Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Suit No. 48 of 1961, decided on 29th May 1964.
S. 1‑Negligence Plaintiff to prove, not for defendant to disprove.
In a suit for damages filed under the Fatal Accidents Act, 1855, on the allegation of negligence on the part of defendant, it is for the plaintiff to show whether there was any negligence on the part of the defendant on account of which the plaintiff would be entitled to any damages. Where the plaintiff makes alternatively two defendants liable for negligence the burden is all the more greater on the plaintiff to prove as to who, out of the two defendants, was negligent on account of which the plaintiff would be entitled to damages.
A. K. Lakhani for Plaintiffs.
Noorul Arfin for Defendant No. 1.
Naimuddin for Defendant No. 2.
Date of hearing: 27th May 1964.
An application in forma pauperis was made by the plaintiffs on the 14th of April 1960, which was granted by an order of this Court on the 10th of March 1961. This suit thereafter came to be registered as Suit No. 48 of 1961. This suit has been filed for damages for Rs. 1,00,000 under the Fatal Accident Act, 1855 (Act No. XIII of 1855). The allegations on which it is founded are that deceased Haroon acted as a broker for a transaction of sale of gunny‑bags between the firms of Abdul Ghaffar Qassim and Iqbal Ahmad. He went to the godown of defendant No. 1 on 19‑10‑1959, for the purpose of getting defendant No. 2 the delivery of the contracted goods. It is alleged that some gunny‑bag bales fell on him on that day (19th October 1959), on account of which he died. It is alleged that these gunny‑bag bales fell on the deceased Haroon either on account of the negligence of defendant No. 1 or of defendant No. 2.
2. The defendants resisted the suit and denied the allegations made against them. On the pleadings of the parties, the following issues were framed:
(1) Is the suit bad for non‑joinder of parties
(2) Was the death of Haroon caused by the negligence of the defendants or either of them or the servants or any of them
(3) Was the presence of the deceased Haroon in the godown of the defendant No. 1 without authority or invitation If so, what is the effect
(4) Were the‑plaintiffs or any of them dependents on the deceased Haroon for their maintenance and liability
(5) Was the deceased Haroon earning Rs. 700 to Rs. 800 per month at the time of his death and was of 26 years' age.
(6) Are the plaintiffs or any of them entitled to any damages from the defendants or any of them If so, what is the quantum of damages the plaintiffs are entitled to
3. Issue No. 1 is whether the suit is bad for non joinder of parties. The argument advanced is that the deceased had gone with the representative of Abdul Ghaffar Qassim to the godown of defendant No. 1 to get the delivery of the goods to defendant No. 2. The evidence brought on the record is that the people of Abdul Ghaffar Qassim were present there and it may have been on account of their negligence that bales of gunny‑bags had fallen on the deceased causing his death. Abdul Ghaffar Qassim having not been made a party the suit will suffer from the defect of non joinder of parties. I see no force in this argument as there is no allegation contained in the plaint for recovering any damages on account of the negligence on the part of any body concerned with Abdul Ghaffar Qassim. I, therefore, decide this issue against the defendants.
4. Issue No. 2 deals with whether the death of the deceased was caused on account of negligence of the defendants jointly or severally. It is admitted that on this issue there is no direct evidence brought on record. The witnesses examined on behalf of the parties have stated that they were not present at the time when the death of the deceased took place. The learned counsel for the plaintiffs however states that the burden of proving, whether it was on account of the defendant's negligence that the deceased had died, was on the defendants and since they have not discharged their burden of proof by leading evidence to prove that they were not guilty of any negligence or wrongful act, the suit would be decreed. I do not agree with this submission of the learned counsel for the plaintiffs.
It is the plaintiffs who have alleged negligence and it is they who have asked for damages on account of the negligence. The burden therefore is on them to show as to whether there was any negligence on the part of the defendants on account of which the plaintiffs would be entitled to any damages. The very fact that the plaintiffs have alternatively made the two defendant liable for negligence the burden is all the more greater on the plaintiffs to prove as to who, out of the two defendants, was negligent on account of which the plaintiffs would be entitled to damages. Since the plaintiffs have not discharged the burden establishing any wrongful or negligent act on the part of the defendants this issue will be decided against the plaintiffs.
5. Issues Nos. 3, 4, 5 and 6 are admitted to be dependent on the decision of issue No. 2. Since issue No. 2 has been decided against the plaintiffs the question of giving decision of issues Nos. 3, 4, 5 and 6 does not arise.
6. In view of what has been said above, I see no force in the suit and therefore dismiss it. In view of the circumstances of this case I pass no order as to costs.
K.B.A. Suit dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer