2004 PLP 1627 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioners seek leave to appeal against the order, dated 2-9-2003 passed by a learned Single Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Civil Revision No.445 of 2003 filed by the petitioners was dismissed and the order of the trial Court was maintained.

2. The background leading to the filing of the instant petition is that respondent No. 1, Dr. Sher Afgan Khan Niazi filed suit for recovery of US $ 25 millions as compensation/damages against petitioners the Chairman and Chief Executive respectively of respondent No.4 Indus Motor Company Ltd. for the loss of life occasioned to the family of his deceased son Bahram Khan by his death in road accident due to failure of Supplemental Restrain System Airbag System fixed in Toyota Corolla Motor Car No.LXZ-53 being driven by his deceased son. Initially, the petitioners filed an application under Order VII. rule 11, C.P.C. for the rejection of plaint which was dismissed by the trial Court vide order, dated 18-1-2003. The civil revision filed by the petitioners against the said order was also dismissed in limine by the learned High Court oil 1-4-2003.

3. Thereafter, it was on 24-2-2003, the petitioners moved an application under Order 1, rule 10(2), C.P.C. for striking off their names from the array of defendants on the ground that the plaint on the face of it prima facie failed to disclose any cause of action whatsoever against them. According to the averments, the petitioners in any manner were not personally responsible for the maintenance/inspection of the vehicle prior to and especially after it has left the place of manufacture. Moreover, the research and design of SRS Airbag System was also not their personal responsibility.

4. The said application was resisted on the ground that the petitioners were equally responsible for the failure of SRS Airbag System attached in the abovementioned car, being Chairman and Chief Executive of respondent No.4 the manufacture concern. This application was however, dismissed by the trial Court on 12-5-2003 holding that it was premature to decide as to whether the petitioners were or were not liable for damages. This order was challenged in Civil Revision No.455 of 2003 before the High Court which was dismissed vide impugned order.

5. Mr. Qadir H. Sayeed, ASC learned counsel for the petitioners mainly urged that the suit in personal capacity against the petitioners is not competent as it does not disclose any material cause of action against them and that liability for a tortuous act allegedly committed by a duly incorporated company cannot be attached to its servants on the basis of principle of vicarious liability, as under the said principle, it is well settled that liability flows from servant to the master and never from the master to servant.

6. On the other side, learned counsel for the respondent, vehemently controverted the above contentions and argued that the averments in the plaint; certainly discloses the cause of action against the petitioners as properly held by the trial Court as well as by the High Court. According to him, respondent No.4 the manufacturing company can only be sued through the petitioners its Chairman and Chief Executive. Since issues have been framed and the evidence is yet to be recorded, as such, it would be premature to give any findings on the above aspect of the matter at this stage.

7. The concurrent findings recorded by the trial Court and upheld by the High Court that the petitioners being Directors of company have a distinct liability in the matter then that of company itself do not call foul interference by this Court at this stage because it is yet to be adjudicated upon by the trial Court after recording the evidence. Since the issues have been framed and the evidence is yet to be 'recorded, therefore; the matter being at the preliminary stage, it would not be appropriate to delete the names of the petitioners from the set of the defendants. The petition being devoid of force is dismissed and leave to appeal refused. S.A.K./A-51/S Leave refused.