2005 PLP 1392 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition has been preferred against the judgment, dated 29-10-2003 passed by a Division Bench of High Court of Sindh, Karachi, in H.C.A. No.159 of 2000 arising out of a suit for damages filed by the respondent.

2. The facts giving rise to this petition, in the background, are that Muhammad Surjeel Qureshi, a young person of the age of 22 years, son of respondent, while proceeding on a motorcycle on the University Road, Karachi, on 15-2-1989, struck with a bus owned by the petitioner No.1 which was being driven by petitioner No.2 and having received fatal injuries, died at the spot. The respondent filed a suit for recovery of rupees eight lacs as damages under Fatal Accidents Act, 1855 and the petitioners, having filed joint written statement admitted the material facts regarding the death of deceased' in the accident but pleaded that the accident took place because of the negligence of the deceased and not due to the rash and negligent driving of the bus driver. The learned trial Judge, in the light of the pleadings of the parties and evidence brought by them on record, dismissed the suit vide judgment, dated 23-4-1999 but in appeal filed by the respondent, a learned Division Bench of the High Court of Sindh, at Karachi, while reversing the finding of the learned trial Judge, decreed the suit vide impugned judgment, with mark-up at the rate of 10 per cent. per annum on the decretal amount from the date of decree till the payment of the entire decretal amount.

3. Learned counsel for the petitioners has contended that there was no direct or circumstantial evidence of rash and negligent act of the bus driver to hold him responsible for causing death of deceased and with reference to the statement of Muhammad Abdul Ghafoor Khan (P.W.2), contended that the deceased in the process of overtaking the bus from wrong side struck with the backside of the bus and lost the life. Learned counsel contended that there was not an iota of evidence of rash and negligent driving by the bus driver and factually the accident was the result of misjudgment of the deceased but the bus driver was held responsible for the accident merely on .the basis of suspicion. In nutshell, learned counsel contended that petitioner was not liable to pay damages and the High Court in appeal through misreading of evidence, reversed, the finding of the learned trial Judge on a pure question of fact.

4. We have heard the learned counsel for the petitioners at length and perused the record with his assistance. The sole question requiring determination would be whether due to the fault of deceased, his motorcycle struck with the backside of the bus while he was overtaking the bus or the fatal accident was the result of rash and negligent driving of the bus driver. The learned Judges in the High Court in appeal having made a detailed scrutiny of evidence, came to the conclusion that the accident had taken place due to the rash and negligent driving of the bus driver and we having considered the contention raised by the learned counsel for the petitioners in the light, of evidence brought on record, have not been able to differ with the High Court. We find that the accident was the result of rash and negligent driving of the bus driver who while carelessly taking turn on the left side without giving indication, ran down the deceased, who was traveling on motorcycle on his side. Muhammad Abdul Ghafoor Khan, (P.W.2) the eye-witness of the accident, in his statement, has held the bus driver responsible for the accident but this statement of the witness was not as such challenged in the cross-examination. We having perused the record with the help of learned counsel, have not been able to locate any defect of misreading or non-reading of evidence by the High Court in appeal and find that evidence on record would clearly establish the careless and negligence of the bus driver. The general rule is that driver of heavy vehicle on busy roads must take extra care and must not act in a manner which may be dangerous to the life of others. The slightest carelessness of a driver of a heavy vehicle may badly disturb the traffic on the road and bring the serious consequence of a fatal accident. The high speed or fast driving is B not only rash and negligent driving rather carelessness even at low speed may also constitute an act of negligence to hold the driver responsible for the damages.

5. The suit was filed under Fatal Accidents Act, 1855 and we having perused the record, find that the respondent/plaintiff has been successful in discharging the onus of proving the negligence of the bus driver as a result of which deceased, a young person, lost his life. The petitioners, without bringing on record any evidence in rebuttal, made an attempt to convince us on the basis of oral assertion that in the c circumstances leading to the fatal incident there would be a strong presumption of innocence of the bus driver and pleaded that at the most it would be a case of contributory negligence. Learned counsel, however, has not been able to satisfy us that the impugned judgment is suffering from the factual or legal infirmity or defect calling our interference or that any question of law of public importance or interpretation of law is involved in this petition requiring determination by this Court. In the light of foregoing discussion, we find no substance in this petition and the same is accordingly dismissed. Leave is refused. S.A.K./P-36/S Leave refused. ***