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Petitioner: QAISER ALI AND 2 OTHERSs VS Respondent: KARACHI ROAD TRANSPORT CORPORATION
Court Name: Sindh High Court Judge(s): Tanzil-ur-Rehman Title: QAISER ALI AND 2 OTHERSs vs KARACHI ROAD TRANSPORT CORPORATION Case No.: Suit No, 492 of 1984 Date of Judgment:1986-04-29 Reported As: PLD 1986 Karachi 489 Result: Suits decreed
JUDGMENT
JUDGMENT ' These are seven (7) suits bearing Nos. 492, 593, 541:542, 544, 545 and 547 of 1984 filed on 28-4- 1984 under Fatal Accidents Act, 1855 for recovery of damages in the various sums of money by and on behalf of the legal heirs of 7 deceased persons, as plaintiffs. The common facts relating to the above suits, briefly stated, are that on 27-4-1983 at 11-30 p.m., driver Mumtaz Hussain, an employee of the defendant, while driving the defendant's bus No, 839-90e (hereinafter referred to as the defendant's bus) on route No, 16-E, going towards Quaidabad on National Highway reached the centre of Malir Bridge in a rash and negligent manner and dashed the other bus coming from Steel Mills side (hereinafter referred to as the 'contract bus') and fell down in the dry bed of Malir river from the said bridge on its right side. Consequently, 11 persons travelling by defendant's bus including the deceased Hoor Jehan in Suit No, 492/84, Ulfat Hussain in Suit No, 539/84, Abdul Wahid in Suit No, 542/84, Muhammad Ishaque in Suit No, 544/84 and Shaukat Ali in Suit No, 547/84 and two persons travelling by the contract bus, namely, Syed Lutf Ali Shah in Suit No, 841/84 and Muhammad Irfan in Suit No, 545/84 died on the spot. The first information report No, 135/83 was lodged on 28.4.1983 at 12-30 p.m. At Quaidabad Police Station by one Asif Ali. The case was registered against Mumtaz Hussain, the deceased driver of the defendant's bus, but since both the drivers had died on the spot, no challan was submitted by the police to the Court. 2. The plaintiffs, without serving any notice on the defendant, straightaway filed the above suits against the defendant. The defendant filed its written statements in all the suits. The ownership of the bus has not bees denied by the defendant. It is also not denied that the said bus was being driven by its employee Mumtaz Hussain at the time it met the accident. It was, however, alleged that the accident took place due to the negligence of the driver of the contract bus, Lutf Ali
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3. Issues were framed separately in all the suits. However, at the time of arguments, they were discussed with counsel and consolidated as under :- (1) Whether the suits are time-barred and bad for non-joinder or misjoinder of the parties? (2) Whether the plaintiffs are entitled to file the suits as guardian ad litem? (3) Whether the plaintiffs have any cause of action against defendant? (4) Whether the death of deceased was caused due to rash and negligent driving of the Driver of defendant's Bus No, 839-906 or due to the rash and negligent driving of Contract Bus of Steel Mills? (5) Whether the plaintiffs have suffered any pecuniary loss due to the death of the deceased. (6) Whether the plaintiffs are entitled to claim any compensation; if so, to what extent? (7) Whether the plaintiffs are entitled to interest? (8) What should the decree? (9) Cost of the suit. 4. The,plaintiffs examined themselves. Besides, the evidence recorded in Suit No, 547 was, by consent, ordered to be read as evidence in Suits Nos. 492, 539 and 541 to 545. The defendant examined four 'witnesses on its behalf. 5. My findings on the above issues are as follows :- 6. Issue No, I.-All the 7 suits have been filed on 28-4-1984, Article 21 of the Limitation Act. 1908 prescribes the period of limitation as one year for a suit under the Fatal Accidents Act, 1855. The period into run from the date of the death of the person killed. The death in all the suits occurred on 27-4-1983. The date of death will be excluded for computing the period of one year as provided under section 12 of the Limitation Act. The suit was, therefore, to be filed on or before 27-4.1984 The learned counsel for the plaintiffs submitted that there being Friday on 27-4-1984 and the Court was closed on that day the suits were filed on the following day i,e, on 28-4-1984: He produced a diary for the year 1984, which supports his submission. Therefore, 27-4 1984 is to be excluded as provided under section 4 of the Limitation Act. These suits are thus held to be within time. The finding on the first part of the issue is therefore in the negative. 7. As regards the second part of the issue that the suit is bad for misjoinder and non-joinder of the parties, Mr. Raza Hussain Haideri, learned counsel for the defendant submitted that the suit is bad as the owner of 'the contract bus' was not joined as co-defendant. Since the plaintiffs have made a definite allegation that the accident took place on account of the rash and negligent driving of the driver of the defendant's bus, the owner of the contract bus does not appear to be a proper or necessary party to the suits. The defendant also did not file any application for impleading the owner of the contract bus as co-defendant. The finding on the second part of issue No, 1 is also in the negative. 8. Issue No, 2.-The suits . On behalf of the minors have been filed through next friend as provided under Order XXXII, rule 1, C. P. C. The contention of the learned counsel for the defendant that the suits should have been filed through guardian ad litem seems to be misplaced. The suit by minors is to be tiled by next friend as provided under Order XXXII, rule 1, whereas a suit against a minor defendant is to be filed through a guardian ad Nem as provided under Order XXXII, rule 3, C. P. C. Since the suits are by minors and have been filed through their mother or father or grand-father as next friends, they are held as proper. Finding accordingly. 9. Issue No, 3.-It has been admitted by the defendant that the bus in question was owned by the defendant and the driver of the said bus was its employee at the time of accident, the cause of action has accrued against the defendant to the plaintiffs, who are the persons, namely, wife, husband, parents and children for whose benefit the suits have been filed as provided under section 1 of the Fatal Accidents Act, 1855. Finding is in the affirmative. 10. Issue No, 4.-Mr. Mir Raza Hussain Haidri, learned counsel for the defendant contended that the onus of proof of this issue entirely rests with the plaintiffs. In support of his contention he placed his
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reliance on the cases of Seethamma and others v. Benedict D'sa and others (I) Marimba and others v. M. M. Ispahani Ltd. And antoher (2) and Ghi'lam Muhammad v. The Crown (3). 11. In the first-named case (AIR 1967 Mys. 11) for compensation. Under Motor Vehicles Act, 1939, it was observed that in a proceeding like (1) AIR 1967 Mys. 11 (2) PLD 1965 (W. P.) Kar. 59 (3) PLD 1953 Lah. 260 the one before the Division Bench in which compensation was claimed on the ground of negligence on the part of the driver who drove the motor vehicle, the burden of proof was entirely upon the claimants. In the second-named case (PLD 1965 (W. P.) Kar. 59) it was observed-"It is the plaintiffs who have alleged negligence and it is they who have asked for damages on account of the negligence. The burden therefore is on them to show as to whether there was any negligence on the part of the defendants on account of which the plaintiffs would be entitled to any damages." In the third-named case (PLD 1953 Lah. 260), it was observed "whether or not the petitioner was rash and negligent is a question of fact about which the Court has to form an opinion, on considering the entire material on the record." 12. There can, thus, be no cavil for the proposition that the onu of proof lies on a person who asserts a claim in his favour and want the Court to believe it. This proposition is very well-founded in th first part of the Hadith of our Holy Prophet Muhammad (Sallallahu Ealaihi Wasallem) some 1400 years ago, which reads as{{ARBI TEXT}} the proof is on the person who is a claimant and oath is on the person who repudiates it. Elaborating the first part of the above quoted narration, which is relevant for the purpose of deciding this issu and giving the word {{ARBI TEXT}}" its widest connotation that it means and includes oral testimony of a witness, circumstantial evidence and documentary evidence it is held that the onus of proof of issue No, entirely lies on the plaintiff. It is for the plaintiffs to prove the act o rash and negligent driving and so the question is whether it has been proved in this case. 13. According to para. 3 of the plaint, on 27-3-1983 the deceased Mumtaz Hussain, driver of the defendant, driving bus No 839-906 in a rash and negligent manner on National Highway mien reached the Malir Bridge, in an attempt to overtake another bus, dashed the contract bus of the Steel Mills from the wrong side and consequently the bus of the defendant fell down from the bridge on the ground and the deceased Hoor Jehan in Suit No 492/84 and other 8 persons including late Mumtaz Hussain driver of the defendant bus died on the spot. Two persons from the contract bus including the driver also died on the spot. F. I. R. No 135/1983 was lodged with Police Station, Quaidabad on the following day and the police registered the case under section 304-A, Cr. P. C. Against the deceased Mumtaz Hussain, the driver of the defendant bus. 14. The defendant submitted in para. 3 of its written statement that the deceased driver of the contract bus Ulfat Ali Shah was contributory to the alleged accident, which was caused due to his fault, negligence and carelessness, by coming from the opposite side of the defendant bus, which was being driven at the high speed. It was alleged that the defendant's bus was at a very slow speed moving towards Steel Mills at the Malir Bridge. The driver of the contract bus driving in high speed whirled against the right side portion of the defendant's bus with such a pressure that the lyre of the right side got burst and the bus turned in the right of the Bridge and fell down, which resulted in the accident. 15. The plaintiffs have examined Hashmat Ali Exh. 5 in Suit No 547/ 84, a co-passenger in the defendant's bus and an eye-witness whose evidence by the consent of the counsel for the parties was treated as evidence in all the other suits. The relevant portion of his deposition reads as under :- "I and my family members boarded the bus of K. T. C. Of Route No, 16-E at Colony Gate. Apart from me, the others, who boarded the bus alongwith me, were my deceased son Shaukat Ali, his wife
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Hoor Jehan, my wife Mst. Sara Bi (plaintiff No, 2), my grandson, Qaiser All (plaintiff No, 3) and ahother daughter-in-law of mine by the name of Farzana. In all six of us had boarded the bus in question. The bus started at a great speed and the bus was going very fast and the driver of the bus was driving the bus very rashly. The passengers as well as the conductor of the bus had been requesting the driver off and on to go slowly but the driver did not pay any heed to this request and he went on driving the bus at a very fast speed. He stopped at two stops namely Wireless Gate and Stop No, 15. While he was on the Malir Bridge, he overtook several vehicles at a great speed and then collided with another bus coming from the opposite side, which was said to be the bus of Steel Mill. The bus of Steel Mill was coming on its correct side, whereas our bus was en the wrong side. Our bus overturned on account of this accident. My son Shaukat Ali died on the spot. My daughter-in-law, Hoor Jehan also died on the spot in the said accident. All the others received injuries in the said accident. I produce certified copy of the F. I. R. Lodged against the driver of the bus as Exh. 5/1." 16. The defendant examined Abdul Jamil Khan Exh. 6 and Noor Muhammad Exh. 7, who are Conductor and Security Guard respectively of the defendant. The relevant portion of the deposition of Exh. 6, reads as under :- "When our bus reached the middle of the bridge, a private bus, coming from the opposite side, while overtaking another vehicle, struck our bus on the wrong side. As a result of this accident, the driver of our bus died on the spot. At the time of the accident, our bus was travelling on its correct side i,e, the left hand side. The private bus hit the door of our bus where the driver sits. On account of this accident, our bus fell from the bridge into the dry bed of Malir River." 17. Noor Muhammad Exh. 7 deposed in his evidence that :- "Our bus was going, on the Malir Bridge on its correct side i,e, the left-hand side. On the opposite side two buses were coming sideby-side. Both were private buses. One bus was overtaking the other bus. It came on the wrong side and hit the door of our bus where the driver sits. He further stated that : "On account of the accident the tyre of our bus burst and that is why it swerved on the right and fell on the right hand side of the Bridge." 18. Defendant also produced its Works Manager, Misbahur Rehman Exh. 8, who deposed that : "After examination of our bus which was lying in the Malir River I came to the conclusion that the bus had fallen up-side down in the Malir River bed from the bridge and was lying up side down. My examination of our bus also showed that the impact of the accident was on account of tyre bursting." ' He further deposed that "My assessm ent was that the accident had not been caused on account of any negligence of the driver of our bus and that our bus had fallen into the river bed from the bridge on account of the tyre bursting." 19. As regards the plea taken by the defendant that a tyre on right side of its bus burst due to the dashing of the contract bus against the defendant bus, the evidence of Conductor is completely silent on this aspect of the matter and so of the Security Guard in his examination-in-chief. About the tyre got burst, as alleged, no question seems to have been asked from the plaintiffs' witness in the cross-examination. Moreover, had the tyre burst, as alleged, the Motor Vehicle Inspector, in his usual inspection report of the bus after accident must have mentioned the said fact in his report. It was for the defendant to prove the alleged fact of the bursting of the tyre through the report of the Motor Vehicle Inspector. Neither the said report has been produced nor any one from the Police Department has been examined, particularly the S. I. Who investigated the case after the accident as per F. I. R. Exh. 5/1.
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20. Even if it is assumed, for the sake of argument, that the right side tyre of the defendant's bus had burst, it is of little significance as the fact remains that it burst if at all, subsequent to the dashing of the defendant's bus by its driver against the contract bus which, it seems, was the result of the act of rash and negligent driving of the defendant driver. Had the tyre of the defendant's bus burst before its dashing against the contract bus due to some mechanical reason, it could, perhaps, be described as a pure accident which is not the case here. 21. It appears from the evidence of the plaintiff Exh. 5, whose evidence seems to he natural, that the deceased driver of the defendant bus tried to overtake the other bus. The deposition of the defence witness, Norm. Muhammad that "on the opposite side two buses coming side-by-side one bus was overtaking the other bus it came on the wrong side and hit the door of our bus where the driver sits, is not believable as it was the defendant's bus, which was on the wrong side at the time of accident as it fell down from the bridge on wrong side. It is. Therefore, clear that it was the driver of the defendant's bus who overtook the other bus going ahead of it and dashed against the contract bus. It appears that he was at that moment rash and negligent in his driving: with the result that he could not stop his bus, which ultimately fell down from the bridge to the dry bed of the river killing the driver of the contract bus and one passenger, sitting on his right side in the contract bus, besides killing nine other persons sitting in the defendant's bus, including the deceased seven persons whose legal representatives have filed the above suits for compensation under the Fatal Accidents Act, 1855. The statement of defendant's witness Misbahur Rahman Exh. 8 as to his assessm ent that the accident had not been caused on account of any negligence of the driver of the defendant's bus, cannot be considered as relevant unless it is covered by sections 45 to 51 of the Evidence Act, 1872 (corresponding to the provisions of sections 59 to 65 of the Qanun-e- Shahadat, 1984). The question before me is not of foreign law, or of science, or art, or as to the identity of handwriting, or finger impressions and, therefore assessment of D. W. (Exh. 8) that the defendant's driver deceased Mumtaz was not rash and negligent does not fall within the provisions of the sections referred to above. Had the contract bus hit the defendant's bus, being driven on the wrong side rashly and negligently, the contract bus would have fallen on the ground from the Malir Bridge on the other side, and not the defendant's bus. There is no doubt in my mind that the circumstances in which the defendant's bus bad fallen on its wrong side from the Malir Bridge, the driver of the defendant's bus had dashed against the contract bus from the wrong side driving the same rashly and negligently, 22. Furthermore, I would say that F. 1. R. No. 135/83 was lodged with the Police Station by a stranger. The said F. 1. R. Exh. 5/1, and the investigation made thereon, was not challenged by the defendant. F Had the accident been caused due to the negligence of the contract both the defendant ought to have lodged the F. I. R. Which it failed. It has also failed to take any step against the owner of the contract but or claiming compensation for the damage caused to their bus. None of the defendant's witness has stated anything about lodging of the F. I. R. By defendant or any step taken by it against the contract bus. The defendant has also given no explanation by way of justification as to why it has not taken any step against the person or persons, who are alleged t. Have caused loss to their bus as per their own version. 23. As to the issue whether the death of the deceased was caused due to the rash and negligent driving of the driver of defendant's bus or due to the rash and negligent driving of the contract bus, my finding is that the death of a deceased was caused due to the rash and negligent driving of the driver of the defendant. 24. Issue No. 5.-The plaintiffs and the persons for whose benefit the suits have been filed have been shown to be the dependents of the deceased. The plaintiffs who are the deceased's wife, minor children and the
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aged parents will suffer pecuniary loss due to the death of the deceased. They have been shown to be dependents and making their livelihood on the earning of the deceased. Pecuniary loss caused to them due to the deaths of the deceased is apparent which has also been proved by the plaintiffs as stated before the Court in their evidence. Finding is, therefore, in the affirmative. 25. Issue No. 6.-Mr. Mir Raza Hussain Haidri, learned counsel for the defendant, inter alia, contended that a sum cf Rs. 16,000 has been paid to the plaintiffs in Suits Nos. 492, 539, 542. 544 and 547 of 1984 in full and final settlement of the claim of the said plaintiffs in the said suits. He referred to a number of affidavits produced by the defendant while deposing in the suits. These affidavits are Exhs. 9/4, 9/5, 9/6 and 9/12, which pertain to the claims in Suit Nos. 492. 542, 544 and 547 of 1984. No affidavit has been filed in respect of Suit No. 539. However, the receipt of compensation at the rate of Rs. 16,000 each in the suits mentioned above including Suit No. 539/84 is admitted by Mr. Muhammad Maqsood, counsel for plaintiff. The question arises as to the effect of the receipt of' the above payments by the plaintiffs concerned. Mr. Muhammad Maqsood, counsel for the defendant relies on section 67 of the Motor Vehicles Ordinance, 1965, substituted with effect from 28-2-1978 by Ordinance VIII of 1978, and is thus applicable to the present case, as the accident took place on 27-4-1983, much after the promulgation of the said Ordinance, 1978. The section reads as under :- "Section 61. Compensation for the death of or injury to, a passenger.-(1) In the case of death of, or injury to a passenger in a stage carriage or a contract carriage, other than a contract carriage constructed, adapted or used to carry not more than six passengers including the driver, arising out of the use of such carriage, there shall be paid, if a permit has been granted in respect of that carriage, by the holder of the permit, and, if no permit has been so granted, by the owner of the carriage, as compensation the amount specified in the thirteenth schedule,- (a) in the case of death of a passenger, to the legal representatives of the deceased passenger, and (b) in the case of an injury to a passenger, to the injured passenger. (2) The compensation payable under subsection (1) shall be in addition to any sum which the person entitled to receive compensation may receive or be eligible to receive under a policy of insurance under the provisions of section 95 of the Motor Vehicles Act, 1939 (IV of 1939). (3) Any contract for the conveyance of a passenger in a stage carriage or contract carriage, other than a contract carriage constructed, adapted or used to carry not more than six passengers including the driver, in respect of which a permit has been issued under this chapter, shall, so far as it purports to restrict the liability of any person, or to absolve any person from his liability in respect of any claim made against that person in respect of the death of, or injury to, the passengers who is being carried in, entering or alighting from the vehicle, or purports to impose any conditions with respect to the enforcement of any such liability, be void." As it would appear from subsection (2) of section 67, of the Provincial Ordinance, the compensation payable under subsection (1) is in addition to , any sum which a person entitled to receive compensation may receive or be eligible to receive under a policy of insurance under the provisions of section 95 of the Motor Vehicles Act, 1939. 26. In the matter of Islamization of the Motor Vehicles Act, 1939 and the Motor Vehicles Ordinance, 1965 the Federal Shariat Court as reported in PLD 1983 F SC 29 at page 31 observed that :- "This provision does not affect a person's right to take proceedings under the Fatal Accidents Act or in tort against the person responsible for any accident which causes the death or injury to a passenger. It is merely a compensation payable to a passenger in order to alleviate immediately the suffering of the family of the deceased or of an injured person by helping them financially. Looked in this light it is a salutary provision introduced in the public interest and for the good of the
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travelling public. Secondly it also puts the owner and driver of the vehicle to more caution so that as far as possible the transport business may be accident free. The Government has the right not only to regulate such business as the transport business in public interest but also to make laws for the greater benefit of the customers or other members of the public affected by such business." 27. Mr. Muhammad Maqsood has also placed his reliance on the case of Muhammad Younus Khan and 3 others v. Karachi Road Transport Corporation and another (1), wherein it has been held that section 67 of 1965 Ordinance does not prevent an aggrieved party from persuing remedy available to it under other laws. The said Ordinance does not override specifically the provisions of Fatal Accidents Act. 28. Another connected question before me is whether paragraph No. 6 of the affidavits wherein it has been solemnly affirmed that "the plaintiff will not pursue the case with the police or any Court of law" prevents the said plaintiff from filing the case under Fatal Accidents Act or not? The answer is readily available in paragraph No. 3 of the affidavits themselves which clearly mention that "the K. T. C. (defendant) agree, through mural negotiation to pay the said sum of Rs, 16,000 under Motor Vehicles Ordinance as amended from time to time towards compensation." The above term contained in para. 6 will, therefore, be read in the context that the plaintiffs' receiving the compensation under the Motor Vehicles Ordinance, 1965 will not persue their cases before the police or any Court of law persuant to the provisions of section 67 of the said Ordinance, under which the compensation has been paid to them, and not under the Fatal Accidents Act, 1855. Furthermore,…
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