1998 PLP 199 (CLC)

(5) Whether the suit is not maintainable in its present form? OPD (6) Whether plaintiff No. l is not competent to file this suit on behalf of the plaintiff No.2 as guardian or next friend? OPD (7) Whether this Court lacks territorial jurisdiction? OPD (8) Whether the plaintiffs are entitled to recover damages Rs.48,72,000 or less from the defendant? OPP (9) Relief,

6. Parties led their evidence. On behalf of the respondents Ameer Javed, Samiud Din and Rahat Rizvi were produced as P.W.1 to P.W.3. Besides, respondent No. l appeared ag his own witness. Two documents i.e. Exh.P.I to Exh.P.3 were brought on record. On behalf of the defendants D.W.1 Bashir Ahmad, D.W.2 Muhammad Anwar, D.W.3 Din Muhammad and D.W.4 Muhammad Anwar Chughtai were produced. Documents Mark‑A and Mark‑B were also placed on record.

7. Learned trial Court held, vide crucial Issues Nos.3 and 8, that the accident occurred due to rash and negligent driving by Ghulam Rasool, the employee of the appellant and as such it was liable to pay compensatory damages to the respondents. It was found that the deceased would have earned Rs.10,95,000 during the remaining period of 34 years of his expected life and after excluding 1/4th of the amount for personal need decree for Rs.8,21,750 was passed in favour of his legal heirs. Feeling aggrieved, J.V. Gardner as well as Punjab Road Transport Corporation have filed the abovementioned appeals.

8. In its appeal, Punjab Road Transport Corporation (appellants in R.F.A. No.93 of 1988) has contended that it could not be proved on record that the accident resulting in the death of Colvin Gardner was the outcome of the rash and negligent driving of Ghulam Rasool driver, and therefore, no amount, whatsoever, by way of compensatory damages, was legally to be paid to the respondents. In his cross‑appeal (R.F.A. No.73 of 1988), J.V. Gardner has challenged the decree of the trial Court to the extent of determination of quantum of compensation amount only. It was pleaded that the said judgment and decree was liable to be modified and the amount of compensation payable to J.V. Gardner should be raised to Rs.11,90,

001. The decree has not been challenged by Colman Gardner, son of the deceased.

9. The amount of Rs.8,21,750 as awarded by the trial Court, has since been admittedly paid to the legal heirs of the deceased i.e. Colman Gardner and J. V . Gardner. In the first instance, it is necessary to examine as to whether it stood proved on record that the accident leading to the death of Calvin Gardner was the outcome of rash and negligent driving of the deceased driver Ghulam Rasool, or not. The statements of Ameer Javed P. W.1, Samiud Din P. W.2 and Rahat Rizvi P.W.3 and J.V. Gardner are not relevant for the point in issue i.e. the cause of death of Calvin Gardner as none of these witnesses were present at the time of accident. On behalf of the appellants only Bashir Ahmad D. W.1 appeared as an alleged eye‑witness and deposed that he was riding the ill‑fated bus as a Conductor and that the bus did not meet the accident due to rash and negligent driving of the driver. According to him a woman and a child were standing on the side of the road and a trawler was proceeding ahead of the bus at a distance of 15 yards or so and when the bus overtook the trawler the woman under the misapprehension that it had already moved away tried to run across the road. This forced the driver to apply brakes to the bus and steer it towards the right side with a view to save the woman, as a result whereof the bus after striking against a culvert swerved towards the left and hit a tree on the left side of the road and turned turtle. In cross‑examination he had to concede that at that time he was occupying a seat located in the centre of the bus and he felt the impact of the application of the brakes only when he fell forward. As regards the version about the presence of the woman on the road side and her attempt to cross the road, forcing the driver of the bus to turn it to the right side, it was admitted by him that he was not an eye‑witness to this event and was informed about it by the conductor of a bus coming from the opposite side, later on, when he regained consciousness. His statement is, thus, based on hear‑say, and is of no avail whatsoever to the appellant in its defence of careful driving of the bus by the driver. The evidence of the other witnesses of the appellant is also of little help in so far as the accident in question is concerned as none claims to be an eye‑witness of the occurrence.

10. In such a situation the maxim res ipsa loquitur (thing speaks for itself) gets attracted. This maxim was examined in Hassan Nawaz's case (1994 MLD 1495 at page 1498). Relevant passage from the judgment is quoted as under:

"Under the doctrine res ipsa loquitur a plaintiff establishes a prima facie case of negligence where (1) it is not possible for him to prove precisely what was the relevant act or omission which set in train the events leading to the mishap and (2) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident/mishap was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to proper care for the plaintiff's property. Where the thing which causes the mishap is shown to be under the management of the defendant or his employees, and the accident/mishap is such as in the ordinary course of things does not happen if those who have the management used proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the accident/mishap arose for want of care". Their lordships of Supreme Court of Pakistan in Pakistan Steel Corporation case (1993 SCMR 848) have ruled as under:‑

"Res Ipsa Loquitur means that 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. ‑‑‑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'.". Applying the principles deducible from the above two authorities to the facts of the instant case it is clearly established that the manner in which the bus first hit the culvert on the right side of the road, then swerved towards the left and after proceeding a few yards hit the tree standing on the left side of the road whereafter it overturned proves that the accident was the result of hazardously high speed driving by Ghulam Rasool who somehow completely lost control over the bus which smashed into the tree. This accident was clearly the outcome of rash and negligent driving, by the employee of the appellant and the appellant being liable for his act were legally obliged to compensate the respondent for the loss of life of Calvin Gardner. The finding recorded by the learned Trial Court on this aspect of the matter is fully justified, on the facts and circumstances of the case, and is hereby affirmed.

11. The sole question that is now left for determination is as to the quantum of compensation payable by the appellants to the respondents. Respondent claims to be entitled to damages to the extent of Rs.11,90,

001. It is proved on record vide Exh.P.I that the last salary drawn. by the deceased in November, 1982 was Rs.1,

856. According to the respondent this was in addition to annual bonus equivalent to two salaries and other benefits. He has relied on the statement of Rahat Rizvi, Personnel Manager, P.W.3 to the effect that the deceased could have risen to the next higher post of General Manager and his rate of annual increment was to be 10% of the salary. It is pleaded by the respondents that the salary which deceased would have earned for the last 34 years of his expected span of life would work out to be Rs.63,46,673 and after excluding 1 /4th for personnel expenditure of the deceased, an amount of Rs.47,60,005 would be left to be distributed amongst his heirs; respondent being his father would be entitled to receive Rs.11,90,001 being 1/4th of the above amount.

12. The age of respondent J.V. Gardner at the time of accident was 53 years and taking his expected life span to be 75 years the period of loss of benefits comes to 22 years. The proved annual income of the deceased at the relevant time was Rs.1,856 per month, making his income for the first year to be Rs.22,

272. Adding 10% annual increment on each year's income, the total income accruable to the deceased for 22 years i.e. expected remaining life span of respondent J.V. Gardner would come to Rs.17,51,297 in terms of the schedule attached with this judgment as mark 'A'. After deducting 1/4th for personal expenses of the deceased the balance heritable comes to Rs.13,13,

472. It is not possible for this Court to take into account the expected income of the deceased through bonuses as the same cannot be considered to form part of his salary and nothing has been placed on record to support the plea that the award of annual bonus formed part of terms and conditions of the deceased. Claim for addition of income from expected annual bonus is, therefore, rejected.

13. The upshot of the above discussion is that while dismissing the appeal of the Punjab Road Transport Corporation (R.F.A. No.93 of 1988) the appeal of Mr. J.V. Gardner, is accepted and the decree of the learned Trial Court is modified and substituted by a decree for a sum of Rs.3,28,365 to J.V. Gardner as his share in the heritable amount of Rs.13,13,

472. He having already received his 1/4th share out of Rs.8,21,750 as decreed by the Trial Court, is entitled to recover the balance of Rs.1,23,181 from the appellant Corporation. He is also entitled to costs throughout. A.A./P‑21/L Decree modified.