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Civil Suit No. 122 of 1963, decided on 24th November 1967.
Negligence‑‑Duty of Tramcar and motorcar drivers.
According to Charlesworth (Charlesworth on Negligences, 4th Edn., section 246), the driver of a tramcar must be prepared for vehicles overtaking him on either side; he must keep a good look out for other traffic on the road; he must drive slowly and stop if necessary. The tramcar driver should keep a proper look‑out for other traffic on the, road (Graig v. Glasgow Corporation (1918‑19) 35 T L R 214 (H L)). The speed of a tramcar, like that of any other vehicles, should be such as will permit the driver to stop within the limit of his vision (Halsbury's Laws of England. Vol. 28, Simonds Edn. pare. 66). If the roads are in such a condition that it is not safe to go at more than a foot's pace, the duty of the driver is to proceed at a foot's pace (Lauire v. Raglan Building Co. Ltd. (1942) 1 K B 152 (C L)) and (i.e. Lievri v. Gould (1893)1; Q B 491 (C L)). It is the duty of the vehicles on the main road to approach a crossing with caution, and if the possibility of danger is reason ably apparent, the driver on the main road is negligent if he takes no precautions to avoid danger to the pedestrian son to the other vehicular traffic.
(See Lang v. London Transport Executive (1959) 1 W L R 1168): As regards auto‑rickshaw taxi, it is the duty of the driver, like drivers of all motor vehicles, to keep a proper look out on the road. He should enter, the main road from side lanes with the greatest caution. Under Regulations 6 and 7 of the 10th Schedule of the Motor Vehicles Act, 1939, then in force in Karachi, the driver of a motor vehicle should slow down when approaching a road intersection, or junction until he is certain that he can do so without endangering the safety of the person thereon, and if he enters on a main road he must give way to vehicles proceeding along that road.
Charlesworth on Negligence. 4th Edn.. S. 246; Graig v. Glasgow Corporation (1918‑19) 35 T L R 214 (H L); Halsbury's Laws of England, Vol. 28, Simonds Edn., pare. 66; Laurie v. Raglan Building Co. Ltd. (1942) 1 K B 152 (C L); Le. Lievri v. Gould (1893) 1 Q B 491 (C L) and Lang v. London Transport (1959) 1 W L R 1.168 ref.
Damages‑Separate and independent acts of negli gence on part of two or more persons contributing to cause of injury and damage to third person‑Person injured may recover damages from any one of or all wrong‑doers‑Plaintiff; hell, entitled to joint and several decree for damages against all wrong‑doers.
When separate and independent acts of negligence on the part of two or more persons have contributed to cause injury and damage to a third person, the person injured may recover damages from any one of the wrong‑doers or from all of them. The plaintiff, held, can recover compensation both from, the owners of the tramcar, in question and the owner of the auto‑rickshaw taxi involved in the accident, or from either of them and was thus entitled to a joint and several decree for such damages as may be determined against both these defendants.
Ehsan Ali v. K. R. T. C. Suit No. 97 of 1964 decided on 5‑11‑1967 ref.
, Art. 22 read with Civil Procedure Code (V of 1908), O. 1, r. 10‑Limitation‑Sult for compensation for injury‑Defendant, impleaded one year after date of Injury‑Suit against such defendant, held, barred by limitation.
Subramania Chettiar and others v. Srinivasaraghava Ayyangar and others A I R 1938 Mad. 687 distinguished.
Special damages‑Expenses already crystallized In actual disbursement up to hearing date of suit‑Awarded as special damages‑General damages‑Compensation for pain and suffering caused by Injuries; consequential shortened expectation of life; diminution in enjoyment of life and prospective loss In earning capacity.‑Awarded as general damages.
Shearman v. Folland (1950) 2 K B 43 at p. 5 1. ref.
S. M. Shofi for Plaintiff.
Fakhruddin and Syed Riazul Hassan for Defendants.
Dates of hearing: 11th January, 3rd and 28th February; 28th March, 24th, 25th and 31st August and 1st September 1967.
The plaintiff Kayumar2, son of Aspandiar Anklesaria, claims Rs. 70,000.00 as damages for personal injuries sustained by him in an accident which occurred at about 6‑30 p.m. on 16th July 1962, on Garden Road, Karachi, due to the collision between tramcar No. 154, belonging to the defendant No. 1, and auto‑rickshaw taxi No. KAT‑1575, stated to be owned by defen dants Nos. 2 and 3. The material facts may be briefly stated as follows: On 16th July 1962, at about 6‑30 p.m., the plaintiff and his cousin, Miss Roshan F. Ginwala, hired auto‑rickshaw Taxi No. KAT‑1575 near Regal Cinema for taking them to their residence in Parsi Colony on Bunder Road extension. The auto rickshaw driver, Asghar, took the route which leads from behind the Regal Cinema and to the Victoria Road. Asghar crossed the Victoria Road and entered the lane adjacent to the building which houses the "Americano Dry Cleaners", and through this lane came on the Garden Road, which he intended to cross for entering another lane on the opposite side, adjacent to the Jehangir Park. The Garden Road had, and still has, one‑way vehicular traffic, that is in the direction of Elphiston Street -Bunder Road. The tramcars, however, have two‑way traffic on Garden Road and move on two sets of rails laid in the middle of the road. Thus Asghar entered the Garden Road and started crossing it to enter the opposite lane. But when the auto rikshaw came on the tram rails, its near‑side was bit by the near‑side of the tramear No. 154, which was coming from the left of the auto‑rickshaw in the direction of Bunder Road- Empress Market. This collision' caused extensive damage to the auto‑rickshaw and serious injuries both to the plaintiff and his cousin, Miss Roshan F. Ginwala, as also to Asghar, the driver of the auto‑rickshaw. Asghar succumbed to his injuries on the spot. The plaintiff and Miss Roshan F. Ginwala became un conscious due to shock and injuries suffered by them, and were taken to the Civil Hospital, from where, in view of their serious injuries, they were removed to the Jinnah Central Hospital, also known as Jinnah Post Graduate Medical Centre. The plaintiff remained unconscious for one week and underwent a brain operation by Dr. O. V. Jooma, and an operation on his knee by Dr. Zainul Abidin Kazi. The plaintiff remained in the Jinnah Central Hospital up to 30‑8‑1962 and then was shifted to Anklesaria Nursing Home on Randel Road, where he remained under treatment for about a fortnight. Thereafter, he remained under treatment at the Jinnah Central Hospital as an out‑door patient for about 10 months, and had to visit the hospital daily on week days. The injuries sustained by the plaintiff caused him to develop facial paralysis, for treatment of which he was taken to Copenhagen, where an operation was performed on him by Dr. Karsten Kettel. The plaintiff remained in the Frederiksborg Amts Centralsygehus, Halasafdeling, Hillerod den, which is suburb of Copenhagen, for six weeks up to 21st August 1963, and then went to London for post operation treatment under Sir Terence Cawthorne, a specialist in nerve injuries and was still under this treatment when he gave his evidence in London on 6th October 1966, on commission before the examiner, Mr. Maurice Hubert Lush, Barrister‑at‑Law. In his statement, the plaintiff still complained of lack of control of facial muscles and trouble with his knee, caused by the removal of the knee‑cap, due to which the plaintiff became slow in his movements. The plaintiff has complained that the collision between the tramcar and the auto‑rickshaw taxi was due to the combined negligence of the drivers of the two vehicles and has accordingly claimed Rs. 27,000.00 as special damages and Rs. 43,000.00 by way of general damages from the defendants.
2. The defendants in the suit are Muhammad Ali Tramway Co., Sadaruddin son of Ali Hassan, a minor, in whose name the auto‑rickshaw taxi in question was registered with the Traffic Department of the Karachi Police, and Gul Hassan Thahim, Sadaruddin's guardian, who, according to section 2(19) of the Motor Vehicles Act, 1939, then in force, is to be treated as the owner of ‑auto‑rickshaw taxi. The defendant No. 1 has charged the driver of the auto‑rickshaw taxi with negligence, and the defendants Nos. 2 and 3 have, on their part; contended that the accident by collision was exclusively due to the negligence of tramcar driver. In addition, it is further contended on behalf of the defendants Nos. 2 and 3, that the defendant No. 2 is not owner of the auto‑rickshaw taxi within the meaning of section 2(19) of the Motor Vehicles Act, 1939, and cannot, there fore, be charged with liability for the plaintiff's claim, and that as regards the defendant No. 3, guardian of the minor Sadaruddin, who is deemed to be the owner of the auto‑rickshaw taxi, the suit against him is barred, as he was added as defendant on an application under Order 1, rule 10, C. P. C. made on IS‑12‑1963, that is, after the expiry of more than one year, which is the period of limitation prescribed , by Article 22 of the Limitation Act, 1908 for suits for compensation for personal Injuries.
3. On these pleadings, the parties jointly filed on 17th, August 1964, as many as 23 issues. But at the hearing of the suit before me on 11‑1‑1967, Mr. S. M. Shah, the earned Advocate for the plaintiff, Mr. Fakhruddin, the learned Advocate for defendant No. 1 and Mr. S. Riazul Hassan, the learned Advocate for defendants Nos. 2 and 3, agreed that the issues be re‑cast as follows :‑‑---
(1) Whether the suit against the defendant No. 3 is barred by limitation
(2) Whether the accident was due to rash and negligent driving of tram‑driver, namely, Abdullah and the rickshaw driver, namely, Asghar Khan, or either of them
(3) What were the injuries caused to the plaintiff by this accident and what is the effect of these injuries
(4) Are the defendants or any of them liable for the claim in the suit
(5) What should be the quantum of compensation
(6) General
4. The plaintiff's deposition was recorded on commission in London on 6th October 1966, by the Examiner, Mr. Maurice Hubert Lush, and this evidence has been marked in this suit as Exh. 6. In addition, 11 more witnesses were examined in this Court on the plaintiff's behalf, namely, Dr. Zainul Abidin Kazi, Dr. Zulekha Subhani, Benjemin, Regina Lea, Luximan Chitta, Muhammad Naziruddin, Abdur Rehman, Dr. Umer Vali Jooma. Shah Ali, Muhammad Abdul Wahid and Ali Muhammad. On behalf of defendant No. 1, Abdullah Khan, driver of the tramcar in question, Muhammad Yusuf, a fitter in Muhammad Ali Tramway Co., and Muhammad Ramzan, a car broker, gave evidence. The arguments in the case, after the conclusion of the evidence, were heard by me on 24th, 25th and 31st August and 1st September 1967. At these arguments, the learned counsel for the defendants, namely, Mr. Fakhruddin and Mr. S. Riazul Hassan, stated that they agreed, with reference to issue No. 3, that the injuries sustained by the plaintiff in the accident in question are as given in Dr. O. V. Jooma's medical certificate, Exh. 29/1, and the statement made in this Court by Dr. Jooma, Dr. Zainul Abidin Kazi and Dr. Zulekba Subhani, and, further, they did not dispute that the plaintiff underwent an operation and post operation treatment at Copenhagen. This medical evidence is that the plaintiff sustained the following injuries:‑--
(1) Lacerated wound 5" by 1" by brain deep in the right fronto‑temporal region with compound communited fracture of the right fronto temporal bones.
(2) Laceration of the right ear.
(3) Right sided facial paralysis.
(4) Abrasions right knees and communited fracture of the right patella.
The plaintiff remained unconscious for one week and underwent a brain operation and an operation of the right knee, which resulted in the removal of the knee cap. The injuries caused the plaintiff to develop right sided facial paralysis and weakness in the left leg. He remained in the Jinnah Central Hospital from 17th July 1962 up to 30th August 1962. whereafter he remained at Anklesaria's Nursing Home for about a fortnight. The plaintiff remained an out‑door patient of the Jinnah Central Hospital under the treatment of Dr. Zulekha Subbani for facial paralysis and knee injuries. The plaintiff then had to go to Copenhagen, where be underwent an operation of his facial nerves by Dr. Karsten Kettel. He remained in the Copenhagen Hospital for six weeks. The result of the injuries sustained by the plaintiff is that he has only partial control of his facial muscles, and due to the removal of the right knee‑cap leg, he has lost stability of the legs and is consequently slow in his movements and also in mental process and suffers from impediment of (tearing. Issue No. 3 is, therefore, decided in accordance with these medical findings.
5. Issue No. 2.‑Before examining issue No. 1, 1 would prefer to dispose of issue No. 2, under which the question for decision is, whose negligence caused the accident : that of the tramcar driver, or of the driver of the auto‑rickshaw taxi, or whether both the drivers contributed, by independent and separate acts of negligence, to the accident. Before examining the evidence in the case, it will be useful to refer to the legal obligations of the per sons in control of tramcars. The tramways to Karachi were constructed under the Karachi Tramways Act. 1883 (Bombay Act No. II of 1883) and under an agreement dated 21st April 1882, incorporated as Schedule to this Act', between the Commissioners of the Karachi Municipal District, and one Edward Davis Mathews, and his assigns. Under section 8 of the Act, the Grantee was empowered to use on his tramways carriages with flanged wheels or wheels suitable only to run on, grooved rails. Section 15 provides that this Act or bye‑laws made thereunder, do not take away or abridge the right of the public to pass along or across or any part of any road along or across which any tramway is laid whether on or off the tramway. Section 23 conferred power on the Karachi Municipality to make regulations as to the 'rate of speed, number, of passengers, and mode of, use of the tramways and motive power, as the con venience and safety of the public may require. Under section 25, the Municipality was given power to make and enforce rules and regulations for granting licence with respect to drivers of the tramways. Section 26 provides that the owner of the tramways shall be answerable for all accidents, damages and injuries happening through his act or default, or through the act or default of any person in his employment.
6. The Karachi Municipality framed bye-laws under section 23 of the Karachi Tramways Act, 1883. These bye‑laws are published in the Rule Book of the Karachi Municipal Corporation (1955 Edo.) and, notwithstanding the repeal of the Karachi Municipal Act, 1933, these rules are still in force and effective. Under bye‑law No. 1, it is provided that the speed of the tramcars shall under no circumstances, exceed 15 miles an hour on any part of the tramways, except on the tramway between Napier Mule, i.e., between Native Jetty and Seamen's Rest House, Keamari, where the speed limit may be 20 miles per hour. Bye‑law 6 requires that‑---
"the greatest precautions shall be continuously adopted by drivers of tramcars, running on the tramway, and they shall bring their cars to a standstill on the approach of horses or other animals on the least restiveness, or when there is reasonable apprehension of danger to any foot passengers or animals or vehicles."
Under Bye‑law 11, a bell is required to be provided in each tramcar for use to indicate the approach of the tramcar.
7. According to Charlesworth (Charlesworth on Negligence, 4th Edo., section 246), the driver of a tramcar must be prepared for vehicles overtaking him on either side; he must keep a good look‑out for other traffic on the road ; he must drive slowly and stop if necessary. The tramcar driver should keep a proper look out for other traffic on the road Gtaig v. Glasgow Corporation ((1918‑19) 35 T L R 214). The speed of a tramcar, like that of any other vehicle, should be such as will permit the driver to stop within the limit of his vision (Halsbury's Laws of England, Vol. 28, Simonds Edn. para. 66). If the roads are in such a condition that it is not safe to go a more than a foot pace, the duty of the driver. is to proceed at a foot's pace Laurie v. Raglan Building Co. Ltd. ((1942) 1 K B 152 (C L1) and Le. Lievri v. Gould ((1893) 1 Q B 491 (C L)). It is the duty of the vehicle on the main road to approach a crossing with caution, and if the possibility of danger is reasonably apparent, the driver on the main road is negligent if he takes no precautions to avoid danger to the pedestrians air to the other vehicular traffic, see Lang v. London Transport Executive ((1959) 1 W L R 1168).
8. As regards auto‑rickshaw taxi, it is the duty of the driver, like drivers of all motor vehicles, to keep a proper look‑out on the road. He should enter the main road from side lanes with the greatest caution. Under regulations 6 and 7 of the 10th Schedule of the Motor Vehicles Act, 1939, then in force in Karachi, the driver of a motor vehicle should slow down when approaching a road intersection, or junction until he is certain then he can do so without ending ring the safety of the person thereon, and if he enters on a main road he must give way to vehicles proceeding along that road.
9. Turning to the present case, it is to be noted that the collision between the tramcar and the auto‑rickshaw took place on Garden Road, which leads towards Bunder Road from the junction of Elphiston Street, Frere Road and Preedy Street There is, therefore, heavy vehicular and pedestrian traffic on this road, particularly in the evenings., This traffic moves on both sides of the tramways. There is traffic across the road also, since this road is connected with Victoria Road through several lanes. There appears to be no 'restriction on the cross‑road traffic. According to the plaintiff, the auto‑rickshaw entered from the Victoria Road into the lane adjoining the Americano Dry Cleaners. It slowed down when it approached the Garden Road, and halted on the intersection of the lane and this road. The driver, Asghar, then looked to his right and left and, taking a diagonal turn to left, proceeded to cross the road to enter the lane on the opposite side next to Jehangir Park. But when he came on the second set of tram rails, the tramcar involved in the accident suddenly came from the left, that is, from the direction of the Bunder Road. According to the plaintiff, the tramcar came at very fast speed and without giving any warning of its approach. The auto‑rickshaw driver, to avoid collision, attempted to turn towards the right, but there was no sufficient time to get out of the way of the tramcar, with the result that the near side of the tramcar hit the near‑side of the auto‑rickshaw taxi. According to the plaintiff, the speed of the tramcar was between 25 and 30 miles an hour. The plaintiff's version is supported by P. Ws. Abdur Rehman and Shah Ali, both of whom witnessed the actual accident. Abdur Rehman was then in the employment of Abdul Aziz, who had a cabin‑shop on Garden Road near the Americano Dry Cleaners, where he sold plastic number‑plates. He saw the auto‑rickshaw entering into the Garden Road from the lane adjoining the Americano Dry Cleaners. He also saw the tramcar in question coming at a fast speed, and without sounding the bell, from the direction of Bunder Road. According to this witness, the auto‑rickshaw succeeded in crossing three tram lines, but when it was on the fourth line it was hit by the tramcar. The witness stated that the driver of the tramcar did not apply the brakes and, consequently, the tramcar dragged the auto‑rickshaw for 40 to 50 paces. The witness further stated that there were two passengers in the auto‑rickshaw, both parsis, one a boy and the other a girl, and that they, as well as the driver of the auto‑rickshaw, received serious injuries and became immediately unconscious. In his cross‑examination, the witness stated that he saw that the tramcar was at a distance of 10 to 15 yards from the auto‑rickshaw when this latter vehicle was crossing the tram rails. In reply to a further question from the learned Advocate of the defendant No. 1, the witness stated that the impact of the collision was of such force that the auto rickshaw over‑turned and became jammed into the tramcar. He denied that the auto‑rickshaw was being driven at a fast speed. The other eye‑witness of the accident, Shah Ali, also used to work in the cabin‑shop of Abdul Aziz. He supported the version given by Abdur Rehman, and added that the speed of the tramcar was so fast that it had swaying motion. This witness also saw the auto‑rickshaw being dragged by tramcar for 35 to 40 paces. This evidence was sought to be controverted by the defendant No. 1 by the evidence of Abdullah Khan, who was driving the tramcar at the time when it hit the auto‑rickshaw and that of Muhammad Ramzan, who claimed to have witnessed the accident, and Muhammad Yusuf, who is employed as a fitter in the Muhammad Ali Tramway Co. Abdultsh Khan entered the defendant No. 1's service as tramcar driver in July 1962. He admitted that he did not hold any license for driving the tram car. He agreed with the plaintiff and P. Ws. Abdur Rehman and Shah Ali that the collision took place on the Garden Road in front of the by‑lane which adjoins the Americano Dry Cleavers. The witness stated that when he entered the Garden Road from Bunder Road, he found heavy traffic on both sides of the tram ways. He claimed that the speed of the tramcar did rot exceed 10 to 11 miles per hour and that due to sudden entry of the rickshaw, it was not possible to avoid the accident. He con firmed that the auto‑rickshaw was dragged by the tramcar for a distance of 10 to 12 yards. But this, according to him, is due to the fact that it is not possible to stop the tramcar immediately the brake is applied because the tramcar pulls for the distance of its length and then comes to a stop. The witness admitted that the tramcar in question was not fitted with a speedo‑meter and there was no other instrument by which the driver could find out the speed at any given time. Though he admitted that the tramcar was fitted with a bell, he did not say whether this bell was sounded when the presence of the auto rickshaw was noticed on the tramways. The fitter, Muhammad Yusuf, stated that the tramcars are fitted with governors, which do not allow the tramcars to exceed the maximum speed of 15 to 18 miles per hour, but that without these governors the tram cars can be driven at speeds of 25 to 30 miles per hour. According to him, if a tramcar is driven at a speed of 15 to 18 miles per hour, it will stop, if brakes are applied, after pulling for 3 to 4 yards only. In cross‑examination by Mr. S. Riazul Hassan, the learned Advocate for defendants Nos. 2 and 3, the witness admitted that the governors which regulate the speed of the tramcar are fitted with a screw which, if loosened, would Increase the speed of the tramcar. The witness did not state whether the tramcar in question was examined after the accident to find out if its brakes and governor were in good working condition. Nor did the witness state if the tramcar in question was at any time checked for mechanical defects before the occurrence of the accident.
10. Muhammad Ramzan, who claims to be a car broker, said that he was on the Garden Road, which is the market for purchase and sale of second‑hand cars, when the accident happened. According to him the tramcar was at a distance of 15 to 20 paces from the place where the collision occurred when the auto‑richshaw came out of the lane. He agreed that the auto‑rickshaw was dragged by the tramcar for 10 to 12 paces. This witness attempted to throw the responsibility for the collision on the auto‑rickshaw driver by suggesting that the tramcar involved in the accident was already approaching the place of collision when the auto‑rickshaw came on the Garden Road.
11. Thus the evidence on the side of the plaintiff with regard to the responsibility for the collision is the plaintiff's own deposition, and the statements in Court of P. Ws. Abdur Rehman and Shah Ali. The evidence on the part of the tramway company consists of depositions of the driver of the tramcar, D. W. Abdullah Khan, and of D. W. Muhammad Ramzan. No evidence on this question was led by the defendants Nos. 2 and 3. The plaintiff's contention that the tramcar came on the scene at a very fast speed without giving warning of its approach and with such suddenness that it was not possible for the auto‑rickshaw driver to avoid the collision, Is supported by the eye‑witnesses, P. Ws. Abdur Rehman and Shah Ali. These persons were interrogated by the police during its investigation into the incident, which would confirm their assertion that they actuary witnessed the accident. They have not been shown to be connected in any way with the plaintiff. Nor has it been suggested that they were not in the employment of Abdul Aziz, from whose cabin‑shop they witnessed the accident. On the other hand, D. W. Abdullah Khan, being the driver of the tramcar involved in the accident, is an interested witness. He cannot be expected to admit that he was at fault in the accident in question. As regards D. W. Muhammad Ramzan, he has not impressed me as a truthful person. He claimed to have been on the scene when the accident occurred, but he agreed that he did not take part in the Police investigation, nor was he examined by the Police. It was attempted to show that this witness was not in any way connected with the tram way company. But it has not been explained as to how the tramway company came to know that this witness actually saw the occurrence of the accident. He claimed that he came into contact with the defendant company tome 10 to 15 days after the accident, when someone from this company turned up on the Garden Road to find out whether any of the car broker who are generally present on Garden Road, witnessed the accident. But he was unable to name this parson, Nor did the tramway company tender any evidence on the‑ question as to whether' they sent any representative to the Garden Road to investigate into the occurrence of the accident and to contact the eye‑witnesses. The witness did not come on summons issued by this Court. He admitted that he was contacted by the representative of the defendant No. I on 27‑2‑4967 and was asked to attend the Court on 28‑2‑1967, when his statement was recorded. According to the version given by this witness, he was first contacted by the tramway company‑in‑July 1962, when the company's representative noted down his name, but not his address, and second time in February 1967, when he was requested to attend the Court to give evidence. This whole story appears to 'ma rather improbable; and I have no hesitation to hole that Muhammad Ramzan did trot actually witness the accident but has been set up by the defendant No. 1to rebut the evidence of the plaintiff and P. Ws. Abdur Rehman and Shah Ali. In this inference I am strengthened by the fact that there was considerable interval of time between the dates ‑when the evidence of the plaintiff and his witnesses Abdur Rehman and Shah Ali was recorded, and the date when deposition of Muhammad Ramzan was taken. The statement of the plaintiff was recorded on commission (n London on 6th October 1966. Abdur Rehman and Shah Ali were examined in this Court on 11th February 1967. The evidence of Muhammad Ramzan, however, was tendered only on 28th February 1967. From this circumstance alone, it would be reasonable to infer that Muhammad Ramzan was brought into the picture by the tramway company only in consequence of the evidence already given by the plaintiff and by Abdur Rehman and Shah Ali. For this reason I would not place any reliance on Muhammad Ramzan.
12. The negligent and rash conduct of the tramcar driver is thus proved by the following facts, which have been established on evidence :‑--
(i) that there was heavy traffic on the Garden Road in the evening of 16th July 1961, when the defendant No. 1's tram car No. 154 entered the Gar‑ea Road from Bunder Road;
(ii) that notwithstanding this heavy traffic, the tramcar was driven by D. W. Abdullah Khan at a high speed, with the result that the tramcar had a swaying motion when moving on the tramways, which speed was a contravention of the bye‑laws framed under the Karachi Tramways Act.
(iii) that D. W. Abdullah Khan, the driver of the tramcar, did not make any attempt to slow down the tramcar when he was about to approach the intersections of the lanes which adjoin the Americano Dry Cleaners and the Jehangir Park on the Garden Road even though the had every reason to know that the Garden Road, at this particular place, is crossed by traffic coming from Victoria Road ;
(iv) that the high speed of the tramcar is also evidenced by the fact that on impact between the two vehicles, the tramcar dragged the auto‑rickshaw for 40 to 50 paces before the former came to a halt;
(v) that it was possible for the driver of the tramcar, Abdullah Khan, to notice the presence of the auto‑rickshaw on the tram lines, and since he did not stop the tramcar, the inference is that he was not keeping a proper look‑out on the road:
(vi) that the tramcar in question was not fitted with any speedo‑meter or any instrument which could tell the driver the speed of the tramcar at any given time ; and
(vii) that the speed of the tramcar was liable to exceed the maximum limit by a mere loosening of the screw of the governor.
13. As regards the auto‑rickshaw driver, I cannot agree with Mr. Syed Riazul Hassan that there was no negligence on the part of this person. Under the traffic regulations, Asghar, the driver of this vehicle, should have given way to traffic moving on the Garden Road, which is the main road, when he came out of the by‑lane adjoining the Americano Dry Cleaners. The plaintiff stated that Asghar slowed down and halted when he came on the Garden Road. But I cannot understand why this person failed to observe the approach of the tramcar. It is not even alleged that there were any obstructions in his vision. Either Asghar failed to keep a proper look‑out for the traffic, incluaing the tramcars, on the Garden Road, or he was reckless in his conduct, in the sense that notwithstanding the approach of the tramcar, he decided to take a chance and cross the tramways to enter the lane which adjoins the Jehangir Park. I am of the opinion that both Abdullah Khan as well as Asghar were independently guilty of acts of negligence, which acts combined to produce the collision between the two vehicles. The decision of issue No. 2, therefore, is that the collision between the tram car and the auto‑rickshaw was the result of independent acts of negligence on the part of the drivers of the two vehicles.
14. Issues Nos. 1 and 4.‑Issue No. 4 raises the question as to whether the defendant No. 1, as owners of the tramcar involved in the accident, or the defendants Nos. 2 and 3, as owners of the autorickshaw in question, or all the three defendants, are liable to compensate the plaintiff for the injuries sustained by him in the accident, which was the consequence of the independent and separate acts 'of negligence on the part of their employees, .namely, the drivers of the vehicles. In this connection, a plea has been raised that the suit against the defendant No. 3 is barred by limitation. But before examining this point, I may first dispose of the question relating to tie liability of the defendant No. 2. The admitted position is that this defendant was registered with the Traffic Department of the Police as owner of the auto‑rickshaw taxi, and it is further agreed that he was and is still a minor, Under section 2(19) of the Motor Vehicles Act, 1939, it is not the minor Sadaruddin, but his guardian, namely, the defendant No. 3, who is deemed to be the owner of the auto‑rickshaw taxi. This being the legal position, no relief can be given to the plaintiff against the minor defendant as, in law, he is not the owner of the auto‑rickshaw taxi. But de fendant No. 3, subject to the decision of issue No. 1, would be liable for the rash and. negligent driving of Asohar, the driver of the auto‑rickhsaw taxi, as he is admittedly the guardian of the registered owner and under the provision of law referred to above, he is to be deemed the owner of the auto‑rickshaw taxi.
15. Under issue No. 2, I have held that both Abdullah Khan, the driver of the tramcar, and Asghar the driver of the auto‑rickshaw taxi, were rash and negligent in driving the vehicles in their control and that the negligence of both of them contributed to the accident which caused serious injuries to the plaintiff. In my judgment in Suit No. 97 of 1964 (Ehsan Ali v. K. R. T. C. and others), given on 8th November 1967, I have held that when separate and independent acts of negligence on the part of two or more persons have contributed to cause injury and damage to a third person the person injured may recover damages from any one of the wrong‑doers or from all of them. In this case also, therefore, I would hold that the plaintiff can recover compensation both from defendant No. 1, the owners of the tramcar, in question and the defendant No. 3, the owner of the auto‑rickhsaw taxi involved in the accident, or from either of them. The plaintiff would thus be entitled to a joint and several decree for such damages as may be determined against both these defendants. But it is contended that the plaintiff's remedy as against defendant No. 3 is barred by limitation. In this connection, reference is made to Article 22 of the Limitation Act, which prescribes a period of one year only for a suit for compensation for injury to a person, and this period is to be computed from the date when the injury is committed. The accident occurred on 16th July 1962. The plaint in the present suit was presented in this Court on 12th July 1963, but only against the defendants Nos. 1 and 2. It was only on 8‑12‑1963, nearly 1 years after the occurrence of the accident, that an application was made to this Court under Order 1, rule 10, C. P. C. for addition of defendant No. 3 as party to the suit. On this application being granted, the amended plaint, with Gul Hassan Thahim as defendant No. 3, was filed in Court on 11-4‑1964. The suit as against defendant No. 3,1 therefore, is clearly barred by limitation. But Mr. S. M. Shafi, the learned Advocate for the plaintiff, placed reliance on a decision of the High Court of Madras in Subramania Chettiar and others v. Srinivasaraghava Ayyangar and others (A I R 1938 Mad. 687), in which it was held that no plea of limitation can be raised against the joinder as defendant of a real owner of a property if the benamidar has already been brought on record within the limitation period. But the question is whether the minor Sadaruddin, against whom the suit was filed within one year prescribed by Article 22 of the Limitation Act, can be said to' be benamidar for his guardian, the defendant No. 3 I do not think that it is possible to maintain this stand. The registered owner of the auto‑rickshaw taxi is Sadaruddin, but under section 2(19) of the Motor Vehicles Act, 1939, he cannot be treated as the owner of this vehicle. Nor is there any validity in the argument that Sadaruddin should be treated as benamidar for defendant No. 3, because it' has not been shown that Sadaruddin owned the auto‑rickshaw taxi as benamidar for his guardian Gul Hassan Thahim. The principle laid down in the Madras decision cannot, therefore, apply to this case, in which, by reason of the requirement of section 2(19) of the Motor Vehicles Act, Gul Hassan Thahim alone is to be deemed to be the owner of the auto‑rickshaw taxi. But as against him the suit is barred by limitation, although the plaintiff could have maintained his action for damages against him and defendant No. I, if the former was impleaded within the limitation period. But now the plaintiff can claim relief only against the defendant No. 1. In view of the bar limitation, I hold that the plaintiff is entitled to relief only against the defendant No. 1.
16. Issue No.5.‑The plaintiff claimed in his plaint Rs. 27,000.00 as special damages for the medical expenses incurred by him up to the institution of the suit and Rs. 43,000 00 as general damages. On special damages, the plaintiff brought a mass of documentary evidence on record, and, accordingly, both Mr. Fakhruddin, the learned Advocate for the defendant No. 1, and Mr. S. Riazul Hassan, the learned Advocate for defendants Nos. 2 and 3, stated that the figure of Rs. 27,000 00 mentioned in the plaint should be accepted as the amount properly incurred by the plaintiff on his medical treatment subject, however, to the determination of the question as to whether the defendants or any of them are liable for the claim in suit. 1 have held under issue No. 2 that the accident was the result of separate and independent acts of negligence on the part of the drivers of the two vehicles involved to the accident and, therefore, the owners of both vehicles would be liable to compensate the plaintiff for the injuries caused to him in the accident. Under issues Nos. 1 and 4, it has been held that due to the bar of limitation, the plaintiff can maintain his present action only against defendant No. 1. I would, therefore, hold that the defendant N). 1 is liable to the plaintiff in the sum of Rs. 27,000.00 (Rupees twenty‑seven thousand), as and by way of special damages. As regards tae claim for general damages claimed by the plaintiff in the sum of Rs. 43;000.00, it was contended by Mr. S. M. Shah, the, learned Advocate for the plaintiff, that the plaintiff had to incur further medical expenses after the institution of the suit and, therefore, this additional expenditure should be included in the general damages to be granted to the plaintiff. Mr. S M. Shaft referred me to a decision .of the Court of Appeal in Shearman v. Folland ((1950) 2 K B 43, 51) in which Asquith,. L. J., observed that all damages which up to the time of the hearing has not yet crystallized in actual dis bursement, is still prospective in general damages. In other words, the plaintiff can claim all expenses as special damages, if these have already crystallized in actual disbursement up to the hearing of the suit. It is contended that the plaintiff has had to incur a further expenditure on his medical treatment to the extent of Rs. 35,756.31 after the institution of the suit. Mr. S. M. Shafi has given particulars of this expenditure in the form of a statement prepared from the evidence which has come on record. According to Exh. 10, which is the receipt of the Copenhagen Hospital, the plaintiff paid Danish Kr. 2,242 (= 150) as hospital charges in Copenhagen. According to Exh. 11, the plaintiff paid 355.00 to Dr. Karsten Kettel as his operation fee. The plaintiff, in view of the serious operation he had to undergo at Copenhagen, had to be accompanied on this journey by his mother, on whose boarding and lodging at Copenhagen the expenditure, according to the plaintiff's evidence, came to Danish Kr‑ 2,227 (= 148). In my view this expenditure was a necessary incident of the medical treatment of the plaintiff. Another sum of Danish Kr. 75 (= 5) was spent on the hire of the taxi at Copenhagen from the Airport to the hospital, and Danish Kr. 26.75 (= 2) were spent on a protection head‑cap as shown by Exh. 13, which the plaintiff had to wear in the post operation period. After return, from Copenhagen, the plaintiff remained under treatment of Sir Terence Cawthorne in London, in con nection with which he spent, according to his evidence given on commission in London, 550.00. The plaintiff has further claimed 800.00, which, he stated in his evidence, he had to incur on boarding and lodging in London during the one year he remained under the treatment of Sir Terence Cawthorne. This amount also includes the expenses incurred for the lodging and boarding of the plaintiff's mother in London. It has, however, not been shown whether, after the discharge from the Copenhagen Hospital, it was necessary that the plaintiff should be attended by his mother in London during his, treatment by Sir Terence Cawthorne, particularly when the plaintiff, according to his own statement, was staying with his sister Dr. A. A. Anklesaria, who was employed in one of the hospitals in London. I would allow the plaintiff 360 00 only under this head of claim. The total of all these expenses comes to 1,560.00. The plaintiff was allowed by the State Bank of Pakistan foreign exchange in the sum of 500.00 for his medical treatment in Copenhagen. This amount is included in the claim for special damages in the sum of Rs. 27,000.00 and, therefore, should be deducted from the total of 1,560.00. The balance, therefore, comes to 1,060.00, which, according to the rate of exchange prevailing at the time when this expenditure was incurred comes to Rs. 14,151.00. It is correct that due to devaluation of pound sterling, the rate of exchange between this currency and the Pakistan rupee has undergone a change. But in my opinion that rate of exchange should be adopted which prevailed when the defendant No. 1 incurred liability in damages to the plaintiff, and according to this rate 1,060.00 are equivalent to Rs. 14,151.00. To this should be added the amount of Rs. 12,000 00 paid to Dr. O. V. Jooma, under whose treatment the plaintiff remained at Karachi for his brain injuries and who had to accompany the plaintiff to Copenhagen to attend the operation of his facial nerve by Dr. Karsten Kettel. This amount of Rs. 12,000.00 the plaintiff stated in his evidence, was paid to Dr. O. V. Jooma both for his fee as well as his expenses for the journey to and from Copenhagen. Thus, the plaintiff incurred further expenditure to the extent of Rs. 26,151 00 on his medical treatment after the institution of the suit, and this amount the plaintiff is entitled to claim as and by way of special damages la addition to Rs. 27,000.00 claimed under this head in the plaint. The plaintiff is, therefore, entitled to receive from the defendant No. 1 Rs. 53,151.00 (Rupees fifty‑three thousand one hundred and fifty‑one) as special damages on account of the expenses incurred by him in his medical treatment.
17. The next point is, what compensation should be awarded to the plaintiff on account of general damages. Under issue No. 3 it has been noticed that the plaintiff sustained serious injuries in the accident. He went unconscious immediately the accident happened, and remained in this condition for full one week. The plaintiff received lacerated wound in the right front of temporal region by brain deep 5" x 1" with compound communited fracture of the right front of temporal bones, laceration of right ear, abrasion of the right knee and communited fracture of the right patella. The plaintiff developed right‑sided facial paralysis also. Dr. O. V. Jooma performed a brain operation on the plaintiff on 17th July 1962. Dr. Zainul Abidin Kazi performed an operation on the plaintiff's right knee and removed the knee‑cap. The plaintiff remained, after discharge from tike Anklesaria's Nursing Home, under the treatment of Dr. Zulekha Subhani for several months. The plaintiff had then to go to Copenhagen where he remained in Frederiksborg Amts Centrabygehus, Halasafdeling, Hillerod den for about six weeks and underwent an operation of facial nerve by Dr. Karsten Kettel. According to Dr. Zainul Abidin Kazi, the consequence of the removal of the plaintiff's knee‑cap is that the plaintiff has lost the stability of the legs. Dr. O. V. Jooma is of the opinion that due to the brain and facial injuries sustained by the plaintiff, he has become slow in his mental process and has also become subject to occasional epileptic fits. The facial injury has caused disfigurement on the right side of the plaintiff's face. Due to the ear injury, the plaintiff, according to Dr. Jooma,, has developed impediment in hearing. According to Dr. Jooma, with these injuries, the plaintiff is not likely to be a success in any profession. The plaintiff remained under treatment of Dr. Karsten Kettel. who, by his certificate Exh. 14, dated 21st August 1963, stated that the plaintiff was being sent to London for post operation medical treatment and that he should remain under, medical observation for two years. Under this advice the plaintiff remained in London for more than a year under the treatment of Sir Terence Cawthorne. According to the plaintiff he was on a short visit to Karachi from London, where he was receiving post‑secondary education in liberal arts, when he became involved in the accident. Though on recovery he resumed his studies and completed the post‑secondary education course, and even joined another educational institution for training as a teacher, the plaintiff cannot expect, in view of the medical evidence on record, to lead the life of a normal healthy person. He may receive employment as s teacher. But due to the impairment of his mental processes. impediment in hearing, and due to the fact that the plaintiff is liable to be subject to occasional epileptic fits, and has lost stability of legs. I would agree with Dr. Jooma that the plaintiff would not be a likely success in any profession, Including the profession of teaching. I am further of the view that the injuries received by the plaintiff were of such a nature that it can be reasonably said that his expectation of life bag been shortened. The plaintiff, accordingly, is entitled to compensation for pain and suffering caused to him by these injuries and the consequent shortened expectation, and diminution in enjoy ment of life and prospective loss in earning capacity. I would fix this compensation at Rs. 16,849.00. In my opinion the plaintiff is entitled to much more substantial amount in this connection, but I am unable to grant him anything more, as the plaintiff's suit is only for Rs. 70,000.00.
18. Issue No. 6.--‑The result of the finding under issues Nos. 1 to 5 is, that the plaintiff is entitled to receive com pensation from the defendant No. 1 only in the sum of Rs. 53,151.00 as and by way of special damages and Rs. 16,849 00 on account of general damages. The aggregate of these amounts is Rs. 70,000.00 (Rupees seventy thousand) for which I grant a decree to the plaintiff (Rupees seventy thousand) with interest at six per cent. per annum from the date of the suit until payment. In addition, the plaintiff will have costs of those proceedings from defendant No. 1.
A.E/S.A.H Suit decreed.
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