1. ' On 27th April, 1988 a road accident occurred on the National High Way near Jhok, District Thatta between a motorcycle and a trailor of NLC in which plaintiffs son Muhammad Hussain, who was riding as a passenger on the motor-cycle driven by Noor Muhammad, lost his life. The plaintiff sues the defendants for the recovery of compensation under the Fatal Accidents Act. Defendant No,1 is the owner of the truck-cum-trailor which was involved in the accident, defendant No,2 is its driver and defendant No,3 is the Insurance Company with which the vehicle was insured. According to the plaintiff the accident occurred due to the negligence of defendant No,2 and defendant No,1 is also vicariously liable. Defendants Nos.1 and 2 have filed joint written statement in which it is stated that the plaintiff has already received compensation on humanitarian grounds and therefore was estopped from filing the suit. On merits, it was stated that the defendant No,2 was driving the vehicle carefully and it was due to the negligence of motor-cyclist Noor Muhammad that the incident occurred and claimed the life of Muhammad Hussain. It was therefore claimed by defendants Nos.1 and 2 that they were not liable to pay any compensation. It was further stated by these defendants that while the vehicle in question, which was part of a convoy, was going on the National High Way and passed village Jhok Sharif, a motorcycle appeared from a branch road and negligently came up the National High Way and struck the vehicle on the rear side, resulting in the death of Muhammad Hussain and that defendant No,2, on hearing the bang of the impact immediately stopped the vehicle and discovered as to what had happened. Defendant No,3 has filed a separate written statement in which the Insurance Company also attributed the accident to the negligence of the motor-cyclist and also stated that the claim preferred by the plaintiff was highly exaggerated. On these pleadings the following issues were adopted by the Court:---
(1) Whether the suit is barred by waiver/estoppel as the plaintiff has already received compensation of Rs,50,000 from defendant No,1?
(2) Whether the approximate cause of the accident was the negligence of motor-cyclist deceased Muhammad Hussain and as such the defendants Nos.1 and 2 are not liable for damages?
(3) Whether the plaintiff has no cause of action against the defendants Nos.1 and 2?
(4) To what relief, if any, is the plaintiff entitled to and against which the defendants?
(5) Whether the plaintiff is entitled to cost and interest as claimed?
(6) What should the decree be?
2. The plaintiff, in support of his claim examined himself as P.W.1 and the widow of the deceased as P.W.2 and motor-cyclist Noor Muhammad as P.W.3. The defendants have led no evidence. Learned counsel for the parties have been heard and my findings on these issues are as follows: ISSUE NO.1: ' The plaintiff, appearing as P.W.1, has admitted having been paid Rs,50,000 by defendant No,1 and has produced copy of its receipt as Exh.5/1 on which Councillor Haji Muhammad Soomro and Numberdar Haji Muhammad Hassan Soomro have signed as witnesses along with Mukhtiarkar and FCM, Mirpur Bathoro who had made the actual payment. The plaintiff, however, stated that this amount was given to him as charity and that he was assured that the compensation would be paid later on after the requisite sanction therefor had been received from Islamabad. This explanation of the plaintiff carries no force in the face of the contents of the receipt itself which clearly states that amount of Rs,50,000 was being paid as compensation and not by way of charity.
2. Once the plaintiff received the compensation it was for him to apportion it amongst the legal heirs of the deceased. He seems to have misappropriated the amount and then filed the suit. In my view he is estopped from claiming the compensation afresh. Issue No,1 is decided in the affirmative.
3. ISSUE NO.2: ' According to the learned counsel for the plaintiff, the defendants have led no evidence and therefore the evidence of the plaintiff is the only evidence on record and on its basis the claim of the plaintiff has been proved beyond doubt and must be allowed. Unfortunately for the plaintiff, his own evidence disproves his claim and shows that the cause of accident, far from being the negligence of defendant No,2, was the negligence of the motor-cyclist on whose motorcycle the deceased was riding as a pillion rider. The motor-cyclist is P.W.3 Noor Muhammad. He states that he was coming on his motorcycle from the link road from Abral and going towards Shah Karim Bulri and when he reached the junction of the link road with the National High Way he saw a trailor coming from behind (by which he apparently meant that a trailor was going in the same direction in which he also intended to go) and that it was driven at a high speed and it dashed against the motorcycle. Whatever, ambiguity was there in his examination-in-chief was removed in his cross- examination where he conceded that at the time of accident he had been coming from link road and going to (towards) the main road. He further conceded in his cross-examination that while approaching the main road, he had seen a trailor from a distance and that it was coming at a high speed. Now, it was the duty of the motor-cyclist to stop dead on approaching the main road, look towards both sides of the road before entering the main road after ensuring that in doing so he was not endangering either his own life or the life of anybody else. He apparently did not stop on approaching the main road and immediately entered the main road even though he had seen the trailor coming and that too at a high speed. The motor-cyclist could have been excused in not observing the rules of the road if the trailor had been coming at a slow speed but when, as admitted by him (P.W.3 Noor Muhammad), it was coming at a high speed it was not excusable on the part of the motor-cyclist to enter the main road without first allowing the trailor to pass. The evidence of P.W.3 Noor Muhammad leaves no doubt in my mind that if the motor-cyclist had shown reasonable care and caution in approaching the National High Way from the side road and had, as was expected of him, stopped dead and had allowed the trailor to pass, the accident would not have occurred. It is obviously meaningless to say that a trailor was being driven at a high speed. Driving a vehicle at a high speed is no crime. In fact, there are circumstances in which driving a vehicle at a slow speed amounts to negligence, that is to say, when it obstructs the flow of the fast moving traffic on the road. Since the trailor was going on the National High Way it can only be expected that it must be driven at a high speed which, however, must be distinguished from over-speeding or negligent driving. Driving a vehicle al a high speed does not amount to driving negligently or rashly. I am also of the view that the trailor was not being driven at a high speed.
4. According to the defendants Nos.1 and 2 the vehicle involved in the accident was a part of a canvoy of 27 vehicles. Even though defendants Nos.1 and 2 have led no evidence but P.W.3 Noor Muhammad (motor-cyclist) at least concedes that there was a canvoy of at least 10 vehicles because he states that he learnt on returning to the village from the hospital, after receiving the first aid, that 10 NLC trailors were set on fire by the public after this accident. In this regard a judicial notice can be taken of the fact that vehicles moving in a canvoy cannot be driven at a high speed and have to confine themselves to a much more sober speed and therefore the allegation of this witness Noor Muhammad that the trailor was being driven at a high speed carries no conviction.
5. Issue No,2 is, therefore, decided in the affirmative.
6. ISSUE NO.3: ' This issue is meaningless and is cancelled because the plaint, as per its averments, does make out a cause of action against defendants Nos.1 and 2.
7. ISSUE NO.4: ' In view of the findings on Issue No,2, the plaintiff is not entitled to any relief.
8. ISSUE NO.5: ' Since the suit is being dismissed there is no question of the entitlement of the plaintiff to costs.
9. Besides, it is evident that the suit is of vaxatious nature and it is therefore rather the defendants who should be entitled to the costs of the suit.
10. ISSUE NO.6: ' In view of my findings on Issue No,2 the suit is dismissed. However, the parties are left to bear their own costs.