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Suit No.112 of 1985, decided on 27th April, 1987.

‑‑‑S. 1‑‑Rash and negligent driving causing death of a person‑‑Suit for compensation‑‑Bus owned by Transport Corporation‑‑Vicarious liability‑‑Owner of the vehicle cannot be vicariously liable unless it was shown that driver was duly authorised by the owner and had taken out the vehicle with their knowledge and permission.

Muhammad Maqsood for Plaintiff.

Raza Hussain Haidri for Defendant Nos. 1 and 2 (absent).

Date of hearing: 3rd March, 1987.

The plaintiff in this suit is the son of deceased Zaheeruddin, who died as a result of a Traffic accident on 27th December, 1983 at about 4‑30 p.m. According to the plaint, Bus No.830‑519 which was owned by the Defendant No.l was on a road test after its repair when this accident occurred. It is stated in the plaint that the Defendant No.2 was driving the Bus at the relevant time and while returning from Thatta, where it had gone for road test, it dashed against an Oil Tanker due to the negligent driving of the Driver and due to this clash three persons namely Zaheeruddin, Zafar Hussain and Ghaus Bux died, while the other occupants, who were also occupying the Bus sustained serious injuries.

2. The connected suit has been filed by the heirs of Zafar Hussain.

Zaheeruddin at the time of his death was 55 years of age and has been described in the plaint as a pious man of simple habits and possessing good health. It is alleged in the plaint that at the time of his death he was serving with the Defendant No. 1 and drawing Rs.2,100 per month with prospects of further increase in the salary.

3. Among the heirs left by the deceased are three unmarried daughters named Khadija, Fatima and Zahida and the son, who has filed the suit. Other sons of the deceased are grown up and are self‑earning and as such have not claimed any thing. This suit has been filed under the Fatal Accident Act and it is stated that the three daughters and the son named in para. 1 of the plaint were depending upon the deceased and are entitled to be compensated on account of his death resulting in loss of income to the plaintiff.

4. The defendant No.2 Mitho Khan, who, it is alleged, was driving the Vehicle at the relevant time has not contested the proceedings, but the defendant No.l have filed written statement and have also examined evidence. In their written‑statement the defendant No.l have denied the adverse allegations against them. They have contested their liability on the ground that the defendant No.2 was never authorised to drive the Bus, nor he was posted on duty on this Bus. As such the defendants are not liable for the actions of defendant No.2. In para 3 of the written‑statement the defendants No.l have stated that "in fact it is submitted that the Bus was driven by defendant unauthorisedly without the permission of competent authority. It is further submitted that neither the said Bus was allotted to him to drive nor he was asked to drive the vehicle during the course of his employment as such the defendant No.2 himself is responsible for the wrongful act committed by him on his own initiative. It is submitted that the defendant No. 1 is not at all responsible in any manner for the death of deceased." On these pleadings the following issues were framed:‑---

"(1) Whether the suit is time barred

(2) Whether defendant No.2 was driver and permitted by the competent authority to drive the bus

(3) Whether defendant No.2 himself was responsible for the death of Mr. Zaheeruddin by his own wrongful act by rash and .negligent driving

(4) Whether the plaintiffs are entitled to claim compensation from the defendants, if so, to what extent

(5) What should the decree be "

5. The plaintiff has examined himself and one Muhammad Aslam in support of his case, while the Defendant No.l have examined Mohammad Masood, who is the District Manager of the Defendant Company at Malir Depot. I will dispose of the issues now.

No arguments have been advance1 by either side in support of this issue and no evidence has been examined.

This issue has two parts. So far as part No.l is concerned, there is no denial that Mitho Khan was driving the vehicle at the time when accident took place. The other question is relating to the vicarious liability of defendant No.l. The plaintiff has hopelessly failed to even remotely prove that at the relevant time the defendant No.2 was either authorized or permitted by the defendant No.1 to drive the Bus. None of the two witnesses produced by the plaintiff brought any material on record to show that the Driver was an authorized agent or an employee duly charged with the duty to take the vehicle on the road. The following portion from the statement of Muhammad Masood. the District Manager of defendant No.l would reveal their side of the story:‑--

"On 27‑12‑1983 at about 4.30 p.m. Driver Taj Bareen, who was an employee of the defendant Company took out of the depot Bus No.830‑591 without any knowledge or information of any responsible officer. As a matter of fact by this time the offices are closed and most of the officers leave the office for their homes. The Driver and some of his colleague in the company went out on a joy ride for an excursion to Thatta. None of them was on duty. They went to Thatta and while they were returning, Taj Bareen withdrew from the driving and a person A.Y. Mitho Khan who was not a Driver but Assistant yard master in the depot took over the steering. When they were returning from Gharo the accident took place. All of them had taken out the vehicle in this accident on their personal responsibility without a permission from the defendants and none of them was on duty at that time. This bus was absolutely in a fit condition and there was no question of road test."

The above statement remains uncontradicted or unchallenged. It is to be noticed that it is not the vehicle, but the Driver, who is responsible for the accident and unless it is shown that at the relevant time the Driver was duly authorised by the Principal and had taken out the vehicle with their knowledge and permission, the owner of a vehicle cannot be vicariously liable. If a Bus is hijacked or is stolen by thief and during this period an accident takes place, surely the owner cannot be made liable for this action, of the hijacker or thief. In the present case unless it is shown that the defendant No.l had authorised Driver Mitho Khan to drive the vehicle the defendant No.1 cannot be liable. in vacarious liability.

This issue is, therefore, answered in the negative and against the Plaintiff.

So far as issue No.3 is concerned, although the plaintiff has not named the Driver in his evidence, but from the statement of the defendant it is proved that defendant Mitho Khan was on the driving wheel when the accident occurred. It is an admitted position. This has also come in the evidence of D.W. No.l that Mitho Khan was not a Driver, but Assistant Yard Master in the Depot. It is not difficult to imagine that a Yard Master, who is not a trained Driver can play havoc if he tries his skill on the driving wheel of a heavy vehicle. This is exactly what happened in the present case and the accident occurred due to the criminal negligence of this Mitho Khan, who is defendant No.2.

The death of Zaheeruddin has occurred due to rash and negligent driving of defendant No.2. Issue No.3 is, therefore, answered in the affirmative.

Issue No.4.

It is alleged in the plaint as well as in the statement of P . W Moinuddin that at the time of his death the deceased Zaheeruddin was drawing the salary of Rs.2,100 per month, out of which he was spending Rs.1,900 on the son and three daughters. P.W. No.2 Muhammad Aslam has also supported the plaint in this case. So far as salary of the deceased is concerned, as there is no denial by the defendant, I would accept the version of the plaintiff that the income of the deceased at the time of his death was Rs.2,100 per month and that he was spending Rs.1,900 on the plaintiff and the three daughters.

At the time of his death the age of the deceased was 55 years and he was keeping good health. It can be assumed that he would have lived for another 10 years. Calculating at this rate resulting loss which the plaintiffs have suffered, would be Rs.1,900 x 12=22,800 x 10= 2, 28, 000. The plaintiff is, therefore, entitled to a decree in the sum of Rs.2,28,000 from the defendant No.2 with costs. The suit is dismissed against defendant No.l.

M . B . A . / M‑109/K Order accordingly

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