P L D 1968 Karachi 464 (PLP)

"If by a collision between two vehicles a person un connected with either vehicle were injured, the owner of neither vehicle, when sued could maintain as a defence, I am not guilty because but for the negligence of another person the accident would not have happened." It is no loner the rule that passengers for hire in any vehicle are so connected with the vehicle or with its owner or its driver as to be identified with the 'negligence of the owner or the driver, thereby disentitling them, on the princi ple of contributory negligence, to maintain any action for the negligence of any other wrongdoer. This doctrine o identification was laid down in Thorogood v. Bryan (18 C B 115‑137 E R 452) but the doctrine was disapproved as being indefencible, in Mills g v. Armstrong where Lord Herschell observed that he was unable to comprehend this doctrine and that the identification of the passenger with the driver of the vehicle does no result from any recognized principles of law. The Supreme Court of the United States also, in its decision in Little v Hackett ((1886) 116 U S 366) rejected this doctrine of identification between th passenger and the driver of the vehicle. In this connection I would also refer to the speech of Lord du Parcq in Grant v. Sun Shipping Co. Ltd. (1948 A C 549). The learned Lord ,of Appeal stated that he regarded it "as a well‑settled principle that when separate and in dependent acts of negligence on the part of two or more persons have directly contributed to cause injury and damage to another, the person injured may recover damages from any one of the wrongdoers, or from all of them." and that :-‑ "if the negligence or breach of duty of one person is the cause of injury to another, the wrongdoer cannot in all circumstances escape liability by proving that, though he was to blame yet but for the negligence of a third person the injured man would not have suffered the damage of which he complains."

11. It is, however, open to either of the defendants to say to the plaintiff that "you are not injured by my negli gence at all but only and wholly by that of the other defendant". But the question is, can either of the contesting defendants take this stand on the evidence on record. The defendant No. 1 have not led any evidence on the actual accident. They have produced neither the driver nor conductor of the bus, nor any passengers travelling in the bus to show that the driver of the bus observed such due care as it was his duty as a person in control of a vehicle towards his passengers. The evidence, on the other hind, shows that the driver was rash and negligent. He failed to keep a. proper look‑out for the level‑crossing or even to pay atten tion to the protests of the passengers when they saw the railway engine on the crossing. In my opinion, the defendant No. 1 have not succeeded in establishing that the accident was the result, wholly, of the negligences of the railway employees.

12. It is now to be considered whether the railway can take the stand that the sole and the only cause of the accident was the negligence of the bus driver. The railway would succeed in this stand if it is established that its employees observed the rules and all due precautions for taking the railway engine through the level‑crossing. In this connection, was have to consider the evidence tendered by the railway, which consists of the depositions of its employees, namely, D. Ws. Faqir Muhammad, Ashiq Ali, Jaffar Khan, Kale Khan and Qasim. Faqir Muhammad was the Shunting Jamadar on the engine. He stated that the engine stopped near the "Dead Stop" board at the crossing, whereafter he posted himself on the front bumper of the engine, and deputed Nazir Muhammad and D. W. Ashiq Ali to stand on either side of the crossing with red flags to stop the road traffic. These persons, after stopping the traffic, gave green flag to him and he showed green flag to the engine driver, who, then, gave a whistle and started the engine. The engine crossed the first road passing through the crossing and the grassy patch next to it, and then reached the second road, when Nazir Muhammad and Ashiq Ali returned to the engine, but again got down to stop traffic from either side on the second road. The witness saw two buses approaching the crossing. Where upon Nazir Muhammad tried to stop them by showing red flag, but only one bus stopped and the other came on the rails and collided with the engine. D. W., Ashiq Ali supported this version of lamadar Faqir Muhammad. D. Ws. Muhammad Jaffar Khan, the Guard of the engine, Kale Khan, the engine driver and Qasim, Fireman, also gave evidence to the effect. These witnesses, however, admitted that the level crossing was fitted with pole barriers which could not be operated as there were no pulling chains. It also came out in this evidence that Faqir Muhammad, the Shunting Jamadar and Ashiq Ali, the shunting porter, bolted away from the scene. D. W. Muhammad Jaffar Khan caught them hidden at the Liaquatabad railway station. At 2‑20 p.m., though the accident bad occurred at 9‑45 An. D. W. Ashiq Ali said that he and Fakir Muhammad ran away from the scene due to the indignation of the public, who bad collected at the scene, against the railway employees. These witnesses admitted that the railway held an enquiry into the accident, where after Nazir Mohammed, who was posted on one side of the crossing to stop the traffic, absconded and became untraceable.

13. This evidence has not satisfied me that the railway employees observed the rules and other necessary precautions for taking the railway engine through tae level‑crossing. It is the admitted position that the level‑crossing is in a populous residential area. There was heavy traffic on the two roads passing through it, as these roads connected Karimabad and Azizabad with the city. Though the level -crossing was fitted with pole barriers, no arrangements were made to provide pulling chains to operate these poles. Nor was there any permanent arrangement to post gate than at the crossing for the safety of the persons using the roads, through the crossing. It is admitted that an enquiry was held into the accident by the railway. But the report of this enquiry has not been produced in Court, and I am compelled to raise the inference that if this report has been produced, its evidence' would have been against the railway. The further admitted position is that Faqir Muhammad and Ashiq Ali ran from the scene due to the indignation of the public against their conduct. Now these were the only two employees of the railway to run away from the scene, and they were, part of the shunting staff whose duty it was to stop the road traffic on either side of the crossing before the engine passed through it. Why should they have run away if they had duly performed their duties, and why should the public have not expressed indignation against the bus driver who, according to the evidence of the railway employees, was the only person guilty of negligence and further, why should Nazir Mohammad have absconded after the completion of the railway enquiry 7 No satisfactory explanation has been given on these points. The evidence of D. W. Faqir Muhammad, the Shunting Jamadar, itself contains improbabilities. Accord ing to him two roads, separated by a grassy patch, passed through the level‑crossing. The railway engine stopped near the "Dead Stop" board, and Ashiq Ali and Nazir Muhammad were posted on either side of the crossing on the first road. But they returned to the engine as soon as it came on the second road, and then got down again and posted themselves on the second road at the two ends of the crossing. It has not been explained why Nazir Muhammad and Ashiq Ali returned to the engine even before it had completed, its exit through the crossing. D. W. Faqir Mohammad is stated to have posted himself on the front bumper of the engine. But the evidence is that it was not the bus which hit the engine, but the engine which hit the bus in its middle part, in which case Faqir Mohammad would have received injuries the was standing an the engine's front bumper. How he escaped any hurt in the accident was again not made clear. Another piece of evidence, which intrigued me, is that Nazir Mohammad, who is, supposed to have been posted on the Karimabad side of the crossing, from which direction the bus in question entered the railway tract, was found to have been injured in the accident, in consequence of which he fell down un conscious. Nazir Mohammad is reported to have told D. W. Jaffar Khan that he was hit by the bus. But none of the railway's witnesses, namely, Mohammad Jaffar Khan, Kale Khan, Qasim, Ashiq Ali and Faqir Mohammad, saw Nazir Mohammad being hit by the bus, though, the engine driver, Kale Khan, and the Fireman, Qasim, were either side of the engine and should have witnessed the bus hitting Nazir Mohammed. This lends support to the contention that Nazir Mohammad was not standing on the Karimabad side when the bus entered the level‑crossing, and this raises the inference that in fact it was Nazir Mohammad who was on the front bumper of the engine when it hit the bus, and, further, that none of the railway employees fn attendance on the engine was posted at either side of the crossing to halt the road traffic. Another paint which attracts notice is that the impact of the collision between the bus and the engine was of such force that the bus over‑turned two or three times, and the passengers in the bus had 6 be rescued by breaking open the windows by a hammer. But the railway employees maintained that the engine passed through the crossing at the speed of only 2 or 3 miles an hour. This speed, could not have caused impact of such i3 force as would over‑turn `the bus two or three times. In my opinion the engine did not at all stop at the "Dead Stop" sign and attempted to pass through the crossing at a fast speed, which fact alone can explain the great force of the impact between the bus and the engine. On this hypothesis, I think, P. W. Qasim Ali, who, himself, suffered injuries in the accident, but did not bring any claim for damages against the railway, should be believed when he says that the engine failed to give any whistle and that the level‑crossing was not manned on either side when the bus came on the rails.

14. I am, therefore, of the view that both the bus driver as well as the railway staff acted with negligence, though independently of each other. The railway failed to provide the level‑crossing with pulling chains for operation of the pole barriers, or to post any person of at the cross ing to operate the poles. The shunting staff, which was is attendance on the engine, neglected to man the two sides of the crossing when the engine passed through it. The impact of the collision shows that the engine attempted to pass through the crossing at a speed which cannot be considered safe, in view of the fact that the level‑crossing was on a high‑way and In a populous area. The bus driver, on his part, was negligent, in that he drove the bus at high speed and failed to, halt or slow it down on the approach of the crossing or even to keep a proper look‑out for railway traffic on the rails. Thus the accident was caused by the independent acts of negligence of the servants of the defendants Nos. 1 and 3, and, therefore, both these defendants are liable for damages to the plaintiff, who can maintain this action against both or any of the defendants, irrespective of the consideration as to whether there is any duty of contribution or indemnity as between these defendants Accordingly, I would decide the issue No. 3 against the defendants and hold that the plaintiff received injuries in the accident which was caused by the independent acts of negligence of the servants of defendants Nos. 1 and 3, and that these defendants as also the defendant No. 2, the bus driver, are liable' to compensate the plaintiff for the injuries received by him.

15. Issue No. 6.‑The plaintiff has claimed Rs. 27,509 as damages as under :‑‑ (i) Special damages on account of medical expenses incurred by plaintiff Rs. 3,000 (ii) Loss of income for 9 months and 18 days from 11‑8‑1963 to 31‑5‑1964, at the rate of Ra. 1,000 per month R s. 9,500 (iii) Compensation' for mental shock, sufferings and for shortened expectancy of life Rs. 15,000

16. The plaintiff stated in his evidence that he incurred Rs. 3,000 on his medical treatment, P. W. Syed Nusrat Ali, the plaintiff's father‑in‑law, stated that he himself spent Rs. 1,880 in the treatment of the plaintiff: The plaintiff was examined by Dr. O. V. Jooma, whom he paid Rs. 80, and whose receipt for this amount is Exh.

15. The plaintiff produced receipts and vouchers for purchase of medicines, which are collectively marked as Exh.

13. Considering that the plaintiff sustained serious injuries in the accident and remained unconscious for a week, and remained confined to bed for nearly nine months. I thinly that the amount claimed for medical treatment must in fact have 'been spent, even though the plaintiff was unable to account for the whole of this amount by receipts and vouchers, I would, therefore, accept the figure of Rs. 3,000 (Rupees three, thousand) as representing, approximately, the expenses incurred by or on behalf of the plaintiff in his 'medical treatment.

17. It has come in the evidence of the plaintiff, and that of P. 'Ws. Malik Hamzuz Zaman and Syed Nusrat Ali, that the plaintiff, who was at the relevant time Assistant Unit Manager with the American Life Insurance Co., was unable to resume his vocation for 9 months and 18 days, that it, from 11‑8‑1963 up to 31‑5‑1964, due to the injuries and dis abilities sustained by him in the accident. According to the plaintiff, his monthly income for the period immediately preced ing the accident was Rs. 1,000 per month. Besides being the Assistant Unit Manager with the American Life‑insurance Co. the plaintiff transacted insurance agency business in the name of his wife, Sikandra Begum, Exh. 6, the certificate of the American Life Insurance Co., shows that tile plaintiff earned Rs. 3,884.89 for the period from 1st June 1962 to 31st August 1963, by way of commission, allowances and production bonus. P. W,, Hamzuz Zaman, the Agency Administrative Superin tendent of the American Life Insurance Co., stated that Sikandra Begum earned Rs. 3,271.12 from 1‑6‑1962 to 31‑8‑1963, and Rs. :6.25 only from 1st September 1963 to 31st May 1964. The witness confirmed that the plaintiff also carried on general insurance agency business with American International Under writers (Pakistan) Ltd. The fact that Mat. Sikandra Begum earned only Rs. 16.25 from 1st September 196,3 to 31st May 1964, during which period the plaintiff was confined to bed, as against her earnings of Rs. 3,271.12 from 1‑6‑1962 31‑8‑1963, shows that the insurance agency business done under Sikandra Begum's name was in fact carried on by the plaintiff himself. It is not unusual in the insurance business for agent to transact agency business under their own names and under the names of their wives and children. The amount of Rs. 3,271.12, added to Rs. 3,884.89, comes to Rs. 7,156.01, which is the plaintiff's income from the American Life Insurance Co. for 15 months, that is to say, Rs. 477.06 per month. The plaintiff has not produced any evidence with regard to his income from general insurance agency with American International Underwriters (Pakistan) Ltd., or the Eastern General Insurance Co: Ltd., National Security Insurance Co. Ltd:, Pakistan Mutual Insurance Co. Ltd., and the Eastern Federal Insurance Co. Ltd., for all of which com panies, according to the plaintiff's statement, he worked as general agent. However, I would estimate the income of the] plaintiff from general insurance agency business at approxi mately Rs. 250 (Rupees two hundred fifty) per month, anti the total monthly income of the plaintiff I would estimate at Rs: 727.06 per month. The plaintiff's loss of income for' the period he was confined to bed due to the injuries received by him in the accident would, approximately, amount to Rs. 7,243.54. I, therefore, hold that the plaintiff is entitled to receive this amount from the defendants.

18. With regard to the further claim for general damages these have to be assessed on consideration of the following circumstances ; that is to say (i) pain and suffering ; (if) physical or mental disability; (iii) shortened expectancy of life and (iv) loss or diminution which the plaintiff may reasonably expect with regard to his future earnings. For this purpose it will be convenient to consider here the nature of the injuries sustained by the plaintiff. The accident in question happened is the morning of 11th August 1963. The plaintiff was removed to the Civil Hospital in an unconscious con dition, which condition lasted for nearly one week, according to the evidence of the plaintiff himself, and of P. Ws. Syed Nusrat Ali, Malik Hamzuzaman and S. H. O. Altaf Ali Khan. The plaintiff was discharged from the hospital on 14‑9‑1964. The discharge certificate, Exh. 9, states that the plaintiff had suffered injuries in the head, ribs and pelvis, and had been discharged only as partly‑cured patient and was referred to the Orthopaedist. `The medico‑Legal Certificate, Exh. 11, dated 11‑8‑1963, proved by Dr. Akhtar Muhammad Sarwar, R. M. O. of the Civil Hospital, shows the following injuries which the plaintiff suffered in the accident :‑‑ (1) Injury at two Lw. right forehead 2" x 1" x bone deep. (2) Abrasion nose 1/4` diameter. , (3) Cut and sewing right hips joint and suspected fracture. Nos. l and 3 reserved. No. 2 simple. Weapon bard and blunt. Duration of injury fresh." Dr. Akhtar Mohammad. Sarwar stated that the plaintiff continued to attend the Civil Hospital as an out‑door patient, and in this connection he produced out‑door department's ticket for 25th October 1963, as Exh.

10. Dr. Ibrahim Agha, who had his clinic near the plaintiff's residence, found the plaintiff in a precarious conditions, at the civil hospital and, accordingly contacted Surgeon Fazal Elahi, who said that he suspected inter‑cranial fracture and advised that Dr. O. V. Jooma be summoned to examine the patient. Dr. Juoma examined the plaintiff and put him on the "Danger List". Two bottles of cold blood were administered to .the plaintiff in this witness's presence. The witness Visited the plaintiff every alternate day and stated that the plaintiff re‑gained consciousness 7 or 8 days after the accident. The witnes3 examined the plaintiff after discharge from the hospital, and found him only "partly‑cured" in that the plaintiff was in capable of any movement or even to turn sides on the bed for about a month. The witness examined the plaintiff again after about a year of the accident, and then six months before giving evidence in Court. He found that the plaintiff's right leg had a limp and the movements of his arm were restricted. According to him the plaintiff could not raise nine of his hands above the shoulder level. In the witnesses' opinion, the injuries and shock received by the plaintiff in the accident would shorten his life expectancy and reduce the enjoyment of life. The plaintiff in his evidence added that he had permanent pain in his right foot and was unable to walk quickly and that he was also unable to perform his marital obligations, which condition can be attributed, in my opinion, to the severe mental shock caused to the plaintiff by the accident.

19. On this evidence, I have no hesitation to hold that the plaintiff went through serious physical and mental suffering on account of the occident in question, and these injuries he received have caused, permanent disabilities to him, in addition to reducing his enjoyment and expectancy of life and impairing his earning capacity. The question, therefore, arises, as to what compensation the plaintiff should consequently receive from the defendants. In this connection, I would refer to the decisions cited by Kemp & Kemp in "The Quantum of Damages", (Vol. 1, Second Edition). In the case of Boyle v. Consett Iron Co. Ltd, cited at page 413, the Court of Appeal awarded 800 as damages for fracture of pelvis, damage to right hip and the base of the left lung. The Athelvictor, cited of page 458, 3,500 were awarded for perma nent injury to one arm. In the Supplement to the Second Edition, there is reference, at page 17, to the case of Chambers v. British Railway Board, where the plaintiff was awarded 11,000 as general damages on account of injuries to right shoulder and right and left ankles, left hip and kidneys. In this case the claimant remained unconscious for three weeks and as a result of the injuries he was liable to periodical attacks of dizziness, head‑aches, defective speech and weakness in the right arm and right leg. In Suit No. 8 of 1960 decided by this Court by judgment dated 16th February 1967, the plaintiff, Suraya Hafeez, was given Rs. 15 003 as compensation for injuries which included contusion 2" x 1" on right forearm, lacerated wound 2' x 1/4" muscle steep on left leg, abrasion 1/4' in diameter on right elbow, abrasion 1 " diameter of right shoulder. The judgment given by this Court in Letters Patent Appeal No. 99 of 1960 upheld the finding of a learned Single Judge giving to the claimant Rs.10,000 as damages for future loss resulting from reduced efficiency and earning capacity and diminution in the enjoyment of life, and Rs. 5,000 for shortened expectancy of life, pain and bodily suffering.

20. The decision I have referred to above do give guidance in the assessment of compensation in the present case. The plaintiff received serious physical injuries and remained in a state of unconsciousness for 7 or 8 days. For more than 9 months the plaintiff remained confined to bed. Due to the nervous shock caused by the accident, the plaintiff has lost sexual appetite, the correctness of which statement I have no reason to doubt. The plaintiff still suffers from limp and pain in his foot, pain to pelvis and restricted movements of his left arm, and is subject to distress whenever he makes any mental efforts. I should say that not only the plaintiff's enjoyment of life has been reduced but his life expectancy also has been shortened. The plaintiff has also suffered impairment of physical and mental efficiency, which would effect his future earnings. On these considerations I would assess the compensation to which the plaintiff is entitled at follows: (i) Rs. 11,000 for pain and sufferings, diminution in enjoy ment, and shortened expectancy of life ; (ii) Rs. 6,256.46 as estimated diminution in earning capacity due to physical and mental impairments.

21. I thus hold that the plaintiff is entitled to receive from the defendants jointly and severally Rs. 27,500 as compensation as. follows : (i) Medical expenses incurred by or on behalf of the plaintiff. Rs. 3,000.043 (ii) Loss of income for 9 months @ Rs. 727.06 per month. Rs: 6,543.54 (iii) Pain and sufferings, diminution of enjoyment, and shortened expec tancy of life. R.s. 11,000.00 (iv) Diminution in earning capacity due to physical and mental impairments. Rs. 6,956.46 Accordingly, I decree the plaintiff's suit against the defendants, jointly and severally for Rs. 27,50 (Rupees twenty‑seven thousand five hundred), and further order that the plaintiff Rill have interest on this amount at six per cent. per annum from the date of the suit until payment and full costs of the suit: A.B./S.A.H. Suit decreed.