P L D 1965 (W (PLP)

WAHIDUDDIN AHMED, J.‑

This regular first appeal is from the judgment of Mr. Fazle Illahi Ansari, the then Additional District Judge, Karachi in Civil Suit No. 2/60 dated 5‑5‑

62. The learned Subordinate Court dismissed the claim of the appellant fog recovery of the sum of Rs. 10,000 in a running down action under the Fatal Accident Act.

2. Briefly the facts leading to this appeal are that or 3‑9‑58 at about 7‑45 a.m. respondent No. 2, who at the materia time was the driver of bus No. KAP 1528, is alleged to have drove it rashly and negligently and collided against tram cap No. 118 which was approaching Juna Market bus stop. It is alleged that as a result of the collision deceased Sher Muhammad received fatal injuries at the time of the incident and later on dies at the Civil Hospital, Karachi. The appellant who is a widow of the deceased brought the above‑mentioned suit in form pauperis for the recovery of Rs. 10,000 for compensation as damages under the Fatal Accidents Act. Respondent No. 1 was impleaded as defendant as the owner of the bus and the respondent No. 3 is the Insurance Company with which the said bus was insured for 3rd party risk.

3. The suit was resisted on behalf of the respondents. Respondents Nos. 1 and 2 did not deny the incident in question. Both of them denied the allegation that respondent No. 2 was driving the Bus No. KAP 1528 in a rash and negligent manner or caused the death of Sher Muhammad by rash and negligent driving. They did not deny that the accident occurred at the crossing of the Lawrence Road and Court Road. They contended that the accident in question took place by natural causes and they had no responsibility for the amount claimed from them.

4. Respondent No. 3, Insurance Company denied their liability on the ground that respondent No. 1 did not inform them in time about the alleged accident and they were not liable to pay any damages as they committed breach of condition No. 1 of the Insurance Policy.

5. On these pleadings the learned Subordinate Court framed the following issues: "(1) Whether the death of the deceased Sher Muhammad was caused as a direct and natural result of the injuries caused to him by an accident caused by the Bus No. KPA 1528, on 3‑9‑1958 ? (2) Was the said accident caused due to rash and negligent driving of the defendant No. 2? (3) Whether all the three defendants are jointly and severally responsible to compensate the plaintiff to the extent of Rs. 10,000 if not which of them, if any? (4) To what relief if any, the plaintiff is entitled to? (5) Is the plaintiff debarred from leading such additional evidence in the civil suit, as was not examined in the criminal Court? (6) What is the effect of the judgment of the Criminal Appellate Court on this suit?" The finding of the learned Subordinate Courts on these issues are that the appellant has failed to establish that the accident in question was the result of the rash and negligent driving of the bus in question and therefore the appellant was not entitled to claim any damages from the respondents. The learned Subordinate Court further held that as respondent No. 1 did not inform the Insurance Company about the alleged accident it was not bound to compensate respondents Nos. 1 and 2 in case the claim of damages is established against them. The appellant has challenged these findings in this appeal before us.

6. In support of his claim for damages the appellant examined 5 witnesses, P. W. 1 Zaibun Nisa the widow of the deceased, P. W. 2 Rafiqu‑ud‑Din the eye‑witness of the alleged occurrence, P. W. 3 Dr. Anwarul Hassan who performed the post mortem examination on the deceased, P. W. 4 Muhammad Inayat, the constable of Napier Police Station and P. W. 5 Muhammad Usman, the brother of the widow of the deceased. In defence respondent No. 1 examined himself as D. W.

1. Respondent No. 3 examined Moinuddin Ahmed, one of their employees in support of their case.

7. The evidence produced on behalf of the appellant about the alleged occurrence consists only of a single witness namely, P. W. 2 Rafique Uddin. This witness stated that he had witnessed the accident about 4 years ago. It was at about 7 or 8 a.m. that he and Sher Muhammad deceased were both going by tram from Ramswami Tower to Juna Market. According to him when the tram reached near Juna Market is slowed for the people to alight and the persons came on the foot board to get down. He was inside but Sher Muhammad had gone on the foot board of the tram. At that time a bus came from the City Court side and it dashed against the tram and also Sher Muhammad with the result that he fell down and received injuries on account of which he could not move. He further deposed that the bus was running at a high speed and when it reached the turning it did not slow down but took a turn with that speed. Other persons had also received the injuries. The witness further deposed that he and one Conductor of the tram took the deceased to Civil Hospital where he died as a result of the injuries later in the day. In cross‑examination the witness admitted that the deceased was his relative. He also admitted that the police recorded his statement at the hospital and he was called as a witness but was not examined in the criminal case. He also stated that it was not correct that he had not given any statement to the police. P. W. 1 Zaibun Nisa besides deposing in support of the allegation made in the plaint stated that the deceased used to earn about Rs. 10 a day at the time of the death. He was about 30 years old and was survived by three children of between the age of 5 to 7, and they all lived on the income of the deceased and had no other source of livelihood. She claimed that the dependants of the deceased have suffered damages in the sum of Rs. 10,000 and claimed this amount for the utilization of her children's maintenance.

8. P. W. 3, Dr. Anwarul Hassan, who performed the post mortem examination stated that he found several injuries on the person of the deceased which was either abrasion, or a lacerated wound or a contusion. All the injuries, according to the medical officer, were fresh and had been caused by violent contact with a fast moving vehicle, and the death was due to shock resulting from the injuries. He further deposed that on internal examination he found that there was ecchymosis under injury No. 1 on the head. He further found ecchymosis under the external injury on the chest with fracture of right 3rd and 6th ribs causing deep lacerated wounds to right lung and haemorrhage in the right plural cavity. The medical officer found haemorrhage of retroperiteneal nature in the lower abdomen and pelvis. Both the kidneys were contused in lower part. Mesentry was contused and ecchymosed. Urethera and bladder were ruptured.

9. P. W. 4 Inayat, Head Constable proved the F. I. R. of Crime No. 4958/58, Exh. 6.

10. P. W. 5 is the brother of the widow of the deceased. He stated that the deceased was a shopkeeper and used to earn Rs. 200 per month and from this income he used to maintain his family and had no other source of income.

11. The respondents had led no evidence in rebuttal about the circumstances in which the alleged occurrence took place. Neither did they examine the driver of the bus nor any other eye‑witness in support of their contention that the accident in question took place in the ordinary circumstance and was not the result of rash or negligent driving.

12. Mr. Haji Muhammad A. Memon the learned counsel for the appellant has strongly urged that the learned Subordinate Court has wrongly disbelieved the appellant's evidence about the alleged occurrence. He contended that the mere fact that P. W. 2 Rafique Uddin was related to the deceased should not have influenced the learned Subordinate Court for discarding his evidence in support of the appellant's claim. In order to appreciate the ground on which the learned Subordinate Court has discarded the evidence of the appellant it would be proper to reproduce the reasoning of the learned Subordinate Court in this respect. The learned Subordinate Court observed as under: "As already stated the only witness on the point at issue is Rafique Uddin. He has stated that he knew the deceased before his death. According to him, he and Sher Muhammad were going from Ramswami Tower to Juna Market in a Tram Car. As soon as the tram reached 'near Juna Market, it slowed down to enable the passengers to alight. To move out from the tram car some men got on the footboard. Sher Muhammad was also one of these men. While he was still on board a bus came from the City Court side and dashed against him. He fell down and got seriously injured. The bus was moving at a fast speed and did not slow down at all. Some other men as well received injuries. Rafique Uddin has admitted that deceased was related to him. He has also confessed that he was not examined in the criminal case. He has no idea about bus number. Under the circumstances it becomes unsafe to accept his presence at the time and place of the accident. He being the relative of the deceased must have been with him and if Sher Muhammad could be hit there is no reason why Rafique Uddin also did not get wounded. It is his case that several other persons had been injured but not even one of those men has been put in the witness‑box. Those would be natural disinterested and truthful witnesses and their injuries would further prove their presence. Incidentally here even the conductor of the bus has not been examined. Because of relationship, Rafique Uddin is rendered interested witness. Consequently his word requires corroboration for acceptance of his testimony. This is wanting in the case." It would thus be noticed that the learned subordinate Court did not place reliance on the evidence of Rafidue Uddin because he happened to be a near relative of the deceased. His present was even doubted at the scene of alleged occurrence. In our opinion the grounds on which the evidence of this witness was rejected are not cogent. The learned. Subordinate Court failed to notice that there was ample evidence on the record to establish that this witness was present at the time when the alleged accident took place. Mr. Memon, the learned counsel for the appellant has referred us to Exh. 3 the post mortem report which shows that the deceased was taken to the hospital by Rafique Uddin, son of Abdul Ghafoor who is none else but P. W. 2, who was examined as a witness on behalf of the appellant in the Subordinate Court. It cannot, therefore, be doubted that this witness was present at the scene of occurrence. The cross examination of this witness shows that the respondents did not cross‑examine him on the facts and circumstances in which the alleged accident took place. They only wanted to cast doubt about his presence at the scene of occurrence and wanted to show that his statement that he was examined by the police immediately after the accident was wrong. But this fact also was not challenged satisfactorily because they did not summon the police record for showing that the statement of the witness that he was examined by the police was wrong.

13. We find much force in the appellant's contention that the witness is fully corroborated by the medical evidence produced on the record. The medical evidence clearly proves that the deceased received the injuries in question by violent contact with a fast moving vehicle. Besides, the learned Subordinate Court failed to notice that the F. I. R. Exh. 6 which was proved by P. W. 4 was nothing else but the statement of the deceased Sher Muhammad recorded by Sub‑Inspector Ejaz Hussain which gives full detail of the circumstances in which the alleged occurrence took place. It was not disputed before us that this evidence was properly admitted on the record; the statement being that of a dead person was admissible in evidence and could have been relied upon for finding out whether the allegations made by the appellant are correct or not. The deceased in his statement before the police stated as under "I reside in Haji Camp and carry on my tin‑shop near Khori Garden, Jodia Bazar. As usual I left my house for my shop this morning and boarded in a Tram from Haji Camp. When the Tram Car reached near `Jung Market', I rang its bell for halt and I got up from my seat and stood at the footboard of the tram for getting down. In the meantime Bus No. KAP 2528 came, coming from the direction of Nanakwara towards City Court at a very fast speed and dashed against the tram, on account of which I had fallen down. I have received injuries on my back, chest and left knee. This accident has taken place due to the carelessness and negligence of the bus driver, who was plying it rashly and at a very fast speed." The statement of the deceased also fully supports the evidence of P. W. 2 Rafique Uddin. In the presence of this evidence it is difficult for us to appreciate as to why the learned Subordinate Court has disbelieved the statement of P. W. 2 Rafique Uddin and held that the appellant has failed to prove that the accident in question was the result of rash and negligent driving of Bus No. KAP 1528.

14. The respondents in support of their case that the accident was a vis‑majour examined no evidence. Neither did they examine the bus driver nor any other eye‑witness. In these circumstances the contesting respondents failed to produce the best evidence available and on adverse presumption should have been raised that the allegation made by the appellant was correct and the accident in question was the result of rash and negligent driving of the bus by respondent No. 2 the driver of the bus in question.

15. Mr. M. Shah the learned counsel for the respondent contended that respondent No. 2 was acquitted in the criminal prosecution and this fully supports the case of the respondent that the accident in question was not the result of rash and negligent driving. He further contended that the appellant has not produced the other eye‑witnesses available about the alleged occurrence and the learned Subordinate Court was fully justified in the circumstances of the case to disbelieve the evidence of P. W. 2 Rafique Uddin. The contention of the learned counsel has not impressed us. It is not necessary for a party to produce, all the evidence unless it is necessary to do so. The appellant is the widow of the deceased and was not in a position to produce the other eye‑witnesses who witnessed the alleged accident. The name of these witnesses was also known to the respondents. It was quite easy for them to produce them in support of their case.

16. Having regard to the statement of P. W. 2 Rafique Uddin and other reliable evidence and circumstances of the case there is not the slightest doubt in our mind that the accident in question was the result of rash and negligent driving on the part of respondent No. 2, the driver of the bus in question. The place at which the accident in question took place is a busy commercial locality. The accident took place at the crossing of the Lawrence and Court Road. At such places as has been rightly pointed out by the learned counsel for the appellant under rule 7 of Schedule X of the Motor Vehicles Act, it is obligatory on the part of driver of a motor vehicle to give way to the vehicles proceeding along the road and to give way to all traffic approaching the inter‑section on his right hand. This fact was only within the knowledge of respondent No. 2 but he failed to appear in the witness‑box. It is, therefore, open to this Court to raise adverse presumption on this aspect of the D case against him under section 114 of the Evidence Act. This being the position we are satisfied that the appellant has satisfactorily proved that the accident in question was the result of the rash and negligent driving of the bus and both respondents Nos. 1 and 2 are liable to compensate for the injury caused to the deceased under the Fatal Accident Act to the deceased dependants.

17. It was conceded on behalf of the respondents that on this finding it is not possible for them to resist the claim of damages of the appellant. It was further conceded that the amount of damages claimed by the appellant is reasonable and not an exaggerated one. The deceased was carrying on the business of tin‑smith and was earning about Rs. 200 p. m. At the time of his death he was about 30 years of age. On this basis the dependants of the deceased are entitled to much more than Rs. 10,

000. We, therefore, hold that the claim of damages in the sum of Rs. 10,000 has been satisfactorily proved.

18. We have noticed that respondent No. 3 disputed their liability as insurers of the vehicle in question for 3rd party risk on the ground that respondent No. 1 committed breach of condition No. 1 of the Insurance Policy. They alleged that respondent No. 1 as required under the Policy, failed to give notice to them of the alleged accident, immediately thereafter and, therefore they are absolved of any responsibility in this respect. The learned Subordinate Court in this connection has given a finding against respondent No.

1. In our opinion in a suit of this nature any dispute between the insurer and the insured cannot be decided. The only dispute which requires consideration in such cases is between the dependants of the deceased party and the party at fault, namely, the owners of the motor vehicle. So far as the Insurance Company is concerned it was conceded by Mr. Riazul Hassan, the learned counsel for respondent No. 3 that under section 96 of the Motor Vehicles Act there is a statutory liability to compensate the injured party to the extent of Rs. 20,000, once it is found that the injury was caused by the rash and negligent driving of the motor vehicle insured with the Insurance Company. It was also conceded by him that the Insurance Company, in the present case, cannot repudiate their liability as the case is not covered by the grounds on which it is open to them to repudiate their liability under the above mentioned provision of law. We would, therefore, hold that an finding of the learned Subordinate Court in respect of the dispute raised by respondent No. 3 with respondent No. 1 will not be binding on them, and shall have to be determined in separate litigation in case respondent No. 3 chooses to take any action against respondent No. 1 in this connection. In view of the above finding the appellant is entitled to a decree of Rs. 10,000 against the respondents. Accordingly the appeal is allowed with costs throughout. K.B.A. Appeal accepted.