1996 PLP 1913 (MLD)

I have heard learned counsel Mr. Muhammad ldrees for appellants in Civil Appeal No.37 of 1988 and Mr. Munirur Rehman learned counsel for appellants in Appeal No.41 of 1988 and Mr. lqbal Qadri, learned counsel for respondent No.1 in both the appeals while Mr. Muhammad ldrees, learned counsel for respondents Nos.2 and 3 in Appeal No.41 of 1988 and have perused the record and proceedings of the case and the case‑law cited by them. Mr. Muhammad Idrees, learned counsel for appellants, has argued that there was no evidence that the accident had taken place with bus of the appellant Shabbir Ahmad as neither Mst. Uroos Fatima nor her witnesses were present at the time of accident therefore findings of the learned Senior Civil Judge were erroneous and illegal. He has placed reliance upon Maryam Bai v. M. M. Isphani and others PLD 1965 Kar. 59, Naseerullah Khan v. PIA 1994 MLD 783 and Haji Abdul Razzak v. Pakistan through Secretary of Defence 1994 CLC 613 in support of his contentions. Mr. Munir‑ur‑Rehman, learned counsel for the appellants in Appeal No.41 of 1988 and respondent No.3 in Appeal No.37 of 1988 for Insurance Company has argued that the liability of the appellant Insurance Company is limited up to Rs.20,000 only therefore said liability could not exceed beyond the said limit and the said appellants could not be held jointly and severally liable to the claim decreed by the lower Court. Mr.Iqbal Qadri, learned counsel for Mst. Uroos Fatima has contended that there was sufficient evidence on record as required under the law to hold that appellants are liable to damages and further that there was no reason for the respondent Uroos Fatima to falsely implicate appellants Nisar Ahmad and Shabbir Ahmad for causing the death of deceased Badar Alam her son by the Bus No.800‑403 being driven by the appellant Nisar Ahmad considering that there has been no enmity of the respondent Uroos Fatima with the said appellant. He has further argued that the appellants have falsely denied that the death was not caused with the said bus being driven by the appellant Nisar Ahmad, driver of appellant Shabbir Ahmad the owner of said bus and further that they did not approach her sons for settlement and that the appellant Nisar Ahmad was not charge‑sheeted for the offence of section 304‑A, P.P.C. when Exh.P/7 mentioned the name of Nisar Ahmad as an accused and stated that the death of deceased occurred with Bus No.800‑403 being driven by appellant Nisar Ahmad. He has further argued that there is no denial of service of notice dated 3rd November, 1984, sent by respondent Uroos Fatima in the written statement filed by the appellant Nisar Ahmad but the latter denied, the service of notice in his cross‑examination. The first contention of Mr. Muhammad Idrees is that there is no evidence that the accident was caused by the bus of the appellant therefore the finding of the learned Senior Civil Judge was erroneous. Before dealing with the above contention of learned counsel I deem it necessary to deal with the question as to upon whom would the onus lie to prove the negligence in case it is held that the accident took place with the bus of the appellant. Mst. Uroos Fatima and her son in their evidence have admitted that they were not present at the time of accident therefore they could not be said to be eye‑witnesses of the incident hence they could not be blamed for not proving negligence on the part of appellants. I quote from the book "The Fatal Accidents Act, 1855 written by M. Mahmood":‑‑‑ "In a case under the Fatal Accidents Act, 1855 the general rule as to the burden of proof in regard to negligence on part of the defendants/ appellants is that it is for the plaintiffs/respondents to prove the negligence and not for defendants/appellants to disprove it, but in those cases where the true cause of accident lies solely within the knowledge of the defendants/appellants this hardship is avoided by invoking the rule of res ipsa loquitur (the thing speaks for itself). Under it in those cases where the accident speaks for itself it is sufficient for the plaintiffs/respondents to prove the accident and nothing more. It is then for defendants/appellants to persuade, the Court that the incident arose not through their negligence." Reference is also made to Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848 where in para. 12 at page 855 Supreme Court of Pakistan observed:‑‑‑ "' 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." In para. 13 of the same judgment at page 856 it has been observed:‑‑‑ " This hardship is however, avoided to a considerable extent by the maxim res ipsa loquitur. This maxim means that an accident may by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other cause and in such a case mere fact of the accident is prima facie evidence of such negligence agree and approve the explanation given by the High Court of res ipsa loquitur. In the present case we are satisfied that the maxim has been applied by two forums in the High Court correctly and appropriately." In the instant case the accident is said to have taken place with the bus owned by appellant Shabbir Ahmad which was driven by appellant Nisar Ahmad and the said bus was under the sole management and control of appellant Nisar Ahmad whereby deceased who was riding on a motorcycle met with instant death because of the head injury caused by the said bus and the said instant death could not be said to have occurred without the negligence of appellant Nisar Ahmad who was driving the bus. There is also no evidence as to why or how the occurrence took place in respect of the accident whereby deceased Badar Alain met with instant death. In such circumstances, the appellants have to persuade the Court that the accident did not occur on account of their negligence. The general rule as to the burden of proof with regard to negligence that plaintiff has to prove the negligence, however, could be avoided to a considerable extent in cases where the maxim res ipsa loquitur would be attracted when accident which caused death of deceased by its nature being fatal would be consistent in holding that it was caused by negligence of the defendant who could be held responsible for the cause of death, therefore, in such cases the fact of accident having been: caused by negligence would stand proved unless the defendant has proved that it was not caused due to his negligence. In the instant case, the appellants have not led evidence to show that there has been no negligence on their part in the cause of accident, therefore, it would be deemed to have been caused due to negligence of the appellant Nisar Ahmad. Now I come to the main contention of the appellants that the death of the deceased was not caused with the bus of the appellants. The appellants have outright denied the involvement of the said bus in the cause of death of deceased Badar Alain, therefore, the respondent Uroos Fatima has to prove only that deceased Badar Alam met with death due to accident caused by the said bus of the appellant Shabbir Ahmad while being driven by appellant Nisar Ahmad. The respondent Uroos Fatima in the plaint has stated that deceased Badar Alain met with death due to accident caused by the bus of the appellants. Mst. Uroos Fatima and her ‑son Khursheed Alain have deposed in their evidence that the appellants visited them to settle claim in respect of death of deceased Badar Alain caused by bus of the appellants after service of notice upon them. The appellants have admitted the service of notice on them in their written statement but no reply thereof was given to the respondent and the former failed to deny or contradict the contents of notice which a person of ordinary prudence with clean hands would have replied and if the contents of notice were incorrect, would have denied or contradicted involvement of the said bus at the first opportunity. In the instant case appellants were specifically informed by the respondent Uroos Fatima that the death of deceased Badar Alain was caused by the said bus in the said notice but former remained silent and did not contradict the statement made in the notice when in such circumstances contradiction or explanation was reasonably expected from the appellants which conduct of the appellants coupled with other factors would amount to acquiescence. There is also no suggestion in the cross‑examination of the respondent Uroos Fatima that notice was not served on the appellants and that they did not approach respondent's son for settlement of claim in respect of death of deceased Badar Alam caused by theif bus. In fact, the appellants have admitted service of notice on them in the written statement but the appellant Nisar Ahmad in his cross‑examination has denied the admitted fact about the service of notice. The appellants have failed to put up their case in the cross‑examination of the respondent and her witness therefore it would be deemed that the appellants did approach the son of respondent Uroos Fatima for settlement of claim in respect of death of her deceased son and also that notice was served on them. If the death of deceased would not have been caused by the said bus driven by the appellant Nisar Ahmad and owned by appellant Shabbir Ahmad they would not have approached the respondent's son at all and they would have at the first opportunity contradicted or denied the involvement of the said bus in the cause of death of deceased Badar Alain after service of notice. The said conduct, action of the appellants would lead to the conclusion that the accident which caused the death of deceased was caused by the said bus. The contents of charge‑sheet Exh.P/7 could be referred to test the veracity of evidence produced by the appellants/defendants in the suit. The appellant Nisar B Ahmad in his deposition has denied his involvement in the criminal case registered against him under section 304‑A, P.P.C. whereas charge‑sheet Exh.P/7 falsified his statement. Appellant Nisar Ahmad has denied the service of notice in his cross‑examination whereas he has admitted its service in the written statement. The fact that the appellants approached the respondent's son for settlement has also been proved as held above considering also that learned counsel for the appellants Shabbir Ahmad and Nisar Ahmad made suggestion in the cross‑examination of Khursheed Alam in the affirmative that said appellants visited the respondent's son once which would amount to admitting the visit of the appellants at the house of respondent's son. It would not be out of place to state here that on 21‑10‑1986 counsel for the respondent Uroos Fatima had moved an application under section 8 of Oaths Act, 1873 wherein she had offered to withdraw her claim against the appellants if the latter took Special Oath on Holy Qur'an that the said incident did not take place with their bus No.800‑403 and the deceased did not die because of such accident and further that the latter did not approach Khursheed Alam for settlement but the appellants did not agree to the offer of taking Special Oath consequently the said application was dismissed on 5‑1‑1987. The evidence adduced by the respondent is straightforward, reliable, trustworthy and confidence‑inspiring. It stands proved that the accident did take place with Bus No.800‑403 owned by appellant Shabbir Ahmad which was being driven by the appellant Nisar Ahmad. The veracity of the appellants Shabbir Ahmad and Nisar Ahmad has been shaken as observed above whereby they even denied the admitted facts on record therefore their testimony is not to be believed. There appears no reason as to why respondent Uroos Fatima would specifically sue these two appellants for claim of damages in respect of cause of death of her son by way of fatal accident. The charge‑sheet Exh.P/7 also falsified evidence of the appellant Nisar Ahmad that he was not charge‑sheeted in a criminal case registered against him under section 304‑A, P.P.C. while I driving the said bus. There is no evidence that claim of damages was excessive or that respondent Uroos Fatima was not entitled to the said damages or that she was not getting financial support from her deceased son or that she was not dependent upon the said income of her deceased son or that she was not deprived of the income of her son who died because of death caused by the said bus from the side of appellants. It is an admitted position that appellant Shabbir Ahmad was the owner while appellant Nisar Ahmad was the driver of the former and the said bus was also insured with appellant Alpha Insurance Company to cover the third party risk to the extent of Rs.20,000 only. Accordingly, there is no merit and force in the contention of learned counsel for appellant that there is no evidence against them that accident was caused by the said bus: No other plea has been raised by the counsel for the appellant. The facts of the case‑law cited by learned counsel for the appellants are different and distinguishable from the facts of the instant case. In Mariambai and others v. M.M. Isphani Ltd. and another PLD 1965 Kar. 59 the facts were that some gunny‑bag bales fell on deceased Haroon when he went to the godown of the defendant to take delivery of contracted goods. In the cited case it was held by learned Judge in Chambers that the burden of proving the negligence in the cause of death of deceased would be on the plaintiffs who had not discharged the burden of establishing any wrongful or negligent act on the part of defendants. The principles of maxim res ipsa loquitur were not considered and in the instant case the principles of ‑ said maxim are attracted and further the appellants/defendants have outright denied the involvement of their bus in the cause of death of deceased. Accordingly, the facts of cited case would not be applicable keeping in view the principles laid down in 1993 SCMR

848. In Naseerullah Khan and another v. Pakistan International Airlines Corporation and others 1994 MLD 783 the facts were that deceased Ziaullah Khan died in fatal accident when he was hit by wagon which belonged to the defendants who denied that the said wagon was driven rashly or negligently or that death of the deceased occurred on account of injury sustained by him in accident with said wagon. It was held by my learned brother Judge in Chambers that the plaintiffs failed to prove that the death of deceased was caused due to he being hit by said wagon which was being driven by defendant No.2. The principles of maxim res ipsa loquitur were also not attracted in the cited case and the evidence adduced by the plaintiff was not sufficient to hold that the deceased met with the death due to accident caused by said wagon. The testimony of the witnesses in the cited case was not believed being contradictory and not confidence‑inspiring. In the instant case, the testimony of the appellants/defendants has been considered to be not worthy of credit and not confidence‑inspiring and the testimony of the respondent Uroos Fatima and her witness has been considered to be reliable, satisfactory and confidence‑inspiring. In the circumstances, the facts of the cited case are quite different and distinguishable from the facts of the instant case. The facts of Haji Abdul Razzaque v. Pakistan through Secretary, Ministry of Defence and 2 others 1994 CLC 613 are also quite different and distinguishable from the facts of the instant case. In the cited case the principles of maxim res ipsa loquitur were not attracted and there was no sufficient evidence to prove the liability of the defendants for fatal accident, which caused the death when the driver of the said vehicle was acquitted for want of evidence. In the instant case there is sufficient evidence to prove that the death of deceased was caused by the bus of the appellants/defendants and the principles of maxim res ipsa loquitur would be applicable. In the circumstances, both appeals are hereby dismissed with costs with the only modification that appellants in Appeal No.41 of 1988 would only be liable to the extent of Rs.20,000 while appellants in Appeal No.37/88 would be jointly and severally liable for the rest of the amount of Rs. 56,

000. A.A./N-14/K Order accordingly.