Full Judgment Text & Judicial Ruling

P L D 2025 Lahore 661 Before Faisal Zaman Khan and Khalid Ishaq, JJ Mst. MISBAH FAROOQ and 5 others---Appellants Versus Messrs DAEWOO PAKISTAN EXPRESS BUS SERVICE LIMITED and 2 others---Respondents Regular First Appeal No. 1123 of 2014, decided on 4th March, 2025. (a) Civil Procedure Code (V of 1908)--- ----S. 9, O. VII, R. 14 & O. XVI, Rr. 1, 2---Suit for recovery of damages---Fatal road accident---Negligence on the part of vehicle company alleged---Onus to prove---Expert evidence, relevance of---Doctrine of res ipsa loquitur the thing speaks for itself , applicability of---Claim of vehicle being mechanically unfit resulting in the accident had to be proved through specific evidence---The appellants/plaintiffs filed a civil suit for damages against a transport company, following a serious road accident---Appellants/plaintiffs Nos. 1 and 2 (mother and daughter) were passengers on the bus, while the remaining appellants/ plaintiffs were immediate family members affected indirectly by the consequences of the accident---As a result of the accident, appellant/ plaintiff No. 1 was rendered permanently disabled, causing physical, emotional, and financial distress to the family---The primary claim was that the bus was mechanically unfit and unstable from the start of the journey, whereas, defendant company contended that the accident occurred due to a fault of another vehicle which suddenly changed lanes, forcing the bus driver to swerve, resulting in a rollover---The Trial Court partly decreed the suit, awarding Rs. 140,000 to plaintiff No. 1 and Rs. 40,000 to plaintiff No. 2---Dissatisfied from the Trial Court s decision, the appellants/plaintiffs filed the present appeal---Held: Considering that the doctrine of res ipsa loquitur the thing speaks for itself only supplied an inference and not a conclusive presumption and since the defendants through their evidence were able to cast doubts by denying the claim of the appellants, the appellants/ plaintiffs were required to produce some expert evidence to bridge the gap but none was produced---The evidence brought by the defendants remained unchallenged---Since the appellants/plaintiffs had opted to take a specific position that occurrence was due to bus s mechanical and fitness failure, therefore, they had to prove it by producing some evidence but they failed to do so---It was clear that in the present case doctrine of res ipsa loquitur was not attracted and normal rule of evidence prevailed, therefore, the onus of proving negligence on part of the defendant was on the appellants/plaintiffs, particularly when the defendant had unrooted the prima facie presumption by producing bus driver, bus hostess and workshop in-charge, since it was appellant/ plaintiffs position that the accident occurred due to fault in the bus---Neither the appellants/plaintiffs sought to rely on the record of maintenance and fitness of the vehicle in issue nor they sought to produce any such record or evidence through process of the court in terms of O. VII, R. 14, read with O. XVI, Rr. 1 & 2 of the C.P.C.---Had the appellants/plaintiffs applied for expert [advice or evidence] for the inspection of the bus or sought appointment of any expert and the response the respondent/defendant company had opposed such prayer, there would have been some inference in favour of the appellants/ plaintiffs---Although it was proved that appellant/plaintiff No.1 had sustained injuries, she was bedridden for life and her family members might be facing trauma and emotional stress for life, however, it was not proved that those had occurred due to direct negligence by the respondent/defendant company---There was nothing on record which could have established that the bus carrying the appellants/plaintiffs had any mechanical fault, which fault was then instrumental for causing the accident---Appeal being without merit was dismissed, in circumstances. N K V Bros (Pvt.) Ltd. v. M Karumai Ammal AIR 1980 SC 1354 ref. (b) Damages--- ----Doctrine of Res ipsa loquitur the thing speaks for itself ---Essential ingredients---Applicability and significance--- Res ipsa loquitur is Latin for the thing speaks for itself ---This doctrine applies, when the things that inflicted the damage was under the sole management and control of the defendant; secondly, the occurrence was such that it would not have happened without negligence; and thirdly, there must be no evidence as to why or how the occurrence took place---In such circumstances the defendants have to persuade the court that the accident did not occur on account of their negligence---In simple words, res ipsa loquitur means an inference of negligence in civil proceedings; it permits an inference of a defendant s negligence from the happening of an event and thereby creates a prima facie case of negligence sufficient for submission to a Court---To warrant submission of the inference for the court s consideration, the plaintiff must establish: (i) the event must be of a kind which ordinarily does not occur in the absence of someone s negligence; (ii) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (iii) it must not have been due to any voluntary action or contribution on the part of the plaintiff---However, it is equally important to register that a defendant may rebut the inference of negligence with evidence that tends to cast doubt on the plaintiff s proof; and more importantly, the doctrine permits an inference of negligence to be drawn solely from the happening of the accident---The rule simply recognizes that some accidents by their very nature would ordinarily not happen without negligence---Res ipsa loquitur does not create a conclusive presumption in favor of the plaintiff but merely permits the inference of negligence to be drawn from the circumstances of the occurrence---Mere happening of an accident or injury will not give rise to an inference or presumption that it was due to negligence on the defendant s part, even in a strict liability context---It is insufficient by itself to establish a prima facie case of negligence , or to prove negligence as a matter of law---Stated another way, proof of an accident does not equate with proof of negligence---In an action based on negligence, the maxim res ipsa loquitur is merely a rule of evidence effecting onus; it does not alter the general rule that the onus to prove negligence rests upon the claimant---The doctrine has been applied to situations where a motor vehicle mounted the footpath , where a vehicle struck a pedestrian who was walking alongside the highway , where it was shown that the brake pipe of the vehicle was beyond repair, and where a vehicle of unsound condition was being driven on a poor road on a dark night. Mst. Kamina and another v. Al-Amin Goods Transport Agency through L.R.s and 2 others 1992 SCMR 1715 and Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848 rel. Dermatossian v. New York City Tr. Auth. 67 NY2d 219 [1986]; (E.g. James v Wormuth, 21 NY3d 540 [2013]; Morejon v Rais Constr. Co., 7 NY3d 203 [2006]; States v. Lourdes Hosp., 100 NY2d 208 [2003]; Abbott v. Page Airways (23 NY2d 502, 511 [1969]; Kambat (89 NY2d at 497) and States 100 NY2d at 212; Kambat v. St. Francis Hosp., 89 NY2d 489; Morejon v. Rais Const. Co., 7 NY3d at 209; States v. Lourdes Hosp. 100 NY2d at 214; Esso Petroleum Co. Ltd. v. Southport Corpn. [1956] AC 218; [1955] 3 All ER 864; Collvilles Ltd. v. Devine [1969] 2 All ER 53; Monforti v. K-Mart Inc. 690 Sol. 2d 631; Fla. Dist. Ct. App.5th Dist. 1997; Thompson v. Volles, (37 Del. 83); Transit Homes, Inc. v. Bellamy, 282 Ark. 453; Callvert v. Katy Taxi, Inc. [413 F.2d 841 (2d Cir. 1969); Brown v. Rolls Royce Ltd. [1960] 1 All ER 577; Ellor v. Selfridge & Co. Ltd. (1930) 46 TLR 236; Isaac Walton & Co. Ltd. v. Vanguard Motor Bus Co. Ltd. (1908) 25 TLR 13; 22 Bhagyawati Mittal v. Uttar Pradesh State Road Transport Corpn Lucknow AIR 1978 All. 356 and Gopibai Ghansbamdas Advani v. Food Corpn of India, Bombay AIR 1983 Bom. 137 ref. (c) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 72, 117 & 120---Tendering of document in the statement of counsel---Admissibility of such documentary evidence---Disputed documents tendered in evidence through counsel s statement cannot be considered because such procedure deprives the opposing party to test the authenticity of those documents by exercising its right of cross-examination. Rustam and others v. Jehangir (deceased) through L.R.s 2023 SCMR 730; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Manzoor Hussain v. Misri Khan PLD 2020 SC 749 and Hameeda Begum v. Irshad Begum 2007 SCMR 996 rel. (d) Damages--- ----'General damages' and 'special damages'---Definitions---Distinction---Standards of proof---The general damages are implied or presumed to have accrued from the wrong complained of, for the reason that they are its immediate, direct or proximate result or such that thus necessarily result from the injury, or such that they did in fact result from the wrong, directly or proximately---The term special damages is defined as those which are actual, but not the necessary result of the injury complained of, and which in fact follow it as a natural and proximate consequence in a particular case i.e. by reason of special circumstances or conditions---Such special damages must be specifically pleaded and proved---In a suit for damages, the wrong done to the plaintiff must be proved to be immediate, direct or proximate result of the act, or acts of negligence. (e) Civil Procedure Code (V of 1908)--- ----S.9---Suit for recovery of damages, filing of---Jurisdiction of Civil Court, invoking of---Ouster of Civil Court's jurisdiction in certain cases discussed--- Question as to what law governs the suit for recovery of damages---Held: Suit for recovery of damages is governed by S. 9 of C.P.C. as it would operate and vest jurisdiction in the Civil Court to adjudicate the suits for recovery of damages and the Civil Court is not robbed of its jurisdiction to try such kinds of suits as the said provision is all encompassing---This is based on well settled position of law that ouster of jurisdiction of Civil Court conferred upon it under S. 9 of C.P.C. cannot be readily inferred and an ouster by special law has to be specific, clear and unambiguous---Exclusion of jurisdiction of Civil Court must be expressed, and ouster clause, ousting general law s jurisdiction, must be construed very strictly. Messrs Sui Northern Gas Pipelines Limited (SNGPL) v. Messrs Noor CNG Filling Station 2022 SCMR 1501; Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191; Khulna and 4 others v. Abdul Jabbar and 9 others PLD 1968 SC 381 and Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Rafiz Muhammad Ghaus and 5 others PLD 1997 SC 03 rel. (f) Tort--- ----Definition--- Tort is an act or omission that gives rise to an injury either to person or property---A tortious breach is where one party (the tort-feasor) breaches the legally protected rights of another party (the claimant)---Torts tend to fall within four categories---They are: 1) torts of physical integrity; 2) torts of interests in property; 3) torts of use and enjoyment of land and; 4) torts of reputation. Pakistan Television Corporation v. Noor Sanat Shah 2023 SCMR 616 rel. (g) Jurisprudence--- ----Justice and morality---Standards and yardstick to be adopted by courts while deciding cases---Scope---Judicial decisions must rest on legal principles, not on compassion or emotions---Justice or morality do not signify any concept of precision as morality may fluctuate from one community to another and from one country to the other---Courts are not required to enforce moral standards but as courts of law are merely concerned with the enforcement of law enacted by the legislature---Courts of law are not mandated to rule on the basis of mere agony, unfortunate pain and helplessness---It is the duty of every court to implement the enforced laws and to decide the disputes in accordance therewith, rather than on the basis of compassion---Any relief granted on the touchstone of subjective standards of leniency and compassions, rather than the law, cannot be sustained. Sundas and others v. Khyber Medical University through V. C. Peshawar and others 2024 SCMR 46 and Superintendent of Police, Headquarters, Lahore and others v. Ijaz Aslam and others 2024 SCMR 1831 rel. POSCO International Corporation through Authorized Officer v. RIKANS International through Managing Partner/Director and 4 others PLD 2023 Lah. 116 ref. Mubashir Rehman Chaudhary for Appellants. Faisal Zaffar for Respondents. Date of hearing: 4th March, 2025. JUDGMENT KHALID ISHAQ, J.---This appeal stems from a recovery suit for damages titled 'Mst. Misbah Farooq and 5 others v. Messrs Daewoo Pakistan Express Bus Service Ltd. and 2 others' bearing Suit No. 485/1 (the "Suit") filed on 09.12.2004 by the present appellants (the "Appellants/Plaintiffs") before the Civil Court at Lahore (the "Trial Court"). The Appellants/Plaintiffs sought a Decree for Damages for Rupees 100 million against the Respondents relating to an unfortunate road accident, which occurred on Motorway near Bhera interchange on 03.05.2004 (the "Accident") involving a bus of Daewoo Pakistan Express Bus Service Ltd. (the "Defendant Company"). Plaintiff/ Appellants Nos. 1 and 2 are mother and daughter respectively and were amongst the passengers of the bus who commenced their journey from Rawalpindi to Lahore on the fateful afternoon of 03.05.2004, whereas the Appellant/Plaintiffs Nos. 3, 4, 5 and 6 are respectively husband, son and daughters of Plaintiff/Appellant No. 1. The Respondents before us were impleaded as Defendants, who contested the Suit by filing written statement; issues were framed, parties were put to trial, evidence was recorded and at the culmination of the proceedings, the Suit was partly decreed to the tune of Rs. 140,000/- and Rs. 40,000/- in favour of Plaintiffs Nos. 1 and 2 respectively, in terms of Section 67, read with Thirteenth Schedule of West Pakistan Motor Vehicles Ordinance, 1965 vide Judgment and Decree dated 20.05.2014 (the "Impugned Judgment"). Hence this appeal. 2. The claim of the Appellants/Plaintiffs was structured on two primary averments; One, the vehicle did not appear to be roadworthy, its body was shaking from the start of the journey and was not under the control of the driver, the defect was brought to the notice of the bus hostess, who refuted the same as a mere fancy. It is asserted in the plaint, that near Bhera interchange, while the bus appeared to be cruising within the limits touted by the Motorway Authorities, it was abruptly involved in an extremely serious accident, without any apparent reason. Two, the Defendants turned blind eyes and deaf ears to the fate of the unfortunate passengers, did not extend any assistance, dead and injured were left at their own. The claim for damages was twofold; that the Plaintiff No. 1 has been paralyzed for life due to her injuries sustained owing to accident, her entire family has suffered, the family haven't been able to pursue their normal lives; careers and professions afterwards and till today they have been moving from one hospital to another for treatment of Appellant/Plaintiff No. 1 without any respite; they have suffered immensely, therefore, they are entitled to Medical expenses, compensation/damages for injuries caused to Appellant/ Plaintiffs Nos. 1 and 2, resulting in physical incapacity of Appellant/ Plaintiff No. 1 for life; compensation/damages to Appellant/Plaintiff Nos. 2 to 6 for having been deprived of love, service, assistance in life from Plaintiff No. 1; and compensation damages claimed by Appellant/ Plaintiff No. 3 for the damage caused to his legal practice and political career. On the other hand, the Respondents/Defendants contested the suit on the ground that no right guaranteed or secured under any law has been violated, the Suit falls under the Law of Tort and Fatal Accident Act and the Trial Court lacks jurisdiction to try the Suit, therefore, the same is liable to be dismissed. 3. To prove their case, the Appellants/Plaintiffs produced Plaintiff No.1/Misbah Farooq as PW-1, Plaintiff No. 2 Shawana Farooq as PW-2, Shabana Malik as PW-3, Plaintiff No. 3 Khawaja Farooq Ahmed as PW-4 Khawaja Muhammad Iqbal (inadvertently written as PW-4), Dr. Hafiz Noorul-Ameen (PW-5) and Nawazish Ali (PW-7). In documentary evidence, the Appellants/Plaintiffs got exhibited Ex. P-1 to Ex. P-64 and Marks A/1 to K/10, which documents largely pertain to treatment and expenses of treatment of Plaintiff No. 1. In defence, the Respondents/ Defendants produced Muhammad Afzal Butt, Terminal Manager (DW-1), Farooq Haider, Office Coordinator (DW-2), Mst. Rubi Ayub, Bus Hostess (DW-3), Munawar Hussain Butt, Driver (DW-4) and Arshad Mubeen Butt, Workshop incharge (DW-5). The Respondent/Defendant also produced documentary evidence in the form of Mark-D-1 - copy of fitness certificate, Mark-D-2 - copy of registration book, Ex. D-1 - copy of authority letter and Ex. D-1 - inspection sheet of the vehicle produced by DW-5. 4. The evidence produced by the Appellants/Plaintiff largely revolved around the fact that the Plaintiff No. 1 suffered lifelong injuries, which has not only rendered her disabled and bedridden for her entire life but such injuries, the expenses for treatment thereof and hardships faced and efforts made to recover her health and life to normality has changed the complexion of lives of the entire family. On the other hand, the Respondent/Defendant averred that the bus was completely fit and was properly maintained but the unfortunate accident took place due to the fault of another public sector vehicle, which suddenly changed its lane and while saving the said vehicle, the bus rolled over and met with an Accident. 5. Learned counsel for the Appellants/Plaintiffs reiterated the stance and evidence of the Plaintiffs and painfully argued the chain of unfortunate events which have led to: never ending misery of the Appellant/Plaintiff No. 1 as she has become disabled and dependent for life; the physical, emotional and financial agony, trauma and hardships being faced by the entire family, which continues de die in diem. Learned counsel has vociferously argued that the bus had met the fatal accident where 14 passengers had died, many including the Plaintiffs Nos. 1 and 2 sustained injuries and the vehicle was torn apart in pieces; submits that despite ongoing treatment of 21 years and incurring millions of rupees (inland and abroad), the suffering of the Plaintiffs has not ended; adds that all this has happened due to sheer negligence of the Defendant Company as it had failed to discharge its duty of due care and reasonable maintenance of the vehicle in issue, therefore, the Defendant Company is liable to pay the damages. At the end, learned counsel argued that the instant is a fit case of applicability and invocation of the doctrine of 'res ipsa loquitur' and placed reliance on cases reported as Mst. Kamina and another v. Al -Amin Goods Transport Agency through L.R.s and 2 others" (1992 SCMR 1715) and Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another" (1993 SCMR 848). 6. On the contrary, learned counsel for the Respondent/Defendant eagerly supported the Impugned Judgment on the touchstone that it is a case of no evidence; the Trial Court neither had the jurisdiction nor was the Court competent to grant the damages sought by the Plaintiffs; argued that principle of res ipsa loquitur is not attracted in the facts and circumstances of this case; placed reliance on cases reported as Ravi Kapur v. The State of Rajasthan (2013 SCMR 480); Mrs. Alia Tareen, Managing Director, Pakistan General Hospital, Quetta v. Amanullah Khan, Advocate and others ( PLD 2005 SC 99) and "Morton v. William Dixon Ltd. " (1909 SC 807, 809). 7. Arguments heard. Record perused. 8. We have gone through the record and looked into the respective evidence led by the parties; parties are not at dispute as to whether the Plaintiffs Nos. 1 and 2 were boarded the ill-fated vehicle, neither it is disputed that accident took place, however, the fact of medical and physical state of Appellant/Plaintiff No. 1, her treatment and expenses incurred are such facts which are not admitted by the Defendant Company. The entire edifice of the case of the Appellants/Plaintiffs is the alleged negligence of the Defendant Company; the main thrust of challenge laid by the Appellants/Plaintiffs revolves around the allegations that accident occurred owing to inherent faulty condition and mechanical defects of the bus; that in view of the failure of Defendant Company to maintain the vehicle in due course, the accident was meant to happen and thus the Defendant Company being guilty of negligence is liable to pay the damages as claimed by the Appellants/Plaintiffs. Therefore, we are not delving into and discussing here the plethora of evidence produced by the Appellants/Plaintiffs relating to the medical and physical condition of Appellant/Plaintiff No. 1; the efforts of treatment for reviving normality in her life and consequently the life of entire family. The core issue between the parties is applicability of principle of res ipsa loquitur and consequent award or decline of damages. For the purpose of question of applicability of the said principle, while juxtaposing facts of the case in hand, we consider it appropriate to elaborate as to what is meant by the doctrine, how it applies and what are its contours. 9. 'Res ipsa loquitur' is Latin for: 'the thing speaks for itself'.1 [This] convenient and succinct formula possess no magic qualities: nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin.2 10. As a first, this doctrine applies, when the things that inflicted the damage was under the sole management and control of the defendant; secondly, that occurrence is such that it would not have happened without negligence; and thirdly, that there must be no evidence as to why or how the occurrence took place. In such circumstances the defendants have to persuade the Court that accident did not occur on account of their negligence.3 In simple words, res ipsa loquitur means an inference of Negligence in Civil Proceedings, it permits an inference of a defendant's negligence from the happening of an event and thereby creates a prima facie case of negligence sufficient for submission to a Court. To warrant submission of the inference for the Court's consideration, the plaintiff must establish: (i) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (ii) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (iii) it must not have been due to any voluntary action or contribution on the part of the plaintiff.4 However, it is equally important to register that a defendant may rebut the inference of negligence with evidence that tends to cast doubt on the plaintiff's proof; and more importantly, the doctrine permits an inference of negligence [to] be drawn solely from the happening of the accident. The rule simply recognizes what we know from our everyday experiences: that some accidents by their very nature would ordinarily not happen without negligence. Res ipsa loquitur does not create a conclusive presumption in favor of the plaintiff but merely permits the inference of negligence to be drawn from the circumstances of the occurrence. The rule has the effect of creating a prima facie case of negligence sufficient for submission to the Court, and the Court may, but is not required to, draw the permissible inference. A plaintiff may, both, rely on the doctrine of res ipsa loquitur and introduce specific evidence of the defendant's negligence. However, relying on both would not be permissible when "the two alternate modes of proof are fundamentally or inherently inconsistent.5 Expert testimony may be admissible where it is necessary to help the Court to "bridge the gap" between its own common knowledge and the specialized knowledge and experience necessary to reach a conclusion that the event would not normally take place in the absence of negligence6. Courts do not generally apply [the exclusive control] requirement as it is literally stated. For example, res ipsa loquitur has been applied even though the accident occurred after the instrumentality left the defendant's control, where it was shown that the defendant had exclusive control at the time of the alleged act of negligence. The exclusive control requirement is that the evidence must afford a rational basis for concluding that the cause of…

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