SAAD SAOOD JAN, J.---This is an appeal from the judgment of the Sindh High Court, Karachi. It arises in the following circumstances.
2. The appellant was the owner of a wagon. It had employed respondent No.3 as driver. On 17-12- 1983, at about 7.30 a.m., respondent No.1 while driving the won ran over a young boy, Naseeb Khan on the Business Recorder Road, Karachi. The boy who was only 14 years of age died as a result of the injuries received by him. Respondents Nos.1 and 2 who were his parents filed a suit under the Fatal Accidents Act, before the Sindh High Court against the appellant and respondent No.3 for the recovery of compensation in the sum of Rs.5,00,000. The suit was tried by a learned Single Judge. It was resisted by the appellant and respondent No.3. They, inter alia, denied that the accident had occurred as a result of' rash or negligent driving of the wagon by respondent No.3. On the pleadings of the parties the learned trial Court framed the following issues:
(1) Whether the death of the deceased, Nasib Khan was caused by the defendant No.2, the driver of Wagon No. G.P. 1814, belonging to the defendant No.1 due to rash and negligent driving?
(2) Whether the defendants are liable to pay compensation as claimed by the plaintiffs jointly and severally?
(3) Whether the plaintiffs are entitled to cost and interest at 15 per dent per annum from the date of filing the suit till recovery of the decretal amount?"
After considering the evidence led by the parties the learned trial Judge held that at the relevant time respondent No.3 was driving the wagon rashly and negligently and that both the appellant and respondent No3 were liable to pay compensations jointly and severally to the parents of Naseeb Khan. He assessed the amount of compensations at Rs.1,15,200.00 and directed the appellant and respondent No.3 to pay the said amount to the parents of Naseeb Khan with interest at the rate of 10 per cent. Per annum from the date of the institution of the suit till recovery.
3. From the judgment of the learned Single Judge the appellant preferred an intra-court appeal in the High Court. It was heard by a Division Bench. The learned Division Bench upheld the findings of the learned Single Judge that the accident had occurred on account of rash and negligent driving on the part of respondent No.3 and that both the appellant as well as respondent No.3 were liable to pay compensations to the parents of the deceased. It, however, reduced the amount of compensations to Rs.76,800.00 but maintained the direction with regard to the payment of interest from the date of the suit till recovery.
4. It was not disputed before us that while driving the wagon respondent No3 was acting in the course of his emloyment under the appellant. However, it was contended that under the Fatal Accidents Act it was the actual wrong-doer and not his master who could be fixed with the responsibility of paying compensations to the relations of the person killed. Now, the relevant provision of the Fatal Accidents Act is contained in section 1 thereof. It reads as follows: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime."
The words `the party who would have been liable' occurring in the section are significant. It is well- established that a master is liable for any tort committed by his servant while acting in the course of his employment. See McKean v. Raynor Bros. ((1942) 2 All ER 650); Canadian Pacific Ry. Co. v.
Lockhart ((1942) 2 All ER 464) and London C.C. v. Cattermoles ((1953) 2 All E.R.582). The master would, therefore, appear to be `a party who would be liable' within the meaning of the section.
There is nothing in the text of the Act that would militate against enforcement of vicarious liability against the master for the rash and negligent act on the part of his servant. We, therefore, do not find any weight in the contention that the appellant, as distinguished from respondent No.3, cannot be made to pay compensations under the Act to the parents of the deceased. In the case of Stanes Motors Ltd. v. Vincent Peter (AIR 1936 Madras 247) the master was saddled with the responsibility of paying compensations for the negligent driving on the part of its employee that had led to a fatal accident.
5. In support of his contention learned counsel for the appellant entirely relied upon the preamble to the Fatal Accidents Act which reads as follows: "Whereas no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him; It is enacted as follows: ** It was argued by the learned counsel that a reading of the preamble indicated that the intention of the legislation was to exact damages from the wrong-doer alone and not from his master; that being so, the provisions of section 1 should not be given an extended scope to encompass his master as well. It is difficult to subscribe to this contention. Although the preamble of an Act does serve as an aid in construing the enacting parts but it can hardly be regarded as the sole of guide, for, as pointed out by Lord Normand in the case of Attorney-General v. Prince Earnest Augustus of Hanover ((1957) A.C. 436), there may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of indications that may be gathered from the preamble. If the provisions of section 1 were intended to depart form the general rule relating to the vicarious liability of the master, clear words to that effect would have been used therein. On the other hand, the words employed are 'the party who would have been liable'. These are words of wider import and we can find no compelling reason to restrict their ambit by placing a narrow construction upon them so as to exclude the liability of the master who is under the ordinary law responsible for the wrongful act of his servant.
6. The only other contention raised by the learned counsel for the appellant was that the High Court should have awarded interest to the parents of Naseeb Khan from the date of the decree and not from the date of institution of the suit. There is a merit in this contention. As the liability of the appellant is of vicarious nature it is only fair that the interest should have been allowed from the date when the amount of compensations was for the first time quantified and not from the date when the suit was brought. With this modification the appeal is dismissed with costs.
RUSTAM S. SIDHWA, J.---I have read the judgment of my learned brother Saad Saood Jan, J. With which concur. However, I would like to add a few words.
Whilst not challenging the vicarious liability of the master for the tort committed by his servant whilst acting in the course of his employment, the question whether the master is so liable in respect of cases instituted under the Fatal Accidents Act, 1855, has been raised before us in this appeal. No case-law has been cited before us from which it can be inferred that this matter was directly canvassed as an issue before this Court. However, I note that in certain cases before this Court, this liability in respect of cases instituted under the Fatal Accidents Act appears to have been impliedly taken for granted. See Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman (PLD 1969 SC 565) and Mst. Bashiran v. Pakistan through General Manager, Pakistan Western Railway (PLD 1976 SC 748).
As regards the argument of the learned counsel for the appellant that the preamble to the Fatal Accidents Act supports his case, my learned brother has refuted this with care, deriving support from the observations of Lord Normand in the case of Attorney-General v. Prince Earnest Augustus of Hanover (1957 A.C. 436). 1 would like to add the observations of this Court from Mst. Zainab Bibi v.
Mst. Bilqis Bibi PLD 1981 SC 56 at p. 74 where my learned brother Dorab Patel, J. Relying on the same observations of Lord Normand, stated that a preamble could not be resorted to when the statute itself was clear and unambiguous and that one could not fall back on the preamble or on the statement of the objects of an Act in order to alter the plain meaning of the words of the section itself.