1990 PLP 502 (CLC)

owner of the bus? (4) Whether defendant No.2 had sold the bus in question on hire and purchase basis before the date of accident, if so, whether he is liable as owner of the Bus? (5) Whether the defendant No.l at the time of accident acted in course of employment of defendant No.2? (6) To what relief, if any, the plaintff is entitled"?

6. In evidence, plaintiffs have examined Riasat Ali, Mohammad Latif, Ejaz Ahmed Farooqui, Mohammad Usman, Naseer Ahmed Khan, Fazal lv>iubeen, Rasheed Mehtab, Murad Khan, Sada Khan, Dr. Shahid Azher Siddiqui, Syed Midhat Mohsin Kazmi, and the plaintiff No.l, himself. On the other hand, defendants have only examined defendant No.2. The defendant No.3, by consent, has brought the Insurance Policy on record.

7. Issues Nos.l and 2: Apart from stray questions in cross‑examination of witnesses Murad Khan and Sada Khan, there does not appear to be serious contest as to these issues. However, Issue No.2 contemplates only a negligent act on the part of the defendant No.l, driver of the Bus under reference, but the plaint speaks of a "rash and negligent act" per para. 6 thereof. This, apparently, has some nexus with the phraseology of Section 304‑A of the Pakistan Penal Code which employs the expression "rash or negligent act". In arguments, advanced on behalf of the plaintiffs, recasting of Issue No.2 is sought on invocation of powers under Rule 5 of Order XIV C.P.C. which powers, without reference to time, but before passing the decree, can also be invoked, suo Motu. Section 1 of the Fatal Accidents Act, which is relevant for these proceedings, introduces liability for "a wrongful act, neglect or default" and it would appear that a "rash" act may fall within the ambit of a "wrongful act". Issue No. 2, therefore, warrants recasting. Accordingly, such Issue, in consonance with law and justice, is refrained to read as under:‑‑ "

2. Whether the accident caused by Bus No.840‑901 was on account of a rash and negligent act of the defendant No.l?"

8. On these Issues Riasat Ali Khan (Ex.5), then Additional S.H.O. Jackson P.S., has deposed that at 4‑15 a.m., on the morning of 22‑2‑1982, on receiving a message, he reached the scene of the incident and found that three persons had suffered death as a result of the accident and an Auto Rickshaw had been damaged. The three dead persons were Tariq Rasheed, Sultan Zareen and Bakht Jan. He prepared Mashirnama and sent the dead bodies to hospital. He also prepared site plan of the place of occurrence and recorded statements of witnesses. The Bus and the Rickshaw involved in the accident were taken to the Police Station. Site Plan of the occurrence and the F.1.R. were produced by him as Exs.6 and 7, respectively. Motor Vehicle Inspector was also apprised by him, whose report he submitted as Ex.8. Papers of the Bus including registration book, insurance documents and licence of the Driver were seized by him and filed in the criminal Court where the driver was being prosecuted. Challan (Ex.9) was produced by him.

9. Syed Midhat Mohsin Kazmi, Motor Vehicles Inspector, Sindh Police, Karachi (Ex.17) stated that on receiving telephonic message, he reached the scene of offence at 4‑43 p.m./(a.m). He admitted Ex.8, to be the report prepared by him. Such report shows the Rickshaw, in which the deceased was travelling, to be virtually smashed.

10. Mohammad Latif, A.S.I., from Jackson Police Station (P.W.2) produced papers (44 pages) relating to relevant F.I.R. No.41 of 1982. These papers include a map of the place of incident (Ex.6), which shows that the bus in question was travelling downwards from the Native Jetty bridge, past the railway gate, and the accident took place well on the side of the traffic coming from the opposite side and in front of the KPT gate.

11. Dr. Shahid Azher Siddiqui (Ex.16) produced the post‑mortem report (Ex.16/1) prepared by him and stated that the deceased was 22 years of age, healthy and well‑nourished, and that death was caused due to injuries on his head and fracture of the skull etc., caused by a heavy moving vehicle.

12. Murad Khan and Sada Khan (Exs. 14‑15) are Rickshaw Drivers, who, plying their respective vehicles, saw the accident taking place and have deposed that the Bus was being driven in a rash and negligent manner. Their testimony has remained unshaken in cross‑examination.

13. The cumulative effect of the foregoing evidence, oral and documentary, which stands unrebutted, is that Bus No.840‑901, being driven by the defendant No.1, on the fateful occasion, was involved in the accident as a result whereof Tariq Rasheed, deceased, met his end. Such bus, at the relevant time, was being driven rashly and negligently. Issues Nos.l and 2 are, therefore, answered in the l affirmative.

14. Issues Nos.3 to 5:On these Issues, which pertain to liability, Ejaz Ahmed Farooqui (PW.2), dealing clerk in the Motor Vehicles Department, states that Bus No.840‑901, was registered in the Excise & Taxation Department, Motor Registration Wing, in the name of the defendant No.2 Syed Abdul Hannan and such registration took place on 24‑12‑1980. Registration was on the basis of a Hire Purchase Agreement in the joint names of Syed Abdul Hannan and the National Bank of Pakistan, the latter having advanced a loan for the purchase of the Bus. The Bus stood in the name of Syed Abdul Hannan even on 22‑2‑1982. Witness has produced the relevant documents (Exs. 3 and 4).

15. Mohammad Usman (Ex.10) Senior Clerk in the Regional Transport Authority (Sindh), has stated that route permit for the bus in question was issued on 28‑10‑1981 (application Ex.ll) for a period of three years to expire on 27‑10 1984. On 15‑8‑1983, permit‑holder, Abdul Hannan, made an application (Ex.12) praying for cancellation of the permit and also surrendered the permit with the application. Photostat copies from the record, produced in Court, include also an affidavit by one Allana S/o Khamisa dated 15‑8‑1983, wherein the latter says that he had purchased the Bus in question, route permit of which was valid upto 27 10‑1984, and, accordingly, N.O.C. for the same be issued in his name, as such owner. This does not seem to have materialised. No Objection bearing No.RTA/318/83, however, in terms of defendant's request is brought on record, indicating that route permit had been surrendered and cancelled and that the vehicle was no longer covered by any route permit.

16. Plaintiff No.l, Abdul Resheed Bhatti (P.W. 12), gave out age of the deceased as about 22 or 23 years, maintained that he had appeared in Intermediate Science examination results whereof having been declared a week after his demise, he had passed the same and that he was engaged in part‑time jobs with M/s. Nazir Ahmed & Sons as well as Behor‑o‑Ber Tally Contractors, drawing emoluments of about Rs.4,000 per month. He stated that one of his daughters is an M.Sc., another a graduate and a third is a student of B.Sc., final. The deceased was his only son and expected to rise in life and earn upto Rs.10,000 p.m. As to average age of his family members, plaintiff No.l stated that it was not less than 80 years. He, himself, was 00 years of age and expected to retire in June 1988. He gave out the age of his wife to be 50 years. Defendant No.2, Syed Abdul Hannan, was, according to him, owner of the Bus.

17. Nasir Ahmed Khan (Ex.ll), partner of M/s. Bchor‑o‑Ber & Co. produced certificate Ex.ll/1 showing that the deceased worked in his organization C Rs.60.64 per day and C Rs.1.15.72 on Fridays and holidays.

18. Witness Rasheed Mchtab produced certificate (Ex. 13/1) showing that the deceased, Tariq Rasheed; used to work in the firm of Nazir Ahmed & Sons Ltd. as Detention Clerk @ Rs.50 as daily wages and @ Rs.100 for holidays and Fridays, his average monthly income from the firm being Rs.2,500.

19. Defendant No.2 Sahibzada Abdul Hannan examined only himself. He, not entirely in consonance with pleadings, stated that he had sold the bus in question under a Hire Purchase Agreement to Mohammadi Transport Co. and produced such agreement dated 20‑9‑1977, as Ex.D/1, which, however, was with Mohammad Baluch C/o AI‑Mohammadi Transport Bus Service. Such Agreement shows Rs.25,000, as stipulated cash payment, and envisages balance payment of Rs,1,00,000, through 15 instalments for which due cheques are said to have been given. He also produced Delivery Note, dated 20‑9‑1977, showing buyers signature as Mohammad and address as Al‑Muhammadi Transport Bus Service Kalakof. He produced 10 cheques as Ex.D/3 to D/12 which were purportedly drawn and issued by Mohammad Baluch. He maintained that he had fully been paid for the sale and stood divested of ownership of the bus. Clarifying, he said that there have been subsequent transfers of the bus. He denied all liability for the fatal accident in these proceedings.

20. It is clear from the evidence that the defendant No.2 had himself been a purchaser under a Hire Purchase Agreement and was registered as such (Ex.4). It would appear that before he could enter into a Hire Purchase Agreement of his own he should have cleared his own title and got himself registered as owner with the relevant authorities. On record, he does not seem to have done so. However, C as he remained the registered Hire Purchaser he conclusively falls within the definition of "owner" of the vehicle registrable under the West Pakistan Motor Vehicles Ordinance and liability under the Fatal Accidents Act seems to be attracted to his person.

21. Even otherwise, the subsequent Hire Purchase Agreement, allegedly, concluded by the defendant No.2 with Al‑Mohammadi Transport Co. Mohammad Baloch never saw the light of day in so far as official records are concerned. Indeed, contrary to what would have been the conduct of a man desirous of warding off all possible liability from the hazardous enterprise of a bus plying, day in and day out, in this metropolitan city of 100 million inhabitants, the defendant No.2 has shown the least concern in either perfecting his own title or those of others, allegedly, claiming under him even though he maintains that he is in the business, of buying and selling transport vehicles, for a number of years. The matter of the bus in question, allegedly, constantly changing hands could be a routine exercise according to the defendant No.2. However, in so far as official records are concerned, there is, as reflected above, mention only of one Allana, as a purported Hire Purchaser, which, too, is not acted upon, with little concern to anyone whatever. As to the claim or title of this Allana the defendant No.2 himself is totally ignorant. On the other hand, neither does Mohammad Ashraf in the above referred photostat affidavit of his explain as to how he, allegedly, came to be the Hire Purchaser. Muhammad Ashraf has not been examined nor even a proper affidavit from him has been filed. On behalf of defendant No.2 reliance is placed on documents Nos.5, 6 and 7 out of the 44 leaves produced, as police papers, and the contention is that since under section 516‑A, Cr.P.C. Mohammad Ashraf was handed over possession of the bus he should be treated as owner whereof. This cannot be so. The purpose of section 516‑A, Cr.P.C. proceedings is a limited one and any such proceedings only tentatively determine as to whom, during a criminal trial the possession of the property, in dispute therein, be handed over. Such determination is not an p equivalent of conclusive or even provisional determination of ownership which, even in criminal proceedings must be determined under section 517 Cr.P.C. etc.; and in contentious matters, may be determined in civil proceedings which have, independently; to adjudicate upon that issue.

22. On examination of the evidence in this case conduct of the defendant No.2 in relation to the bus in question leaves much to be desired and his testimony before the Commissioner appointed by the Court is of a highly doubtful character. He did not remember the price at which the bus was sold, nor the amount of advance taken by him, nor the name of the person from whom he himself made the purchase. He disowned Exs. 11 and 12 and even relevant affidavits but admitted registering the bus and taking a route permit. He also admitted that many of such things were accomplished by the functionaries working under him, implying that, if need be, they may be using and signing his name. Denial of execution etc. of relevant Exhibits and documents thus loses substantial force and public record may more safely be relied upon. Time and again he has expressed lack of personal knowledge and declares the repository of all information to be his Manager etc. He has failed to examine even such Manager. For payment on alleged Hire Purchase Agreement he relies on his Account books. He has failed to produce even such Account books. Likewise, he states that as security for payment on Hire Purchaser he obtained 10 cheques. The dates of these cheques do not correspond with the dates of payments due on the alleged Hire Purchase Agreement. There are over‑writings on these cheques besides. Nor does the total of the sums therein tally with the balance due. Furthermore the rule of law, as codified in Article 129 Ill. (i) Oanun‑e‑Shahadat, is that where a document creating/evidencing an obligation is in the hands of the obligor the presumption/inference is that the obligation has been dischagred. Converse of this proposition would be that where such document is in the hands E of the obligee the inference can be that obligation thereunder has not been discharged or payment thereon has not been made. Since the alleged cheques, for whatever they be worth, have been produced by the defendant No.2, it cannot, therefore, be stated, convincingly, that payment due thereunder has been made for if that were so, the cheques would no longer be left in possession of the defendant No.2. In addition, the defendant's case is that registration of the bus was retained by him in his own name as security for full payment. If payment, therefore, was made there was no occasion for such registrations to have remained fixed with the defendant No.2. It is axiomatic that while men may lie circumstances do not. The irresistible conclusion, therefore, is that the defendant No.2 remained liable in respect of the havoc wrought by the bus involved in these proceedings, for though elaborate evidence has not been led on the point, no less than 3 valuable lives were lost on the fateful morning of the accident.

23. There is another angle to this controversy also. The definition of "owner" under section 2(14) of the Motor Vehicles Ordinance postulates that the owner means a person in whose name the motor vehicle is registered. Such definition F only includes a transferee or a person in possession under a Hire Purchase Agreement. It would, therefore, follow that the person registered as owner or an acknowledged Hire Purchaser, so registered, would be liable though, in addition; others may also be so liable. The defendant No.2 cannot escape liability on this premises, as well. Issue No.3 is, accordingly, answered in the affirmative and as to Issue No.4 the finding is that the sale of the offending bus has not been conclusively proved by the defendant No.2 nor does such, sale, if any, qualify as one under law.

24. It has, in the context of Issue No.5, been argued that, at any event, the driver engaged in the accident, defendant No.l herein is not an employee of the defendant No.2 and, as such, the defendant No.2 cannot be pinned with any liability. Nothing can be further than the intention of the law‑maker under the 1 Fatal Accidents Act, 1855, for under section 1 thereof, cause for liability is al wrongful act, neglect or default occasioning death relative to that provision and the liability may be a vicarious one irrespective of the question whether it is caused by an employee or a person who came in possession of the motor vehicle G on account of lack of due care or caution on the part of the owner or person in lawful possession, qualifying as owner of the vehicle, and the standard of such care or caution can only be that which a reasonable prudent person would be expected to exercise. Even on this hypothesis, it is obvious that the defendant' No.2 fails to qualify that test and the bus was in improper hands directly on account of acts of commission and omission on the part of that defendant. It follows that the defendant No.2 cannot be exonerated from the incidents resulting upon the rash and negligent driving on the part of the defendant No.l, which in turn, occasioned the unfortunate death of the victim in these proceedings. Accordingly, while defendant No.l, at the relevant time, may or may not have been in the employment of the defendant No.2, he was, clearly, at the driving wheel of the bus on account of the acts of commission or omission on the part of that defendant. Issue No.5 is thus answered.

25. Issue No.6: On the question of compensation fife expectancy of the two plaintiffs alone in this suit is relevant, since the deceased being only 22 or 23 years of age would, in the normal course of events, have in any case, outlived them. I have already, in Suit No.814 of 1984 (disposed of on 27‑4‑1989) held that life expectancy in Pakistan should be assessed, on an average, as 70 years and that is supported from the averments of the plaintiff No.] that the average life span, in his family, is 80 years, which has not been questioned in cross‑examination. H Plaintiff No. 1, being 55 years of age, at the time of death of his son and the plaintiff No.2, being 45, then, the benefit, to the plaintiff No.2 would, if average off 70 years of age is allowed to her, enure to her for 25 years and this is the basis on which the compensation in this case shall have to be worked out.

26. The average income of the deceased at the time of demise has been shown @ Rs.4,000 p.m. Since the deceased had qualified Intermediate Science, almost at about the time of his death, he being a part time employee, would be expected to take about 6 years to complete his studies. As such, his income of Rs.4,000 would remain static for the next six years. Thereafter, the income of the deceased may be reckoned to be Rs.6,000 p.m. for another five years. For the remaining 14 years of the expected benefit it may be allowed at Rs.8,000 p.m. Towards personal expenses, etc. I would be inclined to allow deduction of 1/4 of 1 the expected income. Total benefit to the two plaintiffs, therefore, is assessed at Rs.14,94,

000. Out of this, for the insured amount, the defendant No.3 would be liable and for the balance, the defendants Nos. l and 2 jointly and severally. 27. 1 would, accordingly, decree the plaintiff's suit, against the defendants, as above, with costs, in the sum of Rs.14,94,000 out of which plaintiff No.l would be entitled to Rs.5,00,000.and the plaintiff No.2 to Rs.9,94,000.

28. A I have already held in the case of Aijaz Haroon v. Inam Durrani (PLD 1989 Kar. 304) that interest is not payable under Pakistan dispensation. I would allow none to the plaintiffs in this case. Decree accordingly. A.A./A‑700/K Suit decreed.