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Petitioner: HINA GHORI and 2 others VS Respondent: NATIONAL LOGISTIC CELL through Field JUDGMENT
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title:HINA GHORI and 2 others vs NATIONAL LOGISTIC CELL through Field
JUDGMENT
Reported As: 2016 YLR 1797 Result: Order accordingly Judgment JUDGMENT SALAHUDDIN PANHWAR, J.--- Succinctly, facts as set out in the plaint are that plaintiff No,1 is widow, plaintiffs Nos.2 and 3 are minor daughter and son of deceased Abdul Haque Ghori, who, at the age of 35 years, died in traffic accident on 22.08.2005 within the area and territorial jurisdiction of Jackson Police Station leaving behind: plaintiffs and Noor Jahan Begum, aged 65 years (mother). The plaintiff No,1 filed instant suit under Fatal Accidents Act, 1855, for benefit and interest for herself and next of friend for other plaintiffs as well as for deceased's mother, while deceased's father had already died. The defendant No,1 is owner of Trailer No,881903/858193, which was responsible for causing accident and resulted into death of deceased on 22.08.2005. The defendant No,3 was driver/servant/employee of defendants Nos.1 and 2 being joint owners of said NLC trailer. The defendant No,3 while driving the said NLC trailer in a rash, negligent and careless manner on M.A. Jinnah Road on his way from Tower towards Keamari, reached turning (Morr) Nagina Centre and opposite KPT Quarters at about 1630 hours, where wrongfully dashed the motorcycle bearing No,KCI7794 in an excessively high speed. In consequence thereof motorcyclist Syed Farhan Ali and pillion rider Abdul Haque Ghori, coming from KPT Hospital side for going towards Tower via M.A. Jinnah Road, fell down and were dragged for quite a considerable distance as an impact of collision and got severe traumatic injuries. ' Abdul Hague Ghori succumbed to the fatal injuries caused to him on the spot while Syed Farhan Ali received severe traumatic injuries on his right leg; motorcycle was also badly damaged, while dead body of deceased Abdul Hague was evacuated to Civil Hospital for legal formalities; post mortem was conducted at Civil Hospital, death certificate was issued; dead body was handed over
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to relatives; Jackson Police booked defendant No,3 for offence of rash and negligent driving resulting into death of deceased and severe injuries to Syed Farhan Ali (FIR No,333/2005, under sections 320/ 337-G/427, P.P.C.); police carried out investigation, arrested accused, impounded said trailer, but later driver and trailer were released; death of deceased was wholly attributable to negligence, default and wrongful act of defendant No,3 during course of employment of defendants Nos.1 and 2, thus defendants Nos.1 and 2 are vicariously liable to pay compensation to plaintiffs and other legal heirs for wrongful act of their servant as well as for having employed such negligent and inexperienced driver; besides defendant No,1 under control and management of defendant No,2 also failed to properly maintain said NLC trailer in proper and working mechanical condition to avoid danger to others; NLC authorities, which run big fleet of vehicles, failed to comply with mandatory provisions of law with insurance coverage to third party risk in case of accidents and injuries as required under section 125 of Motor Vehicles Act 1939 adopted/saved by section 122 and Fourteenth Schedule of Motor Vehicles Ordinance, 1965; the defendants are jointly and severally liable to pay compensation to plaintiffs; the deceased aged 35 years could have survived upto 70 years in view of long life span in his family pedigree and could have earned and supported financially all his dependents thus plaintiffs have been deprived of present and expected pecuniary benefits to the extent of Rs,150,10,000/-, as deceased was qualified businessman with masters degree in Islamic Studies engaged in supply/sale of tiles/ ceramics with business title as Messrs Ghori Tiles being its sole proprietor and was earning Rs,25,000/- per month at an average, who could have succeeded in earning Rs,50,000 per month at age of around 40 years; due to death of deceased, his daughter would be deprived of better proposals for marriage, jahez, lack of finance to his family, hence plaintiffs further claim Rs,10,00,000/- each for loss of chances for better prospects of future and better marital chances; deceased widow has been deprived of association of her husband at the climax of youth haunted by loneliness thus she claims Rs,10,00,000/- under ,head of "consortium"; mother has been deprived of her caretaker and supporter at old age thus claims Rs .5,00,000/-, plaintiffs claimed as follows:-- STATEME1V7' OF CLAIM i Average life span in Pakistan in view of preponderance of Judicial pronounc ements70 years . ii.Age of deceased 35 years Loss of pecuniary benefits to plaintiffs and other legal heirs for (70-35)35 years Deceased was earning Rs,25000PM on average for plaintiffs The annual income on the basis of above monthly income (25,000 x 12)Rs, 300,000
Aggregate loss of pecuniary benefits for 35 years (300,000 x 35)Rs,105,00,000
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ADD 20% increment chances on aggregate income of overall years (105,00,000+5).21,00,000/- The gross loss of pecuniary benefits may be obtained by adding aggregate loss and chances of increment (105,00,000+21,00,000)Rs,126,00,000/- LESS Personal expenses at 1/6th (126,00,000+6)Rs,21,00,000/- Net loss of pecuniary benefits (126,00,000- 21,00,000)Rs,105,00,000/- Further Add: a Rs,10,00,000/ - to plaintiffs Nos.2 and 3 for expected loss of education, comfort, position in society and loss of better marital prospect and deprivation which they would have enjoyed if the father had lived and maintained the incomeRs,20,00,000/- b Damages under head of Consortium for loss of association of deceased by spouse/widowRs,10,00,000/- c .To mother for compensating loss and deprivation which sheRs,5,00,000/-
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will experience in shape of distress in future life without young son who could have supporter to her d Punitive and exemplary damagesRs,10,00,000/- e Funeral expenses Rs,10,000/- Rs,45,10,000/- xii Total loss of pecuniary benefits (105,00,000+45,10,000)Rs,150,10,000/- Plaintiffs asserted that cause of action arose to them on 22.08.2005 when deceased died consequent to fatal injuries caused to him within the jurisdiction of this Court and still continues. Plaintiff prayed for decree in the sum of Rs,150,10,000/- against defendants jointly and severally on account of damages/compensation and profit at 15% per annum on the claimed amount from date of filing of suit till realization and cost of suit. 2. Defendant No,1 in Written Statement contended that defendant No,1 is controlled by Pakistan Army exclusively; it asserted that incident took place on 22.08.2005 when motorcyclist hit the trailer near rear wheel; driver Majid Ali Khan and driver No,2 Mir Zaman heard some bang noise, Majid looked from mirror and saw a motorcycle at the rear of the trailer; driver stopped the trailer and both of them got down and saw a motorcycle had hit the rear wheel on the left side of trailer and both the occupants of the motorcycle were lying injured on the ground; it was denied that death of deceased was caused by the trailer. It was further asserted that in fact the trailer speed was less than ten KM per hour, there was lot of traffic and it was impossible to drive trailer at more than the speed of 5-8 KM per hour; defendant No,1 denied that trailer was being driven rashly and negligently; NLC is not liable for any act of negligence; it was denied that trailer hit the motorcycle or is responsible for death of deceased or that motorcycle was dragged with trailer; police officer present at scene was fully aware that motorcycle joined the rod from wrong side and was out of control and case should have been registered against the motorcyclist Farhan Ali; defendant No,3 was released by police soon after investigation as he was not guilty of offence as alleged; death of deceased was not caused by defendant No,3 but due to rash riding of motorcycle; deceased died of cardiac arrest and had problem with his respiratory system, even his father had died of cardiac arrest; it is denied that deceased could have lived upto 70 years as with heart ailment at such an early age expectation of longer life is reduced to great extent; further, asserted that in present climate and amenities available, deceased at the most could have lived upto 50 years; it is denied that plaintiffs have been deprived of present and expected pecuniary benefits to the extent of Rs,150,10,000/-, which is highly exaggerated, exorbitant and inflated. It was denied that deceased was qualified businessm an having masters degree in Islamic studies could be assumed better in Islamic teachings but it has no nexus with business. It was denied that deceased was proprietor of Messrs Ghori Tiles or that he was earning Rs,25,000 per month or that he was promising businessm an who would have earned Rs,50,000/- at age of 40: It is stated that had the trailer hit the motorcycle from front, both riders of motorcycle would have been crushed under the wheel and head of deceased, who were not observing safety precautions and were not wearing helmets, would not have hit the rear wheel. It was denied that other plaintiffs are entitled to Rs,10,00,000 each. It was asserted that no cause of action accrued to plaintiffs against defendant No,1 as
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deceased had died of his own negligence and that of the motorcycle rider. Defendant No,1 prayed for dismissal of suit against it and denied that plaintiffs are entitled for decree in the sum of Rs,150,00,000/- against the defendants in any manner, or that defendants are liable to pay any damages or compensation or profit thereon as claimed, defendant No,1 claimed cost to be awarded to it as suit was filed mala fide. 3. On 19.04.2010 following issues were framed:-- 1) Whether the death of the deceased namely Abdul Haque Ghori aged 35 years was caused on account of negligence of the defendant No,3 during the course of employment of defendants Nos.1 and 2 on 22nd March 2005, if so, its effect or due to contributory negligence of motorcycle driver Farhan Ali? ' Whether the death of the deceased was caused due to family hereditary heart disease "cardiac arrest"? 3) Whether the defendants are liable Jointly and severally to pay compensation to the plaintiff and other legal heirs, If so, to what extent? 4) What should the decree be? 4, Plaintiffs and defendant No,1 produced their respective witnesses for examination before the Commissioner where plaintiff No,1/PW=1 Mit, Hina Clhouri examined herself and produced documents as Exh. P=5/1 to P=5/11, PW=2 Syed Mahan All Shah was examined and produced documents a. Ex P=6/1, while defendant No,1 examined DW=1 Mir Zaino who produced documents as Exit: D=1/I to D=1/4: 5. Learned counsel for plaintiffs, inter alia, contends that sufficient evidence has been brought on record by the plaintiffs to substantiate the onus probandi according to the issues; deceased was having age of 35 years and due to untoward incident committed by driver of trailer by negligent driving; act of incident is not denied; it is settled proposition of law that in cases of law of torts when accident is not disputed burden lies upon defendants, who have not failed to discharge the same; deceased left behind a widow, mother aged about 65 years and two sons; he was the only male family member; plea of defendant that this was the fault of deceased is not sufficient as injured witness also deposed against the defendants and his evidence is not shaken in cross-examination as well as same is credible and trustworthy. In support of his arguments, he relied upon case laws reported as Islamic Republic of Pakistan through Secretary, Ministry of Defence, Islamabad and others v. Mst. Faizana Shabbir and others (2010 MLD 54), National Logistics Cell v. Abdul Qavyum Khan (2009 MLD 948), Punjab Road Transport Corporation v. &hid Aftal and others (2006 SCMR 207), Mushiari v. Islamic Republic of Pakistan through Sfrretarv, Ministiv of Plannin and Development, Islamabad and 2 others (2006 MLD 19), Nil Abdul Razaque v, Pakistan (2005 MLD 114), Unreported judgment in H.C,A, No,67/2000 (Karachi .Water and Sewerage Board v. Mina Qasim Baig), Rhteshamuddin Qureshi v. Pakistan Steel Mills Corporation (2004 MLD 361), Aijaz and others v. KTC (2004 MID 491), Mst, Sabira Khatoon and others v. Muhammad Akron, Siddiqui and others (2003 MLD 39), Shamlin Akhtar v, Muhammad Ar(f Baloch (2001 YLR 821 IP:825.Ill); Shaukat All v. KEW (2001 MLD 1845 IP18491 B,C,D), Mst, Alumni Wan v, Federal Government of Pakistan (2001 CLC 928 [931] B,C), Bibi Khaida v. Govt. Of Sindh (2000 CLC 381 [P.385]), Ashig Masih v. Abbot Laboratories Pakistan Ltd. (2001 CLC 913 [P.916] A ,B ,C), Roshan Bai v. Pakistan Steel Mills Corporation (2000 CLC 111 [P.115]), Anisur Rehman v. Govt. Of Sindh (1997 CLC 615 [P.619]), Mst. Sakina v. National Logistic Cell (1995 MLD 633, [P.636]), Pakistan Steel Mills Corporation v. Malik Abdul Habib (1993 SCMR 848 [P.855]), Kazi Arifuddin v. Govt. Of Sindh (PLD 1991 Karachi 291 [P.295]), Hayat Services (Pakistan) Ltd. v. Kandan (1989 CLC 2153 [P.2156]), Spin Gul v. Ikramul Haq (1987 MLD 2402 [P.2404]), Abdul Hague v. Pakistan Railways Telecommunication Department (1987 MLD 898), Mrs. Nimmi Francis v. Muhammad Saeed Qureshi (1982 CLC 1703 [P.1707]), Mst. Zebunnisa v. Sindh Road Transport
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Corporation (1982 CLC 1228 (PP.1230)A&B), Mrs. Gul Bano v. Muhammad Ramz6n (1982 CLC 1120 [P.1122jA). 6. Conversely, learned counsel for defendant No, I argued that plaintiffs have to prove their case; deceased by his own mistake fell on the rear side of tyres of trailer, hence, in any manner, this could not be termed as negligent act 01' defendant No, 1, as such, instant suit is not maintainable and liable to be dismissed, FINDINGS: Issue No,! Issue No,2 Issue No,3 Issue No:4In affirmative, In negative, In affirmative, Suit is decreed for an amount of Rs,20,160,0001-
ISSUES NOS.1 AND 2: 7. Both these issues are strongly interlinked with each other and cannot be discussed separately for simple reason that answer of one will be the ultimate answer to other. Before going into further merits of the case, it would be appropriate to gauge as to upon which of the parties the burden lies. In the instant matter, happening of the unfortunate incident, costing life of deceased Abdul Hague Ghouri in road accident is not disputed, The plaintiffs have claimed that accident was the result of negligent and rash driving of the defendants, while the defendants have come forward with a specific stand that it was result of negligence of motorcyclist i.e, injured Syed Pathan Ali. Such stand of the defendants, having admitted the death of the deceased in result of accident, results in shifting the burden upon the defendants. In the case of Anisur Rehman v. Govt. Of Sindh (1997 CLC 615) and Mst. Sakina v. National Logistic Cell (1995 MLD 633), it was held that:- "The defendants having given a different version of the accident were burdened with to discharge the same and to ' In another case of Pakistan Steel Mills Corporation Ltd, and another v. Malik Abdul Habib and another (1993 SCMR 848), it was held that:- ' defendant in the suit for damages took the plea that accident had occurred on account of negligence of deceased himself it was his duty to produce evidence to show that machine was in perfect order and there was no defect in the same and deceased died on account of his own negligence": (underlining is provided for emphasis), 8. Thus, in view of above legal proposition, it is now safe to say that burden to prove would rest upon the defendants in accident matters if the defendants take a specific plea in respect of the manner of accident while not denying the happening thereof but by putting whole negligence on part of the victims of the accident who may be plaintiffs or may be heirs of such victims. 9. Reverting to merits of the case, the record shows that the defendants examined only one Mir Zaman who per record is neither one of the defendants nor he (Mir Zaman) produced any power of attorney to show that he has been authorized by the defendants to depose on their behalf. Worth to add here that the written statement was filed by one Lt. Col. Musaddaq Hashmi as defendant No,l. Thus, it can safely be said that the defendants did not come into witness box to discharge the burden which they themselves had taken in respect of the incident. However, perusal of examination of Mir Zaman shows that he was examined as a witness of the incident while claiming him (Mir Zaman) as eye-witness of the incident. The said DW claimed himself to be sitting with driver of the Trailer No,BA-681903 and status of his evidence can well be examined with his statement on Oath, produced by him during his examination 0/1. Material part thereof is:--
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"I, CD-33564 Mir Zaman the speed of vehicle would be about 10 K.M per hour. In Kemari area there came voice (sound) from back side upon which driver saw in the mirror (Back view mirror) and saw a motorcycle. He stopped vehicle. We both alighted and saw both two persons were injured. Meanwhile people gathered there. Suddenly police also reached there who took driver Majid Ali to Jackson police station and injured were taken to hospital. " ' This shows that driver was not fully conscious about what was going on at his back and was driving the trailer, a huge vehicle although a driver is always required to be fully conscious with his back by proper use of back-view mirror (side mirror) particularly when he is driver of a huge and big vehicle because the single or slightest move of the steering results into change upto the last part of such huge vehicle, therefore, the admission of DW Mir Zaman that time to look into the sideview/back-view mirror came only when the sound came from back is sufficient to show the vigilance of the driver of such giant vehicle. Let me make it clear that the word 'negligent' is not synonym to 'rash' therefore, in accident cases the plea of slow-speed is not sufficient to dislodge the cases of road accident rather it always rests on the point of negligence. I have no reluctance in saying that mere speed alone cannot necessarily result into accident but it is always the negligence of the holder of the steering which normally results into accidents. The negligence and carelessness can well be available even when the vehicle is being reversed or being plied at very low speed which, if results into any damage (accident), shall open the guilty to Jegal consequences. This is the reason because of which the relevant laws, dealing with motor vehicles, do permit driving with high speed from place to place but at no place allows driving of the vehicle with 'negligence' even at very low speed. Having said so, I am not persuaded in accepting the plea of the defendants that since the speed of the vehicle was slow hence instant suit is not maintainable. 10. Now, I would revert to examine another stand of the defendants, raised for escaping the consequences of this suit i.e, going of motorcycle in rear tyres of the trailer. If this plea is accepted it would amount giving a license to all such giant vehicles to drive at the road only taking care of first wheels, which on any legal logic can be approved or stamped. In accident matters the difference of giant vehicles and small one like car etc. Should always be kept in view because it is not front wheels or side of vehicle which alone could cause accident by slightest wrong and negligent move of steering but it is the impact of such move of steering which undeniably varies from vehicle to vehicle. Be that as it may, the defendants have specifically claimed that the driver of the vehicle i.e, defendant No,3 was tried departmentally and an inquiry in that regard was conducted by the defendants but no proof thereof has been produced by the defendants during trial. If the innocence of defendant No,3 was proved/found during such inquiry, then such report must have been produced 'rut since no such report has been produced/exhibited hence the presumption within meaning of Article 129(g) of Qanun-e-Shahadut Order, 1984 would be nothing but that had it been produced/ exhibited, it would have not supported the plea of the defendants. Further, the admission of the DW to the effect that:-- "I do not know what was the result of inquiry held by the said officer (i.e, the colonel). The colonel had not recorded my 5119 statement". 11. Non-recording of the statement of a person, who came forward as person sitting by the delinquent driver, is sufficient to show that even his such claimed presence was not believed by the Inquiry Officer who was conducting the inquiry against delinquent driver else he (DW) would have been the most relevant person to speak about manner of driving by the delinquent driver (defendant No,3). Be that as it may, the record shows that the defendants though came forward with a plea that deceased had died due to cardiac arrest but not a single document/proof in this regard has been produced by the defendants particularly when the defendants have never denied the death of the deceased in the accident with their vehicle. The defendants neither examined the
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driver (defendant No,3) nor examined the person who even per claim of defendants had conducted inquiry into the matter of negligence or otherwise of such a driver. Thus, it can safely be said that the defendant have not produced any single document in proof of their specific stand negligence on part of the motorcyclist. Further, though the defendants claimed specific negligence on part of the motorcyclist and even claimed that he matter should have been lodged against the motorcyclist but it is also a matter of record that at no material time any such effort was made by the defendants, hence it is safe to say that the defendants even did not try to follow their own stand rather let the criminal proceedings and even proceeding of instant suit to take their respective legal consequences. Further, it is not the speed or manner of the driving alone, but fitness of the vehicle and mental/physical condition of the driver are also important aspects for appreciating while examining the cases of the road accidents. A vehicle even if is in its best condition yet a prudent mind shall not allow a physically or mentally infirm person (unless physical infirmity in opinion of authority does not come in way of such person) to bring a vehicle on road as it shall undeniably be a deliberate action/omission to put lives of public or their (public) property at risk. Same would be the position with an unfit vehicle which should not be allowed to bring on road even by a qualified driver because the person was qualified to control a fit vehicle but not an unfit one. Nothing has been brought on record by the defendants side to establish the mental fitness of the driver (defendant No,3) at relevant time, nor anything has been brought to establish fitness of the vehicle though these questions must have been examined by the Enquiry Officer, who admittedly conducted such inquiry, as is evident from admission of the single DW to the effect that:-- "Voluntary states that he was not driver of the vehicle. He was the cleaner. ...NLC held inquiry in the of the accident subject matter of this suit. " 12. Further, the defendants have never denied the fact:-- i) handing over of the trailer to defendant No,3; ii) status of such giant vehicle to be their property; (iii) such giant vehicle was plying on road, having considerable traffic flow; Yet they even did not produce the documents to substantiate the skills, experience and carefulness of driver of their own vehicle which otherwise were material aspects particularly when the defendants never denied the fact of letting the defendant No,3 to run their such giant vehicle which in no way could be believed or said to be an intelligent decision in absence of proof of the skills, experience of the defendant No,3 and measures which had prompted the defendants Nos.1 and 2 in letting defendant No,3 to ply such giant vehicles on roads. This goes to lead to an undeniable legally permitted presumption that defendants failed to prove the very stand which they themselves had taken on their shoulder while acknowledging (not denying) the following facts:- i) happening of accident with their trailer; ii) death of one person; and denying/disputing the following :- i) manner of accident; ii) manner of death of deceased; ' Thus, it cannot be said that the defendants discharged the burden rested Upon their shoulders except by mere denial or disputing the claim of other side. The deliberate failure or omission to produce inquiry report and examination of the Enquiry Officer shall result in drawing adverse inference against the defendants because otherwise the…
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