1998 PLP 807 (SCMR)

MUKHTAR AHMAD JUNEJO, J.

Karachi Transport Corporation has filed Civil Appeals Nos.86 and 87 of 1992 against a common judgment delivered by a Division Bench of the High Court of Sindh in High Court Appeals Nos.104 and 105 of 1987. Both the appeals would be disposed of under this judgment. Suits NosJ12 and 113 of 1985 were filed by Moinuddin son of deceased Zahiruddin and Mst. Mukhtiar Begum widow of deceased Zafar Hussain respectively, against the appellant under Fatal Accidents Act claiming compensation/damages on account of death of said deceased on 27-12-1983 at 7-30 p.m. due to wrongful act of respondent No.2 Mitho Khan, an employee of the appellant, in driving K.T.C. Bus No.830-519 rashly and negligently and dashing it against a parking oil tanker. At the relevant time deceased Zahiruddin, Assistant Works Manager, K.T.C. and deceased Zafar Hussain driver K.T.C. and deceased Ghous Bakhsh, employee K.T.C. alongwith Mumtaz, Aslam, Zulfiqar were returning by said bus from Thatta to Karachi with Mitho Khan at the stearing. A third suit filed by the heirs of Ghous Bakhsh who died in the same incident, is said to be pending on the original side of the High. Court of Sindh. It is, more or less, an admitted position that on 27-12-1983 K.T.C. Bus No.830-519 while being driven for test purpose by respondent Mitho Khan at Thatta-Karachi Road dashed against an oil tanker at a place near Gharo. As a result the three deceased as well as Mumtaz, Aslam and Zulfiqar all K.T.C. employees travelling by said bus received injuries. The three deceased succumbed to their injuries. As per plaint of Suit No. 112 of 1985 deceased Zahiruddin, aged X55 years, was Assistant Works Manager in K.T.C. He left behind four sons, including plaintiff Moinuddin and three daughters. As per plaint of Suit No .113 of 1985 deceased Zafar Hussain, aged 24 years, was driver in K.T.C. He left behind his widow plaintiff Mukhtiar Begum, two sons and one daughter besides his father and mother. As per the plaints, the three deceased were lured by Mitho Khan to accompany him to Thatta where he was taking the bus for testing. It was alleged that the incident was result of rash and negligent driving by Mitho Khan who dashed the bus against a parking vehicle. Contesting the two suits, appellant K.T.C. challenged the same to be not maintainable, time-barred and without cause of action. Fact that said bus No.830-519 was owned by K.T.C. was not denied, but it was denied if Mitho Khan was driver of the same. Plea taken by the appellant in both the suits was, that said bus was driven unauthorisedly and without permission from competent authority by Mitho Khan who was individually responsible for the alleged act. That the appellant was not responsible for incident or for death of anybody. After settlement of issues and leading of evidence by the parties, a learned Single Judge of the High Court of Sindh under his separate judgments dated 27-4-1987 decreed both the suits against respondent No.2 Mitho Khan and dismissed the same in respect of the appellant. In Suit No.112 of 1985 he awarded decree of RSr2,28,000 in favour of heirs of Zahiruddin and in Suit No.113 of 1985 he awarded decree of Rs.5,00,000 in favour of heirs of Zafar Hussain. Respondent No.1 in Civil Appeal No.87 of 1992 filed High Court Appeal No.105 of 1987 in the same High Court against judgment of learned Single Judge. Respondent No. l in Civil Appeal No. 86 of 1992 filed High Court Appeal No.104 of 1987 against the judgment of the Single Judge. Under the impugned judgment dated 25-11-1991 a learned Division Bench of the High Court of Sindh maintained the decrees granted by the learned Single Judge, but held that both K.T.C. as well as Mitho Khan were jointly and severally responsible for payment of the decretal amount of each of the decrees. Hence these appeals. Mr. Naraindas C. Motiani, learned counsel for the appellant in both these appeals, argued that Mitho Khan who was at the stearing of Bus No.830-519 at the tithe of the incident dated 27-12-1983 was not authorised by the appellant in both the appeals, to take out said bus from the garage of K.T.C. buses and hence liability for damages is squarely of Mitho Khan respondent No.2 in both the appeals and not of the appellant-Corporation. In this respect learned counsel referred to the evidence of Muhammad Maqsood (Exh.7) who was District Manager, K.T.C. Malir Depot. Mr. Muhammad Maqsood, learned counsel for respondent No. 1 in each of the appeals, defended the impugned judgment passed by a learned Division Bench of the. High Court of Sindh and argued that the incident in question resulting in death of Zafar Hussain, husband of respondent No.1 Mukhtar Begum, Zahiruddin--father respondent Moinuddin, and Ghous Bakhsh, Peon K.T.C. is not disputed. So also the fact that it was Bus No.830-519 of K.T.C., which was involved in the incident in question, with respondent No.1 Mitho Khan at the stearing. Learned counsel for respondent No.1 argued that the onus was heavy on the appellant to establish that the appellant Corporation was not liable for the damages and that the appellant had failed to discharge such onus. In Suit No. 112 of 1985 plaintiff Moinuddin (now respondent No. l) examined himself as Exh.5 and P.W. Muhammad Aslam Exh.6, while defendant/appellant examined D.W. Muhammad Masood Exh.7 District Manager K.T.C. The latter deposed that on 27-12-1993 at 4-30 p.m. one Taj Bareen driver K.T.C. took out of the K.T.C. Depot Bus No.830-591 without informing him. That Taj Bareen and his colleagues were out on a joy ride for excursion to Thatta. That during the back journey Taj Bareen withdrew from driving and entrusted ,driving of said bus to respondent No.2 Mitho Khan who was Assistant Yard Master in the depot, but was not a driver. Muhammad Masood added that the said bus was taken out from K.T.C. depot without permission of the appellant. That none of the inmates of the bus was on duty. Muhammad Masood admitted in cross-examination that whenever a vehicle passes out of the gate it is checked. Pleas that Taj Bareen took out the bus, that he entrusted driving of said bus to Mitho Khan and that the latter was not driver, were not taken in the written statement. On 27-4-1987 learned Single Judge of the High Court decreed both the suits against respondent No.2 mainly because the latter did not contest the suits. Learned Single Judge dismissed the suits in respect of the appellant on the ground that the plaintiffs in the suits had hopelessly failed to prove even remotely that the respondent No.2 was authorised or permitted by the appellant to drive the bus and that no material was brought on the record by the witnesses examined by plaintiffs to show that the driver was an authorised agent or an employee duly charged with the duty to take the bus on the road. Respondent No.1 in each case filed High Court Appeal. Both the appeals were jointly heard and decided under the impugned judgment. While granting decree against respondent No.2 as well as the appellant jointly and severally, learned Division Bench in the High Court under the impugned judgment took view as follows:-- "It has been found that Mitho Khan was driving the vehicle at the time of the accident. The presumption which under the law arises that he was driving the vehicle for and on behalf- of the respondent and the bus was on road test has not been rebutted by any evidence laid by the respondent. The gate-keeper and foreman have not been examined to the state that the bus was in working condition and did not require road test and the same was taken out unauthorisedly without the permission of gate-keeper. The present case, therefore, falls clearly within the principle laid down in Reckett's case and there can be no manner of doubt that the bus was taken out with permission for road test and that the respondent must be held liable for damages caused to the appellants because the damages were as a result of the negligent performance of his duty by the Assistant Yard Master. Even supposing for a moment that the respondent had issued instruction to the drivers not to take out the vehicle without proper gate-passes and for road test up to Pipri, the respondent would still be liable on the principle enunciated in Rickett's case." The view taken by the learned Division Bench appears to be in consonance with the principles of justice and the case-law on, the subject and is based on the evidence which is available in the record. In our view, no case is made out for interference with the impugned judgment and both these appeals are dismissed, with no order as to costs. A. A./K-11/S Appeals dismissed.