AMIR I-IANI MUSLIM, J.---Through this High Court appeal the appellant has impugned the judgment passed by this Court on the Original Side in Suit No.795 of 1989 whereby the suit of the appellant was dismissed by a learned Single Judge holding therein that the appellant has failed to prove that the unfortunate death of his son Muhammad Sharjeel Qureshi was caused due to negligent and rash driving of a bus owned by the respondent No.1 and driven by the respondent No.2.
2. The facts as pleaded in the suit filed by the appellant were that the appellant was the father of deceased Muhammad Sharjeel Qureshi who was about 22 years of age when he died in a traffic accident on 15-2-1989 at about 4 p.m. It has been further pleaded by the appellant that the deceased left behind four dependants besides the appellant.
3. Respondent No.1 was the owner of Bus bearing No.876-866 whereas the respondent No.2 was the driver/employee of the respondent No.1 at the time of accident. The bus by rash and negligent manner dashed against a Motor-cycle No.KAA-3600 which deceased Muhammad Sharjeel Qureshi was riding near Sabzi Mandi, Main University Road, Karachi, on his way to Gulshan-e-lqbal and consequently the deceased got fatal injuries and died on the spot. The appellant filed the said suit for recovery of Rs.800,000 under the Fatal Accidents Act.
4. Common written statement was filed by the respondents Nos.l and 2 in which the averments of the plaint were denied. However, in para. 4 of the written statement, the respondent No.1 has admitted the fact the bus did met with the accident by which the deceased who was riding the
1. Amount claimed and assessed:Rs.8,00,000
2. Name and Age of deceased:Muhammad Sharjil Qureshi (22 years]
3. Date of Accident 15-2-1989 Name and age of beneficiary Entitled for compensationRelation Age at the time of Accident i. Ehtashamuddin Qureshi Father 51 yearsmotorcycle was hit, disputing the factum of rash and negligent driving on the part of respondent No.2.
5. Issues were framed whereafter the appellant examined Nazeer Ahmed P.W.1 who produced the copy of F.I.R. No.71 of 1989, sketch of place of Wardat Superdaginama for the return of the bus involved in the accident, the order of the ACM Karachi (East) about the release of the bus and report of Motor Vehicle Inspector pertaining to the bus. The appellant examined Muhammad Abdul Ghafoor Khan P.W.2 who was an eye-witness besides himself as P.W.3. Against this the respondent/defendants examined Abdul Majeed the respondents/ defendant No.2, the driver of the bus. Whereafter the matter was argued and the learned Single Judge after hearing the parties was pleased to dismiss the suit.
6. It has been argued by the learned counsel for the appellant that the findings in the impugned judgment of the learned Single Judge was erroneous on facts as well as on law. He submitted that the findings of the learned Single Judge on Issue No.1 was erroneous to the extent that the P.W.2 was not an eye-witness of the accident. He submitted that the evidence of this witness was confidence-inspiring and the counsel for the respondent could not shake his testimony in cross- examination. Even otherwise, he submitted that the learned Single Judge has misdirected himself by disbelieving the evidence of the appellant and his witnesses on the ground that the accident was unwitnessed and, therefore, suit was dismissed by the impugned judgment. He submitted that the accident was witnessed by P.W.2 and even if it is assumed for the sake of arguments that it was unwitnessed accident, then too, this Court has allowed the reliefs claimed in such matters under the doctrine of 'res ipsa loquitor' which means that 'the things speaks for themselves'.
7. It was further argued by the learned counsel for the appellant that the findings of the learned Single Judge were foreign to the material on record and the. Appellant had placed sufficient material by way of documents and oral evidence to substantiate that claim of damages. It was submitted by the learned counsel that the learned Single Judge has erroneously found that deceased was in fact trying to overtake the bus from the left side which he held was violative of traffic rules as according to him overtaking must be done from the right and not from the left side and, therefore, the deceased met with the accident. This very assumption of the learned Single Judge is outside the pleadings of the respondents. No such plea has been taken by the respondents and, therefore, reaching on a finding in the absence of any material was improper and was liable to be overlooked.
8. The learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in the case of Pakistan Steel Mill Corporation Limited and another v. Malik Abdul Hameed reported in the 1993 SCM R 848, on the unwitnessed accident, and a judgment ofthe Division Bench of this Court in High Court Appeal No.D-67 of 2000 authored by one of us (Mr. Justice Sabihuddin Ahmad). On the question of quantum of compensation the learned counsel has relied upon theclaim which he has worked out in the following manner:-- STATEMENT OF CLAIM ii.Feroze Tabassum Mother 43 years QUANTUM OF DAMAGES: 4.Average life span in Pakistan [in view of preponderance of judicial pronouncement]. 70 years 5.The deceased was 22 years and was a student Pre-Engineering and had passed intermediate examination the result of which was announced after his death. The deceased Sharjil Qureshi was stated to be working in the Firm of plaintiff in the evening hours and also used to get Electronics trainings. He was Stated to be intelligent and was capable of earning Rs.6,000 per month which would have further increased with the passage of time. He was also giving tuitions and was earning Rs.15,00 per monthly and in addition to that he was getting Rs.15,00 per month from the office work. Thus, if on average for the sake of quantum of damages if monthly earning @ Rs.4,000 per month is taken which is the minimum for an educated/Skilled person in Pakistan. The annual income comes to [4000 x 12] Rs.48,000 6.Since the mother was aged 43 years, while claiming loss of pecuniary benefits, her age being lesser will be considered and as such 27 years (70-43) will be years for determining the compensation which comes to (70-43)= 7.Thus (27 x 48,000) will give an amount of aggregate loss of pecuniary benefits Rs.12,96,000 8.Increment at the rate of 20% per annum will also be added to comprehend the advancement of the lite (12,96,000/5) Rs.2,59,200 9.Gross Loss of pecuniary benefits for 29 years would be taken by adding (12,96,000 + 259,200) Rs.15,55,200 DEDUCTIONS: Less: 10.A sum of Rs.1/3 will be deducted on Account of personal expenses.
(15,55,200/3) Rs.5,18,400 11.Netloss of pecuniary benefits (15,55,200 - 5,18,400) Rs.10,36,800 But the amount claimed is Rs.800,000
9. In support of his claim on the quantum of compensation he has relied upon the judgment of Honourable Supreme Court in the case of Karachi Water and Sewerage Board v. Mirajuddin reported in 2000 SCM R 725 and a judgment of a Division Bench of this Court reported in 2000 M LD 112.
10. As against this the learned counsel for the respondent has supported the impugned judgment and has argued that the accident was unwitnessed and the learned Single Judge had rightly held that the Appellant has failed to prove that the unfortunate death of deceased Sharjeel Qureshi was caused due to negligent and rash driving of the respondent No.2. He submitted that the findings of the learned Single Judge in the impugned judgment were based on the evidence and no different view could be taken. He submitted that the learned Single Judge has rightly held that the accident took place owing to the fact that the deceased who was riding on the motorcycle had tried to overtake the bus from the left side in violation of the traffic rules, which resulted in this unfortunate accident. He, therefore, has held that there was no negligence on the part of the respondent No.2 which could give .a cause to the appellant to file the suit for damages of which the appeal is an off shoot.
11. We have heard the arguments of learned counsel and have gone through the record. P.W.2 Abdul Ghafoor Khan had witnessed the accident, therefore, findings to the effect that the accident was unwitnessed was ex facie erroneous. Additionally even if it is accepted for the sake of arguments that it was unwitnessed accident, then too, thedoctrine of 'res iscoquito' would apply in the present case. The phrase 'res iscoquito' means that 'the things speak for themselves'. In the case of Pakistan Steel Mills Corporation Limited v. Abdul Hameed reported in 1993 SC'MR 848 it was held that:-- Res is loquitor means that the things speak for themselves. This doctrine applied firstly, when the things that inflicted the damage was under the sole management and control of the defendant and secondly, that occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to why or how the occurrence took place. In such circumstances defendants have to persuade the Court that accident did not occur on account of their negligence.'
12. The applicability of this doctrine in cases of negligence to the effect that once the factum of accident is established by the plaintiff the burden to show absence of negligence shifts upon the defendant. In the present case the factum of accident is not in dispute, inasmuch as,P.W.1 has produced F.I.R. Exhibit 1/1, Sketch of place of Wardat Exhibit 1/2, Supardaginama for the return of the bus involved in the accident Exhibit1/3, order of the Karachi East for the release of the bus Exhibit. 1/4 besides the report of the Motor Vehicle Inspector pertaining to the bus Exhibit 1/5. All these documents were exhibited through P.W.1 Nazeer Ahmed without any objection from the respondents' counsel. Neither the authenticity nor the admissibility of these documents were challenged.
13. Additionally the respondents in their written statement in para. 4, which is reproduced as under:- "4. Para (4) is strongly denied. It is submitted that it is incorrect to say that the driver of Bus No.876- 866 was driving the Bus in rash and negligent manner. It is further submitted that the deceased who was driving motorcycle hit the bus in question while overtaking at the place of accident. This fact is borne out from the initial accident report. Copy of the same is filed herewith and marked as annexure 'A'."
The respondents have not in their written statement, disputed the factum of accident but have only pleaded that the accident took place as the deceased motorcyclist was trying to overtake the bus at the place of accidetit when the deceased motorcyclist 'lit the bus. In the face of this plea the doctrine of res ipsa loquitor is fully attracted. In the cross-examination of the respondew No.2, he has denied the accident. A party cannot be allowed to lead evidence contrary to its pleadings. Nor could a party be permitted to take a plea different than the plea which it has taken in the written statement. Any part of the evidence which is beyondthe pleadings is ought to be overlooked as improvement of the nature being afterthought is impermissible in law. The evidence of the respondent No.2 to the effect that no accident took place with the bus which he was driving could not be believed in view of the admission which has been made in para 4 of the written statement of the respondents contents of which the respondent No.2 has affirmed besides the exhibits referred to hereinabove produced by P.W.1.
14. The learned Single Judge in the impugned judgment has held that the deceased was trying to overtake the bus from the left side in violation of the traffic rules and he assumed that when the bus moved to left as all vehicles must when they want to avoid any traffic on the right the deceased motorcyclist was hit. This findings is based on assumption and none of the witnesses of either party has pleaded nor any material was available on record which could justify the learned Single Judge to reach such a finding. Moreover, even if it is accepted that the accident was unwitnessed, then too, in view of the doctrine of res ipsa loquitor the appellant was entitled to the relief he has sought in the suit in view of the principles laid down by Honourable Supreme Court in the case of Pakistan Steel Mills Corporation v. Malik Abdul Hameed. A Division Bench of this Court in an unreported judgment in a High Court Appeal No.D-67 of 2000 have granted the relief of the nature on the basis of the said doctrine. The testimony of the witnesses of the appellant was not shaken in cross-examination by the respondents' counsel and the respondent No.2 in his evidence has taken a different plea in regard to the occurrence of the accident, which plea being in conflict with the plea the respondents' having taken in their written statement, which cannot be looked upon. We, therefore, with profound respect to the learned Single.Judge are of the considered opinion that the findings of the learned Single Judge in regard to Issue No.1 was erroneous and is not based on the material produced before the learned Single Judge.
15. Since we have held that appellant had proved his case while leading documentary as well as oral evidence, therefore, he was entitled to the relief of damages sought in the suit. Statement of the claim of damages produced by the appellant is in conformity with the principles laid down in the judgment of the Honourable Supreme Court of Pakistan in the case of Pakistan Steel Mills Corporation v. Malik Abdul Hameed reported in 1993 SCM R 848 on the question of quantum, we, therefore, set aside the impugned judgment and allow this appeal. The appellants are entitled to the decree in the suit filed by him against the respondents to the tune of. Rs.8,00,000 as damages.
The appellant shall also be entitled to mark-up of 10% per annum on the decretal amount from the date of decree till the payment of entire amount by the respondents.
16. These were the reasons of our short order which we have passed IG on 21-10-2003 in the above appeal.
High Court .