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Petitioner: ABDUL QADIR VS Respondent: S.K. ABBAS HUSSAIN and 2 others
Court Name: Sindh High Court Judge(s): Rana Bhagwan Das Title: ABDUL QADIR vs S.K. ABBAS HUSSAIN and 2 others Case No.: Suit No,621 of 1993 Date of Judgment:1997-06-04 Reported As: PLD 1997 Karachi 566 Result: Suit decreed
JUDGMENT
JUDGMENT ' This is a suit for recovery of Rs,5 million by way of general and special damages for the injuries suffered by the plaintiff in a road accident by coming into contact with Car No,E-7070 belonging to defendant No,1 and rashly driven by defendant No,2 on Karsaz Road on 31-7-1992. 2. F.I.R. No, 232/1992 was lodged at TPX Police Station under section 337-G, P.P.C. On behalf of State against defendant No,2 for driving the vehicle in a rash and negligent manner. It is said that the aforesaid motor car collided with plaintiff's motorcycle resulting in serious injuries to the plaintiff on his right leg which were found to be comminuted and compound fractures as certified by Dr. Naveed H. Shah of Naveed Clinic Saddar. Plaintiff was initially taken to Jinnah Post Graduate Medical Centre, Karachi and later, admitted to Naveed Clinic and long afterwards treated at Sindh Medical Centre from 26-5-1993 to 29-5-1993 by Dr. Saghir Ahmad. Consultant Orthopaedic Surgeon. 3. It is the case of the plaintiff that he 'suffered injuries on account of actionable wrong, negligence and default on the part of defendant No,2 for which defendant No,1 is vicariously liable for payment of damages for the use of his car by defendant No,2 as his agent. The plaintiff sent a legal notice dated 13-7-1993 to defendant No,1 calling upon him to furnish the particulars of insurance policy in respect of the car and the status of defendant No,2 for driving his car. This defendant replied the notice in an evasive manner declining to divulge any information with regard to insurance policy but stated that defendant No, 2 was his personal friend and therefore permitted to drive his car. 4. It is further the case of the plaintiff that for more than two months he remained as indoor patient at Naveed Clinic and Sindh Medical Centre where he was operated upon four times and underwent bone grafting surgery of the right femur. Steel plates and wiring wrapped in the femoral shaft and
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patella were also operated but his condition did not improve even after the passage of one year and he needs further operation and treatment abroad. According to him after the aforesaid accident he has been bed-ridden, permanently disabled and crippled. Injuries sustained by him have considerably affected his mental, physical and monetary health thus he is entitled to special and general damages on account of pecuniary as well as non-pecuniary losses. He has estimated the damages for permanent disability at Rs,10,00,000, damages for loss of amenities on account of fracture at Rs,3,00,000 damages for shortening the life expectancy at Rs,3,00,000, damages for abnormal look with big scars on his right leg at Rs,3,00,000, damages for injuries, shock, physical pain and mental agony at Rs,5,00,000, damages on account of restricted movements at Rs,2,00,000, damages on account of dependency owing to his infirmity and need of a permanent attendant at Rs,4,00,000, damages on account of loss of prospects for supporting his children at Rs,3,00,000, damages for loss of comfortable married life at Rs,2,00,000, in all totalling Rs,35,00,000 and special damages on different counts at Rs,15,00,000. 5. As the defendants could not be served with summons in the ordinary course they were served by way of publication but none appeared to contest the suit which has proceeded ex parte. 6. In support of his case plaintiff filed his affidavit-in-evidence and various documents. This suit came up for final disposal on 26-9-1996 before me when learned counsel for the plaintiff after arguing out the same at some length sought permission to examine such of the witnesses as may be necessary to establish the claim. Accordingly hearing was adjourned and the suit was listed on two hearings but no witness was examined. 7. I have had the privilege of hearing Mr. Nasir Maqsood, learned counsel for the plaintiff and going through the relevant evidence on record. 8. The first and foremost issue for determination in this suit is whether the plaintiff sustained serious injuries on his right leg resulting in comminuted fractures and if so, whether these have caused permanent disability of the plaintiff and secondly whether he is entitled to special as well as general damages for serious injuries, loss of comfortable life, suffering mental shock, agony and permanent disability to lead a normal life? 9. In his affidavit-in-evidence, plaintiff aged 62 years reiterated the averments in the plaint which remained unrebutted as none of the defendants cared to appear and contest his version. He stated that he suffered enormous grazing wounds, latent injuries and abrasions throughout his body and more particularly injuries on his right leg being serious and grievous as follows: (a) Segmentational fractures at three places on the right femur and bitter smashing of the femoral shaft from three places. (b) Comminuted fractures on the right patella and knee cap. (c) Breaking of the right femoral shaft. (d) Ugly looking scar in the right leg. 10. In order to, establish such injuries plaintiff relies upon a certificate Exh.3/9 issued by Dr. Naveed H. Shah, FRCS, Medical Director and Surgeon of Naveed Clinic. A glance at this certificate suggests that the plaintiff was admitted to Naveed Clinic on 1-8-1992 having sustained a motor-vehicle accident on 31-7-1992. He had been initially taken to JPMC where a plaster cast had been applied. The plaintiff, a diabetic sustained following injuries on his person: (i) Comminuted fracture upper 1/3 right femur. (ii) Comminuted fracture lower 1/3 right femur. (iii) Comminuted fracture right patella. (iv) Haemarthrosis of right knee. (v) Abrasions, haematoma an extensive soft tissue damage right thigh. (vi) Deep laceration right leg.
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11. As per certificate right leg of the plaintiff was immobilised by sustained skeletal traction for 10 days during which the abrasions and lacerations were allowed to heal and the tissue edema to subside, the blood sugar level was controlled. On 11-8-1992 he was operated and both the segmental fractures of the right femur were stabilised with plates and screws and the patellas was fixed with a tension band assembly. The bone loss in the badly comminuted femoral fracture was replaced bone grafts harvested from the iliac bone. He made an uneventful recovery in the post operative period and the wounds healed satisfactorily. He was discharged from hospital on 9-9- 1992 i,e, after 39 days of his admission. The surgeon pointed out that the plaintiff did not come for regular follow up visits, presumably because his employer Burma Oil Mills had made alternate arrangements with Sindh Medical Centre. A bill of Rs,61,863 was sent to Burma Oil Mills which was disputed by management who paid Rs,40,950. An officer of Burma Oil Mills was requested to advise the plaintiff to report to Naveed Clinic for follow up because physiotherapy to the knee was required and that after union of the fractures one of the plates would have to be removed to cure problems from concentration of stress forces between the small area intervening two plates. Although the management was assured that no payment shall be required for these procedures by the patient, he was instead referred to Sindh Medical Centre where the wires were removed from patella and a quadricepsplasty was done without any benefit to plaintiff. After repeated messages finally the plaintiff turned up on 24-5-1993 when removal of the angled plate and screws was done under general anaesthesia and he was discharged on 3-6-1993. According to this certificate plaintiff had sustained a serious mutilation of the right thigh and knee which put his life in peril, caused him much pain and suffering. Though all his fractures had united but he had been left with a stiff knee due to which he did not have a normal gait. He was unable to squator offer his prayers (Namaz) properly and might not be fit for employment in a job requiring physical fitness. 12. A photograph showing the healed fractures and implants and a diagram illustrating the skeletal injury and implants were appended to the certificate. Plaintiff also produced a bill Exh.3/16 dated 21st July, 1993 for quadricepsplasty and removal of wire from patella purportedly signed by Dr. Saghir Ahmad, Consultant Orthopaedic Surgeon, JPMC. There is no corresponding receipt for payment of this amount by the plaintiff to the surgeon but in his evidence he stated that his employer refused to pay the bill therefore it was paid from his pocket. While he produced two receipts Exhs.3/17 and 3/18 for payment of Rs,150 and Rs,3,400 to Sindh Medical Centre on 30-5- 1993 he was unable to produce any acknowledgement receipt for payment of the amount of bill paid to Surgeon Saghir Ahmad. Be that as it may, entire evidence is ex parte and in the absence of any circumstance to the contrary, consistent policy in law has been to accept such evidence on its face value. It is however admitted position that as against bill amounting to Rs,61,863 his employer has settled the discounted amount at Rs,40,950 with Naveed Clinic in full and final settlement of the bill and he had paid nothing from his own sources to the said Clinic. 13. In law, plaintiff is entitled to compensation for the injuries sustained by him at the hands of defendant No,2 who purportedly drove the motor car belonging to defendant No,1 rashly and negligently culminating in a vital collision with the motorcycle of the plaintiff and causing injuries to him including fractures of his right leg for which he was treated and operated upon. The plaintiff being an old person aged about 62 years and a diabetic, it is but natural that the healing of his wounds and the union of the fractured bones in his case took relatively more time as compared to a normal, heal thy, and young person. For such tort in law, he is definitely and surely entitled to compensation for pecuniary as well as non-pecuniary losses. 14. As to the receipt of injuries, evidence of the plaintiff supported by medical certificate issued by Dr. Naveed H.Shah, Qrthopaedic Surgeon remains uncontroverted and I am inclined to accept it in the absence of any challenge/rebuttal. The plaintiff complained of injuries, pain. Mental shock and agony in his evidence which completely paralysed his physical movements and activities. He
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rightly expressed his apprehension that for the remaining span of his life he would not be able to walk as a normal person with same strength with which he was able to move before the fateful accident and rather he would be compelled to spend most of the time on a wheel chair and at most be able to walk with armpits. It is his grievance and rightly so, that he became chair-ridden and unable to stand without the aid of armpits at least for a period of five yeaRs, He is able to walk only with the aid of some attendant. Any slight attempt on his part to move from the bed causes giddiness, therefore, he does not attempt to stand or move about in order to avoid adverse consequences. He maintained that due to lack of movement on account of his confinement to bed he is gaining weight and there is every likelihood that in near future he will be deshaped which will badly affect his personality and digestive system rendering him completely an embodiment of ailments and diseases. 15. It is the case of the plaintiff that on account of injuries with deep fractures of femur and patella his movements shall be restricted by reason of confinement to bed due to severe operation and lack of vigour required for a movement. He further stated that he has suffered loss of amenities inasmuch as he cannot move around, play and enjoy picnic with his children and join them. ' He will not be able to drive motorcycle and he cannot travel by Mini Buses and rendered unable to attend ceremonies of his friends and relatives. Besides he will be handicapped in offering prayers and performing religious obligations to which he was, punctual before accident due to extreme pain while bending during prayeRs, Lastly he is also rendered incapacitated to perform Hajj. Such loss of amenities and other allied and ancillary losses on his part will develop a sense of disparagement, disappointment and this depression will be further aggravated while seeing his friends and colleagues enjoying such amenities. He further stated that he is now depending on others for all practical purposes after the accident he would need great deal of attention and care in view of his traumatic fracture of the right leg. Plaintiff expressed that he cannot dress and undress himself without support of attendant and climb stairs on his own or get downwards. He is to be carried up and down-stairs for his treatment with the help of the attendants on the stretcher as he resides on the first floor which causes him a lot of trouble in taking him to hospital for bandage and necessary treatment. He has not been enjoying sound sleep and is liable to bed sores. Apart from above deprivation, it is very difficult for him to attend natural call on his own strength on account of grievous disability caused to him in the aforesaid traffic accident. Even if his injuries are healed to some extent, he will still need for the rest of his life a great deal of help and attendance. 16. I am however not inclined to accept the apprehension expressed by the plaintiff when he says that the likelihood of healing of his injuries is impossible in view of gravity of injuries and diabetes which will prevent the reparation of his injuries. As observed earlier, it normally takes longer time for healing of wounds in he case of a diabetic as compared to a normal healthy person but with the advancement of medical science and research in the health care studies it is not impractical to have such injuries healed. Such traumas no doubt may leave certain elements of debility, incapacity and loss of complete vigour and strength but do not render a person completely cripples, paralysed or permanently disabled to move about altogether. 17. As pointed out hereinabove from the evidence on record I am convinced that the accident which resulted in the aforesaid injuries, to the plaintiff had been caused on account of rash and negligent driving by defendant No,2 but it is not possible to hold defendant No,1 vicariously liable for the act of defendant No,2 by reason of personal friendship and mere use of his motor car. The latter, in law and on any authority cannot be said to have acted as agent or servant of defendant No,1 during the courses of so-called agency or employment. It is elementary principle of law that a person is liable for his own acts of omission and commission and nobody can be penalised for the acts of another unless committed as agent or in the exercise of authority conferred by the principal
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upon as agent or by a master on his servant. Admittedly case of the plaintiff is that defendant No,2 happens to be the personal friend of defendant No,1 who is joined as defendant for being vicariously liable on the strength of evidence collected from the Motor Registration Wing of the Excise and Taxation, Department Department where this defendant is recorded as owner of the vehicle. 18. I would now take up the claim for injuries, shock, pain and mental agony suffered by the plaintiff for about two months while he remained as indoor patient in the hospital and later as outdoor patient for dressing and bandage of his wounds. A question may arise whether a person who has been injured in a traffic accident is at all entitled to damages for shock, physical pain and mental agony suffered by him on account of injuries sustained in the accident. To my mind short and plain answer to the question would be certainly in affirmative. In case of damages on account of personal injuries, well-established principle is that the damages must be such which would compensate the injured as far as money is concerned. It is true that injured's permanent disability, pain, suffering, loss of enjoyment and deprivation resulting from injuries may not be accurately calculated in terms of coins but for this reason alone Courts do not decline to grant compensation. Ordinarily in such cases just, fair and reasonable compensation is assessed and damages awarded by the Courts to an injured person. To my mind damages can be claimed for pain and suffering also under torts if such pain and suffering are the result of a wrongful act. As per certificate issued by Dr. Naveed H. Shah, plaintiff had sustained a serious mutilation of the right thigh and knee which put his life in peril and caused him much pain and suffering. Though all his fractures had united but he has been left with a stiff knee due to which he does not have a normal gait. He is unable to squatter and offer prayers properly and may not be employed in a job which requires physical fitness. 19. In Sufi Muhammad Ishaque v. Lahore Metropolitan Corporation (PLD 1996 SC 737) Salim Akhter, .1. (as his Lordship then was) speaking for the Supreme Court observed that there can be no yardstick or definite principle for assessing damages in such cases. Damages in such cases are meant to compensate a party who suffers an injury. It may be bodily injury, loss of reputation business and also mental shock and suffering. So far nervous shock is concerned, it depends upon evidence produced to prove nature, extent and magnitude of such suffering. Even on that basis usually it becomes difficult to assess a fair compensation. In those circumstances it is the discretion of the Judge who may, on facts of the case and considering how far society would deem it to be a fair sum determine the amount to be awarded to a person who has suffered such a damage. Conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party. 20. As to the entitlement for recovery of damages for mental torture and nervous shock apex Court observed that previously jurists and Judges were reluctant to grant claim for damages for mental shock and torture, but now it is well-settled that a person who suffers mental torture and nervous shock is entitled to recover damages. ' In Hinz v. Berry (1970).2 QB 40, Lord Denning observed that: "It has been settled that damages can he given for nervous shock caused by the sight of an accident. At any rate to a close relative. Damages are, however, recoverable for nervous shock or to put in medical terms, for any recognisable psychiatric illness caused by the break of duty by the defendant." 21. In Janveir v. Sweeney and another (1919) 2 KB 316, two defendants, who were private detectives, were sued by the plaintiff, a maid servant in a house whose master has certain letters and documents in his possession which the defendants/detectives wanted to examine. As they thought that the plaintiff had access to those documents, they lured and threatened her as a result of which she fell ill from a nervous shock. As a result of threat and statements made to her she
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sustained nervous shock and became incapacitated for following her employment and suffered from neurasthemia shingler and other ailments. The defendants were held liable for damages. 22. Both the aforementioned cases were referred in the Supreme Court judgment and it was observed that in awarding damages for nervous shock and mental torture or "psychiatric illness" or "psychosomatic illness", which are the terms currently used, Court should be vigilant to see that the claim is not fanciful or remote and in fact it fairly or naturally results from the wrongful act of the defendant. Therefore. In order to claim damages for mental or nervous shock and suffering of psychiatric illness, a party must prove wrongful act done by the defendant and that due to such act he has suffered mental shock and torture which may at times also result in physical injuries but not in all cases. It was further observed that the principle that can he deduced from the King's Bench case (supra) is that compensation can he granted where a wrong is done to a party and the damage flows from that wrong. 23. The duty of the wrong-doer is to the extent that he could reasonably forsee that his failure to exercise duty and care he owes to the public was likely to cause mental shock, pain and damage to the claimant. This principle of duty and care, a. Person owes, was considered in Heaven v. Pender (1883) 2 QBD 503 where it was observed. That: "Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." ' About fifty years later in Donoghue v. Stevenson (1932 AC 562) Lord Atkin observed as under: "You must take reasonable care to avoid acts or omission which you can reasonably forsee would he likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." 24. The principle of law that naturally emerges from the resume of the above case-law is that the liability arises where there is a duty to take care and failure has taken place, which has caused damage. Such duty arises only in respect of those persons whom one can reasonably anticipate to be affected by such wrongful act. Indeed a person is entitled to claim damages for mental stress, nervous shock when it is natural and immediate result of the offending act complained of. The wrongful act should be probable cause for such suffering which in such circumstances may be suffered by an ordinary person. Liability of a defendant is co-related to the duty of care he owes to the victim in the circumstances of a case. In case of accident a duty of care is owed not only to the victim but also to such near relatives of the injured victim who were known to be very near the scene of occurrence and likely to reach there irrespective of the fact whether they had witnessed the incident or not. The test of foreseeability is to be judged from the standard of a man of ordinary prudence who would foresee that any wrongful act, accident or injury to a person or property would be a probable cause for mental shock to such relatives or persons, who were very close to the victim but were neither present at the scene of occurrence nor witnessed it. 25. In their classic work on the English and Indian Law of Torts, 18th Edition (1960) The Bombay Law Reporter Office, Bombay at page 421, Ratanlal and Dhirajlal dealing with torts to person or property with specific reference to personal injuries concluded as under: "With respect to damages for personal injuries, the measure is the loss of time, expenses incurred, pain and suffering, and permanent injury causing pecuniary loss, as to which, it is said, that the amount awarded must not be an equivalent for the loss but some reasonable sum. An injured person can claim damages for the loss of his expectation of life. This right passes to his personal
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representative on his death, even though the death is instantaneous owing to the negligent act of the defendant. ' Where the plaintiff is disabled for life, the measure of damages is not to be taken from the amount of an annuity which would replace the annual salary of the deceased, for it does not follow that he would have retained his situation for the whole of his life, but a reasonable sum must be given. In awarding damages for a prospective loss of income from professional or other earnings, the jury (or Court) ought not to give the plaintiff such a sum as, if invested, would produce the full amount of income which he would probably have earned, but ought, in estimating the damages, to take into account the accidents of life and other matters, and to give the plaintiff what they consider under all the circumstances a fair compensation for his loss. 26. The principle of law relating to entitlement for personal injuries sustained in a road accident was recognised by Lord Halsbury in the case reported as "The Owners of No,7 Steem Sand Pump Dredger v. The Owners of s.s. "Great Holme" (1897) Appeal Cases 596" to the effect that in personal injury cases, the injured may recover damages, not only for pain and suffering and injury, but also for the loss which he…
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