P L D 1956 Sind 124 (PLP)

INAMULLAH, J.

‑This is an action for damages brought by the plaintiff for personal injuries that he received as a result of rash and negligent driving of defendant 2 Ali Muhammad. The plaintiff, who is a mason by profession, hired a motor cycle rickshaw on 8th November 1951 for attending to his work which was on Manghopir Road near Old Golimar. The plaintiff started in the rickshaw, and was going to Bawaney Mills, where he was working. When he reached the Mangho Pit Road near its junction with Love Lane, the motor truck driven by defendant Ali Muhammad was coming from the opposite direction. It is contended by the plaintiff that, as a result of rash and negligent driving by defendant Ali Muhammad, a collision of the truck with the motor‑cycle rickshaw took place on the Manghopir Road, with the result that the plaintiff received injuries in his head, chest, fracture of bones in both feet and fracture of bone near thigh. The plaintiff also suffered bodily pain and nervous shock. The plaintiff was admitted in hospital on 8th November 1951, and remained as indoor patient till 25th March 1952. Thereafter, he attended the hospital as an outdoor patient till 22nd November 1952. The plaintiff was not fully cured, and was again admitted to the hospital on 29th December 1954 for an operation, and was discharged on 26th January 1955. The present suit has been filed against two persons : (1) Ramzan son of Issa Burra, defendant 1 on the allegation that he was the owner of the vehicle, and (2) Ali Muhammad son of Usman, defendant 2, has been impleaded on the ground that he was the driver of vehicle. The plaintiff has stated that he was working as a mason and earning Rs. 6 per day, and was maintaining his wife, two children and aged father. He has contended that he is now permanently incapacitated from earning his livelihood. The plaintiff has claimed Rs. 10,000 as special and general damages. The defence, in short, was that the accident took place because of the rashness of the rickshaw driver, who was going towards the City but suddenly turned to go on the Manghopir Road. Defendant 2 Ali Muhammad did his best to avoid the accident, and that the accident did not take place because of the rashness or negligence on the part of defendant 2 Ali Muhammad. It has been denied that the plaintiff has been totally incapacitated from doing any work or earning his livelihood. The defendant, Ramzan also denied that he was the owner of the truck. The defendant 2 has adopted the written statement of defendant

1. The contentions between the parties gave rise to the following issues :‑ Issues (1) Was the defendant 2 driving rashly and negligently ? (1A) Was the driver of the rickshaw occupied by the plaintiff driving rashly and negligently ? If so, what is the consequence ? (2) Was defendant 1 owner of the motor truck ? (3) Is the plaintiff incapacitated from doing any work or earning livelihood, as alleged in the plaint ? (para 8). (4) Did the plaintiff suffer any mental and nervous shock ? (5) What were the wages of the plaintiff, and what is the rate at which the damages, if any, should be assessed ? (6) Is the plaintiff entitled to any damages, general or special ? If so, in what amount and from whom ? (7) Relief, with special reference to costs. My findings are as follows Findings Issues No. 1, 4 and 6.‑In the affirmative. Issues No. 1A, 2 and 3.‑In the negative. Issue No. 5.‑The plaintiff's wages were Rs. 6 per day and he is entitled to damages at the same rate. Reasons Issues No. 1 and 1 A.‑These two issues may' be con?veniently taken together. I may here state certain broad features of the case, which are almost admitted by the parties. It is admitted that the accident took place on Manghopir Road when the truck Nva, going to the City side and the rickshaw was going towards Monghopir. It is also admitted that the accident took place partly on the Kutcha portion of the road and partly Pucca. It is not denied by the defendants that the rickshaw driver was on the left side of the road the accident admittedly took place on the extreme left side of the rickshaw driver while he was traveling towards Manghopir. It is also not denied that the plaintiff received injuries as a result of this incident. Keeping these admitted facts in view, the question before me is, whether the accident took place as a result of rash and negligent driving by defendant 2 Ali Muhammad or not. I may at the very outset mention that prima facie it would appear that defendant Ali Muhammad was negligent, as the incident has taken place on his extreme right side. The defendant 2 has, however, tried to explain his position on the extreme right side of the road on the ground that he wanted to pass over a 'ghora‑gari' as stated by some witnesses, or a tonga, as stated by other witnesses, and that is how he happened to be on the right side of the road which is only about 20 feet wide. Mr. Azmatullah, the learned advocate for the plaintiff contended that there could not have been any 'ghora‑gari' as now stated by the defendant. There is no mention of this in their written statements, and the defendants have now clearly improved upon their case. He also contended that if there was any 'ghora‑gari' it was but natural for the defendants to have taken down the number of the 'ghora‑gari' or the name of the driver of the 'ghora‑gari,' in order to prove later on his position on the road. The truck driver could prove his position on the right hand side of the road only on the hypothesis that there was some other con?veyance in front of his truck which he wanted to pass over. The 'ghora‑gari,' it is alleged, was not such a fast vehicle that it could have disappeared if at all it was there, without the defendants‑taking down the number thereof. There is some force in this contention. On the other hand, it is difficult to imagine, unless the truck driver Ali Muhammad was driving very fast on this road which was only about 20 feet wide, how he would be on his extreme right hand side of the road, unless there was some other conveyance in front of the truck which he wanted to cross. I may, for the sake of argument, accept the contention of the defence that there was a 'ghora‑gari' in front of the truck driver which he wanted to cross, and that while crossing the `ghora‑gari' the accident took place. The contention of the defendants is that the rickshaw driver had turned on the Love Lane and was going towards the City side, when it suddenly turned to go towards Manghopir side, and that the accident took place because of the fault of the rickshaw driver. In the first place, I do not accept the contention of the defendants and the evidence led that the rickshaw driver was going towards the City when he suddenly turned to go on Manghopir side. I do not see any reason why the rickshaw driver, when he had been engaged to go to Bawaney Mills towards Manghopir, should first try to go towards the City and then suddenly turn to go towards Manghopir side. It appears that what the plaintiff has stated is correct. The rickshaw was coming op Love Lane when the rickshaw driver saw some truck coming on the Love Lane, and in order to take a short cut to Mangho Pir road the rickshaw driver crossed over through the Kutcha portion between the Love Lane and Manghopir Road and proceeded towards Manghopir. It must be so, as it is admitted by Ramzan defendant 1 that when he first sighted the rickshaw from the truck, it was at a distance of about 300 yards. If defendant Ramzan had seen the rickshaw at a distance of 300 yards going towards the City side and if it turned to Mangho Pir side immediately, even then the distance between the truck and the rickshaw must have been at least 200 yards or so. It is admitted by Ali Muhammad, defendant 2, Exh. 19, that " the rickshaw after going 4 or 5 paces on Manghopir Road, turned back towards Bawaney Mills on Manghopir Road." If this is the admitted position, then it does not make any difference whatsoever, even if it be conceded for the sake of argument that the rickshaw driver had started going towards the City side and then it suddenly changed its mind to go towards Bawaney Mills, as the distance between the rickshaw driver and the truck would still be more than 200 yards. From what I have stated above, it would appear that the truck was coming from Manghopir while the rickshaw was going towards Manghopir, and that the distance between the truck and the rickshaw was about 200 yards or so while they were facing each other. At best, I may accept the case of the defendants that there was a 'ghora‑gari' in front of the truck. If that was so and the distance between the truck and the rickshaw was about 200 yards or so, the truck driver could not cross the 'ghora‑gari' without being negligent or rash in driving, which is obvious from the result. The rickshaw driver could not foresee the action of the truck driver that he would cross over the `ghora‑gari.' The rickshaw driver admittedly was on his left hand side of the road. In fact, at the time of the accident, he crossed over to the Kutcha portion of the road and the truck admittedly was partly on the Kutcha side of the road where the accident took place. It was stated by defendant 2 Ali Muhammad, the truck driver that he was driving at a speed of 10 miles only. If that was so, he could have easily put on the brake as soon as he saw the rickshaw coming from the opposite direction. But it appears that he was driving at a high speed and he could not put on the brakes and avoid the accident. The negligence of the truck driver is still more apparent, as in spite of the fact that the rickshaw went over to the Kutcha side, the accident could not be avoided. It was contended by Mr. Qureshi, the learned advocate for the defendants, that all the evidence that the plaintiff could produce in the case to prove negligence of defendant 2 Ali Muhammad has not been produced. The only important evidence that could have been produced by the plaintiff was that of the rickshaw driver. But I find from the record that the plaintiff had made several attempts to summon the rickshaw driver but he was not traceable. The plaintiff has also stated before me that he made several attempts to find out the whereabouts of the rickshaw driver, but he could not do so. The plaintiff has not been cross‑examined on this part of his statement to throw any doubt that he did not make an effort to find out the whereabouts of the rickshaw driver. So far as the policemen who may have come on the scene where the accident took place,‑are concerned, their evidence R could not be of a material help in proving the negligence and rashness of the truck driver. It is not the quantity of the evidence that is necessary but the quality. Under the cir?cumstances of the case, I would accept the statement of the plaintiff so far as the accident is concerned supported as it is by circumstances e.g.. the accident having taken place on the extreme left hand side of the rickshaw driver and on the extreme right hand side of the truck driver Ali Muhammad, the truck driver having no business to be on his extreme, right hand side of the road. In cases of accident, it is very difficult to have evidence of others than those who have been the victims of the accident. In the present case; the accident admittedly took place in early hours of the morning when the road was almost deserted. Mr. Qureshi, the learned advocate for the defendants, contended that it was very early in the morning, about 5 or 5‑30 a.m. and not 7 or, 7‑30, that the accident, as alleged, had taken place. It was also contended by him that the accident took place, not beyond the junction of Love Lane with Manghopir Road towards the Manghopir as stated by the plaintiff, but a little farther on the Manghopir Road towards the City side. In my opinion, these variations do not, make any difference so far as the main question of rash and negligent driving is concerned, so long as it is admitted that the accident took place and that the plaintiff received injuries. Mr. Qureshi also drew my attention to the fact that the truck driver, Ali Muhammad, has been acquitted by the Magistrate. That circumstance also is not of much significance. The Civil Court has to come to its own finding on the facts and circums?tances placed before it, and the finding of the Magistrate cannot be taken into consideration except for the fact that the defendant 2 Ali Muhammad had been acquitted. The defendants have examined themselves and two more persons : (1) Khuda Bakhsh, who has a hotel on the Mangho Pir Road, and (2) Morul, who also was sitting in the truck when the accident took place. Both Khuda Bakhsh and Morul do not appear to me to be impartial witnesses, and in view of the circumstances which I have already discussed above, I am not inclined to place any reliance whatsoever on their evidence. I also do not accept the statement of the two defendants, as their evidence is belied by the circumstances of the case. I would, for the reasons given above, hold that the defendant 2 Ali Muhammad was driving rashly and negli?gently, and that the rickshaw driver was not driving rashly and negligently. Issues No..2.‑There is no satisfactory evidence before me to prove that defendant 1 Ramzan son of Issa is the owner of the motor truck. It has been admitted by defendant 1 himself that he had taken the truck in question on lease, and that at the time of the accident, it was in his employ. I would, therefore, hold that defendant 1 Ramzan was not the owner of the truck, but the same was in his employ. Issue No. 3.‑There is no doubt, as would appear from the evidence of Dr. Miran Rowthei, Exh. 7, that the plaintiff had received serious injuries, which if not curred, were likely to result in his permanent disablement. Dr. Miran had examined the plaintiff when he was admitted to the hospital, and noted the following injuries on his person :‑ (1) Fracture right femur upper part with displacement. (2) Fracture mid‑shaft 2nd and 3rd right meta‑tarsal with displacement. (3) Lacerated wound on the dorsum of the right foot 4" x ?" x ?" over injury No. 2. (4) Abrasion on the back of left arm 1" x ?". (5) Abrasion on the right side of the chest at the level of the nipple, size 3" x ?". (6) Lacerated wound on the chin, ?" x ?" x ?". (7) Three lacerated wounds on the wall of the skull each measuring 1"x ?" x ?". The plaintiff has stated before me that his leg does not properly bend as a result of the injuries that he had received in the accident and that he can only walk with the help of a stick. He has stated that he cannot do the mason's work. The question before me is, whether from the statement of the plaintiff alone I can come to the conclusion that he has been permanently disabled or incapacitated from doing any work or earning his livelihood. The burden of proof being on the plaintiff, he should have produced some medical evidence to support his statement. Under the circumstances, I do not find sufficient evidence to hold that the plaintiff has been incapacitated from doing any work or earning his livelihood. Issue No. 4.‑There can be no doubt, as would appear from the injuries received by the plaintiff as deposed to by the Doctor, and also from the fact that the plaintiff remained an indoor patient for above five months, that the plaintiff must have suffered mental and nervous shock. I, therefore, hold accordingly. Issue No. 5.‑The plaintiff has stated before me that he was a mason by profession and that he was getting wages at the rate of six rupees per day. The plaintiff has also stated in the plaint that he was working as a mason and earning Rs. 6 per day for his work. This fact was well known to the defendants, but the defendants have not tried to contradict the plaintiff on that point. Mr. Qureshi has cross‑examined the plaintiff at length, but I do not find any suggestion in the cross‑examination that what the plaintiff has stated about his daily wages is not correct. If the amount of wages were disputed by the defendants it was easy for them to have, stated that the wages of a mason are less than six rupees per day. I am satisfied from the evidence of the plaintiff that his daily wages was Rs.6 and that he was working as a mason. Issue No. 6.‑It is true that the truck must be insured for third party risk under the law and the defendants can recover the damages that they may have paid to the plaintiff but the plaintiff has to prove the loss or damages that he may be entitled to recover. It was held in the case of Sri Ram v. Delhi Electric Tramway Lighting Company (A I R 1919 Lah. 213), that:-- "Where a person has suffered personal injuries on account of the negligence of another, he is entitled to damages for personal suffering and for loss of enjoyment o life and also to actual pecuniary loss resulting to, and the a expenses reasonably incurred by him. If he is engaged in a profession or trade or other occupation, he must be compensated for the probable future loss by reason of incapacity or diminished capacity to work." In that case, certain amount was allowed to the plaintiff as damages for the pain, inconvenience, loss of enjoyment of life, etc. In the present case, the accident took place on 8th November 1951. The plaintiff remained in hospital as indoor patient till 25th March 1952, when he was discharged, and then continued to receive treatment as an outdoor patient, as would appear from Exh. 11 and the statement of Dr. Miran, upto 22nd November 1952. The plaintiff remained in pain for about five months, and, as would appear from his state?ment and also Exh. 15, he was again admitted to Surgical Ward for some operation. It may be a minor operation, and I do not see any reason to doubt the word of the plaintiff that he~ had to undergo the operation again as a result of the injuries that he had received in the accident. It is indeed very difficult to assess the exact amount on this ground, but I consider it fair to award an amount of Rs. 500 as damages for pain, inconvenience and loss of enjoyment of life. The plaintiff was out of employment from 8th November 1951 to 25th March 1952. He must have remained out of employment while he was attending the hospital as an out door patient till 22nd November 1952. Though the plaintiff has stated that, as a result of the injuries received in the accident, he is not able to do his work as mason, but I may take it that at least he was unable to work from 8th November 1951 to 22nd November 1952, and also from 29th December 1954 to 26th January 1955 when he was admitted to the hospital for operation. The plaintiff is entitled to damages for all this period that he was in the hospital or attended the hospital as an outdoor patient. The plaintiff had admitted that he used to work on the average for 27 to 30 days in a month. There may be some exaggeration in the statement of the plaintiff. I would hold that the plaintiff may have been on the average working for twenty five days in a month. The plaintiff remained out of work from 8th November 1951 to 22nd November 1952, and again from 29th December 1954 to 26th January 1955. 1 have already held that the plaintiff was working for twenty five days in a month, and therefore, at the rate of six rupees per day, I would allow Rs. 2,010 (Two thousand and ten only) as damages to the plaintiff, calculating the month to be of thirty days. The last question before me is, whether the two defendants are jointly and severally liable or not. In this connection it would be useful to quote a passage from the ' Law of Torts ' by Rattan Lal, 1950, Edn. at page 96 :‑ "The liability of the principal for the wrongs of his agent is a joint and several liability with the agent. The injured party may sue either or both of them, but if he chooses to sue the agent alone, and recovers judgment against him, such judgment, though unsatisfied, is a bar to any proceeding against the principal." Earlier, at the same page, the learned Commentator has said :‑ " In order that responsibility may attach to the principal, in respect of a tortious or fraudulent act‑whether criminal or not‑it is necessary (i) That it shall have been committed by the agent in the l course of his employment, although the principal did riot authorised, or justify, or participate in the act or even if he forbads it or disapproved of it ; . . . . . . . ." Keeping the above principle in view, it is admitted by defendant 1 Ramzan that the truck was under his employ inasmuch as he had taken the lease of the same. In fact, he was in the very truck when the accident took place. It is also stated that he had engaged the truck for carrying milk and that at that time he was carrying milk for supply to his customers. Under these circumstances, I have no doubt that defendant 1 Ramzan is also responsible for the damages. So far as defendant 2 Ali Muhammad is concerned, it goes without saying that he being the driver of the truck in question, was responsible for the injuries of the plaintiff, and is, there?fore, liable to pay damages. I, therefore, hold that both the defendants are jointly and severally liable to pay damages to the plaintiff. The suit is decreed for Rs. 500 (Five hundred only) as damages for pain, nervous shock and loss of enjoyment of life, and Rs. 2,010 (Two thousand ten only) as damages for the plaintiff was not able to earn his livelihood as shown above. The suit is, therefore, decreed for Rs. 2,510 (Two thousand five hundred and ten only) in all, with costs for the amount decreed in favour of the plaintiff. I have not allowed any proportionate costs to the defendants as they have failed on all the issues, except one about the amount of damages. It was open to the defendants to have contended in the alternative that the damages claimed by the plaintiff was excessive and that he was entitled to a smaller sum. They have not done so. Under the circumstances, I would not award any costs to the defendants, but would order costs to be paid by them only for the amount that the plaintiff has succeeded, i.e., Rs.2,510 (Two thousand five hundred and ten only). A. H.??????????????????????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.