1989 PLP 3533 (MLD)

"..... ..It is correct that on account of the high speed of the Jeep when it crossed my way I stopped and this is the reason that I stopped. My speed at that time would be 20 to 30 miles per hour. When the jeep crossed me, I had also reached half way on the intersection. I noticed the jeep to my left just when it suddenly crossed me." P.W.2 stated: " .. My wife was driving the car on the main road while, all of a sudden, the jeep of the defendant No. 1 came out from the right hand side on the main road in fast speed and dashed the car. The jeep after hitting the car went into the compound wall of the house which is at the corner of the road where the accident took place." It was not suggested to P.W. Khurrum Younis that the jeep, was not driven in a rash and negligent manner. In fact there is no cross-examination on this aspect of rash and negligent driving. As far as the defendants' evidence is concerned, the driver though served, remained absent. D.W. No. 1 stated that on 28-9-1979 he was serving with defendant No.

1. He was in the jeep which was involved in the accident. He was sitting next to be driver. He stated:-- " I was going on Shah Abdul Latif Road towards Shahrahe Quaideen from Telephone Exchange. It was a Friday on 28-9-1979. I did not see car coming from Tariq Road side at the intersection prior to intersection where the accident took place. It was 10 o'clock/AM, in the morning. On most of these roads children are playing cricket on that day. When I reached the intersection where the accident took place, a car suddenly appeared from my left and collision took place. On account of this impact the jeep swung around, the driver of jeep sustained minor injury on account of this swinging of the jeep, the lady driving the car suffered serious injuries and ultimately died." He admitted in his cross-examination that jeep was coming from lane of Shah Adbul Latif Road. The lady was going on a road to their left. According to him, Shah Abdul Latif Road is the main road. According to him, jeep was not at high speed and did not hit the car at all. He admitted that the jeep broke the wall of a bungalow. It is easy to answer that upon the impact the axle of the jeep broke and it went free after the car having hit the jeep. Thus he threw the sole responsibility of the accident on the deceased. The driver remained absent. On the evidence produced before me, I am fully satisfied that the cause of the accident which resulted in Mst. Attiya Farrukh's death was the negligence of defendant's driver. The version of the eye witness produced on behalf of the plaintiffs proves beyond doubt that the jeep in dispute was running at a very high speed and the accident in question took place on account of the rash and negligent driving of jeep belonging to the defendant No.

1. The evidence of P.W. 3 and the site plan (Ext. 10/1) produced clearly show that Shah Abdul Latif Road is not a main road but Anwar Adil Road is a main road. Statement a/s, 161 Cr.P.C. of D.W. 1 was not recorded. He was not examined in criminal Court. The statement of the plaintiff's witness who saw the accident is most convincing and proves to the hilt that the jeep belonging to the defendant No. 1 was running at a high speed and the accident in question took place on account of rash and negligent driving of the jeep. The learned counsel for the defendant No. 1 has not been able to satisfy me why the evidence of the. plaintiffs eye witness should not be believed and accepted in proof of the plaintiffs' case. He is disinterested person and he is supported by P.W 3 who I investigated the criminal case and this is no doubt in my mind on their statements that Muhammad Ashfaque was driving the jeep at a high speed. The other aspect of the case is that the plaintiffs did not lead any direct evidence as to how the accident occurred. No eye-witness was examined. But P.W. 4 who knew the deceased Mst. Attiya who went to the spot after the accident was examined. He stated that the jeep and the Fiat Car had collision at the intersection. The jeep was driven at a high speed and that it did not even after the collision stop but hit the boundary wall of a house. D.W. 1 stated that on account of this impact the jeep swung arounds. He admitted that the jeep broke the wall of the bungalow. It was not suggested to P.W. 3. that the jeep was not driven in a rash and negligent manner. In fact there is-no cross-examination on, this aspect of rash and negligent driving. I find from the evidence of P.W. 2 and 4 that the jeep dashed against the car and it was for the defendants to establish that the deceased was not driving at the high speed. The defendants have led no evidence. It may at once be stated that though the defendants had pleaded that the deceased Mst. Attiya caused the accident. The burden rests on the defendants, their plea for the sake of argument that there is no eye-witness and therefore the question is whether from the facts established the case of rash and negligent act can be inferred.

3. The normal rule is that it is for the plaintiffs to prove negligence but as in. some cases considerable hardship is caused to plaintiffs as the true cause of the accident is not known to them but is solely with the knowledge of the defendants who caused it, the plaintiffs can prove the accident but cannot prove how it happened to establish negligence on the part of the defendants. This hardship is sought to be avoided by applying the principles res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "Speaks for itself' or tells its own story. There are cases in which the accident speaks for itself so that is sufficient for the plaintiffs to prove the accident and nothing more. It will then for the defendants to establish that the accident happened due to some other onus than their own negligence Salmond on the law of Torts (15th Edition) at page 306 states that "the maxim res ipsa loquitor applies whenever it is so improbable that such an accident would have happened without the negligence of the defendants that a reasonable Jury could find without further evidence that it was so caused." In Halsbury's Laws of England, 3rd Edition, Volume 28 at Page 77, para 79 the position is stated thus: "An exception to the General rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence" tells its own story" of negligence on the part of the defendant the story on told being clear unambiguous .' Where the maxim is applied the burden is on the defendants to show either that in fact they were not negligent or that the accident might more probably have happened in a manner, which did not connote negligence on their part. For the application of the principle, it must be shown that the jeep was under the management of defendant No. 1 and that the accident is such as in ordinary course of things does not happen if those who had management used proper care. Applying the principles stated above, I have to see whether the requirements of the principle have been satisfied. There can be no dispute that the jeep was under the management of the company driver and from the facts disclosed by P.W. 4 Khurum Younis that the jeep was driven at such high speed that it did not stop even after the collision and hit the boundary wall of a house. The learned counsel for the defendant No. 1 submitted that the deceased Attiya was driving at a high speed. I am unable to accept the plea that Mst. Attiya was driving at a high speed. From the description of the accident given by P.W. 4 which stands unchallenged that the Jeep was driven at a high speed and that it did not stop even after the collision and hit the boundary wall of a house. On the facts made out the doctrine is applicable and it is for the defendants to prove that accident did not take place due to their negligence. This they have not attempted to do. Accordingly I hold that the accident in question was caused due to the rash 1 and negligent driving of the defendant No. 1's driver and deceased Mst. Attiya was not driving her car rashly or negligently and she did not contribute to be negligence and was not responsible for the accident involved in this matter. Issue No. 2: D.W. 1 stated that on 28-9-1979 he was in the jeep which was involved in the accident. The defendant No. 2 was the driver of defendant No.

1. The defendant No. 2 was driving the jeep and he was sitting next to him on the front seat. Accordingly I hold that jeep bearing No. 012-572 was being driven by the driver of defendant No. 1 in the course of employment. Issue No. 3: Mr. G. H. Malik, the learned counsel for the defendant No. 1 contends that as deceased is a woman and as admittedly she was doing only household duties and also transporting plaintiffs 2 and 3 from home to school and school to home and was not earning member of the family, no pecuniary loss was suffered by the plaintiffs by reasons of her death and so damages cannot be awarded under the Fatal Accidents Act.

4. Before dealing this submission, it is necessary to deal with the liability of a person in tort for the death of another, caused by the negligence of the former. Under the English Common Law, the general rule, applicable to torts is that a personal action dies with the person: Actio personalis moritur cum persona. No executor, administrator or a legal representative could sue or be sued for any tort committed against or by the deceased in his lifetime. In the words of Viscound Simon L.C. thus maxim is both obscure in origin and inaccurate in expression . Any how, this common law rule was in effect swept away by the Law Reforms (Miscellaneous Provisions) Act, 1934 which provided subject to important exceptions, that on the death of any person, all causes of action vested in him shall survive for the benefit of his estate. Accordingly if an individual is injured by accident due to the negligence of another person, the claim for damages does not abate at his death but survives for the benefit of his estate and can be enforced in an action brought by his personal representative Similarly, the representatives of the deceased could not under the common law sue in their own rights for loss resultant to them from his death. This was the rule propounded by Lord Earl Loreburn in Baker v. Bolton (1808) 1 Case

493. This was based not on the principle Actio Personalismoriter cum persona but on the principle that in a Civil Court the death of human being could not be complained as an injury. This rule was upheld in subsequent cases. A determined attempt was made before the House of Lords in Admiralty Commissioner V.S.S Amerika. 1917 A.C. 38 to depart from this rule. But the House of Lords after a review of the cases came to the conclusion that there was no reason to disturb the rule of law which had been so long recognised in the English Courts, though it may appear anomalous to the scientific jurist. This rule has, however, been greatly modified by the Fatal Accidents Act of 1845 which provided that whenever the death of a person is caused by they wrongful act, neglect or default of another, such as would (if death had ensued) have entitled the injured person to sue and recover damages in respect thereof, then the person would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of "the person injured, and although the death shall have been caused under such circumstances as amount to a felony. Though the Act is silent as to what is recoverable, it has been held that under this Act the damages must be awarded with reference to a reasonable expectation of pecuniary benefit which would result from the circumstances of the life. The relations can recover nothing in the nature of solatium for mental suffering and anguish for the loss of the deceased. As is well-known subject certain exceptions, the Law of Tort administered in Pakistan, is the same as the Law of Tort in England. Hence the position in undivided India and now in Pakistan at first was the same as the ordinary law of tort is England. Subsequently, as in England, the law was modified by the Fatal Accidents Act, 1855. Section 1-A of the Fatal Accidents Act is in the same terms as the provisions of the Fatal Accident Act in England. Section 2 of the Act corresponds to the law of Reforms (Miscellaneous Provisions) Act in England. The damages to be awarded to the relations of the deceased are therefore, governed by Section 1-A of the Act and the damages awarded to the estate of the deceased are governed by section

2. Dealing with the submission, it seems that such a claim is justified by reason of Section 1-A of the Act. Mr. G.H. Malik, however, argued that in fact having regard to the circumstances of the case, the relations did not suffer any pecuniary loss by the death of Mst. Attiya. He contended that Mst. Attiya was an ordinary house-wife and was not an earning member. Therefore, by her death it cannot be said that her relations suffered any pecuniary loss. I am unable to agree with this contention. In order that there may be a reasonable exception of pecuniary benefit, it is necessary that the relations should have been supported by the deceased or should have a legal claim to be supported by the deceased. It is not necessary that the deceased should have been earning anything. In Bory v. Humm & Co. (1915) 1 K B 627, the plaintiffs wife was knocked down by a motor taxi-cab and instantly killed. The wife had performed the ordinary household duties of a woman in her position and in consequence of her death the Plaintiff had to employ a house-keeper and to incur extra expenses of management by the housekeeper instead of by his deceased wife. It was held that under the Fatal Accident Act, the damages are recoverable in such an action are not limited to the value of money 1st, or the money value of things lost, but include the monetary loss incurred by replacing services rendered gratuitously by the deceased where there was reasonable prospect of their being rendered freely in the future but for the death". In Feay v. Barnwell, (1988) 1 AER 31 in a street accident, a blind man, 73 years old was injured and his wife 71 years old, was killed. His wife, who looked after him, did everything in the house for him. She read to him and she took him out for walks and looked after him entirely including washing. The decision in Berry was followed. In Mehmet v. Ferry and another (1977) 2 AER 529, the plaintiff' and his wife had five children under the age

17. The two youngest children, H & S, suffered from a rare blood disorder and as a result they had to be taken to hospital periodically to receive blood transfusions; they also had to have daily injections which were administered at home by a nurse and had to be given tablets at home twice daily. They were susceptible to infection and in consequence sudden emergencies might arise; they needed optimum emotional security and support. In'1973, when H and S were aged respectively, six and three, the wife was killed in a car accident due to the defendants' negligence. She had been a good and devoted mother who had been able to cope with the strain of having two children with a blood disorder. At the time of the accident the plaintiff was in full time employment. Following the wife's death and on medical advice that it was in the best interest of H and S, the plaintiff gave up his employment in order to devote himself full time to the care of his family and in particular to the care of H and S. No relative was available to take charge of the household and there was no room in the house for a resident house-keeper. In 1974 the plaintiff resumed his former employment for two months but only to quality for a redendancy payment. During that time H and S lived with various families of relatives. Thereafter the plaintiff did not seek further employment and continued to care for his family. The medical evidence was that the condition of H and S was not likely to improve greatly and that, in terms of their emotional development, it was desirable for the father, rather than another adult, to be wite them, " He brought an action against the defendants claiming damages, inter alia, under the Fatal Accidents Act on behalf of himself and the children. It was held that the damages for the loss of wife's house-keeping services should be assessed by reference to the plaintiffs' loss of wages, and not by reference to the reasonable cost of employing a housekeeper, since his loss of wages represented the nest of providing the services of a full time house-keeper in substitution for the wife. The position in the instant case is practically the same as in the case of Berry. The husband has deposed that he was also constrained to engage a driver at Rs. 1,000 per month. He and his children are, therefore, suffering the loss of pecuniary benefit by the death of his wife. In this case therefore, I have to take into account also what the husband could have spent on the wife if she had been alive. There can be no doubt that he would have spent some amount on her clothes and food. Deducting the sum which the husband would have to spend for the clothes, food and other necessities for his wife, which he will not spend on the tutor and driver. Rs. 500 per month may be regarded as a reasonable expenditure which he is incurring on the tutor and driver whom he has engaged in the place of his wife. Taking that figure into account and having regard to the fact that the wife was aged about 31 years on the date of her death, the annual expenditure comes to Rs. 6,000 multiplying this amount by 15 years, the figure comes to Rs. 90,

000. Additional Issue No. 1: The date of accident is 28-9-79 and the suit was presented on 25-9-1980. The suit is within time. Additional Issue No. 2: It is not denied that Jeep No. 012-572 was insured with the defendant No. 3, the insurance company who was in pleaded as a party on its own application. It is not the case of the defendant No. 3 that insurer is not liable. The suit is also decreed against the defendant No.

3. For the reasons given above, the plaintiffs are entitled to a decree in the sum of Rs. 90,

000. Suit No. 22 of 1982 is decreed in favour of the plaintiffs and against the defendants in the sum of Rs. 90,000 with interest of 12% Per annum from the date of the suit till the date of realization. M.Y.M./F-96/K Suit decreed.