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Petitioner: PROVINCE OF SINDH through Secretary, Home Department and another VS Respondent: Mst. Syeda TASNIM FATIMA and 3 others
Court Name: Sindh High Court Judge(s): Hassan Feroze Title:PROVINCE OF SINDH through Secretary, Home Department and another vs
Mst. Syeda TASNIM FATIMA and 3 others Case No.: IInd Appeal No,18 of 2009 Date of Judgment:2014-05-30 Reported As: 2014 MLD 1651 Result: Appeal dismissed Judgment ORDER ' HASAN FEROZ, J.---This second appeal is directed against the judgment and decree dated 30-11- 2004 and 9-12-2004 passed by learned 1st Senior Civil Judge Hyderabad in F.C. Suit No,353 of 2000 after dismissal of first appeal vide judgment and decree dated 31-8-2009 passed by learned Vth Additional District Judge, Hyderabad. 2. The facts leading to this appeal are that the respondents Nos.1 to 3 filed F.C. Suit for recovery of Rs,7,74,45000/- under Fatal Accident Act, 1855. The case of the respondents/plaintiffs was that they are successor in interest of the deceased Qaisar Yazdani Rizvi who died on 29-3-2000 due to accident made by respondent No,4 during course of employment of appellants Nos.1 and 2, on 20- 3-2014 while driving Sindh Police Vehicle No,SP-5509 on his way from SITE Area Hyderabad towards unit No,7 Latifabad near Maajee Hospital in a rash and negligent driving by dashing the motorcycle of the deceased bearing No,HDG-7796, who was crossing the main road for proceeding towards Makrani Para from Maajee Hospital " side. The deceased suffered fatal injuries and succumbed to injuries in Liaqat National Hospital Karachi on 29-3-2000. F.I.R. Was also lodged against respondent No,4. The deceased was healthy and aged 39 years and could have survived upto 70 years. The deceased was working as Executive Engineer (Maintenance Division) WASA, Hyderabad Development Authority and was drawing gross salary of Rs,15,073 per month and another job was also offered to him by Building Material (L.L.C) U.A.E against monthly remuneration of Rs,1,50,000 and the deceased was interested to join such job. The respondents/plaintiffs therefore, claimed damages of Rs,5,74,45000 with following prayers:--
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(a) A decree in the sum of Rs, 5,74,4500 (Rupees Five Crore, seventy four lacs and Forty five thousands only) against the defendants jointly and severally to pay the said sum of damages/ compensation to the plaintiffs or any other amount this court may deem fit in circumstances of the case; (b) Profit at the rate of Rs,15% per annum on the amount claimed in clause (a) above from the date of the filing of the suit till the date of realization of the decreetal amount which the plaintiff would have earned had the defendants paid the said amount. (c) Costs. (d) Any other relief. 3. The appellant No,2 in his written statement, which was adopted by the appellant No,1, assailed the maintainability of the suit and denied the responsibility of alleged rash and negligent driving and fault in maintenance of vehicle in question by allowing a mechanically defective vehicle to ply on the road. The appellant further denied liability to pay compensation to the plaintiffs. He contended that the vehicle was in proper condition when it was on the road and that the deceased himself has committed negligence. He pleaded that driver of the vehicle namely Hussain Bux, respondent No,4 was removed from service as such Police Department cannot be held responsible for vicarious liability of the death of deceased. 4. The respondent No,4 also filed written statement before the learned trial court wherein he admitted death of deceased Syed Qaisar. Yazdani on 29-3-2000 due to traffic accident on 21-3- 2000, however, he denied that he was in rash and negligent driving and dashed the motorcycle of the deceased in excessive speed. According to respondent No,4, the deceased suddenly came out from Maajee Hospital side and he turned the vehicle in order to save the deceased, whose motorcycle dashed the police vehicle from back side. He further denied to be responsible for death of the deceased. He prayed for dismissal of the suit. 5. Learned trial court framed following issues out of the pleadings of the parties:-- (1) Whether on 21-3-2000 at 1930 hours the defendant No,3 during course of employment of defendants Nos.1 and 2 while driving Sindh Police vehicle bearing No,SP-5509 in a rash, negligent and careless manner on Auto Bhan road near Maajee Hospital chowk wrongfully dashed the motorcycle bearing No,HDG-7796 in a result Syed Qaisar Yazdani died on 29-3-2000 at Liaqat National Hospital Karachi? (2) Whether the suit is not maintainable at law? (3) Whether defendant No,3 is entitled for compensatory costs under section 35-A, C.P.C.? (4) Whether plaintiffs are entitled for relief claimed? (5) What should the decree be? 6. The parties led their respective evidence before the learned trial court and closed their sides. 7. Learned trial court after hearing the parties, decreed the suit filed by the respondents to the extent of Rs,69,50,298/- and the appellants/defendants were directed to deposit the decretal amount in favour of the respondents/plaintiffs within two months. The appellants preferred Civil Appeal No,09/2005, which was dismissed vide. Judgment and Decree dated 31-8-2009. The operative part of the Judgment of the appellate court reads as follows:-- 1 have taken into consideration all the aspects of the case in hand, 1 am of opinion that the respondents deserves for the recovery of claim of damages from appellants jointly and severally. The amount shown towards recovery of damages as compensation on account of fatal accident caused by respondent No,4, the quantum of compensation calculated by the learned Senior Civil Judge are correct. Superior courts of Pakistan in several Judgments hold that the principles to be kept in view while awarding damages in a case person dies on account of accident due to the negligence of the driver of the employees vehicle. Keeping in view all the principles I find that respondent No,) proved the factum of accident, but appellants failed to disprove that the
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accident occurred not due to his negligence. In the present case respondent No,1 prove the same and learned Senior Civil Judge was justified to grant damages to the respondents which is not duly in accordance with the evidence on record and also in accordanwith the law laid down by the Superior Courts. The Judgment and Decree granted by the trial court in favour of respondents Nos.1 to 3 is correct and need no interference. I hereby maintained the same. Resultantly, the appeal stands dismissed with no order as to costs." 8. Mr. Ashfaque Nabi Qazi, learned Assistant,Advocate General Siudh for the appellants contended that the learned trial court as well as 1st appellate court have committed gross illegality while passing the impugned judgments and Decrees, which suffer from legal infirmity and are in violation of the relevant law; learned two courts below have failed to take into consideration the provisions of Motor Vehicle Ordinance, 1965 while deciding the matter pertaining to the Fatal Accident Act, 1855, which is purely a question of law and can be agitated at any stage; that the appellants were not liable to pay the compensation as awarded to the respondents Nos.1 to 3; that the impugned judgments of both the courts below are the result of misreading and non-reading of the evidence; the learned trial court and that of the appellate court failed to apply relevant laws and further contended that the death due to fatal accident resembles to Qatl-e-Khata as defined in section 318 of Pakistan Penal Code, 1860 and compensation to be assessed in such cases would be on the basis of value of Diyat. Learned Asstt.A.G strongly contended that according to the provisions of the Motor Vehicle Ordinance, the person riding the motorcycle has to wear helmet but the deceased at the time of accident, had no helmet; that the respondents Nos.1 to 3 failed to prove that the appellants were the responsible for the alleged accident however the learned trial court erroneously decreed the suit and the learned first appellate court maintained the findings of the learned trial court without proper assessment; that the very suit of the respondents was bad for mis-joinder and non joinder of the necessary parties. Learned Assistant A.G further argued that learned appellate court did not give its own findings and the Judgment of the appellate court is reproduction of verbatim of the Judgment of the learned trial court, therefore, it has lost its legal sanctity. Learned Asst. A.G. Further contended that the accident occurred due to rash and negligent act of driving of the deceased, who hit his motorcycle from the back side of the police vehicle, therefore, the appellants are not liable to any fatal accident and compensation. He has substantiated his stance on the strength of citations of the superior courts as under:-- (i) PLD 2001 SC 213, PLD 1992 SC 838, 1972 SCMR 437 and 1984 SCMR 621, wherein it has been held that concurrent findings recorded by the two Courts below after careful and elaborate consideration cannot be disturbed either by the High Court or by the Supreme Court. However, at the same time if the concurrent finding is based on misreading of evidence or founded without taking into consideration material pieces of evidence on record or is perverse or contrary to record, it is liable to be disturbed by the forum superior to the Courts which recorded such a concurrent finding. (ii) 1993 SCMR 1149. In this case it was held that quantum of damages granted by trial court in a Fatal Accident was reasonable and proper though founded on wrong basis, would not be opened for interference by appellate court. Appellate Court may interfere with quantum of damages if trial court has acted on a wrong principle of law or it has taken into consideration certain elements, which it should not have considered or if it had not considered certain elements, which it should have considered or if it has failed to deduct certain items deductible, resulting into hbpelessly incorrect estimation of damages i,e, it is either grossly excessive or insufficient. In such eventuality, appellate court is entitled to and in fact is bound to interfere with finding of trial court or Courts below on question of damages and to make its own assessment. (iii) PLD 1995 Kar.
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329. In this case it has been observed that the maxim "Res ipso loquitor" applies only where anything causing damage to any one, was solely under the control of defendant where nature of occurrence was such that it could not happen without negligence; and where no evidence was possible to be collected to show as to how and why occurrence in question took place. It has further been held that the Family members of the deceased (whose death was caused by the accident) are not entitled to get something more on account of pain and sufferings due to deprivation of love and affection of deceased for the wife, children or other family members. Death due to fatal accidents resembles to Qatl-e-Khata as defined in section 318 of Pakistan Penal Code, 1860 and compensation to be assessed in such cases would be on the basis of value of Diyat. (iv) In 2007 SCMR 1394, it has been held that Appellate Court has to decide the appeal after independent application of mind and mere reproduction of the Judgment of the Trial court and thereafter dismissing the appeal would not be in consonance with the law laid down by Supreme Court in Ghulam Mohayyauddin's case PLD 1964 SC 829. 9. On the other hand, learned counsel for the respondents Nos.1 to 3 opposed this appeal and contended that the concurrent Judgments and Decrees passed by two courts below are just and proper and have been passed in accordance with law. He further contended that the respondents have proved the factum that the fatal accident occurred due to rash and negligent driving of police vehicle being driven by the respondent No,4, the driver of the appellants, Department of Sindh Police. The respondents established the occurrence of the accident and death of the deceased due to such accident, which remained un-rebutted rather admitted; that the appellants failed to discharge onus falling on defendants/appellants regarding negligence of the deceased and dashing his motorcycle by back side of the police vehicle; the appellants also did not produce the vehicle before the trial court for inspection as to ascertain that it was dashed by back side; that since the accident and death of deceased has amply been established, the appellants had to prove that the accident was not occurred due to rash and negligent driving of their driver whereas the respondents proved their case by trustworthy evidence with regard to death of the deceased on account of rash and negligent driving of the respondent No,4, who after the accident fled away. Learned counsel further contended that the appellants have failed to make out any ground for interference of the concurrent findings of both the courts below well reasoned which are based on sound principles of law in adherence to the Dictum of superior Courts and do not require any interference by this court in the light of Judgments passed in cases of Mrs. Gul Bano v. Muhammad Ramzan (1982 CLC 1120), Mst. Zebunnisa v. Sindh Road Transport Corporation (1982 CLC 1228), Spin Gul v. Ikramul Haq (1987 MLD 2402), Hayat Services Pak Ltd. v. Kandan (1989 CLC 2153), Kazi Arifuddin v. Government of Sindh (PLD 1991 Kar. 291), Pakistan Steel Mills Corporation v. Malik Abdul Habib (1993 SCMR 848), Mst. Sakina v. National Logistic Cell (1995 MLD 633); Anisur Rehman v. Government of Sindh (1997 CLC 615), Roshan Bai v. Pakistan Steel Mills Corporation (2000 CLC 111), Ashique Masih v. Abbot Laboratories Pak. Ltd. (2001 CLC 913). 10. Out of the aforesaid cases relied by the learned counsel for the respondents Nos.1 to 3, the most relevant citations on the points are as under,-- (i) In case of Mst. Zaib-un-Nisa (supra), it has been held that the defendant admitted the accident in his written statement. Once accident admitted, burden of proof shifts on defendants to establish its driver having not been negligent. (ii) In case of Messrs Hayat Services (Pakistan) Ltd. v. Kandan (supra), it has been held that factum of death during course of employment admitted by employer but different version of the incident causing death stated by the employer. Where death or incident was not denied but the manner and the accident which had caused death was differently stated then if such allegations, constitute facts which were exclusively within the knowledge and possession of the employer, then
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even if the version alleged by plaintiff was found to be weak or incorrect employer was bound to prove his averment. Deceased having died within the premises of employer's establishment while on duty, facts of deceased's death being within the exclusive knowledge of employer, burden was entirely upon him to establish and reveal those facts. (iii) In case of Qazi Arifuddin and another v. Government of Sindh through Secretary, Ministry of Health Karachi and 2 others (supra), it has been held that when plaintiffs proved accident, presumption of negligence would arise. Onus, thereafter, would shift to defendants to prove that accident could not be avoided at any cost. Evidence on record proved that accident causing death had occurred due to rash and negligent driving of the bus driven by defendant/driver. (iv) In case of Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another (supra) it has been held that the defendant in the suit for damages took plea that accident had occurred on account of negligence of deceased himself it was his duty to produce evidence to show that machine was in perfect order and there was no defect in the same and deceased died on account of his own negligence. In this matter the principle of Res ipsa Loquitur has been discussed. Res ipsa loquitur means that the things speak for themselves. This doctrine applies firstly when the thing that inflicted the damage was under the sole management and control of the defendant and 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, defendants have to persuade the Court that accident did not occur on account of their negligence. (v) In case of Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 others (supra), it has been held that defendants having given different version of the manner in which accident was said to have happened, burden would be on them to prove their version. Defendants had not proved their version as given in written statement but had taken totally different stand. Plaintiffs version in such circumstances would be accepted as true version whereby deceased had did as result of accident caused due to collusion with a trailer vehicle which was being driven by defendant (driver) in a rash and negligent manner. Vehicle which was being driven by defendant (driver) was owned by official defendant at the time of accident therefore, both defendants were vicariously liable to pay compensation to heirs of deceased. In this case the quantum of compensation has also been discussed. Deceased was earning specified income before his death and he used to pay such amount for household expenses to his wife. Such evidence had not been shattered by defendants. Deceased's age was admittedly 32 years at the tune of his death and he would have earned that much amount for the remaining 28 years if his life expectancy was taken to be upto the age of 60 years and accordingly, the compensation was assessed. 11. I have heard learned counsel for the parties at length and perused the record. The claim of the respondents Nos.1 to 3/plaintiffs in the suit was that the deceased Qaisar Yazdani died due to accident occurred by rash, negligent and carelessness driving of the respondent No,4 during employment of the appellants. The respondents Nos.1 to 3/ plaintiffs in their plaint furnished the details of the quantum of the damages which have also been made part of the Judgment by the learned both courts below in their respective Judgments. The details include the expected life of the deceased, his earning as well as consequent benefits. The respondents No,1 to 3/ plaintiffs claimed the damages to the tune of Rs,5, 74,45000/- which is based on justified calculation and also produced evidence which is also in my perusal. The appellants have not denied the fact of accident, ownership of the vehicle as well as driving by the respondent No,4 and his employment with them. However, their contention is that the accident occurred due to negligence of the deceased, who hit his motorcycle from back side of the police vehicle. 12. This second appeal has been preferred under section 100 C.P.C. The second appeal has a limited scope as compared to the first appeal and the second appeal lie only on the grounds
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mentioned in section 100 C.P.C., which is reproduced as under:-- S.100. Second Appeal. Save where otherwise expressly provided in the body of this Code or any other law for the time being in force, an appeal lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds namely:- (a) the decision being contrary to law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law,. (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits; 13. I have in my perusal leading judgments as discussed above, which prima facie lead to an inference that the findings of the learned two courts below are neither suffering from infirmity nor based on misreading or non-reading of the evidence on record. 14. Learned Assistant A.G assailed the maintainability of the suit. His main thrust of the arguments are that the suit was not maintainable and that the deceased did not hold a valid driving license, he was not wearing helmet at the time of accident; the deceased did not care while driving the motorcycle and that the respondents/plaintiffs did not give the proper particulars in the suit. He referred to sections of 3, 89-A, of the Motor Vehicle Ordinance, para 1 of the Driving Regulations and section 3 of the Fatal Accident Act, 1855. Before discussing the merits of the case with regard to aforesaid legal issues, sections 3 and 89-A of the Motor Vehicle Ordinance read as under:-- S.3 Prohibition on driving without licence. (1) No person shall drive a Motor Vehicle in any public place unless he holds an effective licence authorizing him to drive the vehicle and no person shall so drive a Motor vehicle as paid employees or shall so drive a public service vehicle unless his license specially entitles him so to do. S. 89-A. No person shall drive, or ride the pillion seat of a two-wheeled motor vehicle except when he is wearing a crash helmet. Explanation. In this section "crash helmet means a helmet made of such material and meeting such other requires as may be prescribed. 15. I have also in my view that such instance has already been taken up in this appeal before this court seeking framing of additional issues which application was dismissed by his lordship Mr. Justice Faisal Arab vide order dated 21-10-2013 the operative part of the said order is reproduced as under:- "Counsel for the appellant has contended that for just decision it is necessary to frame additional issues as proposed in the application. The proposed issues as to whether there was master and servant relationship between the defendants Nos.] and 2 and whether the vehicle was owned by the defendants Nos.1 and 2 i,e, appellants, learned Additional Advocate General Sindh has stated that police mobile which hit the deceased Syed Qaisar Yazdani was not owned by the Government of Sindh but was owned by Senior Superintendent of Police and because of this fact there was no relationship of master and servant so as to thrust liability of death of the deceased upon Province of sindh. When asked as to who has purchased the police mobile he very candidly conceded that it is the Government of Sindh, which purchased the police mobile and handed over to the Police, who are undisputedly Government servants, hence I find no justification to frame additional issues on this aspect. As to the third issue wherein it is suggested that the suit is bad for non joinder and misjoinder of parties, it is established law under the provisions of Order I Rule 9 C.P. C. That no suit is to be dismissed for non joinder and misjoinder of the party hence there is no justification to frame this issue as well. The fourth proposed issue was whether the plaintiff has any cause of action against the defendants Nos.1 and 2. This proposed issue is also covered by the issue already framed. If private respondents fail in evidence to establish their case on the basis of the issue already framed then obviously it would mean that no cause of action has accrued to the
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plaintiff. As to the fifth proposed issue whether at the time of incident deceased Syed Qaisar yazdani was holding valid licence and was wearing helmet and violated the traffic rules and Regulations, this ought to be part of the pleas raised in defence in the written statement or established in the evidence. The issue is already framed whether on account of negligent driving of the police mobile the deceased died. The question whether deceased himself careless in driving his motorcycle might have acted as mitigating circumstances when quantum of damages was to be evaluated by the Court. There was no need to frame issue on such point. The issue whether death was caused due to negligent driving had already been framed and all that appellant was required to do was to bring on record evidence to establish mitigating circumstances, which it failed to do at the relevant stage and after thirteen years of the filing of the suit and four years of the pendency of this second appeal, additional issues are sought to be framed which in my view have no legal justification hence this application is dismissed." ' Thus the plea of the appellants seeking permission to agitate some other points in the matter by framing of additional issues was rejected by this court by the aforesaid order which has not been challenged by the appellants, thus the appellants cannot agitate the points that the deceased had no driving licence at the time of accident or he was not wearing the helmet. 16. The respondents Nos.1 to 3/plaintiffs filed suit under Fatal Accident Act,1855 claiming that the accident occurred due to rash and egligent driving of the respondent No,4 during his employment with the appellants Nos.1…
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