1992 PLP 1715 (SCMR)

...... Res ipsa loquitur" (thing speaks for itself)‑‑‑Where true cause of accident was solely within knowledge of defendant, then such hardship would be avoided by invokving rule of res ipsa loquitur‑‑‑In such cases where accident would speak for itself, it would be sufficient for plaintiff to prove accident and nothing more‑‑‑Defendant could then persuade Court that accident arose not through his negligence. M. Sharif Khattak, Advocate Supreme Court instructed by R.A. Qureshi, Advocate‑on‑Record for Appellants. Munawar Ghani, Advocate Supreme Court instructed by Mrs. Majida, Razvi, Advocate‑on‑Record for Respondents No.l. A.G. Mangi, Addl. A.‑G. Sindh for Respondents Nos.2 and

3. Date of hearing: 29th March, 1992. SAJJAD ALI SHAH, J.‑‑‑This appeal with leave is directed against judgment, dated 5‑10‑1989 of Division Bench of Sindh High Court at Karachi, whereby High Court Appeal No. 49 of 1988 is allowed and judgment impugned therein is set aside and in consequence it is held that suit is dismissed against respondents No.2 and 3 herein and abated against legal representatives of respondent No.l.

2. Briefly stated the relevant facts giving rise to this appeal are that appellants No.l and 2 herein respectively Mst. Kamina and Amir Khan are widow and father of late Nasim Khan. Amir Khan purchased truck No.PRA‑7937' on instalment basis, which was‑ used for the purpose of transporting goods. Amir Khan himself drove the truck as driver while his son Nasim Khan worked in the truck as cleaner. Respondent No.l herein namely Al‑Amin Goods Transport Agency owned by Muhammad Habib Siddiqui engaged truck of Amir Khan for hire on 23‑7‑1975 for the purpose of transporting 23 drums to Lahore against Invoice No.75. The drums belonged to Government of Punjab, Agriculture Department and its Deputy Assistant Director, who are respondents No.2 and 3 before us. Drums were loaded in the truck from Malir City and 'were to be delivered at Lahore. Amir Khan drove the truck. with, Syed Nawaz as co‑driver, Nasim Khan arid Ilyas as conductors/clearners. According to Amir Khan, at the time of loading he and his son and co‑driver were not informed that the drums contained poisonous material. When the truck reached between Pattoki and Lahore, Nasim Khan and 11yas who were sitting inside the truck near the drums sensed stinky smell and felt giddy. Amir Khan also felt that smell and drove to the destination. After unloading the drums, he took Nasim Khan and Ilyas to Mayo Hospital, Lahore, where. they were admitted, went into comma and died on 27‑7‑1975. 3.' Mst. Kamina widow of Nasim Khan and her father‑in‑law filed Suit No.39 of 1979 for recovery of damages amounting to Rs.2,09,000.in the High ,Court of Sindh at Karachi; on the original side. According to the plaint, death of Nasim Khan was occasioned due to negligence of Al‑Amin Goods Transport Agency, who engaged the truck for transporting the invoiced drums to Lahore. It was stated in the plaint that Nasim Khan was 25 years old and was in excellent health and was expected to live upto 65 years. He. earned Rs.400 and hoped to~ become a driver. Plaintiffs in the suit claimed Rs.1,92,000 as contribution for 20 years at the rate of Rs.300 per month and for further 20 years at the rate of Rs.500 per month for plaintiff No.l, Rs.10,000 for mental worries and loss of business to plaintiff No.2, father of deceased and Rs.5,000 as loss of business for 30 days to plaintiff No.2 and Rs.2,000 as burial expenses including treatment.

4. Al‑Amin Goods Transport Agency filed written statement denying allegation that at the time of loading Amir Khan was not informed that drums contained poisonous stuff. It was averred that at the time of loading Mr. Rana Muhammad. Yousuf, Deputy Director (Technical), Government of Punjab, was present under whose instructions goods were loaded and the driver and cleaner of the truck were informed about the contents of the drums and were asked to be careful.

5. Government of Punjab and Deputy Assistant Director, as defendants No.2 and 3, Filed joint written statement disputing the claim of plaintiffs. Stand was taken that drums contained Solvirex which is pesticide marked with "Insecticide" with insignia of cross bones and skull and word "poison" mentioned on all the drums. Further in the bilty also in Urdu it was mentioned that contents were. Keeping in view pleadings of the parties seven issues were framed.

6. In evidence on behalf of plaintiffs two witnesses were examined. P.W.1 is Hussain Shah, who is, father of Mst. Kamina. P.W.2 is Amir Khan. On behalf of plaintiffs Mian Muhammad Saqib, Statistical Officer, Mayo Hospital, Lahore, was examined on commission, who produced death certificates of both Nasim Khan and Ilyas Exh.7/2 and 7/1, indicating cause of death as poisoning by insecticide. Defendants No.2 and 3 in the suit examined Rana Muhammad Yousuf who deposed that he was present at the time of loading and there was no leakage in the drums. Driver and other persons in the truck were informed about the nature of contents and such warning was mentioned in the documents including bilty and copy of the bilty was given to the driver.

7. Learned Single Judge on the original side dealing with the suit proceedings decreed the suit for fixed amount of Rs.1 lac against defendants No.2 and 3 (Government of Punjab, Agriculture Department and Deputy Assistant Director (Technical) jointly and severally. Suit against defendant No.l (AI‑Amin Goods Transport Agency) was dismissed with no order as to costs. Against the judgment and decree, High Court Appeal was filed which is allowed and the suit is dismissed as mentioned above. We have heard learned counsel appearing for parties on both the sides. The most important question in this case is whether driver and other persons in the truck were informed by defendants in the suit that drums contained poisonons chemical which was dangerous for human‑beings and were to be handled with care and caution in order to avoid leakage of poisonous gas. In this respect, we have examined in detail evidence of Amir Khan, who appeared for plaintiffs in the suit. He has stated in his deposition that at the time of loading he was not present and was sleeping in the hotel nearby. He was not informed about the contents of drums. On previous occasions also he had transported goods at the request of defendant No.1 (Al Amin Goods Transport Agency). Other persons in the truck who were present at the time of loading were also not informed about the contents. In cross -examination suggestive question was put to him and he denied categorically knowledge of contents and stated that he counted only number of items and because he had confidence in transport agency or the consigner he did not ask questions about the contents of item to be transported. Representative of defendants Nos. 2 and 3 in the suit was present at the time of loading. He was an officer. Amir Khan further stated categorically that there were no signs or danger marks on the drums. He admitted that he had received copy of bilty. We have seep bilty and other documents in which contents of the drums are referred as Solvirex Technical. It is not mentioned specifically in these documents that this chemical .is dangerous in nature and its gas if smelt by human‑beings would also kill.

9. On the other hand Rana Muhammad Yousuf examined on behalf of defendants stated in his deposition that in 1975 he had sent Solvirex Technical from Karachi to Lahore by a truck in 23 drums through M/s. Al‑Amin Goods Transport Company. He averred that driver and other persons were informed about dangerous contents of the drums and copy of the bilty was handed over to the driver. He has produced acknowledgement receipt from consignee Exh.8/2 and letter Exh.8/3 and further claimed that consignment reached safely without any accident or mishap: He denied that there was any leakage. In the cross‑examination this witness admitted that consignment was highly poisonous in its nature and if it leaked its smell could cause death if the gas went into human body. He admitted in cross‑examination that insignia and danger signs made on the drums were generally not understood as dangerous unless driver and other persons were specifically informed about the contents. He also admitted that there were no writings on the documents produced by him that contractor or the driver or any person accompanied in the truck was informed or given instructions that goods were dangerous.

10. After analysis of evidence mentioned above we have come to the, conclusion that driver and other persons in the truck were not informed by defendants in the suit that drums loaded contained posionous stuff and they were not instructed and warned to be careful in handling as contents were dangerous to human life.

11. It is, therefore, beyond dispute that defendants No.2 and 3 in the suit had special knowledge about the contents of the drums which was not disclosed to the driver and other persons who were in the truck. Article 122 of the Qanun‑e‑Shahadat envisages that when any fact is specially within the Knowledge of any person the burden of proving that fact is upon that person. Evidence on the" record shows that this burden was riot discharged by defendants in the suit. Even bilty only mentions insecticide but did not say that the contents were poisonous in nature and dangerous to human life. Salmond and Houston on the Law of Torts (Nineteenth Edition) at page 342, while discussing "Things dangerous in themselves" have stated that a distinction has been drawn between things classed as dangerous in themselves and things dangerous in the particular case or sub modo. It has, however, again and again been held that in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity. The duty being to take precaution, it is no excuse to say the accident would not have happened unless some other agency than that of the defendant had intermeddled with the matter. At page 367 it is mentione4 that anything likely to do mischief if it escapes is included in the definition of dangerous things.

12. In the case of Bamfield v. Goole and Sheffield Transport Company, Limited 94 K.B.D. (1910). husband of plaintiff as common carrier was given quantity of chemical called Ferro‑silicon packed in casks for transportation on his keel and the consignment was described as "general cargo" without giving him any warning about poisonous gases which could be dangerous under certain conditions. Ferro‑.silicon so shipped gave off poisonous gases and in consequence husband of plaintiff died and plaintiff who was on board also became seriously ill. At the trial of an action brought by plaintiff to recover damages in respect of her illness and of pecuniary loss caused by her husband's death, it Was held that due to absence of knowledge of danger to carrier there was implied warranty by consignor that goods were not dangerous and those defendants were liable.

13. In the cases under Fatal Accidents Act, 1855, general rule is that burden of proof with regard to negligence is on plaintiff to prove negligence and not for the defendant to disprove it but in cases where true cause of accident lies solely within the knowledge of defendants then this hardship is avoided by invoking the rule of res ipso loquitur (the thing speaks for itself). In such circumstances where accident speaks for itself, it is sufficient for plaintiffs 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. In support of this proposition, reference can be made to the case of Ursulina D'Lima and others v. Orient Airways Limited and another PLD 1960 Kar 712, in which case‑law on the subject is aptly discussed. It was held in that case that it could not be ruled out that plane met with the disaster for the aforesaid defect and the defendants should have proved that there was no inherent defect in the machinery of the aircraft.

14. On the other hand Mr. Abdul Ghafoor Mangi, learned A.A.G. for respondents No s.2 and 3 herein submitted that there was no negligence on the part, of consignors as the consignment was received at the other end intact and if during journey is the truck there was leakage in the drums and two persons in the trucks died on account of it, then it was a mishap or accident for which driver and other persons in the truck are liable for contributory negligence. This plea is not available to the respondents for the reason that .it appears from the record that initially these respondents were negligent and they did not inform driver and other persons in the truck and did not warn them about dangerous nature of the contents in the drums, hence they cannot fall back upon contributory negligence of the other party in order to avoid their own liability. This question came up for consideration in the case of Malik Raza Khan v: Pakistan PLD 1965 Kar. 244 in which there was accident between a taxi and railway engine carrying four oil lank bogies at unmanned railway crossing in consequence of which Awwal Khan and Driver Afzal Khan were killed and other four occupants of taxi also received serious injuries. On behalf of Pakistan Railways, stand was taken that driver of taxi was himself responsible for accident. It was held and rightly so that proximate cause of accident‑was the negligence of the servants of defendants (Railways) and even if the driver of the‑ taxi was rash and negligent in driving that would, not completely absolve the Railway of liability to pay damages. 15.. In view of what is stated' above, we are of considered opinion that in this case driver and other persons in the truck were not informed and warned about dangerous and poisonous nature of the contents of drums which were being transported to Lahore, as such respondents No.2 and 3 are liable for damages. Mr. Munawar Ghani, Advocate for respondent No.l (Al‑Amin Goods Transport Agency) has stated that the contractor had died during pendency of suit as such cause of action against him on his death had abated and the trial Court has dismissed the suit against L.Rs of deceased contractor. We, therefore, set aside judgment in High Court Appeal impugned before us and restore judgment and decree in the suit proceedings against respondents Nos.2 and

3. In the result appeal is allowed with costs. A.A./K‑193/S Appeal accepted.