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Petitioner: KARACHI TRANSPORT CORPORATION VS Respondent: LATIFURREHMAN and others
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Ajmal Mian Title: KARACHI TRANSPORT CORPORATION vs LATIFURREHMAN and others Case No.: Civil Appeal No,192-K of 1991 Date of Judgment:1992-05-06 Reported As: 1993 SCMR 1149 Result: Appeal partly allowed
JUDGMENT
JUDGMENT ' AJMAL MIAN, J.---This is an appeal, with the leave of this Court, against the judgment, dated 26-3- 1991 passed by a Division Bench of the High Court of Sindh in High Court Appeal No,199 of 1989 filed by the appellant, who was defendant No,1 in Suit No,99 of 1985 filed by the respondents for recovery of Rs,15,00,000 under the Fatal Accidents Act, 1855, hereinafter referred to as 'the Act', against the judgment and decree dated 25-5-1989 whereby the above suit was decreed to the extent of Rs,4,80,000 jointly in favour of respondents 1 and 2 i.e, a decree of Rs,2,40,000 in favour of each of the above respondents who were father and mother respectively of deceased Shoaib-ur-Rehman, hereinafter referred to as the 'deceased', who died on 23-12-1984 on account of a road accident, dismissing the same and maintaining the above judgment and decree of the learned Judge in Chambers. 2. Leave to appeal was granted to consider the question, whether on the basis of the evidence of the parties and the judgments of this Court, the amount of compensation granted was based on presumptions in violation of principles of law. 3. The brief facts are that the deceased, who was aged about 16 years and was a student, boarded on Bus No,835-151, hereinafter referred to as 'the bus', belonging to the appellant, from Sadar on 23- 12-1984 at about 2-15 p.m. Which was driven by tahir Hussain, an employee of the appellant, who was defendant No,2 in the suit and has been impleaded as respondent No,8 in the present appeal. It seems that when the bus reached the turning point to the road leading towards Landhi Colony near Akhtar Colony, respondent No,8 tried to overtake a mini-bus, driving the bus roughly and rashly, resulting into slipping of the bus on the driver's side into a trench and because of that, the bus went turtle causing death of the deceased and 4 other persons, besides resulting into injuries
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to a number of other persons. The respondents i.e, respondents 1 and 2, being the father and mother of the deceased, and respondents 3 to 7 being the brothers and sisters of the deceased, filed aforesaid suit for the recovery of Rs,15,00,000 against the appellant and respondent No,8, under the Act. ' The above suit was resisted by the appellant and respondent No,8 inasmuch as separate written statements were filed. It was denied that respondent No,8 was driving the bus roughly or negligently. It was averred that the accident was on account of bursting of a front side tyre while in movement. It was also pleaded that it was not possible for respondent No,8 to control the bus in such a situation although all possible efforts were being made by him to avoid the accident. It was further pleaded that the suit was time-barred and that no notice with regard to the filing of the suit was served on respondent No,8 and that respondents 3 to 7 were not competent to file the suit. 4. On the basis of the pleadings of the parties, following two issues were framed: (1) Whether the death of Shoib-ur-Rehman was caused due to rash and negligent driving of Tahir Hussain? (2) Whether the plaintiffs are entitled to compensation and from whom and to what extent?" 5. The respondents in support of the suit claim examined respondent No,1 as P.W.1 and P.W.2 Jameel Ahmed Siddiqui, whereas, the appellant examined respondent No,8 i.e, the driver of the bus. 6. The learned Single Judge, after hearing the parties, recorded his finding on issue No,1 in the affirmative and under the issue No,2, he decreed the suit to the above extent on the assumption that the deceased upon completion of his studies, would have become an engineer and he would have earned an average of Rs,5,000 per month. He calculated the quantum of compensation on following basis: "While holding that on average the deceased would have earned Rs,5,000 per month, I also hold that the deceased would have supported his parents, namely, plaintiffs Nos.1 and 2 for a period of 20 years. That being so, the deceased would have earned Rs,12,00,000 (Rupees twelve lacs only) in twenty years and claim for damages for Rs,15,00,000 (Rupees fifteen lacs only) made by all the plaintiffs is erroneous on the fact of it. ' Indeed the deceased -would have spent a substantial portion of his salary on his own self and after some time he would have been married which would not leave most of his salary amount at the disposal of his parents. Keeping these factors in view, I hold that on average each of the plaintiffs would have received Rs,1,000 p.m. From the deceased for a period of 20 years, totalling Rs,2,40,000. I accordingly hold that the plaintiffs Nos.1 and 2 are jointly entitled to Rs,4,80,000 as compensation and severally they are entitled to Rs,2,40,000 7. Against the above judgment and decree the appellant and respondent No,8 filed the above High Court Appeal, which was dismissed by a Division Bench of the High Court of Sindh by the impugned judgment on the ground that it was a settled proposition of law that the assessment of damages by the trial Judge in a fatal accident case was not to be interfered with lightly. 8. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above question. 9. In support of the above appeal, Mr. Naraindas C. Motiani, learned Advocate Supreme Court appearing for the appellant, has vehemently urged that the learned Judge in Chambers awarded the amount of compensation on the basis of presumptions which were not well-founded and were also not in accordance with law and that the learned Judges of the Division Bench failed,.. To rectify the above error. 10. On the other hand, Mr. Muhammad Maqsood, learned Advocate Supreme Court appearing for respondents has contended that this Court cannot interfere with the concurrent finding of the two Courts below on the question of quantum of damages keeping in view that even the above
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amount is not sufficient to compensate the parents of the deceased. His submission was that, in fact, the learned Judge in Chambers awarded lesser amount of compensation. 11. As pointed out hereinabove, the learned Judges of the Division Bench have not interfered with the quantum of damages assessed by the learned Judge in Chambers for the reason that they were of the view that it was a well-settled proposition of law that the assessment of damages by the trial Court in fatal accident case was not to be interfered with lightly. For arriving at the above conclusion, the learned Judges of the Division Bench have inter alia relied upon a passage from 'Kemp and Kemp on the Quantum of Damages' at page 19-003, a passage from Mayne and McGregor on Damages, at pages 1026, 1027 and 1028, and an extract from the judgment of the Privy Council in the case of Lim Joo Chang v. Lim Siew Ghoo and another PLD 1957 PC 23. It may be advantageous to reproduce the above passages and extract for proper appreciation of the point in controversy: ' Kemp & Kemp on Quantum of Damages": "In the case now under appeal liability for negligence was admitted, and the only issue was as to the amount of monetary reparation to be made by the defendant to the plaintiff for the consequences of his admitted breach of duty. That amount was assessed by the Jury at Pound 2,000. That is the decision which this Court is now asked to set aside. ' A decision of this kind, it has been contended, we ought not to disturb unless we are convinced that it is not merely wrong, but something worse than wrong, a concept which it is suggested, was intended to be expounded in such off-cited phrases as "wholly erroneous estimates (applicable to judges sitting alone) and "out of all proportion to the circumstances of the case". ' Mayne & McGregor on Damages": ' There are thus two distinct grounds of interference; that the Judge has acted on a wrong principle of law, and that he has made an entirely erroneous estimate of the damages. These two categories, in relation to awards by juries, of where the jury are misled and where the jury are at fault. If the Judge has misdirected himself as to the law or has given undue or insufficient weight to the evidence, this falls within the first category. If the damages are hopelessly incorrect or if it can be shown by calculation that the Judge must have wrongly taken or failed to take certain elements into consideration this falls within the second category. ' The Court will not interfere with the amount if it is of the view that the Judge has awarded the right amount although for the wrong reason. Thus in Williams v. Thornycroft, in a claim under the Fatal Accidents Act on behalf of a wife in respect of her husband's death, the Court of appeal held that the trial Judge had wrongly omitted to take into account in assessing the value of her dependency, her remarriage, before the case was heard, but refused to interfere with the figure of the award since in the Court's opinion this was substantially correct." ' PLD 1957 PC 23: "These cases raise questions of opinion on which minds whether of Judges or Jury applying right principles may differ substantially. No appeal Court will interfere only because the figure awarded by a trial Judge is greater or less than that which the Appellate Court would itself have awarded. The burden on an appellant, who invites this Board to interfere with a figure which has commanded itself to the Courts below is indeed a heavy one. Their Lordships do not fmd it necessary to review the evidence in detail. They are satisfied that there was evidence as to the deceased's expectation of working life which justified the sum awarded allowing for all proper deductions." 12. Mr. Naraindas C. Motiani, learned counsel for the appellant, in order to contend that the reliance on the above passages and the extract from the judgment of the Privy Council by the learned Judges of the Division Bench was not well-founded, has referred to the following cases: (i) Subbain Reddy and another v. T. Jardon AIR 1945 PC 168, (ii) C.K. Subramonia Iyer and others v. T. Kunhikuttan Nai and others AIR 1970 SC 376,
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(iii) Smt. Manjushir Raha and others v. B.L. Gupta AIR 1977 SC 1158, and (iv) Madhya Pradesh State Road Transport Corporation v. Sudhakar and others AIR 1977 SC 1189. 13. In the above judgment of the Privy Council, Sir John Beaumont, who spoke on behalf of the other Lords, quoted the following passage from the judgment rendered by Greer L.J. In case of Flint v. Lovell (1935) 1 K.B. 354: "This Court will be disinclined to reverse the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled." ' It was pointed out by Sir John Beaumont that the above rule, referred to in the above-quoted case from the judgment of Greer LJ, originated at a time when the assessment of damages was the province of the Jury and the appellate Court felt reluctance in interfering with the decision of a trial Court upon a question of fact. It was further pointed out that in British India the civil suits were not tried with a Jury and that the trial Judges generally had less experience in assessing damages for tort than the Judges in England as the claims under tort were common in England and not in India. On the question of scope of interference by an appellate Court in the case of a claim under tort, it was held that: ' An Appeal Court should never interfere arbitrarily and without good reason with the decision of the lower Court, and upon question of fact the advantage which the trial Judge enjoys in having seen the witnesses, and some times in knowledge of local conditions, must always be recognised; but where such considerations do not operate, an Appeal Court is entitled, and indeed bound, to give effect to its own view on matters within its competence. To hold otherwise would be to deprive parties of the benefit of a right of appeal which, they possess." ' In the case of G.K. Subremonia Iyer and others (supra), the District Judge had computed the damages under sections 1-A and 2 of the Act at Rs,5,000 but in appeal, the High Court assessed the amount of damages under section 1-A at Rs,5,000 and under section 2 of the Act at Rs,1,000. The above assessm ent, by the High Court in appeal was maintained by the Indian Supreme Court. ' Whereas, in the case of Smt. Manjushir Reha and others (supra) the facts were that the deceased was a temporary employee. He was drawing a salary of Rs,620 per month at the time of his death. The Claim Tribunal decreed a claim of Rs,60,000 on the basis of the total salary which the deceased would have got up to the age of 58 years, which was the age of superannuation after deducting half of the above amount, which, according to the Claims Tribunal, would have been spent and lost to the family. The Indian Supreme Court, while allowing the appeal of the widow of the deceased, held that the Claims Tribunal and the High Court were wrong in not taking into account the salary of the deceased which he would have reached while reaching the maximum grade before his retirement. It was further held that the deceased was 37 years of age at the time of his death and would have reached his maximum pay of Rs,900 per month 9 years before superannuation and that the certificate issued by the Accountant-General's Office indicated that the deceased would have drawn Rs,1,88,000 including the increment of the maximum grade which he would have drawn. It was also held that even if half of the above amount was deducted to cover day to day domestic expenses, payment of income-tax and other charges, the actual income lost to the family would be Rs,90,000. To the above amount a sum of Rs,13,500 was added as the amount of 10 years' pension. After making certain adjustments, the Indian Supreme Court decreed the suit for a sum of Rs,1,00,000, in place of Rs,60,000.
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' In the case of Madhaya Pradesh State Road Transport Corporation (supra), the facts were that a bus, owned by the appellant, on 23-6-1961 was going from Gwaliar to Indore. On the way, it met with an accident as a result of which two of the passengers, namely, Mr. Usha Kotasthane, aged about 23 years, and her one year old son, died and several others received serious injuries. Among the above injured persons, there was one Sailesh Kumar aged about 4 years. Claims for compensation were lodged with the Claims Tribunal at Gwaliar. Application for compensation for the death of Mrs. Usha Kotasthane and her child was made by her husband, whereas claim for the above minor Sailesh Kumar, was made on his behalf by his guardian-mother Shrimati Indubala Bhandari. The Tribunal decreed the claim of the husband to the extent of Rs,15,000 in respect of his wife Mrs. Usha Kotasthane, who was at the time of her death, working as a physical instructress in a school at Indore getting a salary of Rs,190 per month in the grade of Rs,150-10-250. The husband remarried within a year of the death of his above wife, whereas, the Tribunal decreed the claim of the guardian-mother in respect of the above minor who received injuries, to the extent of Rs,10,000 as general damages and Rs,890 as special damages. ' Against the above judgment of the Claims Tribunal, the Corporation, the husband of Mrs. Usha Kotasthane and the mother of the above minor, filed appeals. The High Court, on appeal enhanced the decretal amount to Rs,50,000 in favour of the husband of Mrs. Usha on the basis that the wife would have earned for a period of 35 years, taking 58 years as the age of superannuation, and the monthly average, income of Rs,250 and Rs,300 per month. The High Court also increased the decretal amount in respect of the claim on account of injuries suffered by the above minor to Rs,20,000. Thereupon, the Corporation filed appeals before the Indian Supreme Court. The appeal in respect of the claim on account of injuries suffered by the minor, was dismissed but the appeal against the decree in favour of the husband was allowed by setting aside the judgment of the High Court and restoring the judgment of the Claims Tribunal for Rs,15,000. 14. However, Mr. Muhammad Maqsood, learned ASC for the respondents, has heavily relied upon the above judgment of the Division Bench including the extracts from the above well-known treatises on the law of damages. He has also referred to the following passage from Mayne and McGregor on Damages, 12th Edition, pages 860 and 861: ' But just as the appellate Court has a discretion to refuse a new trial in the event of misdirection or misreception of evidence in an action with a jury where no substantial wrong or miscarriage of justice has resulted, so here, even if the award has been assessed upon a wrong principle of law, the Court will not interfere with the amount where it is of the view that the Judge has awarded the right amount although for the wrong reason. Thus in Williams v. Thornycroft (1940) 2 K.B. 658 (CA.), in a claim under the Fatal Accidents Act on behalf of a wife in respect of her husband's death, the Court of Appeal held that the trial Judge had wrongly omitted to take into account, in assessing the value of her dependency, her remarriage before the case was heard, but refused to interfere with the figure of the award since in the Court's opinion this was substantially correct." ' The learned counsel has further referred to the following passage from Kemp and Kemp, 'The Quantum of Damages in Personal Injury and Fatal Accident Claims' Volume I, Special Edition, para. 19-002: "19-002. The House of Lords has recently reiterated the principles on which the Court of Appeal should act when considering whether to interfere with an award of damages made by the trial Judge. In Pickett v. British Rail Engineering Ltd. Lord Wilberforce said: ' As to the general damages, I would also restore the judgment of the trial Judge. He gave this matter most careful attention and the Court of Appeal were unable to find that he erred in principle in any way. It is important that judges' assessments should not be disturbed unless such error can be shown, or unless the amount is so grossly excessive or insufficient as to lead to the conclusion that some such error must have taken place."
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' In the same case Lord Scarman said: "It is not the function of an appellate Court to subsitute its opinion for that of the trial Judge. Lord Wright stated the general principle in a well-known passage in his speech in Davies v. Powell Differing Associated Collieries Ltd. ' In effect the Court, before it interferes with an award of damages, should be satisfied that the Judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attached if the appellate Court is to interfere, whether on the ground of excess or insufficiency. The trial Judge correctly apprehended the facts, and adopted the correct approach in law. Though to some the award of 7,000 may seem low, it is not so low as to support the inference that the Judge's estimate was wholly erroneous. In a task as imprecise and immeasurable as the award of damages for non-pecuniary loss, preference for 10,000 over 7,000 is a matter of opinion, but not by itself evidence of error. I would, therefore, allow the cross-appeal and restore the judge's award of 7,000 general damages." ' On at last two occasions the Court of Appeal has expressly referred to these passages when dismissing an appeal on the quantum of damages." ' The learned counsel has also referred to the following judgments: (i) Muhammad Akbar Khan v. Province of West Pakistan (PLD 1961 SC 17), (ii) The Punjab Road Transport Board and another v. Mst. Naziran Bibi and another (PLD 1983 SC 340) and (iii) M/s. Concord of India Insurance Co. v. Smt. Nirmala Devi and others (AIR 1979 SC 1666). ' In the above first case this Court deprecated the practice of raising frivolous pleas by the Government in its written statement in a suit filed against it by a licensee of liquor, whose stock was taken over by the Government. ' Whereas, in the above second case, this Court while disposing of an appeal arising out of a case 'under the Act, condemned the attitude of the Road Transport Corporation to prolong the litigation in the following terms: "In fact we feel that the damages allowed to the respondents is really derisory. The sum of Rs,30,000 for the life of a young and active person of 23 years is hardly any recompense for the young widow and minor child and we are surprised that the Punjab Road Transport Board, instead of speedily meeting its obligation under the decree, which could have resulted in some succour to the unfortunate family of Nemat Ali deceased, thought it fit to prolong their agony by challenging the decree passed by the Civil Court right up to this Court and in the process spent a sum presumably almost equal to that awarded under the decree. Such an attitude is not only deplorable but also against the spirit of speedy and inexpensive justice, which is declared policy of the Government. A copy of this order should be forwarded to the Chairman, Road Transport Board, Lahore: ' In the above third case, the Indian S.Ppreme Court has laid great emphasis on finalisation of a fatal accident case in the shortest possible time as follows: ' phenomenon in Indian roads everywhere. The jural impact of this tragic development on our legislatures, Courts and law enforcement agencies is insufficient, with the result that the poor, who are, by and large, the casualty in most of these cases, suffer loss of life or limb and are deprived of expeditious legal remedies in the shape of reasonably quantified compensation promptly paid and this, even after compulsory motor insurance and nationalisation of insurance business." 15. The legal position, which emerges from the above treatises on the law of damages and the case-law referred to hereinabove is that an appellate Court cannot interfere with a decision of a trial Court on the question of quantum of damages arbitrarily and without good reasons. Generally
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interference is made by an Appellate Court with the quantum of damages if a trial Court has acted on a wrong principle of law or if it has taken into consideration certain elements, which it should not have considered or if it has not considered certain elements, which it should have considered or if it has failed to deduct certain items deductible, resulting into hopelessly incorrect estimation of the amount of damages i.e, it is either grossly excessive or insufficient. In such eventuality, an Appellate Court is entitled to and in fact is bound to interfere with the finding of the Court or Courts below on the quantum of damages and to make its own assessment. However, the above rule is subject to qualifcation that an Appellate Court will not interfere with quantum of damages if it is of the view that the same is reasonable and proper though founded on wrong basis. 16. We may also observe that a Government Department/functionary is not expected to raise frivolous pleas in an action brought by a citizen for recovery of his lawful claim, with the object to deny it or to prolong litigation in respect thereof. Such a practice is to be deprecated in the strongest terms. The officials responsible for the same should be made accountable for their above uncalled for and unjustified approach, particularly in the cases arising out of fatal accidents, the approach of the Government Departments/functionaries should be human and pragmatic, all efforts should be directed to ensure that an aggrieved person gets his reasonable, admissible claim promptly, without loss of any time. 17. Reverting to the facts of the present case, it may be observed that the deceased was aged about 16 years of age and was student of 9th Class. According to respondent No,1 the deceased would have become an engineer. Keeping in view that respondent No,1 himself is a lawyer, one of his brothers is an Assistant District Attorney and his uncle is a senior lawyer…
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