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Petitioner: HUSSAIN AND ANOTHER VS Respondent: MUHAMMAD RAFIQ AND 4 OTHERS
Court Name: Sindh High Court Judge(s): Durab Patel Title: HUSSAIN AND ANOTHER vs MUHAMMAD RAFIQ AND 4 OTHERS Case No.: Suit No, 43 of 1966 Date of Judgment:1970-02-27 Reported As: PLD 1971 Karachi 129 Result: Suit dismissed
JUDGMENT
JUDGMENT This is a claim for Rs, 1,50,000 under the Fatal Accidents Act, 1855. The plaintiffs are the parents and sole legal heirs of Salim deceased who was killed in an accident in Karachi on 4th February 1965. According to the plaint Salim deceased to whom I shall hereafter refer as the deceased, was going in a rickshaw on 4th February 1965 from Nazimabad to Gandhi Garden. The rickshaw was proceeding at reasonable speed over Lasbella Bridge when at about 1-10 p.m. a bus bearing No, KAT 9111 (to -- which I shall refer as the said bus) collided with it. In consequence of the collision the deceased was thrown out of the J rickshaw and was severely injured. He was taken to hospital and died of his injuries on the same day. At the time of the incident the said bus was owned by the second defendant and was being driven by the first defendant who was employed as a driver by the second defendant. The deceased was only 21 years at the time of his death and was in excellent health and used to carry on cloth business in Bohri Bazar, Karachi. His business was very successful and as a dutiful son he was paying his parents Rs, 1,000 every month out of his earnings. As his death was caused by the negligence of the defendants, the plaintiffs, who have suffered on account of that negligence, have filed this suit for the recovery of a sum of Rs, 1,50,000 with costs and interest from these two defendants. 2. The first defendant has not filed a written statement and the case has proceeded ex parte against him. The second defendant has filed a written statement in which he had pleaded only that he did not own the bus which had collided with the rickshaw in which the deceased was travelling, therefore, he had no knowledge of the accident and did not admit the allegations in the plaint. He had also denied in this written statement that the first defendant was his driver. In view of the allegation of the second defendant in his written statement that he did not own the bus
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responsible for the accident, the plaintiffs made enquiries and filed an amended plaint impleading the third and fourth defendants. According to this amended plaint, the second defendant carried on business in the name of the 4th defendant, and had, in his name, hired the said bus from the third defendant, who was its owner and as the first defendant was employed by the second defendant, all the defendants were liable to the plaintiffs. 3. I am not able to understand why the 2nd defendant was impleaded twice, as defendant No, 2 and as defendant No, 4. Naturally he took advantage of this opportunity to file another written statement and in this written statement he pleaded, what he had suppressed in his earlier written statement, that he had hired the said bus from the third defendant, and this averment is supported by the third defendant's written statement. In his written statement the third defendant has denied all the allegations in the plaint for want of knowledge and has pleaded that he had hired the said bus to the second defendant under a contract which was in the nature of a hire purchase agreement. He has further pleaded that the first defendant was not employed by him and had never been employed by him, therefore he has repudiated liability for the accident and its consequences. As the said bus was insured with the 5th defendant, on 15th March 1968, the plaintiffs applied that the notice of the suit be sent to the 5th defendant under section 96 of the Motor Vehicles Act, 1939. This application was allowed, and in due course the 5th defendant filed its written statement. It has denied the allegations in the plaint and advanced various pleas in this written statement. . But as its defence is limited by the provisions of section 96 of the Motor Vehicles Act, I shall refer here only to those pleas in the 5th defendant's written statement which arise out of section 96. These pleas are the said bus was operating without a valid route permit, that its insurance policy had been issued only to the third defendant, and that it was not aware of its transfer by the third defendant to the second defendant, therefore this amounted to a material non-disclosure on the part of the third defendant and to a breach of the conditions of the insurance issued by it. It also submitted that the first defendant did not have a driver's licence, therefore, in view of these pleas it has repudiated liability. 3-A. On these pleadings, a large number of issues were framed. Later some of these issues were dropped and I have re-grouped and re-numbered the issues which remain as follows (I) 1hi hether the plaintiff's sonSalm was killed on February 4th, 1965 as a result of negligence of the defendants? (2)Whether the bus collided with motor-cycle rickshaw in which the deceased was riding in consequence of the negligence of defendant No, 1? (3)Whether the deceased was paying Rs, 1,000 to the plaintiffs? (4)To what relief are the plaintiffs entitled? (5)Whether bus No, KAT 9111 was being driven at the time of the accident by defendant No, 1 in the course of his employment as its driver in the service of defendants Nos, 2, 3 and 4? (6)Whether the suit is within limitation and whether it is bad for non-joinder of necessary parties? (7)Whether the defendant No, 3 had delivered the bus to defendant No, 2 as proprietary of defendant No, 4 under contract of hire-purchase? If yes, its effect and whether transfer was with notice to the defendant No, 5? (8)(a) Whether defendant No, 5 in law is not liable under the policy of insurance? (&) (b) Was defendant No 1 holding a driving licence at the relevant time? (8) (c) Whether the bus had a valid route permit at the relevant time? I shall now examine the evidence produced by the parties on these issues. 4. Issues Nos, 1 and 2. --As both these issues relate to the manner in which the death of the deceased occurred, it will be convenient to consider them together. It is common ground between the parties that the accident occurred on I dd day shortly after 1 p.m. on Lasbella Bridge. This bridge has four lanes of traffic, two are for traffic going to Nazimabad and two are for traffic going to Lasbella. The rickshaw in which the deceased was travelling was going in the direction of Lasbella,
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whilst the said bus was going in the opposite direction, namely, Nazimabad, and there are different versions of the manner, in which the collision between these two vehicles took place. I shall now examine these different versions, but at the outset I have to observe that, although there must have been heavy traffic at the time of the accident, the parties have produced very scant evidence in support of their respective contentions. 5. The plaintiffs' version is based on the evidence of their son-in-law, P. W. Kasimali. P. W. Kasimali was with the deceased in the rickshaw at the time of the accident and he has said in his evidence that the rickshaw was going at a speed of about 20 miles per hour in the direction of Lasbella. It was in the first lane of traffic for traffic going in that direction when suddenly the said bus, which was being driven very fast and recklessly, came and hit it, in consequence of which the deceased was thrown out, received injuries and died in the course of the same day. According to 'the police version, the rickshaw was not in the first but in the second lane of tranffic for traffic going to Lasbella. This version is based on the evidence of D. W. Amir Nawaz, Sub-Inspector, who prepared a plan of the accident (Exh. 13) about three to four hours after the occurrence. He has said in his evidence that he had prepared the plan of the accident on the basis of his own measurements and he has emphatically said that the rickshaw was in the second lane of traffic for Lasbella, and the said bus came and hit it in that lane so that it "was on the wrong side of the road". Finally, the second defendant's version is that the rickshaw was being driven recklessly, and that, in order to overtake two other rickshaws, which were ahead of it, it had crossed over into the lane of traffic for traffic going to Nazimabad, therefore it had collided with the said bus which was going to Nazimabad and was in its proper line of traffic. This version is based on the evidence of D. W. Muhammad Rafiq, and the point for determination under these issues is which of these three versions is correct. 6. D. W. Mohammad Rafiq was not a witness of truth and I have not been impressed by his evidence at all. He first pretended that he could not read the police plan of the accident (Exh. 13). But when he thought this might damage the second defendant's case, he changed his mind and said that he could read it. Although he had given evidence in favour of the first defendant in the Magistrate's Court, he professed in this Court not to know even the name or the whereabouts of the first defendant. I am not able to believe this, and when he was questioned as to why he had gone to give evidence in the Magistrate's Court he said it was because be had seen the A. S. I. talking with the rickshaw driver. As no question was put to D. W. Amir Nawaz about his alleged partiality to the rickshaw driver, I have no doubt that D. W. Muhammad Rafiq's explanation of his conduct was false. Additionally, in order to explain his presence at the occurrence he said that he had a shop about a furlong and a half from Lasbella Bridge. Yet he was unable to say even roughly what the width of the Bridge was. Finally, he was definite that only the deceased was in the rickshaw and that P. W. Kasimali was not in the rickshaw. I am satisfied that P. W. Kasimali was in the rickshaw and having watched P. W. Muhammad Rafiq, I have no doubt that he was not a witness of truth. Therefore as P. W. Kasimali has denied the allegation that the richskaw was in the wrong lane of traffic at the time of the accident because it was overtaking other rickshaws, although P. W. Kasimali was not a disinterested witness, I prefer his evidence at least to that of D. W. Muhammad Rafiq. 7. However, P. W. Kasimali's evidence that the rickshaw was in the first lane of traffic going to Lasbella is inconsistent with the plan prepared by D. W. Amir Nawaz (Exh. 13), and I see no reason to prefer his evidence to the impartial version of the accident, as given by D. W. Amir Nawaz, even though the plan prepared by him was on the basis of investigations and enquiries subsequent to the accident. Mr. Rahimtoola submitted that I should accept P. W. Kasimali's evidence unless there was any reason to think that it was unreliable in any way, and that I should not reject it merely because he was a close relation of the deceased. I agree with learned counsel that P. W. Kasimali's
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evidence should not be rejected merely because he was the deceased's brother-in-law. But in order to support the claim of the plaintiffs, he said that the deceased was supporting the plaintiffs by giving them Rs, 1,000 every month. For the reasons which I shall presently give, this claim appears to me to be false, therefore as P. W. Kasimali went out of his way to support a false and exaggerated claim this is a circumstance which affects his veracity. Additionally, he admitted in his evidence that one Ashiqali, a friend of the deceased, had witnessed the accident. Yet the plaintiffs neither examined the said Ashiqali nor the rickshaw driver. Their failure to examine these witnesses, especially the rickshaw driver, leads to an adverse inference against P. W. Kasimali's version of the accident, and in all the circumstances discussed, I prefer the police version of the accident. 8. As, according to the police version and the evidence of D. W. Amir Nawaz, the said bus was in the wrong lane, Mr. Shibli submitted that driving in a wrong lane, of traffic by a vehicle did not amount to any offence, therefore even if D. W. Muhammad Rafiq had given false evidence, the mere fact that the said bus was in the wrong lane of traffic did not mean that it was being driven negligently. I am not able to agree with the view that driving in the wrong lane of traffic is not necessarily a criminal offence. However I am not dealing with criminal liability in this case; and, as the said bus was in the wrong lane of traffic, it means that it was on the section of the Bridge normally used by traffic going to Lasbella and not to Nazimabad. Its presence in that lane of traffic itself constituted a danger to traffic going to Lasbella, as the rickshaw was, therefore, in the absence of any explanation, the fact that the bus was in the wrong lane of) traffic is prime facie evidence that it was being driven negligently. That presumption could easily have been rebutted by evidence, as it is obvious that in the circumstances, the accident must have been seen by many other persons. The second defendant only examined a witness who was thoroughly dishonest and did not examine even the driver or the conductor of his bus. In order to justify his failure to examine the first defendant, he has denied in his evidence that the first defendant was his driver. He has said that he did not know the first defendant and that one Shah Baz Khan, now dead, was his driver. He has further said that on the day of the accident this Shah Baz Khan had taken the said bus from the garage for driving it. But having received a message that his wife was ill, he had gone home and told the first defendant "to drive the bus back to the garage and the accident took place on the way". I was not impressed by the second defendant's evidence. First of all, as he was plying the bus on a commercial basis he was required to keep registers of his drivers and he said that he had kept the registers but they were no longer with him. As the suit was filed within one year of the accident, I find it impossible to believe the second defendant's statement that he had destroyed his registers. I have no doubt that he has deliberately suppressed these registers, therefore, I am not able to believe his statement that the first defendant was not his driver. Additionally, the burden of proving that the first defendant was not his driver was heavily on him. He was therefore required to examine the alleged Shah Baz Khan. He did not examine Shah Baz Khan, and to explain his failure so to do, he stated that Shah Baz Khan had died in 1968. But as no death certificate of Shah Baz has been produced, I am not able to believe the second defendant's evidence at all. I have no doubt that the first defendant was the second defendant's bus driver, therefore he could easily have examined him, and as he has not done so, he has not been able to explain the reason why the said bus was in the wrong lane of traffic. In view of the absence of any explanation in this respect the plaintiff has proved that the said bus was being driven negligently at the time of the accident. 9. Mr. Shibli then tried to argue that, according to the plan (Exh. 13) the point where the accident occurred was not in the second lane of traffic, but, was on, so to say, the third lane of traffic, from Lasbella so that the bus was in its own lane of traffic. Mr. Shibli also argued that the distance between the point where the collision took place and the point where the rickshaw was found by the police was so great that this proved that it was being driven rashly and negligently, and that
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the rickshaw and not the said bus was in the wrong lane of traffic. The short answer to these arguments is that not only were no such pleas advanced by the second defendant in his two written statements but he has also not dared to put this version of the accident to D. W. Amir Nawaz. I have, therefore, no doubt that the said bus was in the wrong lane of traffic at the time of the accident. Mr. Shibli then stated that the first defendant had been acquitted in the Magistrate's Court, therefore his acquittal by a competent Court disproved the allegation of negligence against him and, as the burden of proving negligence was on the plaintiff, the plaintiff had failed to prove its case. I am not able to agree with this argument. The burden of proving negligence in a criminal prosecution is much heavier than in a claim under the Fatal Accidents Act, therefore whatever be the position, when a person is convicted of negligence by a criminal Court, the fact that he has been acquitted for rash and negligent driving under the Penal Code is irrelevant to the question of negligence in a civil action for negligence. 10.Finally, Mr. Shibli submitted that Pakistan had no longer any law of Tort, and that though the Fatal Accidents Act was still on the statute book, it had been impliedly repealed by Article 130 of the 1962-Constitution, therefore, according to learned counsel, the only remedy of the plaintiff was to prosecute the first defendant for offences, if any, under the Pakistan Penal Code. In support of this argument, learned counsel relied on the observations of Qadeeruddin, J., as he then was, now the Chief Justice, in General Manager, North Western Railways v. Sher Mohammad . The observations on which learned counsel relied, state :- "The revolution (of 1958) marks a complete break in the continuity of the association of the British Crown with Pakistan. It demarcates the establishment of a new alliance with the United Kingdom without any allegiance to the British Crown. Common Law is no longer the reservoir of our law and Article 130 of the present Constitution completes its disconnection as a source of our law. It enjoins an important change in the administration of law. . . ." Learned counsel did not care to see that these observations had reference to the very narrow question which was raised by the appellant in the judgment cited. The question in the judgment cited was whether a suit for arrears of salary by a Government servant could be decreed against the Government, and the appellant had contended that, according to the common law, salary was the bounty of the Crown, therefore a suit for arrears of salary could not be decreed. the observations quoted had reference to this argument and the peculiar facts of that case. But unlike that case, in the instant case, the applicability of the principles of the common law is implied in the very provisions of the Fatal Accidents Act, therefore, the judgment cited is distinguishable. I may also observe here that this Court has, on many occasions after the abrogation of the Old Constitution in 1958 and the promulgation of the 1962-Constitution, decreed claims under the Fatal Accidents Act on the basis of the common law (See a Division Bench judgment of this Court in Zebunnisa v. Mohammad and others , therefore learned counsel's argument that the Fatal Accidents Act should be treated as if it had been repealed or, as he put it, treated as a dead letter, is frivolous. 11.No other arguments were advanced on these issues. Accordingly, I hold that the said bus collided with the rickshaw in which the deceased was travelling on account of the negligence of the first defendant. 12. Issues Nos, 3 and 4.--The question for consideration under these issues is whether the deceased was paying the plaintiffs Rs, 1,000 a month as claimed by them and, if not, whether they are entitled to any compensation. The main evidence on these issues has been given by the first plaintiff, who was the deceased's father. He has said in his evidence that, at the time of death, the deceased had a Kariana shop and a cloth shop in Bohri Bazar, that his monthly income was Rs, 2,000, and that he used to pay him Rs, 1,000 every month. I may quote here a short passage from the first plaintiff's evidence :1 2
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"He (the deceased) was born in 1945. He was in very good health at the time of his death. He was in the cloth business at the time of his death and he had a shop in Bohri Bazar. He was earning more than Rs, 2,000 a month. He used to give us a minimum of Rs, 1,000 per month." The first plaintiff has further stated that he had himself carried on business until 1960, and that the deceased had joined him in business and taken it over on his retirement. He has further said that the total capital investment by Salim in his cloth business was Rs, 55,000 when he had commenced it and that he had given him Rs, 20,000, whilst the second plaintiff had also given him some thing. However, strange it may seem, he could not remember what his wife, the second plaintiff, had given to the deceased nor how the deceased had obtained the balance of Rs, 35,000 to make up his initial capital investment of Rs, 55,000. Further, he (the first plaintiff) admitted in evidence that in addition to the deceased, he bad four other sons two of whom were older than the deceased. As he had other sons, it is obvious that the other sons also might have been supporting the plaintiffs, but they were not examined. In these circumstances, it was incumbent on the plaintiffs to prove beyond doubt that the deceased, who was only 21 years old, was really earning Rs, 2,000 per month and was the sole owner of the Bohri Bazar cloth shop as claimed by him. But, according to the copy of the lease of this shop (Exh.17) which he produced the shop had been leased to deceased and two other brothers of the deceased, namely, Daudali and Akberali. This evidence would suggest that, if the deceased had any share in the shop, it was only a third share. The first plaintiff was therefore cross-examined on this aspect of the case, and he said that the names of Daudali and Akberali had been inserted in the lease (Exh. 17) on legal advice. But as neither the Advocate who drafted the agreement nor Daudali nor Akberali have been examined, I am not able to believe the first plaintiff's evidence, the more so, as for instance, he professed not to know what his first son Sherali was doing, and he could not remember anything detrimental to his interest. The plaintiffs have therefore failed to prove that the deceased was the sole owner of the Bohri Bazar shop. Again, assuming that the plaintiffs were not able to examine their sons Daudali and Akberali to prove that the deceased was the sole owner of the Bohri Bazar shop, they could at least have produced his books of account to prove their claim that he was earning Rs, 2,000 per month and, as their claim has been challenged by all the defendants, their failure to produce these books of account leads to a very strong inference against it. I had therefore pointed out to Mr. Rehimtoola that I would, if necessary, give the plaintiffs time to produce the books of account of the deceased. But they were never produced, therefore the learned counsel for all the defendants rightly pointed out that this leads to an adverse inference which is fatal to their claim. 13.Mr. Rahimtoola knew that the failure of the plaintiffs to produce their books of account would lead to a strong adverse inference against them. However, he submitted that, as income-tax was not payable by persons whose income did not exceed Rs, 6,000 per year the deceased was not required to keep books of account, therefore no adverse inference should be drawn against the plaintiffs for not having produced the books of account. In the first place, the first plaintiff has admitted that the deceased had some books of account, secondly learned counsel's justification of the failure to produce books of account is fatal to the claim of the plaintiffs that the deceased was earning Rs, 2,000 per month. 14.Additionally, the first plaintiff has admitted that he used to carry on business in cloth and that he had given the deceased a sum of Rs, 20,000 when he had retired from the cloth business. In these circumstances, learned counsel for the defendants submitted that the inference to be drawn from the plaintiffs' failure to produce books of account was that the deceased never had a business of his own, and that he was only employed by his father, therefore no loss had accrued to the plaintiffs on account of his death. In order to meet this difficulty, Mr. Rahimtoola submitted that even if the deceased was an employee of the first plaintiff, as his child, he was rendering him services and, under the common law a parent is entitled to recover compensation for the death of
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his child on the footing that the death deprives the parent of the services of his child. Learned counsel's statement about the rights of the parent under the common law is correct provided that the child is a minor. But Mr. Shibli pointed out that the question whether the deceased was rendering services to the plaintiffs was a question of fact which had not only not been pleaded but was inconsistent with the averments in…
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