PLJ 2016 Karachi
Ms. KALPNA DEVI, ADVOCATE--Petitioner
versus
C.P. No. D-122 of 2011, decided on 17.9.2015.
----S. 2(g)--Scope of--Road accident--Responsibility of NHA--Flow of traffic--Traveling--Such object can never be achieved without compelling vehicles owners to follow relevant rules of traffic, which are neither meant to curtail freedom of an individual to ply vehicle nor at his whims and wishes but strictly as per applicable rules and law for his/her own safety and that of others. [P. 42] A
----S. 17(1)--Scope of--Object of carrying into effect provisions of ‘Ordinance’ shall not serve its purpose unless rules are made in consultation with NHA and that of authority, so defined in ‘Ordinance’--NHA is bound to place road signs of regulation or direction concerning traffic on road; traffic signs which includes all signals, signs, post or other devices for information, guidance or directions of road vehicles so also to check license as well as maintain speed--Precautions are not meant to remain on papers alone but object ‘safety’ cannot be achieved unless writing on papers (rules) are physically clothed. [P. 43] B & C
----S. 92--Constitution of Pakistan , 1973--Art. 199--Constitutional petition--Road accident due to crash stones in small size were lying scattered--Sustained serious injuries--Car damages badly--Caused severe human and monetary loss to affectees--Validity--An accident or unfortunate incident, if is complained to be a result of failure of non-observance of requirement of rules, shall not only make purpose and object thereof a ‘nullity’ but shall also put a big question mark on due diligent exercise of authority with responsibility for enforcement of rules--Ordinance also provides for Motorway Police, whose prime duty is to implement traffic rules, regulations and restrictions and to give facilities provided under Safety Ordinance. [P. 43] D & E
----S. 17(1)--Controlling and managing authority of road accident--If NHA is controlling and managing authority of road then authority should not remain mum inclusion of road as ‘national highway’ but must show its existence by making efforts in achieving ultimate object of ‘Ordinance’ which cannot be achieved unless all three quarters, come forward with a policy or rules, not only showing paper work but enforcement thereof visible to a naked eye. [P. 44] F
----Scope--NHA cannot avoid its obligations and mandatory duty which is ‘safety’ , as Ordinance insisted therefore, Court found it in all fairness to direct NHA to provide all required facilities, which it (NHA) has to provide against ‘toll’ or to meet with object of Ordinance--NHA shall constitute a committee and shall draw criterion within three months and ensure that toll tax is received by NHA on subject matter at par with other roads maintained by NHA. [Pp. 45 & 46] G & L
----Negligence of driver--Negligence of a ‘driver’ does put lives of others into danger which can well be brought to justice by bringing his such act before Courts but loss/damage in shape of injuries or costing lives even cannot be compensated. [P. 45] H
----Scope of--NHA shall provide all facilities including patrolling of motor way police round clock, and establish emergency aid clinic ambulance service (duly equipped with basic equipments to treat injured persons of accidents) at toll collecting point which shall be available on one call notice--NHA shall also ensure patrolling of motor police, linking road up-to main highway as undisputedly, this road also falls within command and control of NHA; further, it is a matter of record that NHA, authority has established toll tax, on that road--Such measures shall be taken positively being matter of public importance and report in that regard be submitted within one month, which shall be placed for an order of satisfaction of order or further direction towards such satisfaction. [P. 45] I & J
----Compensation or damages--Jurisdiction--Quantum of compensation or damages is required to be determined as to what losses petitioner and her family members received and that can only be appreciated through evidence which is not permissible in writ jurisdiction, hence petitioner is at liberty to approach Civil Court having jurisdiction and may sue NHA. [P. 46] K
Mr. Safdar Ali Ghouri, Advocate, for Respondent No. 1.
Date of hearing: 10.9.2015
Order
Salahuddin Panhwar, J.--Through instant Constitutional Petition, the petitioner prays as under:
(a) That this Honourable Court may kindly be pleased to direct the Respondents No. 01 to 05 to take all necessary precautions on the road as required under the Act, for safe travel of the common people.
(b) That this Honourable Court be further pleased to direct the Respondents No. 01 to 04 to pay compensation to the petitioner and losses caused to her vehicle.
2. Succinctly, the facts as setout in the petition are that on 13.12.2010, the petitioner along with her husband, driver and friend of her husband Dr. Safdar Shaikh, were on the way from Karachi to Larkana via Khairpur-Larkana road National Highway Road. At Tando Masti, turn, towards Larkana, crash stones in small size were lying scattered on the road, hence, Car of the petitioner slipped upon and went out of control of the driver, as result thereof, petitioner, her husband, driver and above-named friend of husband sustained serious injuries and Toyota Corolla Car also damaged badly. It is worth to mention here that where crash was scattered on the road, work was not in progress and even cautionary boards were not placed for the facility and care of common travel safely, but no such measures were taken by the respondents. Prior to the accident of the petitioner, 4/5 accidents had already occurred at the same place and in the same way, which has caused severe human and monetary loss to the affectees. The above carelessness and irresponsibility by the Respondents No. 1 to 4 who have allowed their contractors to play havoc and to put lives and vehicles at serious peril. It is sorry state of affairs that in spite of drawing smart salary packages and enjoying other conveyance facilities, the Government officials viz. respondents particularly and other officials commonly are not performing their duties and are playing with the lives of the people by closing their eyes on irregularities by the contractors with the blessings of Government functionaries/official Respondents No. 1 to 4, hence they are liable to be directed to take all the pre-cautionary measures on the road, as per NHA Act and are also liable to compensate the petitioner for the losses caused to her and her vehicle.
3. In contra, the Respondent No. 5 has filed his comments contending therein that crash stones were not lying on the road, hence car of the petitioner allegedly slipped upon; neither the name of the driver is mentioned nor any incident is reported any where. Respondent No. 5 has contended that alternative and efficacious remedy is available to the petitioner by invoking Civil Court .
4. Whereas, Respondents No. 1 to 4 in their joint comments have stated that the contents of Paras No. 7, 8 & 9 are vehemently denied to be false. Answering respondents have not failed in their duties. It is also denied that N.H.A is liable to compensate the petitioner; that for rash and negligent driving the driver is himself responsible; even otherwise, controversy involved in this petition is between the petitioner and the contractor, who was constructing the road as per contract.
5. Learned counsel for the petitioner, inter-alia, contended that National Highway Authority (NHA) has constructed the road connecting Larkana to the main Highway at Tando Masti; they have established a Toll Plaza; they are receiving Rs. 30/- per vehicle; distance of such road is about fifty kilometers; no facilities are provided on this road, therefore, Toll Tax is illegal; National Highway Authority is not providing basic facilities including the patrolling of motorway police, therefore, citizens of Larkana and adjoining areas are unsafe while driving on this road; no visible signs are available on the road, hence accidents are routine affair.
6. In contra, counsel for NHA contents that respondents are liable to provide the basic facilities and they are providing the same; claim of the petitioner for awarding damages cannot be enforced in writ jurisdiction as the petitioner can approach to competent Civil Court for redressal of her grievance.
7. Before dilating upon the merits of the case, it would be conducive to have a glance over the relevant laws of National Highway Authority (NHA), accordingly we examined National Highway Authority Act, 1991, Motor Vehicle Ordinance, 1965 and National Highways Safety Ordinance, 2000. Section 2(g) “National Highways” provides definition of National Highways:
Section 2(g) “National Highways” means a road specified in part-I of the schedule and includes a road declared by the Federal Government, by notification in the official gazette, to be a national highway.
Section 2(k) provides definition of “Road” which is as under:
Section 2(k) “Road” means a road including land within the right of way and all words, such as carriage ways, cart ways, foot paths, berms, sight drains, culverts, bridges, tunnels, fences, posts, sign boards, plantation and lighting arrangements, interSections and medians assigned to the authority,
8. Perusal of definition of relevant laws of National Highway Authority (NHA) show that road from Larkana to Tando Masti linking to main National Highway comes within the ambit of road as defined by National Highway Authority Act and undisputedly the same is controlled by the NHA. Let us add here that responsibility of the authority (NHA) does not come to an end only by mentioning a particular road into its relevant part-I of the schedule or declaration thereof to be a ‘national highway’ but the responsibility continues till the Authority ensures flow of traffic thereon with ‘safety’ of vehicles or those traveling therein. Such object can never be achieved without compelling the vehicles owners to follow the relevant rules of the Traffic, which are neither meant to curtail the freedom of an individual to ply vehicle nor at his whims and wishes but strictly as per applicable rules and law for his/her own safety and that of others. Let it be made clear that the Motor Vehicle Ordinance pertains to year 1965 and need to bring the road(s) under Federation arose in the year 1978, when the Government of Pakistan (GoP) decided to federalize roads while naming the same as ‘National, Highways’ and created National Highways Board for monitoring the development and maintenance of these federalized roads by Provincial Highway Department. Later the time gave cause for establishment of the ‘National Highways Authority’: followed by National Highways Authority Act, 1991’. However, since the issue of ‘safety’ was/is always the prime responsibility of the State, therefore, National Highways Safety Ordinance, 2000 was enacted, that from its very title appears to be nothing but meant for ‘National Highways’ which undisputedly are to be controlled, managed and maintained by the National Highways Authority. The National Highways Safety Ordinance, 2000 (hereinafter be referred as ‘the Ordinance’) has got its own provisions, meant to regulate the flow of traffic on ‘national highways’ which follows with penal clauses in case of breach thereof, therefore, it can safely be said that the rules, provided therein, are to be followed whenever a ‘national highways’ is under discussion.
9. Thus, it is pertinent to mention that the object of carrying into effect the provisions of the ‘the Ordinance’ shall not serve its purpose unless the rules are made in consultation with National Highways authority and that of authority, so defined in ‘the Ordinance’, as was insisted in Section 17(1) of ‘the Ordinance’:
(1) The Government may, in consultation with National Highways and Pakistan Motorway Police, by notification in the official Gazette, make rules for the purpose of carrying into effect the provisions of this Chapter.
Bare perusal of National Highway Safety Ordinance, 2000, shows that NHA is bound to place road signs of regulation or direction concerning the traffic on road; traffic signs which includes all signals, signs, post or other devices for the information, guidance or directions of the road vehicles so also to check license as well as maintain speed. Worth to say that these precautions are not meant to remain on papers alone but the object ‘safety’ cannot be achieved unless the writing on papers (rules) are physically clothed. However, the perusal of the available record prima facie shows that rules and requirement of ‘the Ordinance’ have still not achieved its purpose and object. An accident or unfortunate incident, if is complained to be a result of failure of non-observance of requirement of the rules, shall not only make the purpose and object thereof a ‘nullity’ but shall also put a big question mark on the due diligent exercise of the Authority with responsibility for enforcement of rules. This Ordinance also provides for Motorway Police, whose prime duty is to implement the traffic rules, regulations and restrictions and to give facilities provided under Safety Ordinance. It is pertinent to mention that Section 92 of Safety Ordinance provides that:
92. Superintendence and administration of National Highway and Pakistan Motorway Police.--The head of National Highways and Pakistan Motorway Police shall be an Inspector General, who shall exercise all powers of an Inspector General of Police under Police Act, 1861 (V of 1861), and Administer the force in accordance with the provisions of this ordinance and rules made there-under.
10. Accordingly, it would be safe to say that if the National Highways Authority is the controlling and managing authority of the road in question (a national highway) then the authority should not remain mum only with an addition in Part-I of its Schedule i.e inclusion of road as ‘national highway’ but must show its existence by making efforts in achieving the ultimate object of ‘the Ordinance’ which in my opinion cannot be achieved unless all three quarters concerned, as mentioned in Section 17(1) of the Ordinance, come forward with a policy or rules, not only showing paper work but enforcement thereof visible to a naked eye. The NHA is also receiving ‘Toll tax’ which is always subject to providing some service/facility because under the law Government prima facie has the authority to levy the Toll or Fee but such tax or levy is always subject to rendering some service, else it would amount to taxing the citizens which the law does not authorize. We are fortified in our view with the case of The Burmah Oil Company Limited v. The Trustees for the Port of Chittagong reported in PLD 1961 Supreme Court 452 their lordships of Honourable Supreme Court has interpreted the ‘Toll Tax’ as under:
“There may be tolls of many kinds, such as harbour tolls, anchorage tolls, or even a toll for the use of a Railway system itself. In its generic sense a ‘toll’ may be described as a payment of a sum of money in respect of some benefit derived by the payer from the use of some property, service or facility provided by another. ‘Toll’ is not, synonymous with ‘hire’. It may well be distinct from, and in addition to, a charge leviable for the use of that property, service of facility. Thus a ‘toll’ realizable by a railway, may be a payment in respect of the use of the railway system itself as distinct from a charge for carriage, haulage or collection.”
followed by a Division Bench of this Court in the case of Mian Ejaz Shafi and others v. Federation of Pakistan reported in PLD 1997 Karachi 604.
11. Since the issue of ‘toll’ is not before us therefore, needs no further discussion. The record, however, shows that the National High Ways Authority is collecting the ‘toll’ without providing the services and even appears to have not fulfilled the object of ‘the Ordinance’. The NHA cannot avoid its obligations and mandatory duty which is the ‘safety’, as the Ordinance insisted therefore, we find it in all fairness to direct the National Highway Authorities to provide all the required facilities, which it (NHA) has to provide against ‘toll’ or to meet with object of the Ordinance. Since, we are equally conscious that the rules and enforcement thereof shall no doubt help in making the flow of traffic smooth and safe but chances of ‘road accidents’ yet shall continue. A national highway brings a concept of ‘good and properly maintained road’ with a permitted high speeding and in absence of strict watch and control resulting into increase of ratio of road accidents which though is unfortunate and regrettable yet a fact. The negligence of a ‘driver’ does put the lives of others into danger which can well be brought to justice by bringing his such act before Courts but the loss/damage in shape of injuries or costing lives even cannot be compensated. A fate cannot be denied but at the same time things cannot be left unattended on this reason alone, therefore, time has also come when the quarter concerned NHA e.t.c or Government even shall ensure provision of ambulance clinical service while maintaining the Highways including National Highways at their own cost or while giving the contract of such road(s) to a company under Public Private Partnership. This may not only save the lives of all injured of road accidents but even help in saving the life of single individual with timely medication and treatment succeeds in avoiding permanent amputation of an organ, shall not only serve the purpose but will also complete the term ‘safety’. The National highway Authority shall provide all facilities including the patrolling of motor way police round the clock, and establish emergency aid clinic ambulance service (duly equipped with basic equipments to treat injured persons of accidents) at the toll collecting point which shall be available on one call notice. Accordingly, NHA, authority shall also ensure the patrolling of motor police, on Larkana to Tando Masti, linking road up-to main highway as undisputedly, this road also falls within command and control of NHA; further, it is a matter of record that NHA, authority has established
Toll Tax, on this road. Such measures shall be taken positively being matter of public importance and report in this regard be submitted within one month, which shall be placed for an order of satisfaction of order or further direction towards such satisfaction.
12. With regard to civil injury caused to the petitioner, it is relevant to mention that quantum of compensation or damages is required to be determined as to what losses the petitioner and her family members received and that can only be appreciated through evidence which is not permissible in writ jurisdiction, hence the petitioner is at liberty to approach concerned Civil Court having jurisdiction and may sue the National Highway Authority (NHA).
13. Regarding Toll Tax, learned counsel for the petitioner has pointed out that such amount is exorbitant and is not justified. On this count, National Highway Authority shall constitute a committee and shall draw the criterion within three months and ensure that Toll Tax is received by the National Highway Authority (NHA) on the subject matter at par with the other roads maintained by the National Highway Authority.
14. Accordingly, instant petition stands disposed of in above terms.
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