1989K227 (PLP)

(1) Whether the accident between the two vehicles belonging to defendants Nos.l and 2 was caused on account of the negligence of the driver of defendant No.l s vehicle or the negligence of the driver of defendant No.2 s vehicle or the accident of the joint negligence of the drivers of the two vehicles? (2) To what damages the plaintiffs are entitled and against which defendant? (3) Relief. My findings on these issues are as follows:‑ Issue No.1. Due to the joint negligence of the drivers of both the vehicles. Issue No.2. As follows. Issue No.l. The accident is admitted and the fact that deceased Miss Kaukab Nasima Ahmed died on account of that accident is also admitted. The only question in this suit is as to by whose negligence the accident had taken place. On this point the first witness of the plaintiff is father of the deceased i.e. plaintiff Vicar Ahmed. He had no direct ocular evidence to give on this point. I therefore take up the evidence of next P.W. Moula Bux who is Section Officer in the Irrigation Department and was travelling in the same coach on 16‑6‑1988 in which the deceased was also travelling. He has stated on oath that when they had travelled more than half distance from Hyderabad to Karachi this accident occurred. N.L.C Trailor belonging to the defendant No.2 which was coming from Karachi and was going to Hyderabad collided with the coach in which the deceased and the witness were travelling. It was a head‑on collision. Reason for the collision according to the witness was that the N.L.C. Trailor was trying to overtake some other vehicle while the Blue Lines Bus was also trying to overtake other bus. Thus both the vehicles were away from their sides of the road and the accident occurred. As a result of the accident the witness sustained grievous injuries while Miss. Kaukab Nasima Ahmed lost her life on the spot. In his cross‑examination the witness has denied that he was dozing or was half asleep. He asserts that he had distinctly and clearly witnessed the incident and that he remembers the position of the vehicle before the two vehicles clashed with each other. He has given the details ‑of the seat on which he was sitting and the seat on which his neighbouring passengers were stitting. He has clearly stated that in an attempt to overtake other bus Blue Lines Bus had left its side and had come on middle of the road. Similarly the N . L . C . Trailor had also left its side in attempting to overtake the vehicle in front of it and in the same way came on the middle of the road. He had also made it clear that the accident had occurred on account of gross negligence of the drivers of both the buses. He has also stated that immediately before the actual clash the passengers started shouting that accident was going to take place. He has also admitted that he was fasting on that day and was dozing when the actual clash had taken place and had woke up on hearing the cries of the passengers. It may be pointed out that PW Moula Bux is a respectable officer of the Secretariat of the Provincial Government of Sind. He was in no way related to the deceased or the plaintiff. There was no reason whatsoever for him to tell a lie. I have therefore least hesitation in placing reliance on his evidence. From the side of defendant No.2 Tai Ali Khan the driver of N L C Trailor is examined which had collided with a Blue Line Wagon which was going from Hyderabad side. He has however stated that Blue Line Wagon overtook all of a sudden and collided with NLC Trailor. According to him the accident had taken place due to the mistake of the driver of Blue Line Wagon and not due to his mistake. He has produced the true copy of the judgment, of Mukhtiarkar & FCM of Thana Bola Khan who has acquitted the witness under section 249‑A Cr.P.C. This judgment does not help the witness at all because he has been acquitted on account of failure of prosecution‑ to produce their witnesses. By this judgment it has not been held that the accused was not responsible for this accident. On the contrary it is stated in this judgment that the enquiry conducted by complainant A ASI Allah Dino reveals that this head‑on collision was the result of contributory negligence and rash driving of both the drivers. Hence he registered the case against them. The next witness of defendant No.2 is DW Mohammad Shafi who is a driver in Pakistan Army and was driving a truck and was following the convey of N L C to check their speed etc. According to him driver Taj Ali was driving his truck immediately ahead of him. He has stated that speed of the truck of Taj Ali was about 35 miles per hour. He saw that a Blue Line Vehicle came behind the truck all of a sudden from the opposite side and collided with truck of Taj Ali at once. According to him Ta] Ali was driving a truck on his left side and not in the middle side of the road and that Taj Ali had turned his truck to the extreme right of the road and applied brakes but still the Blue Lines Wagon hit his truck. When the witness was subjected to cross‑examination by the counsel of the plaintiff he made a number of contradictions in his cross‑examination vis‑a‑vis the statement of the driver DW Taj Ali. Taj All had stated that he had stopped his truck at a hotel immediately before the accident while DW Mohammad Shafi had stated that they had not stopped the truck between Karachi and Hyderabad on that day. He has also admitted that he had not seen the Blue Line Vehicle overtaking the truck but he had seen it when it had already hit a truck of Taj Ali. This witness is an employee of NLC and I am satisfied that he had given false evidence only in order to please the defendant No.2 who are his masters and thereby save them from payment of compensation. Defendant No. l has not examined any witness on this point and in fact no evidence whatsoever has been laid on their behalf nor have they cross‑examined any one of the witnesses of the plaintiff or defendant No.l in spite of several chances given by the Court. The plaintiff, as I have shown has led satisfactory evidence and has successfully discharged the burden. Onus in the circumstances would lie on whom has been dealt with in the case Ursulina D. Lima v. Orient Airways Limited reported in PLD 1960 Karachi

712. Wahiduddin Ahmed, J (as he then was) while discussing the rule of res ipsa loquitur observed that the accident speaks for itself and it is sufficient for the plaintiff to prove the accident and nothing more. It is then for the defendant to persuade the Court that the accident arose not for their negligence. The relevant para reads as under:‑ Thus, it is obvious that there is no direct evidence about the cause of the crash. In fact there could be none as none of the persons travelling in the aircraft survived. The best evidence which could throw light on this point was the report of the official enquiry held to find out the cause of the accident. It is true that the general rule is for the plaintiff to prove negligence and not for the defendant to disprove it, but in those cases where the true cause of the accident lies solely within the knowledge of the defendants this hardship is avoided by invoking the rule of res ipsa loquitur. Under it in those cases where the accident speaks for itself it is sufficient for the plaintiff to prove the accident and nothing more. It is then for the defendants to persuade the Court that the accident arose not through their negligence. This principle was recognised by their Lordships of the Privy Council in Aspro Limited v. Commissioner of Taxes and in Grant v Austrian Knitting Mills Limited and others. This maxim was also applied by Goddard, J. In Forbroke Honnes v. Airwork Ltd. and British American Air Service Ltd. in a case of aircraft crash. Similar situation had arisen in a case of Mst. Karima v. Ali Amin Goods Transport Agencies reported in 1988 C L C 1884 in which relying upon the above judgment as well as other decisions on his point this Court had also taken the same view. The Indian Supreme Court in the case of Pushpabi v. Ranjit G.& P Co., reported in A I R 1977 S.C. 1735 has relying upon the principle of res ipsa loquitur that the accident speaks for itself held in the same way. The relevant passage reads as under:‑ The normal rule is that it is for plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa laquitur. The general purport of the words res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. The principle of res ipsa loquitur was relied upon in United India Fire & General Insurance Co. Ltd. .v. M. Susheela reported in 1983 (Company Cases)

269. The facts of that case were almost similar to the present case in that there was a head‑on collision between the vehicles in that case also and relying upon the above maxim it was held that Court will presume that the drivers of both the vehicles were guilty of rash and negligent driving. It will be useful to re‑produce the following passage from the judgment as under:‑ It is evident from the evidence of this witness that a ghastly accident had taken place wherein all the inmates in the car, five in number, died instantaneously and one of the coolies in the cabin also died. Immediately after the incident, the witness also fell down unconscious for some time. There is, in this case, a head‑on collision between the lorry and the car where the car was reduced to a scrap and the lorry was damaged. Any one of the drivers could have averted this unfortunate catastrophe, but the catastrophe had happened. In a case where a head‑on collision took place between two vehicles in broad daylight on a highway and when any one of them could have, with little care and presence of mind averted the happening of the accident and if that is found to have not taken place, the negligence cannot be fastened to only one of them. In the absence of there being any evidence, barring that of P.W.1, and in the nature of things having regard to the place and time at which the accident took place it is not possible to get any eye‑witness to speak to the factum of occurrence of the accident and having regard to the further fact that the lorry driver also who could have been available for being examined to speak to the occurrence of the accident died, though, of course, subsequent to the event, we have no hesitation to come to the conclusion that this is a case where the drivers of both the vehicles musk‑be presumed to be negligent. I, therefore, hold that the drivers of both the vehicles were jointly liable for rash and negligent driving as a result of which this unfortunate accident had taken place causing the death of a member of subordinate judiciary of this province. Finding accordingly. Issue No.2. Defendants Nos.l and 2 are the owners of the two vehicles B involved in the accident and employers of the drivers who were driving these vehicles. Since I have held that both the drivers were guilty of rash and negligent driving of their vehicles in course of their employment and of causing death of Miss Kaukab Nasima Ahmed I am constrained to hold that defendants Nos.l and 2 are vicariously liable for the tortious acts of these drivers and are therefore liable to pay compensation to the plaintiff. As to the amount of damages, it may be pointed out that the plaintiff No.l has stated in his deposition that the deceased was contributing a sum of Rs.1,500 to 1,600 per month to her parents. The age of the plaintiff No.l was 56 years and he died soon .after the filing of the suit. The age of plaintiff No.2 Mrs. Durdana Vicar Ahmed has been shown by her counsel Mr.R.F. Virjee as 54 years. The expected span of life in this country has been fixed by the consensus of judicial decisions on this point at C 65 years. Hence calculating at the rate of 1500x12x12 the amount of compensation comes to Rs.2,16,

000. PlaintiffsNos.3 and 4 Miss Kauser Vicar Ahmed and Miss Kaiser Vicar Ahmed are sisters of the deceased and are not entitled to the compensation. I, therefore decree the suit of the plaintiff for the sum of Rs.2,16,000 against the defendants Nos. 1 and 2 jointly and severally. Defendants Nos.l and 2 will also be jointly and severally liable to pay interest at the rate of 10$ per annum from the date of filing of this suit till the recovery of decretal amount. The costs of the suit will also be borne by the defendants. A.A./V‑13/K. Suit decreed.