P L D 1973 Lahore 81 (PLP)

(2) Whether the plaintiff has been guilty of contributory negligence in not parking his car at the proper place as alleged in the written statement? (3) What is the value of damage or depreciation if any caused to the car of the plaintiff? (4) Whether the plaintiff has got any cause of action against the defendant? (5) To what amount, if any, is the plaintiff entitled from the defendant? (6) Relief.

5. After recording the evidence Mr. Gul Muhammad Qureshi, Senior Civil Judge, Sargodha found all the issues in favour of the plaintiff against the defendant and decreed his suit on the 25th July 1960, for recovery of Rs. 3,150 as damages with proportionate costs. These findings were affirmed on appeal rejected by the District Judge, Sargodha, on the 17th of February 1961.

6. We have heard the learned counsel for the parties in this second appeal. On an appreciation of the evidence led by the parties the two Courts below have concurred in holding that the defendant‑appellant had acted with gross negligence and care lessness and was responsible for the accident resulting in the damage to the car belonging to the plaintiff: But before us it was argued that except for the statement of P. W. 5, Ghulam Rasool, Chowkidar of the Club, there was no other eye‑witness of the actual occurrence and, as such, according to the learned counsel, the finding recorded by the two Courts below in this respect was based on no evidence. In this connection P. W. 4, Malik Gul Baz Khan, Advocate of Johrabad deposed that at the time before the occurrence they were sitting in the compound of the Club when they heard a noise. They immediately came out and saw that the Jeep of the defendant was standing against the side door of the car with a big hole into it. At the time the defendant was standing by his Jeep and he expressed his regrets to the plaintiff for the occurrence. The witness stated that Exh. P. 3 was a correct site plan and that at the time of the occurrence there was a bulb at point 'A' at the main gate of the Club and there was light in the plot in which these cars were parked. P. W. 5 Ghulam Rasool, Chowkidar of Johrabad Club, deposed that at the time of the accident he was present at the spot where the Jeep of the defendant was parked. The defendant got into his Jeep. He put it into reverse gear and when he was about three or four yards still away from the car belonging to the plaintiff be shouted to him to beware and stop the Jeep. But in the mean time his Jeep banged into the car. The witness was not even cross‑examined by the defendant. P. W. 6, is a draftsman who correctly prepared the plan Exh. P. 3, at the site. P. W. 7, Muhammad Sharif is the Photographer who took a photograph (Exh. P. 4) of the damaged car belonging to the plaintiff. P. W. 8 is the plaintiff who has also deposed to the occurrence. He stated that he had parked his car on the one side of the parking space in front of the Club.. On hearing the noise of the impact he immediately came out and found that his car was damaged by the Jeep driven by the defendant. According to the plaintiff there was a electric bulb at point 'A' which was on and there was sufficient light is the parking space. In rebuttal D. W. 2 the defendant appeared as his own witness. He deposed that the car of the plaintiff was not parked at the right place and that there was no sufficient light there at the time of the accident. He expressed his regrets to the plaintiff and also offered to pay for the cost of the repairs to the car.

7. The two Courts below were impressed by the statement of P. W. 4, Malik Gul Baz Khan, Advocate, a gentleman of status. He deposed that the parking space outside the Club had sufficient light. The Jeep of the defendant was standing at a distance of about 36 feet from the car of the plaintiff. The extent and the nature of damage caused to the car of the plaintiff sufficiently indicated that the Jeep of the defendant must have smashed into the car with great force and that he must have reversed his Jeep at great speed. So much so that in spite of the shout given to him by P. W. 5, Ghulam Rasool Chowkidar, the defendant could do nothing to stop his Jeep to avert the accident. The two Courts below have concurred in finding against the defendant on issues Nos. 1, 2 and 4 and held that the defendant was careless and negligent in reversing his Jeep at a high speed and striking against the stationary car of the plaintiff parked at a considerable distance of about 36 feet where there was sufficient light of the bulb. From the evidence the two Courts below also concluded A that the car of the plaintiff was parked at the extreme end at a proper place. In the circumstances there could be no question of any negligence on his part in this respect and he was not guilty of any contributory negligence on his part. These are pure findings of fact with which this Court can see no good reason to interfere in this second appeal.

8. As has been seen above the car of the plaintiff was in at a distance of about 36 feet on one side of the parking space in front of the Club. It was the defendant, who in reversing his jeep recklessly drove into the stationary car belonging to the plaintiff. Evidently, therefore, the immediate and proximate cause of this accident was due to the defendant. It was he who was largely responsible for this accident. He could have easily avoided this accident with the ordinary prudence and care on his part. This would be so even if it is assumed that the plaintiff was also remotely negligent for having wrongly parked his car towards the rear. Therefore in these circumstances it cannot be held that the plaintiff was guilty of contributory negligence for this accident. In discussing this subject Srinivasal Aiyangar, J. in Madras and Southern Maratha Railway Co. Lrd.l v. Jayammal (A I R 1925 Mad. 304) observed as under:‑ "The theory of contributory negligence is not a special or separate branch of the law nor is the theory which relates to what mar be called the further or secondary negligence of the defendant. They are all but different aspects of one sole question in the case `what was the proximate or effective cause of the accident?' If the defendant was negligent, still if the plaintiff could have by the use of ordinary prudence avoided the accident the plaintiff is held not entitled to recovery, not because he was negligent but only because the proximate cause of the accident should be held in such cases to have been not the primary negligence of the defendant but really the negligence on the part of the plaintiff which was what largely contributed to the result. Similarly if in spite of the negligence or, as it is called, the contributory negligence of the plaintiff the defendant could even then by the exercise of ordinary care have avoided the accident and injury, the plaintiff is held entitled to recovery, not because he was not negligent but only because the negligence that proximately caused the injury was the negligence not of the plaintiff but of the defendant. The whole thing therefore is a problem in causation and Courts of law are allowed and required to do their best to piece out the events and arrive at a conclusion with regard to the proximate or as it may be otherwise called the effective cause of the accident or injury." In the leading case on the subject in Radley and another v. The London and North‑Western Railway Company ((1876) 1 A C 754) the House of Lords has laid down two propositions in this connection. The first proposition is a general one, to this effect that the plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care, which contributed to the cause of the accident. But there is another proposition equally well established, and it is a qualification upon the first‑namely, that although the plaintiff might have been guilty of negligence and although the negligence might, in fact, have contributed to the accident, yet if the defen dant could, in the result, by the exercise of the ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence would not excuse him. In this connection Willes, J. has laid down a test as under:‑ If both parties are equally to blame the accident and the result of their joint negligence, the plaintiff could not recover. If the negligence and the default of the plaintiff was in any degree the proximate cause of the damage, he could not recover, however, great may have been the negligence of the defendant. But, if the negligence of the plaintiff was only remotely connected with the accident, then the question was whether the defendant might not; by the exercise of ordinary care, have avoided it.

9. There is another way of looking at it. It was held in Chotelal v. G. I. P. Ry. Co. (A I R 1929 Nag. 209) that: "Where, therefore, the defendant is negligent and the plaintiff is alleged to have been guilty of contributory negligence, the test to be applied is whether the defendant's negligence was the real, direct and effective cause of the misfortune. When the acts of negligence alleged are no contemporaneous this test in general results in throwing the responsibility on that party who last had an opportunity of avoiding, by the exercise of ordinary care or skill, the effect of the negligence of the other, and who failed to do so." Applying this test also the responsibility squarely devolves upon the defendant to have exercised the necessary care for avoiding the accident. For all these reasons we have no hesitation in repell ing this contention advanced by the learned counsel for the appellant.

10. The two Courts have concurred in awarding Rs. 3,150 as compensation for the damage to the car belonging to the Plaintiff. In this connection it is worth mentioning here that it was a brand new car purchased by the plaintiff. He purchased it from the Western Motors Ltd, 12 the Mall, Rawalpindi on the 24th of April 1959, less than a month before the occurrence for Rs. 17,517.12 inclusive of sale tax etc. After the car bad met with the accident it was sent from Johrabad to Rawalpindi for repairs. P. W. 3 Abdur Rehman had done these repairs. He deposed that the car had a hole in one of its doors and dents on .it and its mudguard was badly damaged. According to the witness he had no pressing machine and had to take out the dents mechanically. He admitted that it was not possible for him to bring the car to its original condition. P. W. 1, Muhammad Ali runs a Repairing Workshop on Abbot Road, Lahore. According to his estimate the car suffered depreciation of Rs. 3,000 as a result of this accident. Exh. P. 1 is a certificate issued by him in this respect after the inspection of the car in June 1969. P. W. 2, Farid Hussain is a proprietor of another workshop in Lahore. He issued another certificate (Exh. P. 2) after having inspected the car and according to him the car suffered a depreciation of Rs. 3,000 in value on account of the accident. In rebuttal the defendant produced Fazal Ahmad, Motor Repairer and Proprietor Auto Mobile, Sargodha. After inspecting the car he admitted that in case the door of the car was replaced it would have cost Rs. 3,

500. He further admitted that in case it was known to an intending purchaser that the car had been damaged then its price would go down by Rs. 4,000 or Rs. 5,000.

11. Before the trial Court the defendant made an offer and expressed his readiness to buy off the damaged car belonging to the plaintiff at the price paid by him. But the plaintiff declined to accept the offer. It was, therefore, argued that damage of Rs. 3,250 demanded by the plaintiff was altogether fanciful and not real. The learned counsel stressed before us that the plaintiff was not entitled to any alleged depreciation in the value of the car and that at best he should be satisfied with the cost of repair reasonably incurred by him in this connection. The trial Court observed that in those days new cars were not freely available in the open market and could be obtained on permits. In these circumstances in the opinion of the Court the offer made by the defendant to buy the car from the plaintiff at price paid by him was a clever move on his part to put off the plaintiff and thwart his claim. As such the offer made by the defendant was not bona fide especially because according to the statement of the plaintiff, he was not permitted to transfer his car within a period of two years from the date of the purchase. The defendant himself admitted that he was not in a position to readily replace the car of the plaintiff with a new one. The Court was also of the opinion that in case a car was damaged by accident it would naturally undergo depreciation in its value and, therefore, it could not be seriously argued that the amount actually spent on the ordinary repairs should be the measure of damage to the plaintiff and that he was not entitled to any depreciation in the value of his car. The Court held that the plaintiff was not far wrong in his estimate of Rs. 3,000 on account of the resultant depreciation in the value of his cir. It was proved from the mouth of the defendant's own witness. D. W. 1 that it would cost Rs. 3,000 to 3,500 to replace the damaged door of the car with a new one. The Court, therefore, awarded Rs. 3,000 by way of compensation to the plaintiff on account of the depreciation in the value of his car. In addition to this the Court allowed another sum of Rs. 150 to the plaintiff on account of the out of pocket expenditure incurred by him in sending his car from Johrabad to Rawalpindi for repairs. In this manner the Court awarded a total sum of Rs. 3,150 to the plaintiff as compensation for the damage to the car. In appeal the learned District Judge repelled the contention advanced by the appellant that he was liable merely for the cost. of repairs of the car reasonably incurred by the plaintiff. He held that a damaged car although repaired could not be considered to be at par with a new car and, therefore, the plaintiff should be compensated in full for all the loss suffered by him on account of the recklessness and negligence of the defendant. From the statements of the four witnesses (P. Ws. 1 to 3 and D. W. 1) the Court concluded that the car in question had undergone a depreciation of Rs. 3,000 in its market value on account of the accident. In this connection the Court repelled the contention advanced on behalf of the defendant to the effect, that the evidence of these witnesses was not admissible because they could not be regarded as experts under section 45 of the Evidence Act.

12. Before us this last objection was once again pressed. The learned counsel for the appellant contended that the evidence of P. Ws. 1 to 3 and D. W. 1 was not admissible and the Court below has erred in holding that they were experts and as such their opinion on the point was relevant under section 45 of the Evidence Act. This section lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of' handwriting or finger impressions are relevant facts. Such persons are called expects. This section is exhaustive of the matters, on which the expert testimony can be given, and no witness is permitted to express his opinion unless he is an expert within the meaning of this section. But in our opinion the term "science or art" in the context would include almost all branches of human knowledge requiring special duty, experience or training for the formation of an opinion on a given subject. For instance, a surveyor or broker is allowed to depose as an expert, when the Court has to form an opinion as to the value of a property. (See Secretary of Sate v. Smt. Sarla Devi Chaudhrani (A I R 1924 Lah. 548) and Land Acquisition Officer v. Fakir Muhammad and another (A I R 1933 Sind 124). In the Globe Automobile Co. v. K. A. K. Master (157 1 C 12), it was held that the evidence of a haulage contractor owning many lorries and in the business for years was admissible as au expert and it would be ridiculous to say that the witness could not be described as an expert on the quality, wear and use of tyres merely because he had not seen the process of manufacture. Similarly in Sidik Sumar v. Emperor (A I R 1942 Sind 11), the Court held that the evidence of a tracker was relevant and admissible under section 45 of the Evidence Act when he was called upon to assist the Court in forming its opinion on the particular footprints in the case. In the "Trial of Motor Car Accident Cases" by A. D. Gibb (Second Edition), section 284, on page 200, the learned author has observed that the extent of the damages claimed by the owner is usually proved by means of a repairer, mechanic or car dealer who gives evidence as an expert to the depreciation in value, or the reasonable value of the repairs done. We have, therefore, no hesitation in repelling this objection raised before us and hold that the evidence of these witnesses considered by the two Courts below was relevant and could not be shut out as in admissible.

13. Now we turn to the quantum of damages awarded against the appellant by the Courts below. In this connection it was contended before us by the learned counsel that the respondent was entitled to the reasonable cost of actual repairs done by the plaintiff to the door of his car and not to any amount by way of depreciation in value of the car allowed to him. In this connection the learned counsel cited before us Subbiah Reddy and another v. T. Jardon (A I R 1945 PC 168), in which their Lordships of the Privy Council held that damages for tort are based on the loss suffered by the plaintiff, and the consideration that the decree of the Appeal Court was against an additional defendant who might be in a better position to pay than the defendant originally held solely liable, is irrelevant. Similarly in Sorabji Dadabhai v. B. N. Ry. Co. Ltd. (A I R 1936 Pat. 393), the Court held that the law of damages entitled a plaintiff, attempting to recover in contract or in tort, only such damages as he had incurred. He also cited before us S. V. Muthuswami Reddiar v. Sirkar (A I R 1951 Trav. Co. 171). There it was held that in a case of a motor vehicle damaged by collision with another, the standard to be adopted for awarding. damages against the wrongful party was by assessing the amount that might be reasonably necessary to meet the expenses of repairing the damages. But this is precisely begging the whole question. What indeed was the actual damage suffered by the plaintiff? Is it merely the cost of repair actually incurred or is he also to be indemnified for the loss in the value of the car suffered by him? In theory the Courts have always endeavored to place the plaintiff in the position he occupied before he sustained the injury and whole loss suffered by him must be remedied. In actions on tort to property there is a possibility to measure the damages in terms of money with some certainty. But in doing so three fundamental principles must be borne in mind. The first and the foremost is the maxim that "restitutio in intergrum". In other words as nearly as possible the Court must endeavour to get at that sum of money which will put the party who was injured or who has suffered, in the same position as he would have been in, if he had not sustained the wrong for which he is getting his compensation or reparation. The next principle in determining the damages, whether in contract, or tort, is embodied in the maxim "injure non remora casua sed proxima spectatur". It prevents the plaintiff from recovering remote damages that do not flow or arise as direct consequence of the wrongful act. Thirdly, in all claims for damages, whether arising from a contract or tort, a duty is cast upon the plaintiff to mitigate and minimize damages, that is, to take all reasonable precautions to reduce the amount of loss or damage arising from the wrongful act of the defendant. Keeping these principles in mind we find that the plaintiff was entitled to be fully demnified for the loss caused to his car and this would also include loss on account of the depreciation in the value of the car.

14. In this connection in the Trial of Motor Car Cases by A. D. Gibb (Second Edition), under section 284, the learned author has generally observed that where a car is damaged the owner is entitled to fair and reasonable compensation for such damage. The measure of such damage is, theoretically, the difference between the market value before the injury and the market value after it. Under section 339 the learned author observed that when a car is damaged by collision but in such a way that it can be repaired the measure of damages is usually the amount reasonably necessary to repair the car and the owner is entitled to a complete repair of all the damage done, although the result may be to render the car even more valuable than before the collision. Under section 350 he has further observed that the measure of damages is the difference between the market value of the car before the damage and its market value after. Therefore, we are not prepared to accept the con tention that under no circumstances the plaintiff was entitled to any depreciation in value of the car in question.

15. It was almost a new car on the date of the accident. One of its doors was badly damaged. According to the testimony of P.W.1 Muhammad Ali after the removal of the dents and the repairs the car could not be brought back into its original condition and its value had depreciated by Rs. 3,000 approximately. This evidence is corroborated by the testimony of P. W. 2 Farid Hussain and P. W. 3 Abdul Rehman. This evidence is also supported by the testimony of the defendant's own witness D. W. 1 Fazal Ahmad. He admitted that It would cost Rs. 3,000.00/3,500.00 to replace a door of the car and that a new car after the accident depreciated in value by Rs. 4,000.00/ 5,000.00. In these circumstances we have no reason to interfere with the concurrent findings of the two Courts below in holding that this car suffered a depreciation of Rs. 3,000 In its value on account of the accident.

16. In this connection Greer, L. J. in the Court of Appeal in England in Flint v. Lovell ((1935) 1 K B 354), has held that:‑ "This Court will be disinclined to reverse the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principles of law or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled." Similarly in Subbiah Reddy and another v. T. Jardon, their Lordships of the Privy Council were of the opinion that this rule of the English Law was applicable with full rigor in British India.

17. Normally we would not have interfered with the damages awarded to the plaintiff. But we find that the two Courts below have erred in their estimate of the damages in one minor respect. In addition to the sum of Rs. 3,000 allowed on account of the depreciation in the value of the car the two Courts awarded another sum of Rs. 150 on account of the out of pocket expenses incurred by the plaintiff in sending his car from Johrabad to Rawalpindi for repairs. But in our opinion with the award of compensation for the depreciation in the G value of the car the plaintiff was fully demnified for the damage done to his car at Johrabad. After this there was no reason for the payment of an additional sum of Rs. 150 incurred by him in sending his car to Rawalpindi for repairs. In this manner he could not be permitted to derive this benefit over again after it was once allowed to him in the form of the over all depreciation in the value of his car. It is for this reason that we find that this appeal is bound to succeed partly to the extent of Rs. 150 only, and the rest of it is liable to be dismissed.

18. For the foregoing reasons we partly accept the above appeal and allow the damages to the respondent against the appellant to the extent of Rs. 3,000 only with proportionate costs throughout. S. A.H. Appeal partly accepted.