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Petitioner: MUHAMMAD RAZI and another VS Respondent: KARACHI ELECTRIC SUPPLY CORPORATION JUDGMENT
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title:MUHAMMAD RAZI and another vs KARACHI ELECTRIC SUPPLY CORPORATION
JUDGMENT
Reported As: PLD 2017 Sindh 634 Result: Suit decreed Judgment JUDGMENT SALAHUDDIN PANHWAR, J.---Plaintiffs being father and mother (respectively) of the deceased Muhammad Anas (hereinafter referred to as 'deceased') aged . 20 years who died in traffic accident on 23.05.2009 when defendant No,2 during the course of employment of defendant No,1 while driving truck No,JT-6984 belonging to defendant No,1, in a rash, negligent and careless manner on his way from Liaquatabad towards Nazimabad via Ibne-Sina Road, Karachi, reached near PSO petrol pump, Gujar Nala, Nazimabad No,2 at about 1930 hours wrongfully dashed the motorcycle bearing No,KCF-6651 ridden by Muhammad Anas, in a careless and reckless attempt to overtake other vehicles bumped into the said motorcycle which was going in same direction ahead of the said offending truck. Resultantly deceased fell down and received severe fatal injuries and appeared to have died instantaneously, pedestrians and road users rushed the spot of accident, one taxi driver evacuated the deceased to Abbasi Shaheed Hospital, where doctors confirmed his death, dead body was later on handed over to plaintiff No,1 after compliance and observance of all legal formalities, on statement of plaintiff No,1 recorded by police officials of Nazimabad Police Station defendant No,2 was booked under section 320 P.P.C,.5, for offence of killing Muhammad Anas on account of his rash and negligent driving, by FIR No,176/2009; incident flashed in daily newspapers. It is pleaded that since death of deceased was caused on account of negligence, wrongful act and default on part of defendant No,2 during the course of employment of defendant No,1 as such the latter is vicariously liable for payment of compensation to plaintiffs; defendant No,1 is directly liable for employing such incompetent, inexperienced and unskilled driver/defendant No,2 and in handing over such a heavy vehicle for plying on road, That deceased
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was aged only 20 years, having robust health and used to care much for plaintiffs and was expected to survive up-to the age of 70 years. in view of life span in his family pedigree, advancement In medical facilities and good climate of the area from where he belonged; that viewing the ages of plaintiffs and deceased and present and expected earning capacity of deceased, plaintiffs have been deprived of their caretaker/supporter and present and expected pecuniary benefits to the extent of Rs,1,25,00,000,- as deceased was skilled computer embroidery designer and wed it: supply such designs to different factory owners, earning Rs,15,000/- per month while he would have managed to earn more than double in view of annum can be safely assumed; plaintiffs have been deprived of their caretaker/supporter and deserted for all purposes hence claimed Rs,10,00,000/- each in addition to aforesaid pecuniary loss as well Rs,20,000/- on account of funeral expenses. Prayer was made for:- a. A decree in the sum of Rs,1, 25, 00,000/- against the defendants to pay the said sum of damages/compensation to the plaintiffs or any other amount this honourable Court may deem fit in circumstance of the case. b. Profit/mark up at the rate of 21% per annum OD the amount claimed in clause (a) above from the date of the filing of the suit till the date of realization of the decretal amount which the plaintiffs would have earned had the defendants paid the said amount. c. Cost of the suit may be awarded to the plaintiffs. 2. In their written statement defendants Nos,1 and 2 objected the maintainability of the suit on account of misjoinder/non-joinder of necessary parties, having no cause of action, as well for the reason that deceased was riding motorcycle without license, with fast speed, rashly, carelessly and negligently and was responsible for the incident as such having no cause of action. It was denied that plaintiffs arc husband and wife, it was categorically stated that defendant No,2 driver did not dash the motorcyclist, in fact after completion of job of replacement of faulty transformer at F.B. Area on way back towards the office the truck was stopped near Gujjar Nala, Nazimabad No,2 which is a one way road, in connection with an incident involving a motorcyclist of which the truck driver had no notice; defendant No,2 who is a senior driver was neither driving fast nor in rash, careless or reckless manner but with utmost care and at normal speed, nor he tried to overtake any other vehicle as alleged; however defendants stated that defendant No,2 and the truck was taken to police station by police and defendant No,2 was arrested. It was denied that any of the defendants are liable to pay any compensation as such claim is false, maid fide, malicious and unlawful; it was pleaded that deceased did not have any such skill, or expertise as claimed, he did not work, nor earn anything nor contribute to the family expenses in the past hence was not expected to contribute anything in future or render any support whatsoever, hence plaintiffs have not suffered any present or expected loss, thus plaintiffs are not entitled for any relief and the suit is liable to be dismissed with cost. 3. Proposed issues filed by the parties were settled as Court issues, as follows:-- 1) Whether the plaintiffs are husband and wife and parents of the deceased Muhammad Anas? 2) Whether the suit as framed is maintainable and the plaintiffs are the only legal representatives of the deceased, Muhammad Anas? What is the effect? 3) Whether the death of the deceased namely Muhammad Anas aged 20 years was caused on account of negligence of the defendant No,2 during the course of employment of defendant No,1 on 23rd May 2009, if so, its effect? 4) Whether on 23rd May 2009 the defendant No,2 driving Truck No,JT-6984 with fast speed in a rash, negligent and careless manner on his way from Liaquatabad towards Nazimabad via Ibne Sina Road and while attempting to overtake other vehicles dashed the deceased Muhammad Anas driving motorcycle No,KSF-6651? 5) Whether the deceased Muhammad Anas died due to the dash caused by the defendant No,2's
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rash, negligent and careless driving? 6) Whether the defendants are liable jointly and severally to pay compensation to the plaintiff and another legal heir, if so, to what extent? 7) Whether the defendants are responsible for the death of deceased Muhammad Anas? 8) Whether defendant No,2 has been an inexperienced, rash, negligent and careles driver? What is the effect? 9) Whether deceased, Muhammad Anas did any work? Whether he earned anything? Whether he contributed any amount of money towards the family expenses? If so, how much? 10) Who is responsible for the death of deceased Muhammad Anas? To what extent? 11) Whether the defendants owe any liability to plaintiffs? 12) Costs of the suit? 13) What should the decree be? 4. Commissioner was appointed to record evidence. Plaintiff Muhammad Razi filed his affidavit-in- evidence and produced certain documents at Ex.P/1 to P/10 so also submitted affidavit in evidence of PW2 Ashique Ali Hydri, SI (investigating officer of case crime 1\1',176 of 2009 of Police Station Nazmiabad for offence under section 320.'42" P.P.C.) who produced police file at Ex.PW2/1. Oh the other hand, Syed Sagheer Hussain, Deputy Manager, SSMR-IV and attorney of defendant's company filed his affidavit-in-evidence who produced no document except authority letter. The evidence of respective parties were recorded and commission was returned duly completed. 5. Learned counsel for plaintiff inter alia contends that plaintiffs successfully discharged the onus of probandi according to issues; death of the deceased in result of accident is undisputed; it is settled proposition of law that in cases of law of torts when accident is not disputed burden lies upon defendants who have failed to discharge the same as defendants took 'plea of not causing accident but produced nothing to substantiate the same. 6. Conversely, learned counsel for defendants argued that though accident is not disputed but it was not caused by defendants' negligence or truck even hence the suit of the plaintiffs against defendants is not sustainable. The plaintiffs even failed to prove their legal characters. He, ' concluded, in absence thereof suit merits dismissal. 7 .Heard learned counsel for the parties, perused the record. FINDINGS. Issue No. 1 In affirmative. Issue No. 2 In affirmative. Issue No. 3 In affirmative. Issue No. 4 In affirmative. Issue No. 5 In affirmative. Issue No. 6 In affirmative. Issue No. 7 In affirmative. Issue No. 8 In affirmative. Issue No. 9 In affirmative. Issue No. 10 In affirmative. Issue No. 11 As discussed. Issue No. 12 As discussed. Issue No. 13 Suit is decreed ; defendants are liable to pay Rs, 82,50,000/- to the legal heirs of deceased Muhammad Anas.
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ISSUES NOS.1 and 2 1. Whether the plaintiffs are husband and wife and parents of the deceased Muhammad Anas? 2. Whether the suit as framed is maintainable and the plaintiffs are the only legal representatives of the deceased, Muhammad Anas? What is the effect? 8. Before starting discussion onto the issue, I, without any hesitation, would say that normally if two adult and sui-juris persons claim to be lawfully and legally married with each other and their such claim is found supported by their way of living then such claim should not be doubted or disputed by a stranger but the State may inquire, if circumstances so justify. I may add here that a document (Nikahnama) is not a conclusive proof of existence of such relationship if either of two (spouses) denies existence thereof however absence of such document (Nikahnama) alone would not be sufficient to deny or dispute such claim of two because 'marriage' is a civil contract which binds two (husband and wife) for certain rights and obligations which they both alone have to perform towards each other regularity in following the prescribed procedure may expose parties to some penal consequences but shall not prejudice the validity of the marriage if both continue to have entered into a lawful contract (marriage). Such presumption would be in line of Article 129 of the Qanun-e-Shahadat Oaler, 1984 too which reads as: "129. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course to natural events, human conduct and public and private business, in their relation to the facts of the particular case. Similarly, a stranger is not legally entitled to challenge / question the paternity of a child. This is so, because of which the Article 128 of the Qanun-e-Shahadat Order, 1984 has attached legitimacy to such claim and leaves a room to question it only by: a) the husband has refused, or refuses to own the child; or The question was thoroughly examined and dealt by honourable Supreme Court in the case of Ghazala Tehsin Zohra v. Ghulani Dastagir Khan (PLD 2015 SC 327). In this case the honourable apex. Court categorically laid down a principle that where circumstances otherwise prove legitimacy of such status then the Court will not allow evidence even for disproving such status. The operative part reads as: "11. .... Once the relevant facts as to commencement and dissolution of marriage and the date of birth of a child within the period envisioned in Article 128 are proved, and the date of birth is within the period specified in Article 128(1), then the Court cannot allow evidence to be given, for disproving legitimacy of a child born within the period aforesaid.." (emphasis supplied) In the said case, the competence to challenge such 'status' and 'presumption' attached thereto were also examined and it was held as: "12... The wisdom of this rule of Muslim Personal Law cannot be gainsaid, considering in particular the patriarchal and at times misogynistic societal proclivities where women frequently do not receive the benefit of laws and on the contrary face humiliation and degrading treatment.' It is for the honour and dignity of women and innocent children as also the value placed on the institution of the family, that women and blameless children have been granted legal protection and a defence against scurrilous stigmatization." "13...There are many legal provisions in the statute book and rules of equity or public policy in our jurisprudence where the interests of individuals are subordinated to the larger public interests. In our opinion the law does not give a free license to individuals and particularly unscrupulous fathers, to make unlawful assertions and thus to cause harm to children as well as their mothers." (emphasis supplied) Thus, I can safely conclude that normally the individuals are not permitted to dispute a claim of
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'lawful marriage' by two competent persons and legitimacy of a child unless they prima fade show existence of reasons prejudicing their rights under such claims. However, the burden shall always be squarely upon them to prove who denies or disputes it. 9. Now, 1 would revert to examine the available material, produced by either side, to prove their respective claims. The necessity to frame these issues was undeniably result of denial of the defendants to claim of the plaintiffs that they are parents of the deceased but record Shows that the defendants produced nothing on record to substantiate such claim except mere denial which I, have no hesitation, to say that is not sufficient to prove a claim. The defendants did not attempt to challenge the legality of the documents produced by the plaintiffs showing their status as 'husband and wife' and that of 'parents' of deceased. In absence whereof, it legally cannot be presumed that the defendants discharged their burden to prove their claims. Though, the failure of the defendants is sufficient to answer these issues as 'affirmative' however, as an abundant caution, on perusal of the evidence of the plaintiffs I found that: i) plaintiffs specifically claimed in their pleading (Plaint) and even in affidavit-in-evidence that both (plaintiff Nos,I and 2) are husband and wife and parents of the deceased; ii) produced their CNICs, showing their relationship as husband and wife, and have also produced the birth certificate of the deceased Anas wherein the names of parents of child are mentioned as 'Muhammad Razi and Naseem Bano' i.e present plaintiffs; The defendants while enjoying opportunity of cross-examining the plaintiff Muhammad Razi did not attempt to put a single question towards their such claims or legality of said documents which undeniably, produced to prove the status of plaintiffs as 'parents' of deceased even not a single suggestion in that regard was made. Thus, such claims of plaintiffs went unchallenged hence the answer to these questions could be nothing but in 'affirmation' and answered so, accordingly. ISSUES NOS. 3 TO 5. Whether the death of the deceased namely Muhammad Anas aged 20 years was caused on account of negligence of the defendant No,2 during the course of employment of defendant No,1 on 23rd May 2009, if so; its effect? Whether on 23rd May 2009 the defendant No,2 driving Truck No,JT-6984 with fast speed in a rash, negligent and careless manner on his way from Liaquatabad towards Nazimabad via Ibne Sina Road and while attempting to overtake other vehicles dashed the deceased Muhammad Anas driving motorcycle No, KSF-6651? Whether the deceased Muhammad Anas died due to the dash caused by the defendant No,2's rash, negligent and careless driving? 10. These all issues prima facie appear to be strongly interlinked with each other because in all these a common question of happening of accident and negligence, resulting into death of deceased, is involved. 11. Since, the defendants deny happening of incident from truck in question, hence I would examine such question first. Needless to add while opening discussion that in fatal accident matters the onus of probandi stands shifted upon the defendants, in either situation where defendants deny negligence or take specific plea of not causing accident. Reference can be made to the case of Anisar Rehman v. Govt. of Sindh (1997 CLC 615) and Mst. Sakina v. National Logistic Cell (1995 MW 633) wherein it was held that: ##TE# "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 v. Malik Abdul Habib (1993 SCM R 848), it was held that: "If 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
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perfect order and there was no defect in the same and deceased died on account of his own negligence" In that instant matter, happening of the unfortunate incident, costing life of deceased Muhammad Anas in road accident is not disputed. The plaintiffs claim the accident as a result of negligent and rash driving of the defendant No,2 while the defendants have come forward with a specific plea that it (accident) did happen but by some other vehicle, as is evident from pleading (written statement) of defendants Nos,1 and 2 which was also included in affidavit-in-evidence as: "4. I say that on 23.5.2009 a gang was dispatched to replace a faulty transformer at F.B. Area (Azizabad) on the truck in question. After completion of the job on way back towards the office the truck was stopped near Gujjar Nala Nazimabad No,2 which is a one way road in connection with an incident involving a motorcyclist ,of which the truck driver had no notice. The driver, defendant No,2 did not dash the motor cyclist. The defendant No,2 is a senior driver of K.E.S. C. and; he was not driving the truck at fast speed and was not driving either rashly, carelessly and recklessly but with utmost care and at normal speed and at no time he tried to overtook any other vehicle. The defendant No,2 did not see the deceased and motorcycle on the ground. Consequently the defendant No,2 has not been aware of the deceased receiving fatal injuries and dying instantaneously. The gathering of the people at the spot is denied for no knowledge. Similarly the taking alleged dead body to Abbassi Hospital and being pronounced dead are denied for want of knowledge. The defendants also have no knowledge of the dead body being handed over to plaintiff No,l. The defendant No,2 and the truck was taken to police station by a Police mobile and the defendant No,2 was arrested." From the above, it also becomes quite obvious that defendants Nos,1 and 2 though disputed happening of incident by defendant No,2 but admitted that: i) the defendant No,2 is driver of truck in question; ii) the defendant No,2 was driving the truck at relevant time; iii) the defendant No,2 and truck in question were available at place of incident; iv) the police not only arrested defendant No,2 but had taken him (defendant No,2) and truck to police station; Since, as per settled principle of law in such, like situation, the onus of probandi stands shifted upon defendants to prove all the above pleaded facts which became rather grave of is read keeping in view the Articles 119 and 122 of the Qanun-e-Shahadat Order, 1984 which reads, as:-- "119. Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The illustration (b), provided to explain this article makes things brighter by saying as: (b) B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it. The Article 122 of the Order, 1984 says as: "122. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden to province that fact is upon him. Illustrations (a) .............. (b) A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket is on him," The record however shows that the defendants never attempted to prove any of the above specifically pleaded facts. The defendants did not examine anybody except DWI Syed Sagheer Hussain. A direct reference to an admission, made by this witness during his examination even can result in excluding the evidence of this witness which is: "I was not present at the time of incident of place of incident. After incident, I inspected place of
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incident." From above, it should not be confusing any more that the said never claimed to be an eye-witness of the incident hence legally his words in respect of said facts cannot be believed nor considered which meaning of Article 71 of the Qanun-e-Shahadat Order, 1984 which directs that 'oral evidence must, in all cases whatever be direct' and C insists as: 71. Oral evidence must be direct. Oral evidence must, in all cases whatever be direct, that is to say- - If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by another sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that mannu; The said witness in his examination has also claimed as: "I gathered information from the house and area of deceased through our staff visited for information and condolence." From above, it prima facie appears that it was not the said DW1 but other staff who had collected the information but the defendants did not attempt to examine any of such persons and even not examined the defendant No,2 who, per examined DW1, was one while driving the 'truck at material time. The said Witness stated in his examination-in-chief as: "In the time of incident driver was alone in the vehicle. Driver/defendant No,2 was arrested by the police." Such failure on part of the defendants is sufficient to answer these issues, however, on demands of equity and good conscious I would also examine what the plaintiffs have produced in order to establish the incident. 12. It is material to mention here that the plaintiff Muhammad Razi never claimed himself to be an eye-witness of the incident as shall stand evident from admission of the plaintiff Muhammad Razi made during his cross-examination as: "It is correct to suggest that at the time of accident I was present at my business place, It Is correct to suggest that I am not eyewitness of accident. ... It is correct to suggest that I came to know about facts of the incident through other people." Therefore, the plaintiff Muhammad Razi not only examined PW2 (Investigating Officer of the ease crime) but also produced the police file of case Crime No, 176 of 2009; photographs of dashed motorcycle and truck in question which prima facie make a chain of links i.e: i) happening of accident at Guffar Nala, Nazimabad No,2; ii) the arrest of the driver (defendant No,2) from said place at material time as an accused for an offence under section 320, P.P.C. which undeniably is a charge of driving rashly and negligently thereby causing death; iii) securing of truck by police and detaining it as case property of said case crime; iv) release of the said truck by the defendants on superdari basis; All above facts (links) are in a proper order. I have no hesitation in saying that such unbroken chain of circumstances (links) can competently be accepted particularly in view of Article 129 of Order, 1981 which permits such presumption to hold the ground if stands well to test of logic, reasons and acceptable to normal human behaviour and conduct. Such specific claims and assertions of the plaintiff even with in ferrous to documents were required to be denied or least disputed but a reference to cross-examination would show that none of the above facts were attempted to be denied or disputed rather stood admitted by the DW1 in his examination-in-chief as: "It is correct to suggest that vehicle belonging KESC was impounded by police in FIR No,176/2009 at
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Police Station Nazimabad, Karachi." The above leaves nothing ambiguous that the defendants did not bother to deny the claims and specific assertions of the plaintiff which bring into play the settled principle that 'what is not denied is to he taken as admitted'. Further, it is also material to add here that 'Motor Vehicle Accident Report Form' produced by the plaintiff Muhammad Razi, says as: CONDITION OF VEHICLE JT-6984 Mechanical condition of the vehicle found fit. Damage.Front R/side fender dented. The said report is…
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