This suit is for recovery of Rs.49,75,000 under the Fatal Accidents Act, 1855 (hereinafter referred to as the Act) by parents (plaintiff No.1 father and plaintiff No.2 mother) of the deceased, Irfan Ahmed Shaikh, who died in an accident on 26-10-1989 near Kot Ghulam Muhammad, District Tharparkar, while driving Suzuki Alto, bearing Registration No.288-659 (hereinafter referred to as the Car). It is the case of the plaintiffs that deceased was driving the car at normal speed while negotiating right turn the car turned turtle on the right side and after taking two three rounds fell below the road. The car was totally damaged. Deceased was taken out from the car in unconscious condition by the persons, who were accompanying the deceased in the car, namely, Ghulam Farooq Channar and Abdul Rub. The deceased was taken to the Taluka Hospital. After medical aid at Taluka Hospital, he was taken to Civil Hospital, Mirpurkhas. He died in the way. The car was purchased by plaintiff No.2 on 1-7-1989 from the defendant No.3 and was in use of the deceased. The case of the plaintiffs is that accident occurred due to manufacturing and technical defect in the car, directly due to wrong act, negligent and/or default on the part of the manufacturers of the car i.e. the defendant No. 1.
According to the plaintiffs, the deceased was serving as Sub-Engineer on ad hoc basis in Field Irrigation Division No.II, Hyderabad, after obtaining BE (Civil from N.E.D. University in first class, who had robust health and stout physique and had all the potentials for very bright and prosperous future life and career. He was likely to proceed for M.S. Degree from U.S.A. Due to unfortunate car accident, Irfan Ahmed Shaikh met untimely death and whole family plunged into a great tragedy.
The damages claimed were quantified as follows:-- Loss @ Rs. 10,000 per month for period of 20 years, the expected remaining period of the life of the plaintiffs.Rs. 24,00,000 Value of the ill-fated car minus the scrape value of Rs. 55,000 received.Rs. 75,000 Losses due to mental agony and suffering of the plaintiffs resulting from sudden and untimely death of the said Irfan Ahmed SheikhRs. 25,00,000 Total Rs. 49,75,000
2. The defendants through their written statement contested the suit by taking legal as well as factual pleas. The defendant No.2 had no contractual relationship with the plaintiffs and/or their son (the deceased). The car which was being driven by deceased and involved in the accident was neither manufactured nor supplied by the defendant No.2. The suit is not maintainable under the Fatal Accidents Act since the death of the plaintiffs' son was not caused by any actionable wrong committed by the defendants. They have denied that the car was being driven at normal speed, and there was no attempt to overtake or save any vehicle from collusion. They have also denied that the car was totally damaged. It was their case that 800 c.c. Suzuki Car bearing Engine No.412339 and Chassis No.610774 was sold to one Tahir Ahmed son of Ghulam Rasool. The delivery was taken on 12-6-1989 with invoice price of Rs.1,08,940. The police report reveals that on the day, the car was being driven by deceased at high speed and in a rash and negligent manner. The accident occurred when deceased wanted to overtake, on a bend, a fast moving bus, on the narrow Mir Wah Road, which was contrary to safe driving. The Mir Wah Road was in bad condition, surface was uneven with pot holes and edges were very sharp and steep. They have specifically denied that the car had any manufacturing and technical defect, nor nature of such alleged manufacturing and technical defect has been pointed out.
3. Out of the pleadings, the following issues were framed:--
(1) Whether this Court has territorial jurisdiction 'in respect of defendant. No.2?
(2) Whether defendant No.3 sold the vehicle in question? If so, whether he is liable?
(3) Whether the accident took place due to wrongful act, negligence and/or default in technical designing and manufacturing of the ill-fated vehicle on the part of the defendant No.1 and/or No.2?
(4) Whether in the events and circumstances of the present case the plaintiffs are entitled to claim damages from the defendants. If so, to what extent and from whom?
(5) Whether the suit is maintainable under the Fatal Accidents Act, 1855?
(6) Whether the late Irfan Ahmed Shaikh had a valid driving licence and was not in any manner responsible for the accident said to have occurred on 26-10-1989?
(7) What should the decree be?
At the trial, the plaintiff No.1, Abdul Qayoom Shaikh, father of the deceased examined himself, whereas, the' defendant No.1 examined, Shahab Hasan, General Manager of their Quality Control Division. Numerous documents were brought on record, the same would be considered while dealing with issues.
At the time of arguments, only Issues Nos.3 and 4, which are material, were pressed. I have heard both the learned counsel and with their assistance have gone through the record. My findings on the above issues are as follows:--
5. Issues Nos.3 and 4.--- These issues are inter-connected and can be conveniently disposed of together. It is the case of the plaintiffs that their son deceased Irfan Ahmed Shaikh, a B.E. (Civil) serving as Assistant Engineer, was driving the car on fateful day when the incident took place due to technical and manufacturing defect as a result of which their son, Irfan Shaikh died. The defendant No.1 is the manufacturer and supplier of Suzuki Cars in Pakistan and had supplied the car involved in the accident to one AlSaeed Motors vide invoice (Exh.5/13). The plaintiff, Abdul Qayyum has stated that on 1-7-1989 the car was purchased by plaintiff No.2 through Anjum Motors, the defendant No.3. The car was in use of his son, Irfan Ahmed Shaikh, who while driving at normal speed died due to said car overturned near Kot Ghulam Muhammad on 26-10-1989 because of defective tie rod and excel, which was a manufacturing defect. The defendants have denied that the car had any manufacturing defect. The plaintiff is not a witness of the incident. The police of Kot Ghulam Muhammad has taken proceedings in terms of section 174, Cr.P.C. on the report of Abdul Rab, one of the occupant of the car, which has been produced through the plaintiff (Exh.5/2), the narration of the accident was as follows:-- "We all three persons started our journey in the car of Irfan Shaikh vide No.288-659, Karachi, Irfan Ahmed Shaikh was driving, we started our journey from Hyderabad at 11-30 hours when we reached at Mirwah, Irfan told that first he left me at Kot Ghulam Muhammad then they will go for their work and when at 13-30 hours we reached at watercourse Khair Muhammad Bhurgari Railway Gate there was a bus before our car and Irfan tried to cross the bus but came near 'round about, Irfan wanted to cut the car on his side but car went beyond (to) the control of Irfan and fallen down on the other side and we all were injured. I and Ghulam Farooq stopped a Suzuki and kept him in Suzuki and went at Taluka Hospital, Kot Ghulam Muhammad, but due to serious condition of Irfan, the doctor referred (for) him to Civil Hospital, Mirpurkhas."
6. According to the report, the incident occurred when the deceased, while driving the car, tried to overtake the bus and reached at the round about when the car went beyond the control of the deceased, turned turtle and went down side of the road.
7. The defendants' witness Shahab Hasan serving in Quality Control Department has deposed that the defendants carry performance tests and inspections of various natures in order to determine the stability, efficiency and manoeuvrability of the car through hand off stability test, a pulse response test, a constant radios turn test, a cross wind stability test of the vehicle. Curb test to evaluate the body strength of the car and to evaluate the breaking distance in normal and abnormal functions and has denied that there was any manufacturing or other defect in the car.
8. Mr. Syed Muhammad Zaki, learned counsel for the plaintiffs contended that the incident is not disputed and under the general rule, it is for the plaintiff to prove negligence, and not for the defendant to prove, he maintained that in those cases where true cause of action lies solely within the knowledge of the defendant, this hardship is to be avoided by invoking the rule of res ipsa loquitur (means the things speak themselves), in those cases, it is sufficient for the plaintiff to prove the accident and nothing more, then for the defendant to persuade the Court that accident arose not through their negligence. His submission was that the principle of Res ipsa loquitur has been recognized and applied by superior Courts in the following judgments:--
(1) Drsulina D'Lima v. Orient Airways Ltd. PLD 1960 Kar. 712,
(2) Kulsoom v. Jalil Ahmad Khan PLO 1964 Kar. 7; (3) P.I.A. v. Ursulina D'Lima PLD 1966 Kar. 580, (4)
Mst. Momina Bai v. Ghulam Muhammad PLD 1977 Kar. 685, (5) Farrukh Hamid v. M.D. Pak-Arab Refinery 1989 M LD 1228, (6) Government of Punjab v. Mst. Kamina and others 1990 CLC 404 (Karachi), (7) Pakistan Steel Mills Corporation Ltd. v. Malik Abdul Habib 1993 SCM R 848, (8) Iqbal Hussain Jaffery v. K.E.S.C. NLR 1994 Civil 117.
9. He further contended that no evidence has been led to prove that there was no manufacturing or technical defect in the car. Thus, the plaintiffs have discharged their burden.
10. Conversely, Mr. Kamal Azfar, learned counsel for the defendants contended that it is not a case of normal accident involving two vehicles or negligence of the defendants at site. The case put forth by plaintiffs is that their deceased son lost his life in an accident which occurred due to manufacturing and technical defect in the car. He further contended that witness, Abdul Qayoom Shaikh who is neither an eye-witness nor an expert Witness, deposed that he noticed the tie-rod in broken condition after the incident. It was further contended by him that the witness is not an expert. The vehicle was not got examined through Motor Vehicles Inspector or any Automobile Engineer to establish the manufacturing defect, a cause of accident pleaded by the plaintiffs. His submission was that it is a case of no evidence. He further contended that no doubt Salmond in his work on Torts at page 451 (Edn. XIII) has explained the Rule of res ipsa loquitur as follows:-- "The rule that it is for the plaintiff to prove negligence and not for the defendant to disprove it, is in some cases one of considerable hardship to the plaintiff, because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. The hardship is avoided to a considerable extent by the principle of res ipsa loquitur. There are many cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then, entitled to have the case submitted to the jury, and it is for the defendant, if he can persuade the jury and it is for the defendant, if he can persuade that the accident arose through no negligence of the defendant that a reasonable jury could find without further evidence that it was so caused."
11.His submission was that the above doctrine would apply where a presumption of fault is raised against the defendants, which, if he has to succeed in his defence, must overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part and contended that it is not a case of head on collusion of two vehicles but the plaintiffs' case is that the car, which was being driven by the deceased had mechanical defect. He further contended that in such situation the principle of res ipsa loquitur would not apply.
12. The maxim "Res ipsa loquitur" is a rule of evidence which is applied where although the offending act is proved the cause of negligence cannot be established by the plaintiff due to non-accessibility to such evidence or because such evidence is exclusively with the knowledge of the defendant. In the present case, the vehicle was with the plaintiffs, the evidence regarding its manufacturing or technical defect could have been secured and produced by getting the same examined by the Motor Vehicles Inspector who normally examines such vehicle, or through an expert viz. Automobile Engineer. It cannot be said that such evidence was exclusively within the knowledge or domain of the defendants and plaintiff has no accessibility to such evidence. The rule of res ipsa loquitur applies (1) when the occurrence suggests as a matter of reasonable inference, that it was the result of the negligence of the defendants or of some one whose act or omission he is responsible; (2) the cause of the occurrence is unknown; and (3) the presumption of negligence raised by the occurrence is not rebutted by any explanation based on additional facts proved. I am of the view that the said rule has no application to the present case. The report under section 174, Cr.P.C. gives the cause that the incident occurred when deceased tried to overtake the bus on the round about and lost control of the car. The presumption cannot be drawn that such accident is possible only due to manufacturing/technical defect in the car. There may be many causes of such incident one of such could be as a result of overtaking as reflected in the report.
The thing i.e. car that inflected the damages was not under the management and control of the defendant at the time of incident, but was with plaintiffs' son. The cause is known. The rule "res ipsa loquitur" has no application in the present case. I have no hesitation to conclude that the plaintiff has failed to prove the issues and it is a case of no evidence.
13. Issue No.6.--- The plaintiffs have claimed Rs.49,75,000 for (i) loss of earning for a period of 20 years, (ii) value of the car as well as (iii) damages for their mental agony and suffering due to untimely death of their son. I am of the view that claim at Serial Nos.2 and 3 of para. 10 of the plaint cannot be a cause under the Fatal Accidents Act. Section 1 of the Act provides for compensation to the family of person for loss occasioned to it by his death and loss to the estate of deceased may also be added in terms of section 2 of the Act.
14.In the present case, the car was owned by the plaintiff No.2, as such, no claim can be brought in respect of the said car, which has been sold and the same is under use of new purchaser, Abdul Sattar. In suit under the Fatal Accidents Act, in the like manner, the claim at Serial No.2 cannot be brought under the Fatal Accidents Act. The plaintiffs have failed to prove the Issues Nos.3 and 4.
Resultantly, the suit of the plaintiff is dismissed, however, with no' G order as to costs.