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Suit No. 171 of 1969, decided on 1st December 1975.
Negligence, civil and criminal - Degree of proof - Degree of negligence required in criminal case-Much higher than required in, civil action-Requisites in criminal case: gross negligence or breach, of duty to take proper care and caution--Requisites in civil case: Falling short of standard of reasonable care required by law, irres pective of its degree or extent-Extent of liability of tortfeasor in civil action-Depends not on degree of negligence but on amount of damage done-Amount and degree of negligence, however, determining question in criminal cases-[Negligence].
The degree of negligence required in a criminal case is much higher thaw that in a civil action. What is necessary in a criminal case is gross negligence or breach of duty to take proper care and caution. In a civil action, if it is proved that the driver fell through of the standard of reasonable care required by law, then it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence but on the amount of damage done. Whereas in criminal case the amount and: degree of negligence are the determining questions.
-- Negligent driving-Burden of proof-Initial burden of proof of negligence-Lies on plaintiff-Plaintiff to make out prints facie case of accident being result of carelessness on driver's part - Burden, thereafter shifts on defendant to establish no breach of duty to take care and taking of all necessary precautions to avoid accident, and, such being inevitable due to certain intervening external circumstances [Burden of proof-Rash and negligent driving].
-- Negligent driving-Collision occurring on driver's wrong side of road-Not conclusive evidence of negligence of driver and may be due to circumstances reasonably requiring him to depart from ordinary rule of road-Heavy burden, in such case, thrown on defendant to prove circumstances necessitating his departure from ordinary rule of keeping to left-[Rash and negligent driving-Burden of proof].
Hussain and another v. Muhammad Rafiq and others P L D 1971 Kar. 129 ref.
Negligent driving-Common practice of bus drivers.-[Rash and negligent driving].
It is a common practice with the bus drivers to overtake another bus even at a bus-stop in order to pick up the passengers before the reaching of that bus at the next stop. This is done by the drivers recklessly in a callous manner, unmindful of the traffic coming from the opposite direction. Most of the accidents that occur on the roads are due to this unhealthy competition.
Negligent driving-Collision-Fact of plaintiff not being in posses sion of driving licence-May be punishable under Motor Vehicles Act but does not lead to inference of accident being caused due to breach of such statutory duty - Failure to possess valid driving licence -Could not be cause of accident-[Rash and negligent driving].
Haji Mohammad Siraj Mian v. Abdul Hashim P L D 1970 Dacca 21 ref.
--- S. 96-Tort-Negligence-Insurance Company, liability of-Risk note showing name of bus owner (defendant) entered in certificate of insurance as person insured--Mere fact of policy being obtained by a Bank and Bank having acted for defendant, held, cannot absolve insurance company of its liability.-[Negligence].
Negligence-Collision - Damages, quantum of - Bus driver while overtaking another bus coming on wrong side of road and striking his bus against plaintiff's scooter resulting in serious injuries to plaintiff and plaintiff confined to bed in civil hospital for 6 months-Plaintiff sustaining compound fracture of leg bone, resulting in amputation of right leg from thigh-Plaintiff drawing salary of Rs. 450 p.m,, at time of accident and his services terminated for being no longer fit to do his job requiring extensive walking-Plaintiff, if continuing in service, likely to be getting Rs. 2,500 p.m. at time of conclusion of trial Plaintiff's claim for expenses incurred in hospital (Rs. 3,003), earnings lost during treatment period of 12 months (Rs. 5,400 @ Rs. 450 p.m.). held, reasonable-Plaintiff's earning capacity having teen diminished for rest of his life and her being 26 years of age at time of accident, could have continued to earn a living for at least 40 years more, hence he suffered loss of income (even at rate of Rs. 200 p.m.) amounting to Rs. 96,000 -Plaintiff's claim only for Rs. 70,000, in circumstances, reasonable - Claim for mental anguish due to disfigurement and deformity, terrible shock and mental torture, and loss of engagement calculated at Rs. 20,000 also, held, reasonable - Suit decreed against bus owner, driver, and Insurance Company jointly and severally but liability of Insurance Company limited to statutory limit of Rs. 20,000 only-[Damages].
Mubarak Hussain Siddiqui for Plaintiff.
S. H. Rizvi for Defendant No. 1.
Defendant No. 2 : Ex parte.
Noor Muhammad for Defendant No. 3.
Date of hearing; 14th November 1975.
The plaintiff has brought this suit for recovery of damages amounting to Rs. 94,400 on account of the negligence of defendant No. 2 the driver of bus owned by defendant No. 1 and insured with defendant No. 3 Insurance Company.
2. The facts of the case in brief are that the plaintiff was going on a scooter as pillion rider, driven by his friend Najmul Islam, on Jehangir Road. This scooter was coming from Guru Mandir side and going towards Tin Hatti. The defendant No. 2 while driving bus No. KAU 9282 coming from Tin Hatti side towards Guru Mandir, overtook another bus and came on the wrong side of the road. The right-band side bumper of the bus struck against the scooter with the result that both the driver and the pillion rider were thrown off from the scooter on the road. Both of them received injuries. Meanwhile the driver of the bus tried to get away but the bus was stopped by the public at a short distance when the driver got down and tried to run away. He was, however, caught. The incident was reported to the police who after usual investigation sent up the driver of the bus for offence under section 338, P. P. C. The driver was convicted and sentenced to undergo R. 1. for 2 years and to pay a fine of Rs. 1,000 or in default to suffer R. I. for six months more. The plaintiff had sustained compound fracture of the right leg. He was operated upon by Surgeon. Rahim at the Civil Hospital, Karachi and his leg was amputated. He had to remain as indoor patient in the hospital for about 6 months. He lost his job as Assistant Manager in Eastern Film Studios, Karachi carrying a salary of Rs. 450 per month. The plaintiff has accordingly claimed special damages of hospital expenses amounting to Rs. 3000, loss of income for one year amounting to Rs. 5,400, compensation for permanent loss of the leg and diminished earning capacity of Rs. 70,000 and damages for mental and bodily pain and for loss of amenities of life and shortening of life expectancy, Rs. 20,000.
3. The defendant No. 1 in his written statement admitted the fact of ownership of the vehicle and also the fact of the vehicle being driven by defendant No. 2 who was in his employment. He has, however, taken the plea that the scooter driver did not possess a driving licence and the accident was the result of his own negligence. He has also contended that the damages as assessed by the plaintiff are excessive.
4. Defendant No. 3, the Insurance Company, has raised the usual, formal and technical pleas and has further contended that the company was not answerable for liability of defendants No. 1 and 2.
5. On the aforesaid pleadings of the parties the following issues were adopted
(1) Whether the defendant No. 2 was driving the Bus No. KAU-9282 rashly and negligently
(2) Whether the accident was caused due to rashness and negligence of the defendant No. 2 and the plaintiff received injuries as alleged
(3) Whether the suit is barred by the provisions of section 96 of Motors' Vehicles Act against defendant No. 3
(4) To what amount of damages, if any, the plaintiff is entitled to and" from which of the defendants
(5) To what other reliefs the plaintiff is entitled to
Issues No. 1 and 2
6. These issues deal with the question of negligence on the part of the bus driver. It is the case of the plaintiff that the bus in question tried to overtake another bus and in so doing it came on the wrong side of the road unmindful of the traffic coming from the opposite direction. This resulted' in collision with the scooter which was on the proper side of the road. The plaintiff has examined himself and also the driver of the scooter and one independent witness Muhammad Islam. All of them were examined by the police and they had given their evidence in the criminal case against the driver which ended in his conviction. The judgment of the criminal Court has also been produced which shows that the driver was convicted and' sentenced. The plaintiff tried to summon the record of the lower Court but somehow the record could not be traced. He could not, under these circumstances, produce the sketch map and other documents prepared by the police showing how the accident actually occurred. But even the defence witnesses that have been examined admit this position that the bus came on the wrong side of the road and hit the scooter. The bus could' only be stopped at a distance of nearly two furlongs from the scene of accident as the driver had tried to get away. The defence witnesses were not examined either by the police or at the stage of the criminal case. They appeared to be interested or chance witnesses and some of them are even, employees of defendant No. 1. On the other hand the persons who were admittedly on the bus, namely, the driver and the conductor have not come forward to give evidence as to how the collision took place. The degree of negligence required in a criminal case is much higher than that in a civil action. What is necessary in a criminal case is gross negligence or breach of duty to take proper care and caution. In a civil action, if it is proved that the driver fell through of the standard of reasonable care required by law, then it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence but on the amount of damage done whereas in a criminal case the amount and degree of negligence are the determining question. It is true that the initial burden for proving negligence is on the plaintiff: He has to make out a prima facie case that the accident was the result of carelessness on the par of the driver. It is then for the defendant to establish that there was n breach of duty to take care on the part of the driver and all the necessary precautions were taken by him to avoid the accident which was-inevitable due to certain external factors intervening. It is true that when a collision occurs on a driver's wrong side of the road, it cannot be regarded as conclusive evidence of negligence against him, because the circumstances may be such as to make it reasonable for him to depart from the ordinary rule of the road. But in that case heavy burden is thrown on the defendant's to prove the circumstances which made it reasonable for him to depart from the ordinary rule of keeping to the left side of the road. This was also the view taken by my learned brother Dorab F. Patel, 1. in the case of Hussain and another v. Muhammad Rafiq and others (P L D 1971 Kar. 129). It was observed in that judgment as under
"The said bus was in the wrong lane. Mr. Shibli submitted that driving in a wrong lane, of traffic by a vehicle did not amount to any offence, therefore even if D. W. Muhammad Rafiq had given false evidence, the mere fact that the said bus was in the wrong lane of traffic did not mean that it was being driven negligently. I am not able to agree with the view that driving in the wrong lane of traffic is not necessarily a criminal offence. However I am not dealing with criminal liability in this case; and, as the said bus was in the wrong lane of traffic, it means that it was on the section of the Bridge normally used by traffic going to Lasbella and not to Nazimabad. Its presence in that lane of traffic itself constituted a danger to traffic going to Lasbella, as the rickshaw was; therefore, in the absence of any explanation, the fact that the bus was in the wrong lane of traffic is prima facie evidence that it was being driven negligently."'
7. It is a common practice with the bus drivers to overtake another bus even at a bus-stop in order to pick up the passengers before the reaching of that bus at the next stop. This is done by the drivers recklessly in a callous manner, unmindful of the traffic coming from the opposite direction. Most of the accidents that occur on the roads are due to this unhealthy .competition. The main line of defence taken by the learned defence counsel is that the driver of the scooter had no licence and he is, therefore, liable for the accident. The learned defence Advocate recalled the driver of the scooter as a defence witness specially for this purpose to show that he could not produce a driving licence. The question for determination, however, is whether it can be said that the accident was the result of the violation of the statutory duty to be in possession of a valid licence at the time of driving a vehicle. It has not been admitted by the driver of the scooter that he had no licence. But even presuming for the sake of argument that he did not possess one, he would be guilty of breach o statutory duty punishable under the Motor Vehicles Act. But it does not lead to the inference that the accident was wholly caused by the said breach .of the statutory duty. Not being in possession of the valid licence was .obviously not the cause of the accident, as held in the case of Haji Muhammad Siraj Mian v. Abdul Hashim (P L D 1970 Dacca 21).
8. I am accordingly satisfied that the injuries caused to the plaintiff .due to this accident were the direct result of careless and negligent driving ,by defendant No. 2 who was employed as a driver by defendant No. 1 on his bus.
Issue No. 3 ;
9. This issue is with regard to the liability of the Insurance Company under section 96 of the Motor Vehicles Act, 1939. The only defence taken by the Insurance Company is that the policy was obtained by the National Bank of Pakistan and the company is not, therefore, liable to indemnify the .owner of the bus. The original risk note has, however, been produced and p it shows that the name of defendant No. 1 had been clearly mentioned in the certificate of insurance as the person insured. The mere fact that the National Bank of Pakistan acted for Mr. Muhammad Azizullah Qureshi, would not absolve the Insurance Company of their liability under section 96 .of the Motor Vehicles Act.
Issue No. 4
10. This is the main issue in this case relating to the quantum of -damages. The plaintiff, as a result of this unfortunate accident, was confined -to bed at the Civil Hospital, Karachi for nearly six months. He had sustained a compound fracture of the leg bone as shown in the X-Ray films produced ,by the plaintiff and the operation slip shows that he was operated upon ,on 18-5-1968 and his right leg had to be amputated from the thigh. The -plaintiff, according to Mr. Saeed Abdullah Haroon, Managing Director, Eastern Film Studios, was drawing a salary of Rs. 450 per month at the time of the accident and the services of the plaintiff had to be terminated as he was no longer in a fit state to do his job which required walking extensively in an area covering 6 to 8 acres of ground. Mr. Saeed Haroon ,has testified that if the plaintiff had continued in his service he might have been getting an income of Rs. 2,500 per month these days. The plaintiff has accordingly claimed damages for the expenses incurred in the hospital for 6 months amounting to Rs. 3,000 and for the earnings which he lost during the period of his treatment for about 12 months amounting to Rs. 5,400. This is at the rate of Rs. 450 per month for 12 months. There could hardly be any objection with regard to these amounts which are reason able. The plaintiff is clearly entitled to earnings which have actually been lost and expenses which have actually been incurred as special damages. There is clear evidence that the plaintiff suffered permanent disability by loss of his right leg and this has diminished his capacity to earn for his living. He cannot be as useful member of society as he could have been if he had been able to go about. This has diminished the prospects of the plaintiff and his earnings capacity for the rest of his life. The plaintiff was a young man of 26 years at the time of this accident. He could have continued to earn a living for at least 40 years more. Calculating the loss of income at Rs. 200 per month the amount would Work out to about Rs. 96,000 but the plaintiff has claimed compensation under this head of Rs. 70,000 only which appears to be reasonable. There is no doubt that the plaintiff must have been subjected to mental anguish on account of his disfigurement and deformity. He is also entitled to damages for loss of expectation of life. He must have sustained a terrible shock and been subjected to mental torture, as even his engagement was broken off on account of his loss of the leg. For all these he has claimed Rs. 20,000 which may also be allowed to him.
11. In the result the suit is decreed as prayed for Rs. 98,400 against all the defendants jointly and severally though the liability of defendant No. 3 would be limited to the statutory limit of Rs. 20,000 only. The plaintiff would also be entitled to costs.
S. A. H. Suit decreed.
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