Sunday, 7 December 2014

Railway Accident Contributory Negligence Case Law

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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