaneous Provisions) Act in England. The damages to be awarded to the relations of the deceased are therefore, governed by Section 1-A of the Act and the damages awarded to the estate of the deceased are governed by Section 2.
37. Dealing with the submission, it is seemed that such a claim is justified by reason of Section 1-A of the Acts. Mr. G. H. Malik, however, argued that in fact having regarding to the circumstances of the case, the relations did not suffer any pecuniary loss by the death bf. Mst. Attiya. He contended that Mst. Attiya was an ordinary housewife and was not an earning member. Therefore, by her death it cannot be said that her relations suffered any pecuniary loss. I am unable to agree with this contention.
38. Additional Issue No.1 The date of accident is 28-9-1979 and the suit was presented on 25-9-1980. The suit is within time.
39. Additional Issue No.2 It is not denied that Jeep No.012-572 was insured with the defendant No.3, the insurance company who was impleaded as a party on its own application. It is not the case of the defendant No.3 that insurer is not liable. The suit is also decreed against the defendant No.3.
40. For the reasons given above, the plaintiffs are entitled to a decree in the sum of Rs.90,(W. Suit No.22 of 1982 is decreed in favour of the plaintiffs and against the defendants in the sum of Rs.90,000 with interest of 12% per annum from the date of the suit till the date of realization.