2002 PLP 295 (CLC)

For repair of the motorcycle=Rs. 781 For damages on account of business=Rs. 800

4. The defendant/petitioner contested the suit and filed separate written statement. It was denied that any accident took place on account of the negligent act of driver Ghulam Muhammad. It was submitted that if at all, the accident was the result of the negligence or at least contributory negligence of respondent No. 1. .

5. As per the pleadings of the parties, the following issues, were framed:‑‑ (1) Whether the suit suffers from non‑joinder of a necessary party? If so, its effect? OPD‑2‑3. (2) Whether the suit is not maintainable? (based on preliminary objection No.2 of the written statements of defendants Nos.2 and. 3)? OPD 2‑3 (3) Whether the suit, is time‑barred? OPD 2‑3 (4) Whether this Court lacks jurisdiction to try this suit? OPD 1 (5) Whether the plaintiff met an accident on 28‑6‑1980 with the defendants, bus driven by defendant No.1 and the accident took place due to the negligence of defendant No. l? OPP (6) If Issue No.5 is proved, then whether the plaintiff has suffered physical torture and has undergone financial loss?. If so, what compensation should be awarded to him and from whom? OPP (7) Whether defendant No.1 is personally not liable to pay any damages to the plaintiff? OPD 1. (8) Whether the suit is frivolous and has been instituted with a mala fide intention of black‑mailing defendants Nos.2 and 3? OPD 2‑3 (9) Relief.

4. The learned trial Court after examining the evidence produced before it found Issues Nos.5 and 6 in favour of respondent No.1 and also holding Issues Nos.1, '2, 3, 4, 7 and 8 also in favour of the plaintiff/respondent, passed judgment and decree; dated 7‑10‑1987 in favour of respondent No.1 against the defendants to the tune of Rs.23,786.

5. Ghulam Muhammad and Punjab Road Transport Corporation filed separate appeals against the said judgment and decree. The learned Appellate Court dismissed both the appeals vide separate judgments dated 10‑12‑1989. The civil appeal by Ghulam Muhammad was dismissed on merits while civil appeal filed by P.R.T.C: was dismissed both on merits as well as limitation.

6. The learned counsel appearing for Ghulam Muhammad petitioner challenged the concurrent findings of fact on the ground that both the learned lower Courts have not properly appreciated the evidence. It was also submitted that the suit which was filed by respondent No. l was barred by time. He further submitted that respondent NO. 1 has not been able to make out any case for the grant of damages as he had not proved by evidence that the duty and standard of case which was exercised by the respondent was appropriate and that if any incident took place, it was not on account of the respondent's own default. It was also contended that the quantum of damages awarded by the learned lower Courts are not based upon any, tangible yardstick. The liability of the servant and/or vicarious liability of the toaster have also not been determined.

7. The learned counsel appearing for the respondent, on the other hand, contended that extensive evidence was produced by the respondent before the learned lower Courts. P. W. l is Professor Dr. Bashir Ahmad, Orthopaedic Surgeon who proved the prescription EX‑P. t and endorsed the fracture of the bone of the respondent. P.W.2 is the Record‑Keeper of the Bahawalpur Victoria Hospital, Bahawalpur to prove the issuance of Exh.P.2 to Exh.P.4. P.W.3 is mechanic who deposed that Ghulam Muhammad petitioner brought the damaged motorcycle for repair. He produced copy of the bill Exh.P.5 which was not paid by the said Ghulam Muhammad despite assurance. P.W.4 is an eye‑witness of the accident who narrated the details of the accident which proved negligence ors the part of the bus driver. P.W.5 Ghulam Ahmad is another witness of the accident. The plaintiff/respondent appeared as P.W.6 as his own witness. The evidence of the respondent comprised of the statements of D.W.1 Muhammad Aslam. D.W.2, D.W.3 and D.W.4 who denied the occurrence of any accident.

8. The appreciation of the respective evidence produced by both the parties, both oral and documentary was ably done, by the learned trial Court who came to the conclusion that the contention of the petitioner/ defendant that no accident took place at all was fallacious. On the other hand, the evidence produced by the plaintiff/respondent was found to be confidence‑inspiring and trustworthy. The question of quantum of damages in such cases depends upon the judicial conscience of the Court trying the case. The medical evidence produced by the respondent proved that he had suffered fracture of his bone. Upon the complete denial of the occurrence of the accident, the question of negligence has to be determined upon the ocular evidence produced by the respondent. It was the domain of the learned trial Court to have appreciated the evidence and come to a logical and reasonable conclusion. The question of contributory negligence or want of due care and caution as urged by the learned counsel for the petitioner is of no avail as they had denied the very occurrence of the accident. The petitioner agitated the question of appreciation of evidence before the learned First Appellate Court which is the final Court of fact. The learned First Appellate Court examined the evidence on the record again and concurred with the findings of the learned trial Court. The conclusion of fact arrived concurrently by both the learned lower Courts is not open to challenge in civil revision particularly when no specific misreading or non‑reading of evidence has been pointed out.

9. The objection that the suit was not within time was also repelled on the ground that as the accident took place on 28‑6‑1980 and the suit was filed on 5‑9‑1981, the suit was within tithe. The impleadment of the other defendants upon the objection raised from time to time would not be material in the circumstances of the case as the original defendant (petitioner herein) stated himself to be an employee of the Government Transport Service, the Punjab Road Transport Board and P.R.T.C. It is also noticed that the judgment and decree passed in favour of the respondent were jointly and severally against the petitioner Ghulam Muhammad and Punjab Road Transport Board Corporation.

10. The P.R.T.C. filed a separate revision against the judgment and decree, dated 10‑12‑1989 passed by the learned First Appellate Court. The learned Appellate Court had dismissed the appeal of the P.R.T.C. on merits as well as on limitation as an additional ground. The learned trial Court had passed the judgment and decree on 7‑10‑1987. The petitioner applied for obtaining copy of the judgment and decree on 17‑10‑1987. The necessary copies were admittedly prepared and were ready for delivery on 26‑11‑1987. It was rightly held by the learned Appellate Court that the starting point of limitation would be 26‑11‑1987 when copy of the judgment and decree was prepared and was ready for delivery and not when the petitioner chose to obtain the delivery on 17‑12‑1987 The appeal filed on 19‑12‑1987 was thus, barred by time.

11. In Civil Revision No. 15,0‑D of 1990, the concurrent findings of fact of both the learned lower Courts as well as the findings of the learned first appellate upon limitation have been challenged. As far as the concurrent findings of fact of the learned lower Courts are concerned; suffice it to say that no misreading or non‑reading of evidence has been pointed out and the concurrent findings of fact are conclusive against the petitioner. As far as the question of limitation is concerned, the times requisite to obtain copy of the judgment and decree commences from the application submitted for obtaining the said copy and ends, on the day when the copy is prepared and is ready for delivery. The negligence of a party in obtaining the delivery of the copy of the judgment and decree at his leisure cannot be counted as "time requisite" under the law. There is nothing on the record that the petitioner was misled by any act of the Copying Agency.

12. For all that has been stated above, both the civil revisions are devoid of any merit and are hereby dismissed. Parties to bear their own costs. S.A.K./G‑121/L Order accordingly.