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Petitioner: Syed FARRUKH SAEED ALAM VS Respondent: SINDH ROAD TRANSPORT CORPORATION JUDGMENT
Court Name: Sindh High Court Judge(s): Syed Saeeduddin Nasir Title:Syed FARRUKH SAEED ALAM vs SINDH ROAD TRANSPORT CORPORATION
JUDGMENT
Reported As: 2015 YLR 2053 Result: Suit decreed Judgment JUDGMENT ' SYED SAEED-UD-DIN NASIR, J.---The plaintiff has filed the present suit for recovery of amount Rs.64,00,000 under the Fatal Accident Act, 1855 with the following prayers:-- (a)"A decree in the sum of Rs.64,00,000 against the defendants who are liable jointly and severally to pay the said sum to the plaintiff on account of damages/compensation. (b)Interest at the rate of 15% per annum on the amount claimed in clause-(a) above from the date of the filing of the suit till realization of the decretal amount be awarded. (c) Cost of the suit may be awarded to the plaintiff. (d)Any other relief or reliefs that this Hon'ble Court may deem just and proper under the circumstances of the case be granted." 1. The brief facts of the case are that the plaintiff got severe injuries in the traffic accident which took place on 3-2-1989 within the area of Gulzar-e-Hijri Police Station, Karachi. The defendants No.1 and 3 were the owners of the bus bearing Nos.958-974. The defendant No.2 was the driver of the said bus and as such was the servant of the defendants Nos.1 and 3 at the time of accident i.e. On 3-2-1989. The defendant No.2, servant/driver of the defendant No.1 while driving the bus bearing Nos.958-974 in a rash and negligent manner on superhighway when reached pumping house dashed against a trailer in bid to over-take another vehicle in very high speed and consequently the bus turned turtle on the other side of the road and six passengers of the bus got fatal injuries and died and many received injuries including the plaintiff. The injuries to the plaintiff were caused by the actionable wrong, negligence, default and wrongful act of the defendant No.2 the servant/employee of the defendant No.1 as such the defendant No.1 is legally liable to pay the
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compensation/damages to the plaintiff besides the defendants are liable jointly and severally to pay the compensation/damages to the plaintiff. 2. It is further stated in the plaint that the besides minor grazing wounds and some hidden injuries, the plaintiff has got the following major and visible injuries: (i) Fracture (dis-location) of the tenth dorsal vertebra. (ii) Compressed fracture of vertebra column. (iii) Absolute damage of spinal resulting in total spinal syndrome below the thorax segment. (iv) Deformity of spin causing considerable pain. (v) Head injury causing nine stitches in the head. (vi) Paraplegia and loss of sensation. (vii) Dislocation of jaw. ' The above said injuries have considerably affected the plaintiff and resulting in the following damages. GENERAL DAMAGES 3. It is further stated in the plaint that the plaintiff has become a complete paraplegic below tenth segment and complete loss of sensation below waist. He has left by paralyzed below waist and spastic involuntary movement had also developed in limbs resulting in total paralysis of bladder and bowels and he is absolutely not in control of the bladder and spinal injuries has resulted in any paralyzed of abdominal muscle and also all muscles of limbs. The total paralysis of both the legs has made him dependent upon other and for the whole life he will not be able to walk and would have spent rest of his life in the self propelled wheel chair and for the practical purpose he has become chair ridden. On account of lack of control over his bladder he had to be turned trice a night because of the danger of the bedsores. He cannot do this himself because he cannot manipulate his legs and if the upper part of his body is turned without his legs, there is really danger of bones being broken and for that purpose he will be required to employ some nurse or service boy for both the day and night in order to assist him in natural calls, in this work for which he will definitely require to spend Rs.2000 per month. On account of fracture and dislocation of spine from tenth vertebra, the plaintiff has become an impotent and his sexual functions are absolutely atrophied. In that way he had to leave the idea of getting marriage with his girl friend as he does not want to impose upon her unnatural relationship. In this way he would never be able to enjoy the pleasure of marital life and certainly develop the feeling of depression as he can no more raise his generation due to defect in reproductive organ which will affect on his personality. This development of impotency has also led to drastic diminution in his future monetary prospectus as his girl friend (doctor) could have fetched to the plaintiff exchequer at least Rs.5000 per month, adding to the comfort and happiness of the life. 4. It is further stated in the plaint that there is very likelihood that due to spinal injuries he would have developed urinary tract infection in future and he has to take antibiotic constantly to prevent this from which he is very much allergic. The plaintiff, for the whole life would have very very restricted movement and he will not be able to move as before by virtue of being confined to the self propelled wheel chair. The plaintiff has also loss of the amenities of life, for example exercising, taking part in games, go on towards another which will develop the sense of disappointment and depression when he will see his friends to enjoy the above said amenities. The plaintiff needs great deal of attention and care. He cannot dress or undress himself. He cannot off course, get up and go down stairs on his own and he has to be carried up and down stairs by others. He is liable to bed sores and therefore, it is very important that he should be turned twice a night and so he is dependant for his natural calls upon others and it is impossible for him to do this on his own. As he cannot manipulate himself and in case, if the legs are not turned at about sometime as upper part
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of the body, there is very really risk of bone of being broken so there is no doubt that the plaintiff will require for the rest of his life a great deal of help and attention. 5. It is further mentioned in the plaint that loss of sensation of lack of control over bladder and bowels will only permit him to attend or set any company of friends because in voluntary frequent discharge of urine and motions will make him target of humiliation, disgrace and ridiculous figure in the eyes of his friends so he prefers to confine himself in four walls in the room and this isolation has badly affected his personality causing him to be reiterated and morose. The plaintiff underwent enormous pains, sufferings and discomfort on account of above mentioned injuries and expectancy all his life has been shortened. Thus in short, the accidental injuries has made the plaintiff wreck who can do nothing for himself and convert him into slowly dying man with absolutely dull prospectus of successful and happy life. This injury has rendered the plaintiff so disappointed from his life that he has made couple of attempts of commit suicide in order to get rid of this accompany troubles, pains suffering but was saved. SPECIAL DAMAGES 6. It is further stated in the plaint that the plaintiff has to undergo to remain confined to hospital for more than four months but when it seemed that he is not recovering any more he preferred to stay at home with a disappointed heart. The plaintiff underwent several medical checkups, medical treatment, operations and ultrasound and physiotherapy from many well known clinics and surgeons which brought him under heavy debt of friends relatives. He had to purchase wheel chair and artificial limb and another necessary instruments in order to keep himself in a normal way which also costed him heavily. The plaintiff has to drive on ambulance or taxi for all practical purposes causing him heavy financial liability and in future he will also keep of engaging taxi or ambulance for the purpose of movement from one place to another. 7. It is also stated in the plaint that the plaintiff was a man of a very remarkable character and courage and was having most attractive personality with the shining spirit. Prior to the accident he was working as Sub-Engineer (Mechanical) in Highways Department, Government of Sindh and was earning Rs.1500 per month. Besides, he used to earn Rs.500 to Rs.600 in terms of overtime. He is well educated and well qualified fellow and have a degree of bachelor of Technology (Mechanical) from the Government College Hyderabad. He also has a diploma in Mechanical technology. He was very much enthusiastic and was determinant to go abroad within couple of years in order to do M.S.(Mechanical) and he could have been the advisor of certain foreign firms in mechanical field or in industrial units somewhere abroad, and could have been earn Rs.40,000 to Rs.50,000 per month. In addition to job in Highways Department, he used to do the part time work of mechanical character in a workshop and used to earn Rs. l00 to Rs.150 per day. Besides, he used to give tuition thrice a week on alternate day to more than dozen students of his locality and used to earn Rs.1200 to Rs.1500 per month. Before the accident he was very healthy, and having very sound physic and could have survived upto 75 years. He was having a romance with the medical student to whom he wished to marry who also could have become a supporting hand of monetary character in future after marriage. He was likely to get married with same girl friend (doctor) very soon but above said accident has drastically spoiled his academic career and has also made his life a thorny affairs with plenty of unhappiness, disappointment, displeasure, sufferings and misery resulting in an isolated and dull life. He was also very good sportsman and was very much fond of exercising and swimming. He also used to take part in different competitions of athletic nature. 8. Mr. Abdul Qudoos Abbasi son of Muhammad Malook, Secretary of (SRTC) Hyderabad, defendant No.2 filed written statement in which he has raised preliminary objections i.e. (I) That the suit as framed is not maintainable, (II) that the plaintiff has no cause of action against the defendants and (III)That the suit is not competent in view of Section 67(g) of the Motor Vehicle Ordinance. The Secretary to defendant No.2 submitted in the written statement that the Corporation of defendant
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No.1 is being financed by the Sindh Government as such the liability, if any, with regard to any bus is that of Government. He further submitted that the plaintiff has not described the particular of the bus. He denied that the defendant No.1 was driving the bus in question rashly and negligently and thereby dashed against the trailer in bid to overtake another vehicle in a very high speed as alleged. He also denied that the passengers injured and died due to rash and negligent driving of defendant No.2 as alleged. He also denied that the alleged injuries were caused due to negligence, default and wrongful act of defendant No.2 as alleged. He also denied that the defendant No.1 is liable to pay compensation and damages to the plaintiff as claimed. The Secretary to defendant No.1 further submitted that the plaintiff has not suffered on account of rash and negligent act of defendant No.2 as alleged and as such the compensation thereon is not maintainable. He also submitted that on one hand the plaintiff has claimed himself as pauper and on the other hand he has claimed relationship with the doctor who is said to be his girl friend. He also denied that the plaintiff was earning Rs.1500 per month and Rs.500 to Rs.600 as overtime as alleged. He submitted that the plaintiff is not entitled to claim damages and compensation from the defendants. The damages and compensation are, accordingly, as claimed, not admitted. He further submitted that the plaintiff is neither entitled to claim so-called general damages nor so- called special damages from the defendants. He further submitted that the plaintiff has no cause of action against the defendants. He further submitted that the plaintiff is not entitled to the reliefs claimed by him and prayed that suit be dismissed. 9. Upon pleadings of the parties following issues were framed by the Court vide order dated 25-10- 1992:-- (1) "Whether the suit is competent in view of Section 67(g) of the Motor Vehicle Ordinance? (2) Whether the defendant No.1 is financed by Government of Sindh, of suits effect? (3) Whether the severe injuries as mentioned in para 5 of plaint were caused to the plaintiff by the rash and negligent driving of the bus bearing Nos.958-974 on 3-2-1989 by the defendant No.2 during the course of employment of the defendant No.1, if so, what is its effect? (4) Whether the defendants are liable to pay the special and general damages as claimed in para 5 of the plaint jointly and severally? Or what was the earning of the plaintiff at the relevant time? (5) Whether the plaintiff is entitled to profit at the bank rate? (6) What should the decree be?" 10. It is pertinent to mention here that plaintiff moved an application for joint trial of all suits and treat the evidence of leading Suit i.e. Suit No. 510 of 1989 as common in all cases, which was accordingly granted by consent and Hon'ble Court was pleased to pass an order on 9-3-1994 as follows:-- "By consent this application is granted. Suits No. 511/89, 512/ 89, 159/90, 1083/91 and 149/92 shall be tried together. Suit No. 510/89 shall be treated as leading Suit This Order will be read as Order in the above suits" 11. However, upon perusal of the evidence file it transpired that each plaintiff has adduced separate evidence, whereas the defendant has examined only one witness D/W-1 whose evidence can be treated as common in all the suits. 12. The description of evidence relevant for the Suit No. 510 of 1989 produced by the plaintiff along with respective documents is given as under:-- ' P.W.8. Syed Farrukh Saeed Alam Plaintiff in Suit No. 149/1992 {{TABLE}} Exh.P/66 r I.D. Card of plaintiff Exh.P/66 and 68 Diploma of Associate Engineer and B-Tech Degree Exh.P/69 Certificate of Disability Exh.P/70 Death Certificate of Syed Muhammad Alam Exh.P/71/1 to File of Medical 177 Documents.
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Exh. P/71/1 to Receipts of Medical 105 treatment P.W.2 Abrar Hassan Police official who produced:-- Exh. P/6 Examination in Chief. Exh.P/7 attested copy of FIR No. 19/89 Exh:P/8 Exh.P/9 Exh.P/10 Exh.P/11 Exh.P/12 certified copy of FIR No. 19/89 attested copy of Charge Sheet certified copy of Charge Sheet Sketch of place of occurrence Memo of Inspection Exh.P/13 attested copy of Memo of Inspection PW-1 Syed Farukh Saeed Alam (Eye Witness). Exh. P/5 Examination in Chief {{TABLE}} 13. The defendants examined only one witness DW-1 namely Yar Muhammad who represented himself to be the Focal Person of defendant No.3. He did not produce any document but was crossed examined at length. Neither the driver nor the conductor or any independent passengers or any member of the public present on the site were examined. The defendants also failed to produce the departmental enquiry report though admittedly held to investigate the accident. ISSUE NO.1 (1) "Whether the suit is competent in view of Section 67(g) of the Motor Vehicle Ordinance? 14. The burden of this issue is on the defendants as they have asserted the above plea but they have failed to produce any cogent material to positively justify the issue in their favour. However it may be added that the liability arising out of Fatal Accident Act is an independent statutory liability which is based on element of negligence, default and wrongful act. The compensation amount under Section 67 (g) of MVO for causing injuries specifies only Rs.10,000 as compensation payable for more than one injury vide Thirteenth Schedule, which is no fault liability regardless of any negligence element and therefore does not affect the liability arising out of Fatal Accident Act primarily based on negligence. The present suit is very much maintainable. This issue is answered in Negative. ' Reliance for this proposition and to support the negative finding on the issue is placed on:- 1. 1988 CLC 48 2. Upheld by DB 1988 MLD 582 1984 CLC 2830 ISSUE No.2 2. Whether the defendant No.1 is financed by the Government of Sindh, if so, its effect? 15. This issue can simply be decided by own admission of the defendant witness DW-1 (Yar Muhammad) the sole witness (Evidence at Page No.241 of Commissioner's Evidence file) who represented himself from Transport Department of Government of Sindh categorically admitted that the bus which was involved in the accident belonged to SRTC and he further proceeded to give entire description of the accident as per record of enquiry carried out by the department and says that the Fitness Certificate of the bus was in the bus at the time of accident. He also admitted that no major damage was caused to the SRTC bus involved in the accident. Regarding the defendant No.2 who was the driver allegedly driving the SRTC bus at the time of accident was stated by the said DW1 to be retired normally after the incident and all his dues were paid to him. This shows that the ownership of the SRTC bus involved in the accident and the factum of defendant No.2 driving the said bus at the time of accident is proved and also admitted in the above terms. Besides, the plaintiff has produced eye-witnesses namely Syed Farrukh Alam (P.W.1) and had also examined the police officer namely Abrar Hassan (P.W.2) who has produced number of documentary evidence to the effect of proving the ownership of the SRTC bus and also driving by the defendant No.2 at the time of accident (Exh-P/7 and P/8-FIR) (Exh P/9 and P/10-Charge
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Sheet ) (Exh-P/11, P/12, P/13- Sketch of occurrence, Memo of Inspection and its attested copy) which went unrebutted and unchallenged whereby proving the aforesaid facts. Thus in view of above circumstances the issue No.2 is answered in affirmative. ISSUE No.3 ' Whether the severe injuries as mentioned in para 5 of plaint were caused to the plaintiff by the rash and negligent driving of the bus bearing No.958-974 on 03.2.1989 by the defendant so, what is its effect? 16. The pleadings as contained in para 3 of plaint and also evidence of the plaintiff P.W.3 Ayesha in Suit No.510/89 and P.W.1 eye-witness Syed Farrukh Saeed Alam sufficiently succeeded to prove the following facts on record, which are relevant and important for the determination of issue of negligence: (i) The factum of ownership of the bus bearing Nos. 958-974 by SRTC. (ii) The driving of said bus by the defendant No.2 during the course of employment of defendant No.1 is also admitted by the defendants. (iii) The factum of accident in question resulting into death/injuries of above mentioned persons in the said accident is also proved and rather admitted by defendants witness DW-1. (iv) The collision is also admitted but the defendants had tried to give their own version of accident from the mouth of the defendant No.1 though specifically not pleaded and tried to shift the negligence on the trawler driver. 17. In these circumstances the only fact which is disputed by the defendants is the manner in which the accident had taken place and rather the defendants have proceeded to advance a version of the accident through DW-1 who is neither eye witness nor signatory of written statement, which is contrary to the version of the plaintiff and also not specifically pleaded by the defendant in their written statement. 18. The learned counsel for the plaintiffs Mr. Nasir Maqsood has argued with vehemence that the Jurisprudence on accident cases had been crystallized on point that when the accident is admitted, the presumption of negligence will arise whereafter the burden shifts upon defendant to show that they were not negligent. ' This proposition, according to the learned counsel for the plaintiff is conclusively decided by the Supreme Court in its Judgment reported in 2006 SCMR 207 at para 9: "It is settled proposition of law that it is the duty of the plaintiff to prove the factum of the accident whereafter the burden is shifted upon the defendant to prove that the accident occurred not due to his or their negligence." 19. The learned counsel for the plaintiff further contends that in addition to the above principle to further facilitate to lessen the burden of proof on the plaintiff as the plaintiff in such circumstances are/ were not able to produce any evidence as to why or how occurrence took place and more so when the occurrence is such that it would not have happened without negligence and the thing which inflicted the damage was under the sole management and control of the defendant, the jurists have invoked and coined a new rule of evidence i.e. Res Ipsa Loquitur and in the set of circumstances as that of the present this rule was perfectly applicable and had been applied in number of cases pertaining to the fatal accidents and in such case when the defendant takes plea that the accident occurred on account of negligence of deceased himself then it was their duty to produce evidence to show that there was no default and omission on their part. 20. In order to fully appreciate the applicability of principle of res ipsa loquiture in present case, it will be F advisable to see how this important principle had been applied in fatal accident cases in Pakistan. The learned counsel for the plaintiff has placed reliance on the following case-law to support his arguments:- (1) 1982 CLC 1120 (P.1122)A, Mrs. Gulbano v. Muhammad Ramzan (Justice Saleem Akhtar)
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(2) 1982 CLC 1228 [PP.1230] A&B Mst. Zebunnisa v. Sindh Road Transport Corporation (Justice Saleem Akhtar) (3) 1982 CLC 1703 [P.1707] Mrs. Nimmi Francis v. Muhammad Saeed Qureshi (Justice Saleem Akhtar) (4) 1987 MLD 898 [P.899] Abdul Hague v. Pakistan Railways Telecommunication Department (Justice Saleem Akhtar) (5) 1987 MLD 2402 [P.2404] Para-4 Spin Gul v. Lkramul Haq (Justice Saleem Akhtar) (6) 1989 CLC 2153 [P.2156] A Hayat Services (Pakistan) Ltd., v. Kandan (Justice Saleem Akhtar and Justice Imam Ali Kazi) (7) PLD 1991 Karachi 291 [P.295] Kazi Arifuddin v. Govt. Of Sindh (Justice Syed Hyder Ali Pirzada) (8) 1993 SCMR 848 [P.855] A Pakistan Steel Mills Corporation v. Malik Abdul Habib (Justice Ajmal Mian, Justice Sajjad Ali Shah and Justice Saeeduzzaman Siddiqui) (9) 1995 MLD 633 [P.636]A Mst. Sakina v. National Logistic Cell (Justice Abdul Rahim Kazi) (10) 1997 CLC 615 [P.619] Anisur Rehman v. Govt. Of Sindh (Mrs. Justice Majida Razvi) (11) 2000 CLC 381 [P.385] Bibi Khaida v. Govt. Of Sindh (Justice Rashid Ahmad Rizvi) (12) 2000 CLC 111 [P.115] Roshan Vai v. Pakistan Steel Mills Corporation (Justice Rashid Ahmed Rizvi) (13) 2001 CLC 913 [P.916] ABC Ashiq Masih v. Abbot Laboratories Pakistan Ltd. (Justice Zahid Qurban Alvi) (14) 2001 CLC 928 [P.931] BC Mst. Nusrat Irfana v. Federal Government of Pakistan (Justice Zahid Qurban Alvi) (15) 2001 MLD 1845 [P.1849] BCD Shoukat Ali v. KESC (Justice Zahid Qurban Alvi) (16) 2001 YLR 821 [P.825] B, Shamim Akhtar v. Muhammad Arif Baloch (Justice Hamid Ali Mirza) (17) 2003(sic) MLD 39 [P.46] at Para-14 Mst. Sabira Khatoon and others v.. Muhammad Akram Siddiqui and others ((Justice Zahid Qurban Alvi) (18) 2004 MLD 491 Aijaz and others v. KTC (Justice Maqbool &gar) (19) 2004 MLD 361 Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation (Justice Sabihuddin Ahmad and Justice Amir Hani Muslim) (20) PLD 1960 Karachi 712 at (B&C) Ursulina D 'Lima v. Orient Airways Ltd. (Justice Wajihuddin) (21) PLD 1964 Karachi 72 at 75,76 and 77 (A) Kulsoom v. Jalil Ahmed Khan (Justice Qadeeruddin) (22) PLD 1964 Karachi 72 at 75, 76 and 77 (A) Kulsoom v. Jalil Ahmed Khan (Justice Qadeeruddin) (23) PLD 1966 Karachi 850 at 592 and 593 Para (14), K.L. And M v. Ursulina D.Lima (Justice Qadeeruddin and Justice Illahi Bux Khamusani (D.B.). (24) PLD 1970 Lahore 442 at 447 C Din Muhammad v. Faqir Muhammad (Justice A.R. Sheikh and Muhammad Afzal Khanji) (25) PLD 1977 Karachi 685 at 687 (A) Mst. Momma Bai v. Ghulam Muhammad (Justice Naimuddin) (26) PLD 1981 Karachi 561 at 566, 567 and 568 Nasreen v. Quality Steel and others (Justice Saeeduzzaman Siddiqui) (27) 1984 CLC 2071 at 2075 Paras 9, 10 Quality Steel v. Nasreen (Justice All Nawaz and Justice Zahoor-ul-Haq (D.B) (28) 1988 CLC 525 at 529 and 530 (C&D) Kandan v. Al Hayat Services (Pvt.) Ltd. (Justice Ahmed Ali U. Qureshi) (29) 1988 CLC at 898 899 Mst. Kamina v. Al-Amina Goods Transport Agency (Justice Syed Abdul Rehman) (30) 1988 MLD 1236 TO 1239 Khatoon v. Noor Sher Khan (Justice Haider All Pirzada) (31) 1989 CLC 229 at 232, 233 and 234 Vucar Ahmed v. Blue Lines (Pvt.) Ltd. (Justice Abdur Rehman) (32) 1989 CLC 2153 at 2157, 2158 and 2159 Al-Hayat Services v. Kandan ((Justice Saleem Akhtar) (33)…
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