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Petitioner: PROVINCE OF WEST PAKISTAN VS Respondent: ABDULALI P. JIVANI AND 2 Other
Court Name: Sindh High Court Judge(s): Naimuddin Ahmed, k.A Ghani Title: PROVINCE OF WEST PAKISTAN vs ABDULALI P. JIVANI AND 2 Other Case No.: Letters Patent Appeals Nos. 202 of 1967 and 12 of 1968 Date of Judgment:1981-01-11 Reported As: PLD 1981 Karachi 774 Result: Appeals dismissed
JUDGMENT
JUDGMENT K. A. GHANI, J.-These are two separate appeals which have been filed by the appellants, who were defendant No. 1 in the Original Suits against grant of damages to the two plaintiffs on account of injuries resulting from collision between a passenger bus and railway engine at the railway level crossing. Ehsan A.I (respondent No. 1) in L. P. A. No. 12 of 1968 had filed Suit No. 97 of 1964, while Abdul A.I (respondent No. 1) in L. P. A. No. 202 of 1967 had filed Suit No. 13 of 1965. Both these persons had suffered injuries in the same accident, and since the main points involved in these two appeals . Are common, by consent of the parties, the two appeals were heard together and are being disposed of by one judgment. 2. On 11-8-1963 the two respondents Ehsan A.I and Abdul A.I bad boarded bus No. KAT-262 of Route No. 39-C belonging to respondent No. 3, the Karachi Road Transport Corporation. It was proceeding from Azizabad--side of the City of Karachi towards Boulton Market-side of the City. The said bus was driven by Muhammad Safdar (respondent No. 2) in the course of his employment with respondent No. 3. It is admitted that the said bus was driven rashly and negligently at excessive speed with the result that while crossing the level crossing of Karachi Circular Railway belonging to the appellants, there was a collision between the said bus and the Railway Engine No. 350 whose driver was Kala Khan and Fireman was Qasim. As a result of this accident a number of passengers (including the two plaintiffs) received injuries. 3. It is the case of both the plaintiffs that the driver of the bus was driving the abovesaid bus rashly, negligently and at an excessive speed and that the appellant was also guilty of gross negligence and left the said Railway level crossing open and unguarded and unmanned and failed to exer-- cise due, reasonable and proper care and precaution to guard it to avoid any possible accidents,
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and to warn the heavy road traffic on this level crossing which connects densely populated areas of the city. 4. Ehsan A.I who- suffered multiple injuries including head injury remained unconscious for a week. He remained in the hospital from 11-8-1963 to 14-9-1963 and thereafter had continued under the treatment at his own residence till 31-5 -1964. 5. Ehsan A.I in his suit claimed Rs. 27,500 details whereof are given below .-, Rs. (a) Loss of income at the average rate of Rs. 1,000 per month for 9 months and 18 days from 11-8-1963 to 31-5-1964 when he resumed the work--- ... 9,500 (b) Expenses of medical attendance, medicines and medical treatment and matters incidental thereto... 3,000 (c) Compensation for mental shock and agony and for shorten. ing of expectancy of life... 15,000 Total ... 27,500 6. Abdul A.I also received severe injuries including head injuries, and was admitted in the hospital and had to undergo brain operations twice. He remained in the hospital till 20-10-1963 and thereafter continued his treatment privately and has not been able to recover or able to attend his duties or business/employment. 7. In his Suit No. 13 of 1965 Abdul A.I claimed Rs. 1,50,000 on account of suffering, shock, loss of normal active health, loss of earning capacity, loss of expectency of life etc. Which claim also includes claim of Rs. 5,000 expenses for treatment already incurred and Rs. 4,000 further expenses which would be required for the said purpose. 8. The appellants, as well as the respondent No. 3, defended the suit. The respondent No. 2 who was the bus driver remained absent and the suit proceeded ex parte against him. 9. On the pleadings of the parties in Suit No. 13 of 1965 filed by Abdul A.I, several issues were framed, but at the time of the trial only following two issues emerged as requiring decision, which the learned Single Judge recast with the consent of the parties :- "(1) Whether injuries were caused to the plaintiff due to the negligence of the employees of defendant No. 1 or of defendant No. 3? If so, what is the effect ? (2) Is the plaintiff entitled to any damages? If so, in what amount and from whom." 10. While in the Suit No. 97 of 1964 filed by Ehsan A.I number of issues were framed but only the following two issues (originally numbered as Issues Nos. 3 and 6) emerged to be decided by the learned Single Judge :- "(3) Whether the accident was caused due to rashness and negligence of the driver of the bus KAT-262 or due to the negligence of defendant No. 3 or due to rashness and negligence of both the defen--dants? (4) To what amount of damages, if any is the plaintiff entitled and from which of the defendants?" 11. The learned Single Judge after hearing the parties found all the above issues against the appellants as well as against the respondent No. 3. By judgment dated 8-11 1967 pronounced in Suit No. 97 of 1964 filed. By Ehsan A.I and other judgment of the same date given separately in Suit No. 13 of 1965 filed by Abdul A.I, the learned Single Judge held that the bus driver as well as the railway employees exhibited gross negligence in their conduct and failed to observe such care as they were under duty to take to aviod danger to the safety of the bus passengers. The accident which resulted in serious injuries to the plaintiffs was caused by independent acts by negligence on the part of the employees of the appellants as well as of the bus driver. The learned Single Judge therefore held that all the defendants (including the appellants) were liable to compensate the plaintiffs, Ehsan A.I and Abdul A.I.
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Accordingly the learned Single Judge awarded Rs. 27,500 to Ehsan A.I in Suit No. 97 of 1964 as mentioned above while in the other Suit No. 13 'of 1965, Rs. 38,800 were awarded to Abdul A.I, the details whereof are given below :-- (1) Decree pasted in favour of Ebsan A.I reads :-- "I thus hold that the plaintiff is entitled to receive from the defend. ants jointly and severally Rs. 27,500 as compensation as follows :---Rs. (i) Medical expenses incurred by or on behalf of the plaintiff3,000.00 (tl) Loss of income for 9 months at Rs. 727.06 per month 6,543.54 (M) Pain and sufferings, diminution of enjoyment, and shorten- ing of expectancy of life 11,000.00 (Iv) Diminution in earning capacity due to physical and impairments6,956.46 Total 27,500.00 (ti) Decree passed in favour of Abdul A.I read :- " In view of the foregoing discussion, I am of the opinion that the quantum of compensation to which the plaintiff is entitled is as follows (i) Rs. 4,000 by way of special damages for medical expenses incurred by the plaintiff or on his behalf. (11j) Rs 1,800 being the loss of income suffered by the plaintiff during the period under medical treatment, that is, 11-8-1.963 and l1th May, 1964. (N) Rs. 15,000 on account of damages for pain and suffering and shortened expectancy and reduced enjoyment of life. (iv) Rs. 18,000 on account of loss in the prospective earning capacity of the plaintiff at the rate of Rs. 100 per month for 15 years." 12. As stated above the decrees were passed against all the defendants but only the present appellants have filed these two appeals. L. P. A. 202 of 1967 is against decree passed in favour of Abdul A.I to Suit No. 13 of 1965, while L. P. A. 12 of 1968, has been preferred against the decree passed in favour of Ehsan A.I in Suit No. 97 of 1.964. 13. Mr. Abbas Hussain Farooqui, the learned counsel for the appel--lants argued both these appeals and contended that the accident was caused due to gross negligence on the part of Safdar, respondent No. 2 (driver) who was the employee of the respondent No. 3 (owner of the bus) and that the appellants and their employees had not acted rashly or negligently in per-forming their duties, The learned counsel submitted that the appellants are not liable for any of the claims preferred by the two respondents plaintiffs i.e. Abdul A.I and Ehsan A.I. The driver of the bus, Safdar, who is respondent .-No. 2 in both the appeals is ex parte and absent while the respondent No. 3 Le. Karachi Road Transport Corporation have not preferred any -appeal against any of the decrees passed against them. The effect of not filing any appeal by the respon- -dents Nos. 2 and 3 is that the judgments and decrees passed against them stand confirmed and have attained finality. Mr. Sharaf Faridi, learned counsel for respondent No. 3 appeared in both the appeals, has not assailed the decree passed against his accidents,, He however, supported the findings of the learned Single Judge given against the present appellants. 14. The learned counsel for the appellants has raised the same questions of fact and law in the two appeals and therefore by consent of the parties they have been heard together. 15. . In order to determine the liability in the suits for damages and compensation for injuries received by the plaintiffs in the accident which occurred due to collision between railway engine and the bus at the railway level crossing it would be useful first of all to reproduce hereinbelow the
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principles laid down by the Honourable Supreme Court of Pakistan in the case reported as Federation of Pakistan v. All Ehsan (PLD 1967 SC 249wherein at page 257 it was observed :- . " . . If the respondent was on the level-crossing when he was hit he was not a mere trespasser but an invitee lawfully on the level-cross. In the case of such an invitee there can be no manner of doubt that a duty is cast upon the occupier of the premises to take such care as in all the circumstances of the case is reasonable to see that the invitee will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. The degree of care necessary in the case of such a person lawfully coming on the premises will depend upon the nature of the danger or hazard to which the person so . Invited is likely to be exposed. This duty is not confined only to maintaining, what has often been described as the "static condition" of the property, free from danger but it extends also to the taking of reasonable care to safeguard the invitee from any special hazard or danger to which he may be likely to be exposed by reason of any danger inherent in the activity carried on by the occupier on the premises." The learned Honourable Judges also further observed ". .. Thus it has consistently been helot that where a railway line crosses a public highway on the level it is the duty of the railway company to make it safe for persons using the high way to cross at a manned level-crossing under the assumption that they may do so with safety when the gates of the level-crossing are left open and if no warning of any special danger is given. The railway Operator's general duty of taking all reasonable precautions to ensure the safety of persons lawfully using a level-crossing not only includes a duty to keep the crossing itself in a reasonable condition. Of safety according to the circumstances of the case but also to safeguard them from the special dangers inherent in its positive operation." 16. Keeping in view the above principles laid down by Honourable Supreme Court, we have to consider these cases in order to find out whether the appellants could be held liable for the compensation and damages claimed by the plaintiff/respondents, Ehsan A.I and Abdul A.I. The admitted facts are that accident took place on 11-8-1963 at the . Railway level-crossing -when the Railway .Engine No. 350 of the appellants Circular Railway collided with the Bus No. KAT 262 of the respondent No. 3. This railway level-crossing connected the two busy areas of the City of Karachi which are thickly populated and there used to be heavy traffic on this crossing. In this connection the deposition of some of the witnesses may be referred. Mr. Masood Khan, D. W. 3 (Exh. 29) who was the Traffic Inspector incharge of the construction of the Circular Railway in 1963, in his deposition had stated that he used to inspect the tract every day except Sundays and holidays, and said "I know that there was heavy traffic on his crossing." Mr. Muhammad Jaffer Khan, the railway guard who was examined as D. W. 4 (Exh. 30) admitted teat ii.:;..- r,: was heavy traffic on this crossing. He further stated that the pole barriers had already been installed at this crossing but they were not functioning because chains had not been attached to them when the' accident had occurred. `The witness further admitted that this particular "railway crossing was to be hand operated, and there had to be some person to operate the poles. It is important to note here that this witness had categorically admitted in his deposition that "at the time of our crossing the pole barriers were standing vertically." Another witness of the defendants Kala Khan (Exh. 31) who was then the engine driver also admitted in the evidence. Karimabad crossing has heavy road traffic. There were pole barriers on both the sides of this crossing. But they were not in working order because they were without pulling chains." We may also refer here to the following statement of Masood Khan (Exh. 29) who was the traffic Inspector Incharge made in his deposi--petition :-- "It was not possible for these poles to be lowered horizontally at that time, and even if the traffic porters had got down from the engine, they would not have been able to lower these poles, owing to there being no ropes or other mechanism provided to lower them to a horizontal position."
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cross-examination to Mr. Sharaf Faridl, Advocate the witness stated -.- "These poles were ultimately designed to -be operated by hand." The evidence discussed above clearly leads to the conclusion that at .The time when the accident took place on 11-8-1963 the railway level crossing connec--ting the two thickly populated areas of Karachi had pole barriers which were standing vertically and the explanation given was that "they were not in working order because they were .Without pulling chains" (Kale Khan Engine Driver Exh. 31). It is also admitted by the appellants own witness that at the time of accident it was an unmanned level crossing and "we bad, no intention of having it manned because it was intended to have an over bridge crossing, over it" (Mr. Farooq Ahmad Khan, D. W. 2 Exh. 28). It is therefore clear that, apart from and independently of the negligence on the part of the bus driver, the facts and circumstances of this case clearly establish that the employees of the appellants had not take sufficient and reasonable care to avoid the accident and or to give reasonable warning to the persons and the traffic using said level crossing. Having found on the evidence discussed above that there were no gates and that the pole barriers at the level crossing were standing in vertical position, it is a case where there was a clear invitation to the traffic to cross the line. The driver of the bus though driving the bus negligently and rashly, when saw the barrier poles at the level crossing standing in vertical position, was justified to assume that he could pass through the level crossing and no engine was then likely to pass through it. Mr. Abbas Hussain Farooqi, the learned Advocate for the appellants submitted that when the engine reached the level crossing in question its driver gave whistles, and that Jamadar Fakir Muhammad posted Ashiq A.I at Liaquatabad side and Nazir Muhammad, on Karimabad side of the level crossing to control tragic, and that they showed red flags to the traffic, which stopped. He further argued that only thereafter they showed green flags to the engine driver, who therefore started the engine. The contention of the learned counsel is that the driver of the bus in spite of these precautions, rushed through the level crossing and thus due to his negligence alone the accident took place and no blame could be placed for the accident on the appellants. These contentions of the learned counsel do not find support from the evidence which clearly shows that the defence witnesses who are employees of the appellants responsible for the accident in order to protect themselves had set up these pleas. Mr. Sadiq and Mr. Rahimtoola, learned Advocates for the respondents-plaintiffs rightly argued that they cannot be believed. They submitted that the first witness for the appellants was Mr. Muhammad Riaz Mian (Exh. 28) who was executive Engineer, Karachi Circular Railway, admitted that this was unmanned level crossing and that there were neither any poles nor collapsible gates on either side. The said witness referred to the rules, which according to him provided :- ' "that before an engine reaches the level crossing it must stop dead, at a place where a stop dead board has been fixed, on either side of the railway crossing. These boards are at a distance of about a 100 feet near the railway track. After the engine has stopped dead, the shunting Jamadar on the train has to get down and go up to the level crossing. The engine must blow its whistle before reaching the dead stop board. Thereafter, the shunting Jamadar goes up the crossing with a red flag to warn the approaching road traffic. In fact, there are two such members of the shunting staff, each of whom warns the traffic on either side of the crossing. When the shunting staff is satisfied that the road traffic has stopped, he signals to the driver of the engine to again blow the whistle and proceed at a slow speed over the railway crossing." We have already seen that the facts of the case show that the above rule had not been followed. Moreover this witness has frankly admitted that he was not present at the time of the accident. Next witness worth mentioning is Faqir Muhammad, who was the shunting JamadaF. He stated that he deputed Nazir Muhammad on Karimabad side and Ashiq A.I on Liaquatabad side of the level
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crossing but be himself was standing on the bumper in front of the Engine. Having said so be proceeded to state :- "These two persons again got down from the engine and stopped the traffic from the side of the second road." 17. Now if we look at the map/plan Exh. 26/1 of the site it shows two roads, and thus two level crossings separated by a small green patch. According to Faqir Muhammad (Exh. 33) after the Engine had crossed the first level crossing where Ashiq A.I and Nazir Muhammad were claimed to have been posted, these two persons came back to the engine, and then they allegedly got down from it when the engine was passing through the green patch between the two level crossings to proceed to guard second level crossing. The green patch between the two level crossings was hardly about forty fast wide and it would have been impossible for these two persons to have stopped the traffic at first level crossing, then board the moving engine and again get down and rush to the second level crossing (where the accident took place) to effectively stop the traffic. On the contrary the evidence on record shows that the engine after passing the first level crossing, continued to move at a fast speed, did not blow any whistle and there was no time for these two persons (Nazir Muhammad and Ashiq A.I) to get down from the fast moving engine and reach the second level crossing ahead of it. It was rightly argued by the learned counsel for the plaintiffs that in order to stop the traffic at the level crossing, the staff should have been posted sufficient time before the arrival of the train, otherwise it would be impossible to stop or control fast moving traffic at the last moment when the engine train was passing or was about to pass. Admittedly Railway Authorities had held an inquiry into the causes of the accident but neither the inquiry report was produced nor Nazir Muhammad was examined. In the circumstances the learned counsel for the plaintiffs rightly submitted that adverse inference should be drawn against the appellants particularly when it is clear from the record that it was the Engine which hit the bus and reverse was not the case. The fact that Faqir Mohammad and Ashiq A.I immediately on occurrence of the accident fled from the scene and Nazir Muhammad disappeared after the inquiry held by the railway authorities, also lend support to the case of the plaintiffs that members of shunting staff, were negligent in the performance of their duties and had left the level crossing unguarded which resulted in the accident. Having found that the railway authorities/their employees had left the level crossing open, the poles standing vertical and no warning given of the danger from the approaching engine, we are of the opinion that the employees of the appellant had failed to take reasonable precautions to ensure the safety of the persons lawfully using the level crossing. The circumstances of the case fully establish that though the bus driver was driving the vehicle rashly and negligently but independently of that, the employees of the appellants were also guilty of gross negligence and the proximate cause of the accident was leaving the level crossing unguarded open with poles standing in vertical position and it was a tacit invitation to cross the line. The appellants cannot put the blame on the respondents Nos. 2 and 3 (owner of the bus and the driver) alone and try to escape from the consequences of their own independent negligence. We may here refer to some of the case-law cited by the learned counsel for the parties, which are relevant to the issues discussed above, and in our opinion establish. The liability of the appellants, in the circumstances of the case. In the case of Federation of Pakistan v. Muslim Vehari & Wehnimal Bus Service (PLD 1955 Lah. 256the learned High Court of Lahore observed "It has been held in several cases that where the gates of a level crossing are left open, the railway authority, which is responsible foe keeping them locked when a train passes, gives to the traffic on the road an 'invitation' to cross the line ; Mercer v. South Eastern & Chatham Railway Companies; (1923) 2 K B D 549 ; North Eastern Railway Company v. Wanless 30 L T R 275 ; Bengal North Western Railway Company v. Matukdhari Singh, AIR 1937 Pat. 599; Daya Sharkar v. E. B. & C. 1. Railway Company A l R 1931 All. 740. Since, however, the learned Advocate-General relies on Mercer's case
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for his argument that the plaintiff had contributed to the accident, the facts of that case may be reproduced in some detail. At a level crossing on the defendant's railway there was a small wicket gate for the use, of pedestrians. According to the practice of the defendants the gate was kept locked when the trains were passing, and was unlocked only when it was safe to cross the line, and that practice was known to the plaintiff. On this particular occasion, owing to the negligence of a servant of the defendants, the gate was left unlocked when a train was approaching, and, the plaintiff went through it, and proceeded to cross the line when lie was knocked down by the train and injured. It was observed by Lush, J. That to those who knew of the practice of the railway that the gate was always locked if a train was approach--ing, its unlocking 'was a tacit invitation to cross the line'." Rebutting the plea of the appellants' Advocate, that the railway line was visible from a distance approaching engine could have been seen, the learned High Court observed :- "The learned Advocate-General could only argue that since the railway line was visible from a considerable distance, the plaintiff's driver could not but have seen the engine approaching, and if, notwithstand--ing this fact, he tried to cross the line, his effort must have been to cross it before the engine did so. Therefore, his conduct was not only negligent but also rash. This, however, is a mere assumption. If he saw the "engine, say about half a .Wile from the level crossing, (the engine was without a train), he could not necessarily assume that the level crossing had been left open, by mistake. On the other hand, even if he saw the engine, he might have assumed that since the crossing was open, the, engine was not to pass through." The same learned Court in the above cited case at page 260 further observed :- " .. ....It has to be borne in mind that a motor driver is thrown out of his guard by the circumstance that the gates of the level crossing are open, and where the road on the other side is not visible, the driver's attention would particularly be focussed on what might suddenly appear in front of him." , Further observations at page 261 can usefully be reproduced here :--- "In any case we cannot allow this…
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