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Petitioner: NISAR AHMED and others VS Respondent: Messrs HOSPITAL SUPPLY CORPORATION and JUDGMENT
Court Name: Sindh High Court Judge(s): Sabihuddin Ahmed Title:NISAR AHMED and others vs Messrs HOSPITAL SUPPLY CORPORATION and
JUDGMENT
Reported As: 1999 MLD 13 Result: Suit decreed Judgment JUDGMENT ' This is a suit for recovery of Rs,8,16,000 under the Fatal Accidents Act filed by the parents, brothers and sisters of the deceased Zulfiqar Ahmed, who died in a road accident near Gujjar Khan (District Rawalpindi). The facts are fairly simple and largely undisputed. Late Zulfiqar Ahmad was an employee of the defendant No,1 and was serving as Production Promotion Officer/Caravan Coordinator engaged in Marketing of products sold by the defendants. He was provided with a Pajero Jeep, bearing No,182-974 alongwith a driver i,e, defendant No,2 for visiting different places in the performance of his duties. On or about 11-3-1988, he was proceeding to Rawalpindi alongwith one Tariq Jawed Siyal, Manager of the Lahore Branch of the defendant No,1 and his wife in the aforesaid Jeep, which was being driven by the defendant No,2. Near Bhai Khan on the G.T. Road, the jeep met an accident by colliding with a bus, the deceased and Tariq Jawed Siyal sustained seriously injuries while some simple injuries were caused to Mrs. Siyal and the defendant No,2. The deceased and Tariq Jewed Siyal were being carried to Civil Hospital, Gujjar Khan and the deceased expired on the way. The other injured persons, however, recovered subsequently. An F.I.R. Was lodged at Police Station Gujjar Khan, District Rawalpindi by the Bus Driver Khawar Khan who had brought the deceased and Tariq Jawed Siyal under section 279/338/304, P.P.C. Alleging rash and negligent driving on the part of the defendant No,2. The defendant No,2 was arrested but was subsequently acquitted by the trial Magistrate under section 249-A, Cr.P.C. On 27-7-1988. 2. The main factual controversies between the parties appears to be that according to the plaint the defendant No,2 was driving Jeep at high speed and attempted to overtake a Suzuki Car in a rash and negligent manner, leading to the collision. The defendants on the other hand have
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emphatically denied the allegation of negligence and have contended that the collision took place because the road was slippery owing to rain and the breaks of the jeep failed. Moreover, it has been alleged by the defendant No,1 that the plaintiff No,1 had pardoned the defendants Nos.1 and 2 and is not entitled to claim compensation. It has further been averred that an amount of Rs,50,000 was paid to the plaintiff No,2 on account of accident insurance obtained by defendant No,2 in respect of the deceased. Certain legal pleas relating to maintainability of the suit on the part of the plaintiffs Nos. 3 to 9 have also been raised by the defendants Nos.1 and 2. 3. Though the suit was initially filed against the defendant No,1 (employer of the deceased and owner of the vehicle) and the defendant No,2 (driver), through a subsequent application, the defendant No,3 Reliance Insurance Company (with whom the vehicle was insured) was also sought to be joined. The application was granted and upon amendment of the plaint the defendant No,3 also filed their written statement contending that they were not liable and alternatively that their liability if any, did not extend beyond Rs,20,000. Upon pleadings of the parties the following issues proposed by defendant No,3 were settled:-- (1) Whether the plaintiffs Nos. 1 to 9 are competent and legally entitled to sue and recover alleged compensation from defendant No,3? (2) Whether the incident resulting into death of Zulfiqar employee of defendant No,1, was on account of rash and negligent driving of defendant No,2? (3) Whether the Insurance Policy No,KA/M/oo/2088/5/87 issued by the defendant No,3 cover death and/or personal injury, due to accident, to employee/s travelling in the insured vehicle? (4) Were the legal representatives of the deceased compensated by the defendant No,1 under the group insurance scheme? If so, what is the effect? (5) Whether the defendant No,3 are liable to compensate the legal representatives of the deceased employee of the defendant No,1 under the insurance policy obtained by the defendant No,1 from the defendant No,3? If so, for what amount? (6) What should be the decree? 4. On behalf of the plaintiffs the plaintiff No,3 Mukhtar Ahmad, who is also the Special Attorney of the plaintiff No,1 entered the witness-box. He produced a legal notice dated 22-6-1988 addressed to the defendants claiming compensation and the reply thereto from the defendant No,1, He also produced certified copy of the F.I.R., registered at Gujjar Khan. In cross-examination he was confronted with an affidavit sworn by plaintiff No,2 which he admitted to be correct. One Shoail Pervez a partner of the defendant No,1 appeared as a witness on behalf of defendant No,1 and produced a certified copy of the order of the acquittal passed by the Assistant Commissioner, Gujjar Khan. The defendant No,2 appeared as his own witness while one Muhammad Siddiq an employee of defendant No,3 appeared on behalf of the said defendant and produced the insurance policy as well as a letter from the defendant No,1 accepting payment of Rs,2,25,000 in full and final settlement of the claim passed on the said policy. Upon consideration of the evidence and hearing the question of law involved on which the learned counsel for the parties as well as Mr. Nasir Maqsood, Advocate, who was requested to assist the Court as amicus curiae my findings on the issues may be recorded as under:-- ISSUE NO.1: 4. While I propose to discuss the question of liability of the defendant No,2 in issue No,5 I shall confine my findings at this stage to the question as to whether the suit on the part of any of the plaintiff is not maintainable. In the first place it was contended on behalf of the defendants that even if the plaintiffs Nos.3 to 9 who are admittedly the brothers and sisters of the deceased are his legal heirs under the Personal Law they could not claim compensation in view of the specific provision of the Fatal Accidents Act, 1855. The provisions of section 1 of the Act read as under:--
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"1. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.---Whenever the death of a person shall be caused by wrongful act, neglect of default, and the 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 of 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. ' Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the cost not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct." 6. It is contended by the defendants that under the aforementioned provisions of a special law only the parents, spouses or children of the deceased can claim compensation. Mr. S.S. Jehangir, learned counsel for the defendants has relied upon the cases of Sharifan v. Karachi Electric Supply Corporation (PLD 1981 Karachi 701) and Raheed Abdul Hafeez v. Ahmad and others (1991 CLC 370). In the first case Nasir Aslam Zahid, .1. (as his lordship then was) was pleased to hold that under the aforesaid Act brothers and sisters of the deceased are not entitled to claim compensation. In the second case Wajihuddin Ahmed, J. (as his lordship then was) held that the brothers and sisters of the deceased do not qualify as beneficiaries under the Fatal Accidents Act, even if it is established that they were dependent on the deceased. Learned counsel for the plaintiff has only been able to refer to a judgment of this Court in Sakina and others v. National Logistic Cell 1995 MLD 683) to show that compensation was awarded to the heirs of victim of accident under this Act. However, from a reading of the judgment it appears that the plaintiffs in the aforesaid case were the wife and minor son of the deceased, who have been described as beneficiaries under the aforesaid Act. The view taken by Abdul Rahim Kazi, J. (as his lordship then Was), in the aforesaid case, does not appear to be different from the one taken in the two cases mentioned above. Even otherwise, a cause of action in a claim for tort does not normally survive the demise of a person and cannot be treated as part of his estate to devolve on all legal heirs according to / personal law. When a special law confers a right to claim compensation upon specific persons its benefits cannot be extended to others in view of the above weighty pronouncement of eminent Judges of this Court, both of whom incidentally are adorning the Bench of the Supreme Court, I am constrained to hold that the plaintiffs Nos.3 to 9 are not entitled to any benefit and the suit on their behalf is dismissed. 7. The plaintiffs Nos.1 and 2, however, are the parents of the deceased and covered by the provisions of section 1 of the Fatal Accidents Act. As regards plaintiff No,2 i,e, mother of the deceased, it is contended that she had executed an affidavit (Exh. 1/P) dated 24-12-1992 the contents whereof may be reproduced as under:-- "AFFIDAVIT ' I, Khursheed Begum w/o Nisar Ahmad, at present residing at R.238/16, F.B. Area, Karachi No,38, solemnly affirm and declare that I am the mother of late Zulfiqar Ahmad, employee of Hospital Supply Corporation, Karachi ' I further declare that I am the beneficiary as nominated by my son Late Zulfiqar Ahmad for his personal Accident Insurance Scheme covered by his employers, M/s. Hospital Supply Corporation. ' I confirm that there is no other claim on my behalf or on behalf of any other member of my family with his employer M/s. Hospital Supply Corporation.
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' I further declare that this payment is in full and final settlement of our claim with Late Zulfiqar Ahmed's employer. (Sd.) Deponent." 8. The plaintiff No,2 herself did not enter the witness-box, but this document was shown to plaintiff No,3 Mukhtar Ahmad who admitted it to be correct. Mr. S. Jehangir Khan has argued that in view of the above affidavit the plaintiff No,2 has waived her right to claim any compensation and, therefore, the suit on her behalf is not maintainable. 9. Considering the contents of the above affidavit, however, and the surrounding circumstances I am unable to subscribe to this contention. Admittedly the deceased was insured against personal accident by the defendant No,1 through another Insurance Policy and the defendant No,2 being his nominee was entitled to receive the sum insured. This amount, as held by the Honourable Supreme Court in the case of Mst. Amtul Habib and others v. Mst. Mussarrat Parveen and others (PLD 1974 SC 185) was received as a trustee for the benefit of all legal heirs of the deceased. As such, it cannot be assumed that her personal right to receive compensation under a Special Law stood waived. Obviously, the affidavit in question could not be treated as a valid agreement for waiver of rights under the Fatal Accidents Act as no consideration is shown to have passed and, even otherwise, a legal right cannot be assumed to be waived. As such, I hold that the suit on the part of the plaintiff No,2 is maintainable. 10. It is argued that the aforesaid plaintiff did not enter the witness-box and nothing was brought in examination-in-chief of his attorney Mukhtar Ahmad, purporting to verify or affirm the contents of the plaint, which has been signed by the aforesaid plaintiff. Mr. Jehangir placed reliance on a judgment of this Court in Riaz Muhammad and another v. Sarwar Shah (1992 CLC 2464). In this case a suit under the fatal accident was filed by both the parents of the deceased child. The father having signed the plaint did not enter the witness-box and the mother deposed that the whereabouts of her husband were not known for three years. The identity of both partners was in serious dispute. It was only in the context of these peculiar facts that Hazilq-ul-Khairi, J. (as his lordship then was) observed that since the plaint was not verified on oath by plaintiff No,2 (mother) it had no evidentiary value. I do not see how this judgment can be of no help to the defendant. It may be observed that in the first place the question whether the contents of the plaintiff have any evidentiary value has no bearing on the question whether the suit have been competently filed or the plaintiff had locus standi to sue. The plaint in the instant case has been signed and verified by the father of the deceased. Neither his identity is disputed nor is he barred by law to claim compensation. Admittedly he was not an eye-witness to the extent. The accident in question did take place has not even been denied by the defendants. The evidence on behalf of the plaintiff was tendered by the plaintiff No,3 who was also the special attorney of the plaintiff No,1 who deposed the occurrence of the accident and the earning capacity of the deceased. The special power of attorney is duly not raised and has not been challenged. I am, therefore, clearly of the opinion that the suit on behalf of the plaintiffs Nos.1 and 2 is maintainable. ISSUE NO. 2: 11. The plaintiffs alleged that death of Zulfiqar Ahmad took place on account of rash and negligence driving of defendant and this allegation has been emphatically denied by all the defendants. Admittedly the plaintiffs witness Mukhtar Ahmad was not an eye-witness of the accident nor have the defendants produced any independent witness. The plaintiff, however, have produced certified copy of the F.I.R. Lodged by Khawar Khan, the driver of the bus against the jeep collided. It is established that a case for rash and negligent driving was indeed registered against the defendant No,2, driver, and this fact has not been disputed. It has, however, been averred that defendant No,2 was eventually acquitted and a certified copy of the order of the concerned
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Magistrate under section 249-A, Cr.P.C. Has been tendered in the evidence. Moreover, the defendant No,2 has described the occurrence in following words:-- ' "When the accident had taken place, deceased Zulfiqar Ahmad, Tariq Jawed Sial and his wife were travelling in the jeep. After the accident, people of the area had taken me out from the jeep. At that time I was unconscious. The accident had occurred because of rain. I found a car coming from the opposite direction, I applied the brakes to save the jeep from colliding with the car, it slipped and collided with a bus, which was also coming from the opposite direction. When I applied the brakes, the speed of my jeep was about 60 to 65 Kms. Per hour." 12. The basic rule (if I may say with respect) in such cases appears to have been stated by a Division Bench of this Court in Hayat Services (Pakistan) Limited v. Kandan (1989 CLC 2152) in the following words by Saleem Akhtar, J. (as his lordship then was):-- ' "No doubt the initial burden is upon the person alleging the accident and death to prove it and once he discharges this burden it shift to the other side, but death or the incident is not denied but different versions of the accident causing death is stated then if such allegations constitute the fact which are exclusively within the knowledge and possession of the defendant by the plaintiff is found to be week or incorrect, the defendant is bound to prove his averment." 13. The crucial question for determination of this issue is on whom the burden of prove lies and whether such burden has been effectively discharged. Mr. Waqar Baig has contended that since admittedly the plaintiffs were not present at the occurrence the maxim res ipso loquitur (the thing speaks for itself), would be applicable and the factum of the accident resulting in the demise of Zulfiqar Ahmad having been proved, the burden shifted on the defendants to show that no negligence on their part was involved. On the other hand accordingly Mr. Jehangir the plaintiff could only succeed on the strength of his own case and not the weakness of the defendants and the aforesaid maxim is not attached because the plaintiffs could have summoned independent eyewitness which they failed to do. Moreover, it is contended that the deposition of the defendant No,2 and the order of acquittal by the Court of Assistant Commissioner, Gujjar Khan established absence of negligence. Both the learned counsel as well as Mr. Nasir Maqsood who was called upon to assist the Court have placed a great deal of case-law in support of their respective contentions and I am indeed grateful for their assistance. 14. Mr. S. Jehangir Khan, in support of his contention has relied upon two judgments of this Court i,e, Nazir Begum and others v. Malik Taj Muhammad and others (1991 CLC Note 330 at page 253) and Haji Abdul Razzaq v. Pakistan and others (1994 CLC 613) delivered in suits under the Fatal Accidents Act. In the first case it was held that the plaintiff having failed to establish by definite and positive evidence that the fatal injury was caused by the bus owner/driver by the defendants. They were not entitled to a decree in their favour. In the second case the factum of the accident having been caused by a vehicle belonging to the defendants was disputed and after finding the evidence of both the parties unreliable Salahuddin Mirza, J. Was pleased to hold that the plaintiff must succeed only on the strength of his own evidence and not on the weakness of the defendants' case. 15. It may be observed that in the instant case the fact that Zulfiqar Ahmad died on account of collision of a vehicle owned by the defendant No,1 and driven by the defendant No,2 had not been disputed. The only question to be considered is whether such death is attributable to the negligence of the defendants. The judgments cited by Mr. Jehangir, therefore, do not seem to be applicable to the facts of this case. 16. Mr. Nasir Maqsood, learned amicus curiae brought to my attention two authoritative pronouncements of the Honourable Supreme Court in the cases of Mst. Kamina and another v. Al- Amin Goods Transport Agency (1992 SCMR 1715) and Pakistan Steel Mills Corporation v. Malik Abdul Habib (1993 SCMR 848), which have a direct bearing on the subject. In the first case it was observed:--
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"In cases under fatal accident a general rule is that the burden of proof with regard to negligence is on the plaintiff, but in cases where true cause of accident lies solely within the knowledge of the defendants then his lordship is avoided by invoking the rule res ipso loquitur (the thing speaks for itself). In such circumstances where accident speaks for itself, it is sufficient for plaintiff to prove the accident and nothing more. It is then for the defendant to persuade the Court that the acident arose not through their negligence." ' In the second case, the above maxim was explained in the following words:-- "This maxim means that an accident by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other cause and in such a case the mere fact of the accident is prima facie evidence of such negligence." 17. I had requested Mr. Nasir Maqsood to assist me on the question that assuming the version of the accident being given out by the defendant No,2 as correct, were the defendants still liable to adduce further evidence of absence of negligence. It may be recalled that the defendant No,2 had stated that the accident occurred because of rain owing to which when he applied the brakes the jeep slipped and collided with a bus. Learned counsel after meticulous research drew my attention to several standard textbooks and reported cases having a bearing on the question. In law of Tort by A.J. Pannelt (6th Edition, page 260). It is stated "Act of God is a defence of very limited application comprising a heavy onus on the defendants. There are dicta in a number of cases to the effect that heavy rain fall and violent snow storm were not acts of God i,e, the result damage could have been avoided by human care and forethought." In P.K. Kalasami Nadar v. K. Ponnuswa mi Mudaliar and others (AIR 1962 Madras 44) it was held that an act of God will be extraordinary occurrence due natural causes which is not the result of any human intervention and which could not be avoided by any amount of foresight or care". In Greenock Corporation v. Glasgow and South Western Railway (1917 AC 556) it was held:-- ' "Assuming an act of God such as flood of wholly unprecedented, the damage in such a case result not from the act of God, but from the act of man in that if he failed to provide a channel sufficient to meet the contingency of the act of God. But for the act of man there would have been no damage from act of God." ' Learned counsel also referred to Charlesworth on Negligence (6th Edition, page 454) where reference is made to several cases from England and Canada, where heavy rain fall, or snow storms have not been treated as acts of God and parties not taken reasonable fore-cautions have been held liable for negligence. 18. Against the above legal position it seems quite clear that the burden was on the defendant to prove absence of negligence. In the first place they failed to produce material evidence. The other occupants of the vehicle were Tariq Jawed Siyal, who is, admittedly, an employee of the defendant No,1 and his wife. C Neither of them was called as a witness. Secondly, the mere existence of rain fall could not release the defendant from liability. Rain fall occurs very often in Punjab and a driver is expected to drive slowly and cautiously to prevent an accident. According to the defendant No,2, he was driving at a speed of 60 to 65 km. Per hour. There is no evidence to indicate that, by driving at such speed, he had taken reasonable precaution to prevent an accident. 19. As regards the defence that the defendant No,2 was acquitted in the criminal case at Gujjar Khan, it might be sufficient to state that the findings of the Criminal Court are not conclusive proof of absence of negligence as held by this Court in Nimi Frances and others v. Muhammad Saeed Qureshi and another (1982 CLC 1703). In a criminal case it is the duty of the prosecution to prove the offence beyond a reasonable doubt. Whereas in the present suit the defendants were required to affirmatively prove absence of negligence. Moreover, as is evident from the judgment placed on record that two witnesses examined had supported the prosecution case but did not give any evidence either way on the question as to whether the accused/defendant No,2 drove negligently.
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In view of the above, I am clearly of the opinion that the accident was caused owing to negligence of the defendant No,2. Admittedly the vehicle was owned by the defendant No,1 and as such the aforesaid defendant is also vicariously liable. ISSUES NOS. 3 AND 5: 20. Issues Nos. 3 and 5 relate to the liability of the defendant No,3 under the Private Car Comprehensive Insurance Policy issued by the defendant No,3 in respect of the vehicle whose collision caused the demiset of Zulfiqar Ahmad. This policy has been produced in evidence as Exh. 2/D and the relevant provision of section 2 thereof relate to liability to third parties may be reproduced as follows:-- "1. The Company will indemnify the insured in the event of accident caused by or arising out of the use of the motor against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of-- (a) death or bodily injury to any person but except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured; 21. It is agreed by learned counsel that the question of existence or extent of liability of the defendant No,3 can only be decided on the basis of the requirements of section 95 of the Motor Vehicles Act, 1939 (which have been retained on the Statute Book despite repeal of the Act by West Pakistan Ordinance (XI of 1965)…
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