2011 S C M R 1836
[Supreme Court of Pakistan]
Present: Nasir-ul-Mulk, Jawwad S. Khawaja and Mian Saqib
Nisar, JJ
ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of
Railways and others---Appellants
Versus
ABDUL WAHID and others---Respondents
Civil Appeals Nos. 175 to 177 of 2005, decided on 27th
October, 2010.
(On appeal from
the judgment dated 8-12-2004 passed by High Court of Sindh, Karachi in H.C.As.
Nos. 16 to 18 of 2003 respectively).
Per Mian Saqib Nisar, J.
(a) Fatal Accidents Act (XIII of 1855)---
----S. 1--- Fatal
accident--- Contributory
negligence--- Vicarious liability---Applicability---Railways,
responsibility of---Suits filed by legal heirs of deceased were decreed by High
Court in their favour---Plea raised by Railway authorities was that on the rule
of contributory negligence of deceased, plaintiffs were not entitled to any
compensation---Validity---If due to failure of Railways to safeguard against
hazard, any accident had occurred, the Railways could not avoid consequences of
its negligence on the pretext that victim of accident should have taken due
care to save himself and that the rule of "contributory negligence"
should so be applied to absolve it from its liability---In such cases, the plea
of "contributory negligence" was not available to defence, until and
unless through positive and cogent evidence it was established by Railway
authorities that all safety measures were fully secured and intact but it was
the victim who had been aware of peril breached those measures such as having
opened the closed gate or scaling over the fence he/she had met the
accident---Such was not the position in the present matter, admittedly the gate
was not closed at that time of accident---Present was a case of negligence of
Railways, its employees and rule of "contributory negligence" had no nexus
thereto---High Court had rightly held Railways to be liable to pay compensation
and damages to plaintiffs---Employer in such accidents was vicariously liable
for the acts or omission, commission and negligence of his/its
employees---Supreme Court declined to interfere in the judgment and decree
passed by High Court against Railways---Appeal was dismissed.
Federation of
Pakistan v. The Muslim Vehari and Vehniwal Bus Service Ltd. PLD 1955 Lah. 256;
Ali Ahsan v. Federation of Pakistan PLD 1959 (W.P.) Lah. 458; Federation of
Pakistan v. Ali Ehsan PLD 1967 SC 249; Union of India v. Hindustan Lever
Limited AIR 1975 Punjab and Haryana 259; Mercer v. South Eastern and Chatham
Railway Companies' Managing Committee 1922 (2) K.B. 549; North-Western Railway
v. Kazi Muhammad Hamid Siddiky PLD 1963 (W.P.) Kar. 975; Malik Raza Khan v.
Pakistan PLD 1965 (W.P.) Kar. 244; Pakistan through Pakistan Western Railway,
Lahore v. Mst. Kakubai PLD 1981 Kar. 667; Mst, Shaukat Jan v. Government of
N.-W.F.P. PLD 1982 Pesh. 123; Bengal Provincial Railway v. Gopi Mohan Singh AIR
1914 Cal. 368; Daya Shankar v. B.B. C.I. Ry. Co. AIR 1931 Allahabad 740; Mata
Prasad v. Union of India AIR 1978 Allahabad 303; Messrs Yatayt Nigam Udaipur v.
Union of India AIR 1983 Rajasthan 17; Punjab Road Transport Board v. Abdul
Wahid Usmani and others PLD 1980 Lah. 584; Pakistan Steel Mill Corporation
Limited through its Managing Director and Director's Secretary and another v.
Nazir Hussain Shah 1990 CLC 515; Sri Manmatha Nath Kuri v. Moulvi Muhammad
Mokhlesur Rehman and another PLD 1969 SC 565; Mst. Kamina v. Al-Amin Goods
Agency 1992 SCMR 1715; Pakistan Steel Mills Corporation Ltd. v. Malik Abdul
Habib 1993 SCMR 848 and Pakistan and others v. Haji Abdul Razzaque 2005 SCMR
587 ref.
(b) Fatal Accidents Act (XIII of 1855)---
----S. 1---Fatal accident---Age of deceased---Determining
factors---Presumption---When a person has surmounted his teenage, and early
youth and enters into his practical life by joining an employment or a business
etc. it can be legitimately expected that such person would complete his inning
by attaining the age of his normal retirement from such practical life, meaning
thereby, that such person remains engaged in some gainful activity till the
time he in the ordinary course, is mentally and physically fit and
capable---Such an age on the touchstone of "reasonable standard" can
be termed to be somewhat around sixty five to seventy years.
Husan Jehan
v. Islamic Republic
of Pakistan through Secretary, Ministry of Defence,
Islamabad and 2 others 2005 MLD 752; Mst. Farzana Shabbir and others v. Islamic
Republic of Pakistan through Secretary Ministry of Defence and others 2005 MLD
401; Baby Mehek alias Sakeena and 4 others v. Miss Aisha Qayyum and 2 others 2006
MLD 468; Mushtari v. Islamic Republic of Pakistan through Secretary, Ministry
of Planning and Development, Islamabad and 2 others 2006 MLD 19 and Amna Bibi
and 3 others v. Karachi Transport Corporation through Chairman and 2 others
2007 MLD 195 rel.
Per Jawwad S. Khawaja, J. agreeing
(c) Fatal Accidents Act (XIII of 1855)---
----S. 1---Law of tort---Object, purpose and scope---Court,
duty of---Central objective of tort law is to compensate plaintiffs for harms
which they have suffered---Monetary compensation under Fatal Accidents Act,
1855, has the core purpose of attempting to fill the void, at least partially,
left by the death of victim of the accident---Second core purpose of
tort law is
to discourage potentially
harmful behavior on
the part of
individuals or corporate
entities throughout society
in general---Tort law,
in a number
of countries has
operated as a tool
for enforcing good
governance and responsible
behaviour on account of its deterrent effect against unlawful and
negligent actions of tort feasors---Corporations such as the Railways, must
implement and strictly adhere to guidelines and safety precautions expressed in
various statutory enactments and case-law---Failure of corporations in
observing such legal precedent, in future, may consider holding them
accountable through award of exemplary damages---Promotion of law of torts is
vital and courts can within the constraints of
their available resources
endeavour to facilitate
the utilization and development of
trot law by
delivering expeditious
adjudication.
Niaz and others v. Abdul Sattar and others
PLD 2006 SC 432; Overseas Pakistani Foundation v. Sqn. Ldr. (Retd.) Syed
Mukhtar Ali Shah and another 2007 SCMR 569 and Punjab Road Transport
Corporation v. Zahida Afzal 2006 SCMR 207 rel.
(d) Fatal Accidents
Act (XIII of 1855)---
----S. 1---Suit for damages---Delay in
decision---Effect---Damages can never be a substitute for a deceased father,
husband or son---If damages are awarded promptly, the same can lessen burdens
and travails which a family has to bear after losing its bread earner in an
abrupt and unexpected
manner---Delay in such
matters, in many ways
proves the oft
repeated adage that
justice delayed is
justice denied.
(e) Fatal Accidents
Act (XIII of 1855)---
----S. 1---Exemplary or punitive damages---Deterrent
effect--- Scope--- If consequences of negligent conduct are made more expensive
and financially painful in terms of actual damages or the threat thereof, such
tortious conduct is likely to be deterred---Court can particularly in cases of
egregious conduct award exemplary or punitive damages---Such damages can go
beyond the amount meant for compensation, in order to enforce deterrent effect
of tort actions---Such mechanism has been used by courts in other common law
jurisdictions abroad to positive effect---Scope of exemplary damages may,
however, need to be limited to exceptional circumstances because the primary
objective of tort actions is to compensate a plaintiff---It is only as a
secondary and incidental purpose that society generally and future tort feasors
and potential defendants in tort action in particular are meant to be deterred.
Lord Devlin in
an English's case [Rookes v. Barnard (1964) AC 1129 rel.
M. Abbas Mirza,
Advocate Supreme Court for Appellants (in all cases).
Nasir Maqsood,
Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in
all cases).
Date of
hearing: 27th October, 2010.
JUDGMENT
MIAN SAQIB NISAR, J.---All the noted
appeals involve common facts and the questions of law, thus, are being disposed
of together.
2. Three
independent suits, initiated against the appellants under the Fatal Accidents
Act, 1885 (The Act) by the legal heirs (i.e. the persons entitled to maintain a
cause under the Act) on account of the death of three persons, who died in the
same accident, have been decreed, for different amounts, by the High Court of
Sindh, Karachi while exercising its
original civil jurisdiction
vide judgments and
decrees dated 24-12-2002.
The appeals of the
appellants against the
aforesaid have been
dismissed, whereas the
cross objections, initiated by
the respondents, claiming enhancement of the damages/ compensation etc. to them
have been accepted/ allowed to a certain extent and the decrees of the trial
Court, thus, are modified, hence these appeals under Article 185(2) of the
Constitution of the Islamic Republic of Pakistan, 1973.
3. The brief facts,
relevant for the disposal of the matters are: Muhammad Aslam 30 years, Syed
Mohi-ud-Din Ahmed 27 years and Sajjad
Ahmad Khilji 31
years, all died
in an accident
occurring on 1-3-1990 at Railways
Gate, Jumma Goth level crossing, while they were crossing it, when a locomotive
of the Railways collided with their vehicles causing their deaths. On the basis
of that cause of action, their legal heirs (respondents in these appeals)
brought three separate suits against the appellants for the recovery of the
damages/compensation under the Act for the amounts mentioned in the respective
plaints. The suits were contested by the appellants, however the occurrence was
not disputed, rather the plea of 'contributory negligence' on the part of the
deceased was primarily canvassed in defence. The trial Court, upon framing the
issues, recorded the evidence of the parties and on appreciation thereof,
by fixing the
expected ages of the deceased at
70 years, decreed
the suit in
C.A. No. 175 of 2006 to the
extent of Rs.20,00,000 against
the claim of Rs.
95,95,000, in C.A. No.176 of 2010 for
Rs.17,15,000 against Rs.59,30,000, in C.A. No.177 of 2006, for Rs.21,50,000 qua
Rs.50,00,000, the markup of 10% per annum till the realization, of the decretal
amounts in all the cases was also awarded.
4. Both the parties
being aggrieved of the judgments and decrees assailed those in appeals and
cross objections; the appeals of the appellants have been dismissed and while
accepting the cross objections of the respondents, it has been held that
"the respondents are entitled for 20% addition in the expected income of
the deceased and also compensation to the legal heirs at the rate of Rs.100,000
for the loss of association and supervision etc". In addition, the claim
of the funeral expenses of the
deceased, in each
case were also
awarded, hence these appeals.
5. Learned counsel
for the appellants is unable to refute the accident and the demise of three
persons in that. However, it is argued by him that the incident is not the
result of any negligence on the part of the appellants or any of its employees,
rather it is the deceased who were negligent in crossing the Railway line as
they could see the engine proceeding towards the crossing, yet they came on the
Railway track therefore, the appellants are not liable rather on the rule of
'contributory negligence' the plaintiffs are disentitled to any
compensation/damages; the principle of vicarious liability is not attracted to
the instant cases; the period of life expectancy of the deceased has not been
determined/ calculated by the Courts below on the basis of any material or data
available on the record, but it is a subjective and arbitrary adjudication/
fixation; same is the plea about the earnings of the deceased qua their
prospective income of which the plaintiffs were deprived etc.; besides it is
submitted that the award of damages in the matters by the trial Court which
have been further increased by the appellate Court are not justified on the basis
of the evidence on the record and the law applicable.
6. The learned
counsel for the respondents, on the contrary, has defended the judgments and
decrees by mainly arguing that, it was the primary duty of the Railways
authorities to have ensured the safety of the people passing through the
Railway track; it is a case depicting sheer lack of duty of care on part of the
Railways; reference has been made to Rule 229 of the General Rules for Pakistan
Railways to press the above plea and meet the objection of the department about
'contributory negligence'; support in this context has been drawn from the
various judgments on the
subject enunciating the
liability of the
Railways in the
given circumstances; the
rule of 'res ispa loquitur' has also been agitated.
7. Heard. In the
plaints of all the three suits, it is specifically averred that the accident
occurred due to the acts of negligence, carelessness, lack of responsibility,
lack of sense of duty and punctuality, lack of proper care, lack of foresight,
lack of prudence, dereliction of duty,
breach of the statutory duty under the Railway Rules, mal-feasance,
mis-feasance, non-feasance and also vicarious liability of the Railways for its
employees was urged, who were negligent on account of which the incident took
place. In the written statements, filed by the appellants, it is admitted that
Jumma Goth crossing is manned but it is not asserted that at the relevant time
the access of the public to the track was precluded by closing the gate.
However, it is casually expressed
that the mishap
was not due
to any fault
or negligence of the
Railway employees, rather
it was specifically
mentioned e.g. in paragraph 4 of the written statement of Civil Appeal
No.177 of 2005, as:--
"It is
denied that the alleged accident occurred due to any fault of any of the
employees of Pakistan Railways as alleged. It is submitted that if Mr. Sajjad
Ahmed Khilji named in the plaint has died as a result of any accident then he
alone and/or the driver of the car in which he was traveling, is responsible
for the alleged accident being contributories to the alleged accident".
Moreover, in
paragraph 5 thereof, it is stated:--
"It is
denied that either the alleged incident took place on account of any negligence
on the part of the driver of the Engine or the gate-man posted at the manned
Level Crossing in question. The unfortunate accident occurred due to
contributory negligence of the persons who crossed the Manned Level Crossing
unauthorized by knowing fully well the arrival of the Railway Engine on the
spot (emphasis supplied)."
The above, is
the only and the basic defence of the appellants. Therefore, the key propositions
calling for resolution by this Court are narrowed down, to the effect, whether
it is a case of negligence on part of
Pakistan Railways (appellants)
or that of 'contributory
negligence' of the deceased? And if the aforesaid acts/omissions are
attributable to the former and not the later, whether the two Courts below have
committed any illegality, in relation to, the fixation of appellants'
liability, including holding it to be responsible vicariously, and the rule/
criteria for the award and quantum of damages has been violated and misapplied.
8. The above
questions, specifically with reference to the Railways accidents have been
considered in a number of authoritative pronouncements in the Sub Continent and
other jurisdictions and the following answers have been provided; the foremost
verdicts on the subject enunciating the above are:--
Re: Federation of Pakistan v. The Muslim Vehari and Vehniwal
Bus Service Ltd. (PLD 1955 Lahore 256):--
"Where the
gates of a level crossing are left open, the railway authority, which is
responsible for keeping them locked when a train passes gives to the traffic on
the road an "invitation" to cross the lines".
Re: Ali Ahsan v. Federation of Pakistan (PLD 1959 (W.P.)
Lahore 458):--
"Held, the
accident took place on account of gross negligence on the part of the
respondent's employees which negligence amounted to wilful default, in the
sense that they deliberately failed to take the necessary precautions which, if
taken, would have prevented such an accident taking place. If the wagon had
been placed across the line, or if the gates at the level crossing had been
closed, the wagon in question could not have moved on the line and even if it
had moved, it could not have struck and injured the appellant. The failure on
the part of the respondent's employees to take any of these three precautions
amounted to wilful default on their part and hence the respondent should be
held liable for the ensuing result. The mere fact that the accident did not take
place at the level crossing, but at some distance from it should not make any
different, so far as the respondent's liability was concerned, because the
appellant would have been hit even if he had been crossing the line at the
level crossing".
Re: Federation of Pakistan v. Ali Ehsan (PLD 1967 SC 249):--
"If the
respondent was on the level crossing when he was hit he was not a mere
trespasser but an invitee lawfully on the level cross. In the case of such an
invitee there can be no manner of doubt that a duty is cast upon the occupier
of the premises to take such care as in all the circumstances of the case is
reasonable to see that the invitee will be reasonably safe in using the
premises for the purpose for which he is invited or permitted to be there. The
degree of care necessary in the case of such a person lawfully coming on the
premises will depend upon the nature of the danger or hazard to which the
person so invited is likely to be exposed. This duty is not confined only to
maintaining, what has often been described as the "static condition"
of the property, free from danger but it extends also to the taking of
reasonable care to safeguard the invitee from any special hazard of danger to
which he may be likely to be exposed by reason of any danger inherent in the
activity carried on by the occupier on the premises".
The learned
Honourable Judges also further observed:-
...... Thus it
has consistently been held that where a railway line crosses a public highway
on the level it is the duty of the railway company to make it safe for persons
using the highway to cross at a manned level crossing under the assumption that
they may do so with safety when the gates of the level crossing are left open
and if no warning of any special danger is given. The railway Operator's
general duty of taking all reasonable precautions to ensure the safety of
persons lawfully using a level crossing not only includes a duty to keep the
crossing itself in a reasonable condition of safety according to the
circumstances of the case but also to safeguard them from the special dangers
inherent in its positive operation."
Re: Union of India v. Hindustan Lever Limited (AIR 1975
Punjab and Haryana 259):--
"Level
crossing - Duty to close gates of level crossings when trains pass - Negligence
to close the gates when train passes is statutory negligence - Liability of
Railway for accident.
When a railway
crosses a public carriage road, the authorities owning the Railways are under
obligation to erect and maintain good and sufficient gates across the road and
must employ proper persons to man the same so as to keep it open for the
traffic and the vehicles to pass when no train is likely to pass and to shut
the same when a train is approaching S.R. 229/3(b), seems to have been made
under the Railways Act and, as such, has the force of law.
Neglect of this
statutory obligation is statutory negligence."
Re: Mercer v. South Eastern and Chatham Railway Companies'
Managing Committee (1922 (2) K.B. 549):--
"At a
level crossing on the defendants' railway there was a small wicket gate for the
use of pedestrians. According to the practice of the defendants the gate was
kept locked when trains were passing and was unlocked only when it was safe to
cross the lines, and that practice was known to the plaintiff. On the occasion
in question, owing to the negligence of a servant of the defendants the gate
was left unlocked when a train was approaching, and the plaintiff went through
it, and proceeded to cross the line when he was knocked down by the train and
injured. In an action by the plaintiff against the defendants for damages.
Held, that the
defendants, by leaving the gate unlocked, gave to the plaintiff an invitation
to cross the line, that in the circumstances the plaintiff in acting upon that
invitation, had not failed to use ordinary and reasonable care, and, therefore,
that he was entitled to recover."
To the same
effect are the judgments referred hereinafter, which also pronounce the rule
that in such class of cases the principle of 'contributory negligence' cannot
be applied against the deceased. The dicta are: North-Western Railway v. Kazi
Muhammad Hamid Siddiky (PLD 1963 (W.P.) Karachi 975), Malik Raza Khan v.
Pakistan (PLD 1965 (W.P.) Karachi 244), Pakistan through Pakistan Western
Railway, Lahore v. Mst. Kakubai (PLD
1981 Karachi 667), Mst. Shaukat Jan v. Government of N.-W.F.P. (PLD 1982
Peshawar 123), Bengal Provincial Railway v. Gopi Mohan Singh (AIR 1914 Calcutta
368), Daya Shankar v. B.B. and C.I. Ry. Co. (AIR 1931 Allahabad 740), Mata
Prasad v. Union of India (AIR 1978 Allahabad 303) and Messrs Yatayt Nigam,
Udaipur v. Union of India (AIR 1983 Rajasthan 17).
9. From the
aforementioned catenated verdicts, it is lucidly deducible that where an
accident has occurred in the circumstances as are in the present case, the
negligence is categorically and emphatically imputed to the Railways. Because
it is the duty of the Railways where a public way passes through its crossing,
to take all the precautionary measures to prevent and preclude the public
access at the time when a train/engine etc. has to pass such a crossing; this
includes the requisite fencing of the line at the requisite points and also the
installation of the gate thereat, which should also be closed in time before
any train etc. would pass or any other hazardous situation is likely to emerge.
And if that is not done it shall be a grave breach of duty to take care on part
of the Railways, duly attracting the ratio of the aforesaid judgments.
Obviously, in such a situation it shall be an open invitation to the public to
enter and cross the Railway line, with all the responsibility and liability
undertaken and incurred by the Railways that if any mishap takes place it shall
be accountable and liable for that, undoubtedly including the obligation to
compensate the persons who suffer the loss thereof. Thus if due to the failure
of the Railways to safeguard against the hazard, if any accident occurs, the
Railways cannot avoid the consequence of its negligence on the pretext that the
victim of the accident should have taken due care to save himself, and that the
rule of 'contributory negligence' should so be applied to absolve it from its
liability. In our considered view in such cases, the plea of 'contributory
negligence' is not available to the defence at all, until and unless through
positive and cogent evidence it is established by the Railways that all the
safety measures were fully secured and intact, but it is the victim who being
aware of the peril breached those measures, such as having opened the closed
gate or by scaling over or breaking through the fence he/she has met the
accident. Anyhow, this is not the position in the instant matter, rather admittedly
the gate was not closed at that time of accident. Therefore, a clear answer to
the above primary propositions is, that this case is a proven case of
negligence of the Railways, its employees, and the rule of 'contributory
negligence' has no nexus thereto.
10. In the above
context, the trial Court as also the first appellate Court has explicitly found
as a matter of fact that the accident occurred due to the negligence of the
Pakistan Railways; it was on account of lapse of duty to take proper care and is
a default on part of the Railways to adhere to the safety and security
measures. Such concurrent findings of fact, which are structured on the proper
appraisal of evidence on the record, has not been established by the
appellants' learned counsel, to be suffering from any error of misreading or
non reading thereof, thus no interference in this regard is justified or
warranted under the law. Likewise, the two courts have rightly held Pakistan
Railways to be liable to pay compensation and damages to the plaintiffs/respondents
on the settled rules in this category of cases, by duly keeping in view the
principle that the employer in the matter of the accidents of the nature
involved herein, is vicariously liable for the acts of omission, commission and
negligence of his/its employees. The damages which have been actually awarded
by the two forums are not shown to be subjective or beyond the canvas of the
evidence in these matters or the criteria set out by the Courts under the Act
or general law of torts and the damages.
11. Considerable
attack has been made by the learned counsel for the appellants regarding
compensation/damages awarded by the appellate Court for the loss of association
and the funeral charges and 20% addition qua the expected income of the deceased.
In this behalf, it may be held that the funeral expense class fall within the
purview of direct and actual loss suffered by the plaintiffs; while the loss of
association of a son, a husband, a father is immeasurable in terms of money,
yet it is a loss in fact for which damages can be awarded under the law. As far
as the addition of 20% towards future income is concerned, in our view the
trial Court had omitted to conceive that the income of the deceased would not
remain static and stagnant, rather it would augment in due course, therefore
this omission has been supplied by the appellate Court. Anyhow, learned counsel
has failed to apprise us, if there is any prohibition, preclusion
or a bar
imposed upon the
Court in granting such damages in
a tortious action and/or an action under the Act of the present nature.
12. For the plea,
about the life expectancy of the deceased in these matters, for the purposes of
calculating the damages allegedly being subjective and conjectural is
concerned, suffice it to say that the Division Bench of the Lahore High Court
while dealing with the proposition in a case reported as Punjab Road Transport
Board v. Abdul Wahid Usmani and others (PLD 1980 Lahore 584) has held as
follows:--
"No rigid
rule or yardstick can be settled for the purposes of determining the
expectancy. This all depends upon the facts and circumstances of each case and
therefore the factum should be settled/ determined keeping in view the physique
of the deceased, his habits, the nature of duties performed by him, family
history of ages of its members and deceased's gender- coupled with imperative
conditions of living including advanced standard of medical facility".
This indeed is
an esteemed judicial criteria which should in ordinary course be followed in
such like cases for determining the life expectancy of the deceased in order to
settle the period for granting damages to the survivors; the above standard is
bolstered by the judgment Pakistan Steel Mill Corporation Limited through its
Managing Director and Director's Secretary and another v. Nazir Hussain Shah
(1990 CLC 515). This Court also in the case reported as Sri Manmatha Nath Kuri
v. Moulvi Muhammad Mokhlesur Rehman and another (PLD 1969 SC 565) has held in
"estimating such damages the Court will, no doubt, take into account the
age of the deceased, his or her health, earning capacity and even the chances
of advancement". Besides, the above we would like to add here, that when a
person has surmounted his teenage, and the early youth and enters into his
practical life by joining an employment or a business etc. it can be
legitimately expected that he shall complete his inning by attaining the age of
his normal retirement from such practical life, meaning thereby, that he shall
remain engaged in some gainful activity, obviously till the time he in the
ordinary course, is mentally and physically fit and capable. Such an age on the
touchstone of 'reasonable standard' can be termed to be somewhat around sixty
five to seventy years; to support the above age limit there is preponderance of
judicial view in our jurisdiction, that it should be seventy years; some of the
judgments in this behalf are Husan Jehan v. Islamic Republic of Pakistan
through Secretary, Ministry of Defence, Islamabad and 2 others (2005 MLD 752),
Mst. Farzana Shabbir and others v. Islamic Republic of Pakistan through
Secretary Ministry of Defence and others (2005 MLD 401), Baby Mahek alias
Sakeena and 4 others v. Miss Aisha Qayyum and 2 others (2006 MLD 468), Mushtari
v. Islamic Republic of Pakistan through Secretary, Ministry of Planning and
Development, Islamabad and 2 others (2006 MLD 19) and Amna Bibi and 3 others v.
Karachi Transport Corporation through Chairman and 2 others (2007 MLD 195),
therefore, the Courts shall be well within their authority to assess the life
expectancy of the deceased on the above basis and preponderance, unless of
course, it is proved by the defence as a 'FACT' that the deceased was suffering
from any serious ailment on account of which the determination should be less;
this however should be established by the defence either through the cross
examination of the plaintiff's witnesses, who may be conceding or admitting
that the deceased was ill to that extent and thus shall not reach the noted age
limit or should be proved by the positive evidence produced by it.
13. Be that as it
may, considering, whether in the instant matters, the rule and criteria stated
above has been followed and proved by the plaintiffs as a fact, it may be
mentioned that in the case of Abdul Wahid (C.A. No.175 of 2005), the deceased
was aged 30 years, his father, who has
appeared as a
witness, was 50
years at the
time of accident, the
widow was 20
years, daughter Sana
was 2 years, son-Usman was 9
months, while son-Faizan was born some time after his death. In the case (C.A.
No.176 of 2005), the father of the deceased was 64 years of age, mother was 60
years, widow was 25 years while daughter-Sana was 5 years and
son-Zain-ul-Abidin was 3 years. In the last case (C.A. No.177 of 2005),
father-Muhammad Yousaf was 50 years, mother-Ghulam Zohra, 45 years,
widow-Afshan Begum 24 years, daughter-Noreen 5 years and daughter-Sehrish was
3-1/2 years at the time of incident. In all these cases in examination-in-chief
of the material witnesses (affidavits), it has been categorically
stated/deposed "that the deceased was having very simple habits and used
to have very good health and sound physique and he could have easily survived
upto the age of 70 years in view of his sound health, sober habits, long life
span in his family pedigree and advancement of medical treatment". This
part of the examination has not been subjected to cross-examination by the
appellants' side. Not only that, no evidence in rebuttal has been led by the
appellants to prove that the deceased was suffering from any disease on account
of which his normal expected life i.e. upto 70 years should be held to be
otherwise. Besides, the appellants have not attacked the age determination of each
deceased by the trial Court in the memo of first appeal; this also is the
position in the instant appeals as well. For the afore-going, the plea has no
force and is hereby repelled.
14. As regards the
argument of the learned counsel that the rule of res ispa loquitur i.e. the
thing speaks for itself, is attracted to the instant case, for which plethora
of judgments having been cited; some of those are Mst. Kamina v. Al-Amin Goods
Agency (1992 SCMR 1715), Pakistan Steel Mills Corp. Ltd. v. Malik Abdul Habib
(1993 SCMR 848) and Pakistan and others v. Haji Abdul Razzaque (2005 SCMR 587),
suffice it to say that the rule does have the application in certain cases
relating to accidents, but the applicability is dependent on the facts and
circumstances of each case, however, it is not a "universal rule"
that in all the accidents emerging from road, rail, air, water, sea,
professional negligence and/or other, that the noted rule should imperatively
be applied, as ipso jure, and the defendant of the case should be put to
'strict liability' to disprove the case of the plaintiff and to prove in
negative terms that he is not liable and responsible for the accident, which
has not occurred due to any negligence on his part, so as to avoid his
liability towards the plaintiff of the case. The application of doctrine in our
view needs analysis in an appropriate case, as the instant matter can be
conveniently sorted out on the basis of the law cited, which is specifically in
reference to and relating to the Railway accidents and on the basis of the
evidence, which has come on the record and there seems no reason herein to
press 'res ispa loquitur' rule into service. All the appeals are accordingly
dismissed.
I agree, but
have also added a concerning opinion.
(Sd)/-
(Jawwad S. Khawaja, J)
JAWWAD S.
KHAWAJA, J.---I have had the benefit of going through the judgment of my
learned brother Mian Saqib Nisar, J. in support of the short order passed by us
on 27-10-2010. I am in full agreement with the conclusions expressed therein
but am availing this opportunity of adding
a concurring note
to stress some
aspects of tort law arising in
the case and to make some suggestions for consideration by the Law and Justice Commission of Pakistan
and other concerned bodies.
2. The fatal accident
in which Syed Mohiuddin Ahmed, Sajjad Ahmed Khiljee and Muhammad Aslam died,
occurred on 1-3-1990. The same year three suits by the respective legal heirs
of the deceased were filed under the
Fatal Accidents Act
1855. All three deceased were the primary bread-winners of their
respective families. It took more than 11 years for the plaintiffs to get a
money decree in their favour. This decree was passed on 24-12-2002 and, inter
alia, directed that the same be satisfied within sixty days from the date
thereof. The appellants challenged the decree through an appeal filed on
7-3-2003. The appeal was dismissed by an appellate
Bench of the
Sindh High Court
on 29-9-2004. Although the appeal was fixed on different dates of
hearing, there is nothing in the order sheet of the appellate Bench to indicate
that the operation of the decree of the learned trial Bench was suspended
during the pendency
of the appeal.
The matter was
then agitated through these
appeals before us,
which were filed
on 8-1-2005. The short order,
dismissing the appeals, was passed on 27-10-2010 in the following terms:--
For the
detailed reasons to follow, these appeals having no merits are hereby
dismissed, with the direction to the executing Court to execute and satisfy the
decrees impugned in these appeals within a period of three months without
fail".
3. During the
pendency of these appeals, although the appellants filed applications seeking
stay of execution, no order directing stay was passed by this Court. At the
hearing it became evident that although there was no stay of execution granted
by the appellate forums, the decrees remained unsatisfied. The implications of
delay in the adjudication of such cases, particularly where the deceased is the
primary bread-winner of the family, can defeat the object of the law. Some
suggestions for ameliorating the problems of plaintiffs in such cases have been
made towards the end of this opinion. For the present the aspects of
compensation and deterrence, as values espoused by tort law are considered
below.
COMPENSATION
4. A central
objective of tort law is to compensate plaintiffs for the harms which they have
suffered. Monetory compensation under the Fatal Accidents Act has the core
purpose of attempting to fill the void, at least partially, left by the death
of the victim of the accident. We find that at the time of his death, Muhammad
Aslam was supporting two children (aged two years and nine months
respectively), a wife aged twenty years and a father aged fifty years. Six
months after his death, his wife gave birth to a son. Likewise, Sajjad Ahmed
Khiljee and Syed Mohiuddin Ahmed, the two other deceased, left behind widows
and minors. Damages can never be a substitute for a deceased father, husband or
son. However, if awarded promptly, damages can lessen the burdens and
travails which a
family has to
bear after losing
its bread earner in
an abrupt and
unexpected manner. Delay
in matters such
as these, in many ways proves the
oft repeated adage that justice delayed is justice denied.
5. What befell
Muhummad Aslam's family after his death cannot be ascertained from the record.
Perhaps the family had plans regarding their future household and the
upbringing and education of their children. What became of these plans? Again,
there is no answer. The children are now adults. Those few tender years, during
which children benefit most from loving parents and good education, cannot be
retrieved. We can only speculate how much damage has been done to these
families' futures for lacking the financial support they would have received
from the deceased. We do know, however, that when they needed this money most
for sustenance, education, medicine, or marriages it was not available. To award
these families monetary damages now, so many years after the accident, only
serves as a stark reminder of how deeply the law has failed to achieve its
purpose of filling the gaping void left by the sudden and unforeseen death of
Muhammad Aslam. It would be reasonable to expect that a similar fate befell the
families of Mohiuddin Ahmed and Sajjad Ahmed.
6. It is possible
that during the pendency of the litigation Muhammad Aslam's father may have
passed away or if not, he may have required extensive medical care, which in
the ordinary course, would have been provided by Muhammad Aslam but after his
death was meant to be provided by the compensation which the law now confirms,
was due to his legal heirs, the plaintiffs. Secondly, the minor children could
have had education in the best schools and could in turn have become
professionally well placed to support their family, in accordance with our
societal norms. The minor daughter may well have been married off without the
support of her father and without even the pale substitute of monetary
compensation which the law contemplates. The instances and possibilities are
endless. Nevertheless it does bring into prominence the implications and
consequences of delayed adjudication. It would be worthwhile, therefore, for
Courts to develop a sensitivity for such implications which arise from tortious
actions particularly those arising under the Fatal Accidents Act involving the
death of providers such as Aslam, Mohiuddin Ahmed and Sajjad Ahmed.
DETERRENCE
7. A second core purpose of tort law is to
discourage potentially harmful
behaviour on the
part of individuals
or corporate entities such as the appellant, throughout
society in general. This aspect is explained in Prosser and Keeton on Torts at
25 (W. Page Keeton et al. eds, 5th ed. 1984):
"The
'prophylactic' factor of preventing future harm has been quite important in the
field of torts. The courts are concerned not only with compensation of the
victim, but with the admonition of the wrongdoer. When the decisions of the
courts become known, and defendants realize that they may be held liable, there
is of course a strong incentive to prevent the occurrence of the harm. Not
infrequently one reason for imposing liability is the deliberate purpose of
providing that incentive."
Bearing in mind
the general nature of human behaviour, if the consequences of negligent conduct
are made more expensive and financially painful in terms of actual damages or
the threat thereof, such tortious conduct is likely to be deterred. Courts can,
particularly in cases of egregious conduct as in the present case, award
exemplary or punitive damages. Such damages can go beyond the amount meant for
compensation, in order to enforce the deterrent effect of tort actions. This
mechanism has been used by Courts in other common law jurisdictions abroad, to
positive effect.
8. The scope of
exemplary damages may, however, need to be limited to exceptional circumstances
because the primary objective of tort actions is to compensate a plaintiff. It
is only as a secondary and incidental purpose that society generally, and
future tort feasors and potential defendants in tort actions in particular, are
meant to be deterred. Some circumstances which could justify the award of
exemplary/punitive damages were expressed by Lord Devlin in an English case
[Rookes v. Barnard (1964) AC 1129] as including: (1) cases involving
oppressive, arbitrary, or unconstitutional actions by servants of government;
(2) where the defendant's conduct was "calculated" to make a profit
for himself; and (3) where a statute expressly authorizes such damages. In the
present case the question of awarding punitive damages was not raised in the
learned Courts below. Therefore, a more elaborate discussion of the
significance of exemplary damages in tort actions can be dealt with more
appropriately in a future case. The mention here, of punitive damages, is meant
to alert Courts and future litigants to the prophylactic factor highlighted by
Prosser and Keeton.
9. It may be added
that tort law, in a number of countries has operated as a tool for enforcing
good governance and responsible behaviour, on account of its deterrent effect
against the unlawful and negligent actions of tort feasors. Corporations such
as the appellant Railways must implement and strictly adhere to the guidelines
and safety precautions expressed in various statutory enactments and case-law.
For their failure in observing these, legal precedent, in future, may consider
holding them accountable through the award of exemplary damages. In this
regard, the promotion of the law of torts is vital, Courts can, within the
constraints of their available resources endeavour to facilitate the
utilization and development of this law by delivering expeditious adjudication.
In saying this, I am not proposing a new doctrine, but am stressing upon
principles which have already been established in various judgments of this
Court such as Niaz and others v. Abdul Sattar and others (PLD 2006 SC 432), Overseas
Pakistani Foundation v. Sqn. Ldr. (Retd) Syed Mukhtar Ali Shah and another
(2007 SCMR 569), and Punjab Road Transport Corporation v. Zahida Afzal (2006
SCMR 207). In this regard, the observations of my learned brother Tassaduq
Hussain Jillani, J., in the last case quoted above are extremely relevant and
may be reproduced here. He observes as under:--
"It is
pertinent to mention here that mere framing of law does not provide good
results unless the law is strictly implemented by all Sections of the society
in letter and spirit without fear, favour and nepotism as envisaged in
Sura-e-Baqra' of the Holy Quran. To achieve the goal of ensuring every citizen
and organ of the state on a right path the nation, as a whole, has to honour
the commitment in terms of the Constitution and the law. One of the modes to
achieve this goad is to file a suit for damages against the offenders by the
aggrieved persons. It is the duty of the
Bar Associations and Bar Council to educate the people and to file suits for damages
against the offenders apart from the criminal proceedings. It is also the duty
and obligation of media to ..... cultivate awareness of rights especially [the]
law of tort [s] which will ultimately bring/compel every authority and
functionary including the Chief Executive of the country to work within the
framework of the law and (the) constitution" (emphasis added) (pg.215-216)
SUGGESTIONS FOR CONSIDERATION.
10. Based on the
circumstances of these appeals and the foregoing discussion, the need for a
review of the law is highlighted. There is a constitutional imperative [as per
Article 37 (d)] to "ensure inexpensive and expeditious justice" in
all matters. The case for treating fatal accident cases as a specie for
separate treatment can, however, be made out on the basis of sound legal
principles. In these appeals, the very fact that compensation which was meant
to provide a substitute for the financial support of the deceased during the
most acute period of need for the plaintiffs, was not available. To this
extent, the object of the law stood defeated.
11. Some substantive
and procedural suggestions which could be considered by the Law and Justice
Commission of Pakistan and by the legislature and Courts are as follows:--
(a) An accelerated
fast track for such cases may be adopted, where the primary bread-winner of a
family has died in a fatal accident leaving behind no earning hand in the
family. It may be mentioned here that particular emphasis has been placed in
the Holy Quran for the care of widows and orphans. I may also add that under
the judicial policy, fast track adjudication of family and rent matters is
already in place to good effect.
(b) Legislation,
inter alia, to provide strict liability and compulsory insurance in certain
categories of cases may also be considered as in a number of foreign
jurisdictions.
(c) The decree in
such cases should be made executable forthwith without the requirement of
separate execution proceedings being initiated. In cases decided under the
Financial Institutions (Recovery of Finances) Ordinance 2001, for instance, the
law already provides for such mechanism. It may be noted that in the present
cases, the learned trial Bench directed that the decree be satisfied within 60
days from the date of judgment. As noted above, this appears not to have been
done. The mere award of interest on the decretal amount, in the event of
delayed satisfaction of the decree does not serve the object of the law as
discussed above.
(d) Procedural
changes providing for interim orders pending trial and orders for costs etc.
could also ameliorate the difficulties resulting from the human tragedy of a
fatal accident.
(e) Other workable
ideas are bound to emerge once an effort is made to examine the prevalent laws
with the object of bringing changes therein.
M.H./I-9/SC
Appeal dismissed.
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