PLJ 2025 Lahore 632 (DB)
Present:
Faisal Zaman Khan and Khalid Ishaq, JJ.
Mst. MISBAH
FAROOQ etc.--Appellants
versus
M/s. DAEWOO PAKISTAN EXPRESS BUS SERVICE
LTD. etc.--Respondents
R.F.A.
No. 1123 of 2014, decided on 4.3.2025.
Civil Procedure Code, 1908 (V of 1908)--
----S.
9--Damages--Jurisdiction of Civil Court--Suit for recovery of damages--Road
accident--Law of tort and Fatal Accident Act--Lacks of jurisdiction--Accident
took due to fault vehicle of respondent--Negligence of company--Failure of
company to maintain vehicle in due course--Trial Court neither had jurisdiction
nor was competent to grant damges--Principle of res ipsa loquitur--The
evidence brought by Defendants remained unchallenged--Such accidents did not
ordinarily occur but Plaintiffs had opted to take a specific position that
occurrence was owed to bus’s mechanical and fitness failure, therefore, they
had to prove it by producing some evidence but they failed to do so-- Doctrine
of res ipsa loquitur--Normal rule of evidence--In case in hand doctrine
of res ipsa loquitur is not attracted and normal rule of evidence
prevails, therefore, onus of proving negligence on part of defendant was on
Appellants/Plaintiffs, particularly when defendant had unrooted prima facie
presumption by producing bus driver, bus hostess and workshop incharge, since
it was plaintiffs’ position that accident occurred due to fault in bus--Section
9 of C.P.C as it would operate and vest jurisdiction in Civil Court to
adjudicate suits for recovery of damages of nature filed by Appellants and Civil
Court was not robbed of its jurisdiction to try Suit as said provision is all
encompassing--This is based on well settled position of law that Ouster of
Jurisdiction of Civil Court conferred upon it under Section 9 cannot be readily
inferred and an ouster by special law has to be specific, clear and unambiguous--Exclusion
of jurisdiction of civil Court must be expressed and ouster clause, ousting
general law’s jurisdiction, must be construed very strictly--The main
perceivable damage that Appellant may lay a claim of was physical as well as
economic and monitory loss as Appellants might be claimed that Plaintiff No. 1
in particular had been subjected to physical loss, amongst that, stress,
anxiety, economic loss, financial costs etc. subjected to all of them,
allegedly due to accident could Appellants claim redressal of such a tort?--It
is well settled by now that an admission by Defendant should be unambiguous,
unqualified and specific and cannot be inferred for granting a claim or
Decree--The findings rendered by Trial Court were in accordance with law and
called for no interference.
[Pp. 641, 644,
645 & 646] A, B, E, F, G & H
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Damages in law and
torts--General damages and special damages--Reason of special
circumstances--Such special damages must be specifically pleaded and
proved--This brings Court to conclusion that in a suit for damages, wrong done
to plaintiff must be proved to be immediate, direct or proximate result of act,
or acts of negligence attributed to defence--In instant case, although it is
proved that plaintiff No. 1 had sustained injuries, she was bedridden for life
and her family members must be facing trauma and emotional stress for life,
however, it was not proved that those had occurred due to a direct negligence
by Defendants. [P. 642] C
Latim Maxim--
----It postulates that where law has established a right, there
should be a corresponding remedy for its breach--The issue with case in hand is
that in facts and circumstances of case, at time of filing of suit or even now,
there is no law in Punjab which establishes rights sought to be enforced by
filing Suit. [P. 644] D
Mr. Mubashir Rehman Chaudhary, Advocate for Appellants.
Mr. Faisal Zaffar, Advocate for Respondents.
Date of hearing: 4.3.2025.
Judgment
Khalid Ishaq, J.--This
appeal stems from a recovery suit for damages titled ‘Mst. Misbah Farooq and
5 others v. M/s Daewoo Pakistan Express Bus Service Ltd. and 2 others’
bearing Suit No. 485/1 (the “Suit”) filed on 09.12.2004 by the present
appellants (the “Appellants/Plaintiffs) before the Civil Court at Lahore
(the “Trial Court”). The Appellants/Plaintiffs sought a Decree for
Damages for Rupees 100 million against the Respondents relating to an
unfortunate road accident, which occurred on Motorway near Bhera interchange on
03.05.2004 (the “Accident”) involving a bus of Daewoo Pakistan Express
Bus Service Ltd. (the “Defendant Company”). Plaintiff/Appellant Nos. 1
& 2 are mother and daughter respectively and were amongst the passengers of
the bus who commenced their journey from Rawalpindi to Lahore on the fateful
afternoon of 03.05.2004, whereas the Appellant/Plaintiff Nos. 3, 4, 5 & 6
are respectively husband, son and daughters of Plaintiff/Appellant No. 1. The
Respondents before us were impleaded as Defendants, who contested the Suit by
filing written statement; issues were framed, parties were put to trial,
evidence was recorded and at the culmination of the proceedings, the Suit was
partly decreed to the tune of Rs. 140,000/-and Rs. 40,000/-in favour of
Plaintiff Nos. 1 & 2 respectively, in terms of Section 67, read with
Thirteenth Schedule of West Pakistan Motor Vehicles Ordinance, 1965
vide Judgment and Decree dated 20.05.2014 (the “Impugned Judgment”).
Hence this appeal.
2. The claim of the
Appellants/Plaintiffs was structured on two primary averments; One, the vehicle
did not appear to be roadworthy, its body was shaking from the start of the
journey and was not under the control of the driver, the defect was brought to
the notice of the bus hostess, who refuted the same as a mere fancy. It is
asserted in the plaint, that near Bhera interchange, while the bus appeared to
be cruising within the limits touted by the Motorway Authorities, it was
abruptly involved in an extremely serious accident, without any apparent
reason. Two, the Defendants turned blind eyes and deaf ears to the fate of the
unfortunate passengers, did not extend any assistance, dead and injured were
left at their own. The claim for damages was twofold; that the Plaintiff No. 1
has been paralyzed for life due to her injuries sustained owing to accident,
her entire family has suffered, the family haven’t been able to pursue their
normal lives; careers and professions afterwards and till today they have been
moving from one hospital to another for treatment of Appellant/ Plaintiff No. 1
without any respite; they have suffered immensely, therefore, they are entitled
to Medical expenses, compensation/ damages for injuries caused to
Appellant/Plaintiff Nos. 1 & 2, resulting in physical incapacity of
Appellant/Plaintiff No. 1 for life; compensation/damages to Appellant/Plaintiff
Nos. 2 to 6 for having been deprived of love, service, assistance in life from
Plaintiff No. 1; and compensation damages claimed by Appellant/Plaintiff No. 3
for the damage caused to his legal practice and political career. On the other
hand, the Respondents/Defendants contested the suit on the ground that no right
guaranteed or secured under any law has been violated, the Suit falls under the
Law of Tort and Fatal Accident Act and the Trial Court lacks jurisdiction to
try the Suit, therefore, the same is liable to be dismissed.
3. To prove their
case, the Appellants/Plaintiffs produced Plaintiff No. 1/Misbah Farooq as PW-1,
Plaintiff No. 2 Shawana Farooq as PW-2, Shabana Malik as PW-3, Plaintiff No. 3
Khawaja Farooq Ahmed as PW-4 Khawaja Muhammad Iqbal (inadvertently written as
PW-4), Dr. Hafiz Noor-ul-Ameen (PW-5) and Nawazish Ali (PW-7). In documentary
evidence, the Appellants/Plaintiffs got exhibited Ex. P-1 to Ex. P-64 and Marks
A/1 to K/10, which documents largely pertain to treatment and expenses of treatment
of Plaintiff No. 1. In defence, the Respondents/Defendants produced Muhammad
Afzal Butt, Terminal Manager (DW-1), Farooq Haider, Office Coordinator (DW-2),
Mst. Rubi Ayub, Bus Hostess (DW-3), Munawar Hussain Butt, Driver (DW-4) and
Arshad Mubeen Butt, Workshop incharge (DW-5). The Respondent/Defendant also
produced documentary evidence in the form of Mark-D-1-copy of fitness
certificate, Mark-D-2-copy of registration book, Ex. D-1-copy of authority
letter and Ex. D-1 – inspection sheet of the vehicle produced by DW-5.
4. The evidence
produced by the Appellants/Plaintiff largely revolved around the fact that the
Plaintiff No. 1 suffered lifelong injuries, which has not only rendered her
disabled and bedridden for her entire life but such injuries, the expenses for
treatment thereof and hardships faced and efforts made to recover her health
and life to normality has changed the complexion of lives of the entire family.
On the other hand, the Respondent/Defendant averred that the bus was completely
fit and was properly maintained but the unfortunate accident took place due to
the fault of another public sector vehicle, which suddenly changed its lane and
while saving the said vehicle, the bus rolled over and met with an Accident.
5. Learned counsel
for the Appellants/Plaintiffs reiterated the stance and evidence of the
Plaintiffs and painfully argued the chain of unfortunate events which have led
to: never ending misery of the Appellant/Plaintiff No. 1 as she has become
disabled and dependent for life; the physical, emotional and financial agony,
trauma and hardships being faced by the entire family, which continues de die
in diem. Learned counsel has vociferously argued that the bus had met the fatal
accident where 14 passengers had died, many including the Plaintiff Nos. 1
& 2 sustained injuries and the vehicle was torn apart in pieces; submits
that despite ongoing treatment of 21 years and incurring millions of rupees
(inland and abroad), the suffering of the Plaintiffs has not ended; adds that
all this has happened due to sheer negligence of the Defendant Company as it
had failed to discharge its duty of due care and reasonable maintenance of the
vehicle in issue, therefore, the Defendant Company is liable to pay the
damages. At the end, learned counsel argued that the instant is a fit case of
applicability and invocation of the doctrine of ‘res ipsa loquitur’ and
placed reliance on cases reported as Mst. Kamina and another v. Al-Amin
Goods Transport Agency through L.R.s and 2 others” (1992 SCMR 1715) and Pakistan
Steel Mills Corporation Limited and another v. Malik Abdul Habib and another”
(1993 SCMR 848).
6. On the contrary,
learned counsel for the Respondent/Defendant eagerly supported the Impugned
Judgment on the touchstone that it is a case of no evidence; the Trial Court
neither had the jurisdiction nor was the Court competent to grant the damages
sought by the Plaintiffs; argued that principle of res ipsa loquitur is
not attracted in the facts and circumstances of this case; placed reliance on
cases reported as Ravi Kapur v. The State of Rajasthan (2013 SCMR 480); Mrs.
Alia Tareen, Managing Director, Pakistan General Hospital, Quetta v. Amanullah
Khan Advocate and others (PLD 2005 SC 99); “Morton v. William Dixon
Ltd.” (1909 SC 807, 809)
7. Arguments heard.
Record perused.
8. We have gone
through the record and looked into the respective evidence led by the parties;
parties are not at dispute as to whether the Plaintiff Nos. 1 & 2 were
boarded the ill-fated vehicle, neither it is disputed that accident took place,
however, the fact of medical and physical state of Appellant/Plaintiff No. 1,
her treatment and expenses incurred are such facts which are not admitted by
the Defendant Company. The entire edifice of the case of the
Appellants/Plaintiffs is the alleged negligence of the Defendant Company; the
main thrust of challenge laid by the Appellants/ Plaintiffs revolves around the
allegations that accident occurred owing to inherent faulty condition and
mechanical defects of the bus; that in view of the failure of Defendant Company
to maintain the vehicle in due course, the accident was meant to happen and
thus the Defendant Company being guilty of negligence is liable to pay the
damages as claimed by the Appellants/Plaintiffs. Therefore, we are not delving into
and discussing here the plethora of evidence produced by the
Appellants/Plaintiffs relating to the medical and physical condition of
Appellant/Plaintiff No. 1; the efforts of treatment for reviving normality in
her life and consequently the life of entire family. The core issue between the
parties is applicability of principle of res ipsa loquitur and
consequent award or decline of damages. For the purpose of question of
applicability of the said principle, while juxtaposing facts of the case in
hand, we consider it appropriate to elaborate as to what is meant by the
doctrine, how it applies and what are its contours.
9. ‘Res ipsa
loquitur’ is Latin for: ‘the thing speaks for itself’.[1]
[This] convenient and succinct formula possess no magic qualities: nor has it
any added virtue, other than that of brevity, merely because it is expressed in
Latin.[2]
10. As a first, this doctrine applies, when the
things that inflicted the damage was under the sole management and control of
the defendant; secondly, that occurrence is such that it would not have
happened without negligence; and thirdly, that there must be no evidence as to
why or how the occurrence took place. In such circumstances the defendants have
to persuade the Court that accident did not occur on account of their
negligence.[3]
In simple words, res ipsa loquitur means an inference of Negligence in
Civil Proceedings, it permits an inference of a defendant’s negligence from the
happening of an event and thereby creates a prima facie case of negligence sufficient
for submission to a Court. To warrant submission of the inference for the
Court’s consideration, the plaintiff must establish: (i) the event must be of a
kind which ordinarily does not occur in the absence of someone’s negligence;
(ii) it must be caused by an agency or instrumentality within the exclusive
control of the defendant; (iii) it must not have been due to any voluntary
action or contribution on the part of the plaintiff.[4]
However, it is equally important to register that a defendant may rebut the
inference of negligence with evidence that tends to cast doubt on the
plaintiff’s proof; and more importantly, the doctrine permits an inference of
negligence [to] be drawn solely from the happening of the accident. The rule
simply recognizes what we know from our everyday experiences: that some
accidents by their very nature would ordinarily not happen without negligence.
Res ipsa loquitur does not create a conclusive pre-sumption in favor of
the plaintiff but merely permits the inference of negligence to be drawn from
the circumstances of the occurrence. The rule has the effect of creating a
prima facie case of negligence sufficient for submission to the Court, and the
Court may, but is not required to, draw the permissible inference. A plaintiff may,
both, rely on the doctrine of res ipsa loquitur and introduce specific
evidence of the defendant’s negligence. However, relying on both would not be
permissible when “the two alternate modes of proof are fundamentally or
inherently inconsistent.[5]
Expert testimony may be admissible where it is necessary to help the Court to
“bridge the gap” between its own common knowledge and the specialized knowledge
and experience necessary to reach a conclusion that the event would not
normally take place in the absence of negligence.[6]
Courts do not generally apply [the exclusive control] requirement as it is
literally stated. For example, res ipsa loquitur has been applied even
though the accident occurred after the instrumentality left the defendant’s
control, where it was shown that the defendant had exclusive control at the
time of the alleged act of negligence. The exclusive control requirement is
that the evidence must afford a rational basis for concluding that the cause of
the accident was probably such that the defendant would be responsible for any
negligence connected with it. The purpose is simply to eliminate within reason
all explanations for the Court other than the defendant’s negligence. The
requirement does not mean that possibility of other causes must be altogether
eliminated, but only that their likelihood must be so reduced that the greater
probability lies at defendant’s door. By way of emphasis, a plaintiff “need not
conclusively eliminate the possibility of all other causes of the injury, it is
enough that the evidence supporting the three conditions afford a rational
basis for concluding that it is more likely than not that the injury was caused
by defendant’s negligence. Stated otherwise, all that is required is that the
likelihood of other possible causes of the injury be so reduced that the
greater probability lies at defendant’s door [7]
It should be emphasized that contrary to some old decisional law, res ipsa
loquitur does not create a pre-sumption of negligence against the
defendant. Rather, the circumstantial evidence allows but does not require the
Court to infer that the defendant was negligent.[8]
Given that it is an inference, “only in the rarest of res ipsa loquitur
cases” may a plaintiff secure a Decree for compensation. That would happen only
when the plaintiff’s proof is so convincing and the defendant’s response is so
weak that the inference of defendant’s negligence is inescapable. The inference
of negligence may be rebutted with evidence by defendant that tends to cast
doubt on plaintiff’s proof.[9]
If the claimant is unable to prove precisely how an accident took place, they
may be able to rely on the maxim res ipsa loquitur, ‘the thing speaks
for itself’. This means that the facts of the case suggest an element of
negligence on the part of the defendant. It applies where the causes of an
accident are unknown but the inference of negligence is clear from the nature
of the accident. The claimant cannot rely upon an inference of negligence
unless he has alleged in the pleadings and proved at the trial the facts from
which the inference is to be drawn.[10]
If the defendant shows how the accident happened, and that is consistent with
the absence of negligence on his part, he will displace the effect of the maxim
and not be liable.[11]
Around the world, some Courts have
flatly said that the doctrine of res ipsa loquitor is of limited
utility,[12]
and that it is to be applied cautiously and sparingly, in those exceptional
cases where the facts and demands of justice make its application material,[13]
and only when the essential components are present and when common experience
indicates that the accident is one which would not ordinarily occur in the
absence of negligence. Finally, the mere happening of an accident or injury
will not give rise to an inference or pre-sumption that it was due to
negligence on the defendant’s part, even in a strict liability context.[14]
It is insufficient by itself to establish a prima facie case of negligence,[15]
or to prove negligence as a matter of law.[16]
Stated another way, proof of an accident does not equate with proof of
negligence.[17]
11. In view of the above
let’s apply the facts of this case to cull out if the doctrine is rightly
pressed by the learned counsel for Appellants/Plaintiffs. It is true that the
accidents do occur due to faulty vehicles but the ratio of such causes are
fractionally low, whereas, the overwhelming and predominant cause of accidents
are: ‘careless driving (25%), dozing at wheels (23%), tyre burst (18%),
improper pedestrian crossing (6%), brake failure (9%), wrong overtaking,
improper stoppage/joining/changing direction, improper U-turn etc.’ The consistent
data reflects that faults and negligence of the drivers, particularly over
speeding or negligence cause the most accidents, amongst many other factors.[18]
In the case in hand the Appellants/Plaintiffs did not allege that the accident
had occurred due to negligence or rash driving of the driver of the vehicle and
instead the sole basis attributed to the Accident was, the negligence of the
Defendant Company for plying a defective vehicle. All unnecessary details
apart, the evidence of the Appellant/Plaintiff No. 1 (PW-1) is most important
to infer if the negligence of Defendant Company is so evident from the nature
of the accident that the only inference drawn from that is of its negligence.
PW-1 stated that the body of the bus was trembling, bus was unstable from the
start of the journey, near Kallar Kahar, I told my daughter that bus is
fluctuating but my daughter advised me to recite darood sharif, and said that: ‘you
are being delusional’. She further admitted that at the time of
accident, bus was within the limits touted by the Motorway Authorities, it had
already diverted from motorway to service road for its planned stop at service
area. PW-2 also alleged that the bus was faulty and she complained about that
to the bus hostess. In rebuttal the Respondent Defendants had produced Muhammad
Afzal Butt, DW-1 (Terminal Manager) who stated that the vehicle was checked
before departure and it was in A1 condition. He further stated that the Company
conducted its inquiry as to the cause of accident and it surfaced that the
accident was caused due to mistake of the driver of another vehicle, who
suddenly changed his lane and in order to avoid collusion, the driver turned
the vehicle, which caused its accident. DW-3 (Bus Hostess) & DW-4 (Driver
of the bus) also refuted the allegations that bus was faulty or any complaint
as to its fitness was lodged by any passenger, they both supported that the
cause of incident was the negligence of another public sector vehicle. Both
these material witnesses remained consistent in their testimony despite lengthy
cross-examination and fully corroborated the stance taken by DW-1. The evidence
of DW-5 (Workshop Manager of Defendant Company) is equally material to dispel
the basis of the case brought by the Appellants/Plaintiffs. He categorically
deposed that inspection of vehicles is his job and he inspected the subject
vehicle before issuing its OK report (Ex. D-1). Now, considering that
the doctrine of res ipsa loquitur only supplies an inference and not a
conclusive pre-sumption and since the Defendants have produced
the above discussed evidence and by such evidence, the Defendants were able to
cast doubt, the Plaintiffs were required to produce
some expert evidence to bridge the gap but none was produced.
The evidence brought by the Defendants remained unchallenged. It may be an
inference that such accidents do not ordinarily occur but since the Plaintiffs
had opted to take a specific position that occurrence was owed to bus’s
mechanical and fitness failure, therefore, they had to prove it by producing
some evidence but they failed to
do so.
12. The above makes it abundantly clear that in
the case in hand the doctrine of res ipsa loquitur is not attracted and
normal rule of evidence prevails, therefore, the onus of proving negligence on
part of the defendant was on the Appellants/Plaintiffs, particularly when the
defendant had unrooted the prima facie pre-sumption by producing bus driver,
bus hostess and workshop incharge, since it was plaintiffs’ position that the
accident occurred due to fault in the bus. In an action based on negligence,
the maxim res ipsa loquitur is merely a rule of evidence effecting onus;
it does not alter the general rule that the onus to prove negligence rests upon
the claimant.[19]
The doctrine has been applied to situations where a motor vehicle mounted the
footpath,[20]
where a vehicle struck a pedestrian who was walking alongside the highway,[21]
where it was shown that the brake pipe of the vehicle was beyond repair,[22]
and where a vehicle of unsound condition was being driven on a poor road on
dark night.[23]
13. This required expert evidence but at no
point in time any effort was made on behalf of the Appellants/Plaintiffs to
bring on record some evidence in this respect. Neither the
Appellants/Plaintiffs sought to rely on the record of maintenance and fitness
of the vehicle in issue nor they sought to produce any such record or evidence
through process of the Court in terms of Order VII, Rule 14, read with Order
XVI, Rule 1 & 2 of the CPC. Had the Appellants/Plaintiffs applied for
expert [advice or evidence] for the inspection of the Bus or sought appointment
of any expert and the response the Defendant Company had have opposed such
prayer, there would have been some inference in favour of the
Appellants/Plaintiffs, to say the least. As regards the remainder of the
documents in evidence on behalf of the Appellants/Plaintiffs, most of the
documents have been tendered in evidence through counsel’s statement, which
documents cannot be considered as per settled law that the disputed documents
cannot be tendered in evidence in statement of the counsel for a party because
such procedure deprives the opposing party to test the authenticity of those
documents by exercising his right of cross-examination.[24]
Thus, all those documents brought on record in the statement of the learned
counsel for the plaintiffs are inconsequential.
14. Damages in Law and Torts are of numerous kinds
but in the instant case the kinds relevant are general damages and special
damages. Black’s Law Dictionary [11th ed. 2019] defines the term general
damages, “Without reference to special character, condition, or circumstances
of the plaintiff”, “the general damages are implied or presumed” to have
accrued from the wrong complaint of, for the reason that they are its
immediate, direct or proximate result or such as necessarily result from the
injury, or such as did in fact result from the wrong, directly or proximately.
The term “special damages” is defined as those which are actual, but not the
necessary, result of the injury complained of, and which in fact follow it as a
natural and proximate consequence in a particular case i.e. by reason of
special circumstances or conditions. Such special damages must be specifically
pleaded and proved. This brings the Court to the conclusion that in a suit for
damages, the wrong done to the plaintiff must be proved to be immediate, direct
or proximate result of the act, or acts of negligence attributed to the
defence. In the instant case, although it is proved that plaintiff No. 1 has
sustained injuries, she is bedridden for life and her family members must be
facing trauma and emotional stress for life, however, it is not proved that
those have occurred due to a direct negligence by the Defendants.
15. The precedents relied upon by the learned
counsel for the Appellants/Plaintiffs are distinguishable for two predominant
reasons; firstly, both these cases (as a matter of fact, all the cases,
involving applicability / invocation of the doctrine of res ipsa loquitur in
our Jurisprudence)[25]
had arisen from the Courts exercising jurisdiction under Fatal Accidents
Act (XIII of 1855) and ironically the same is not applicable in the
Province of Punjab; Secondly, the facts of the cited precedents were such that
the doctrine of res ipsa loquitur was attracted and applied. In
Al-Amin Goods supra, the facts that some drums were loaded in the truck
and the persons who sat beside those trucks sensed stinky smell, felt giddy,
they were admitted in Hospital, went into coma and died, are peculiar facts. It
was held that since the defendants had special knowledge about the contents of
the drums, which were admittedly containing Solvirex / pesticide, which
knowledge about contents was not disclosed to the driver and other persons who
were in the truck, even bilty only mentioned insecticide but did not say that
the contents were poisonous in nature and dangerous to human life. It was in these
facts that doctrine was applied and damages were granted. Similarly, the facts
of Malik Abdul Habib supra were that a young man of 20 years old
had died as he fell down from a Russian Hydraulic Telescope (Elevator) from a
height of 15 feet while painting an electric pole in Pakistan Steel Mills.
Father and mother of deceased filed suit for recovery of damages under the
provisions contained in Fatal Accidents Act, 1855. It was held that father and
mother of deceased cannot be blamed for not proving negligence because neither
they were eye-witness nor present at the spot nor they had any means to obtain
relevant information which was in the exclusive knowledge of the defendants.
The defendant’s witnesses admitted that supply line of gear which operated the rope,
was broken, which caused the accident. Another witness of the defendants
admitted that painting of the electric poles was part of the duty of the
deceased. In these circumstances, Supreme Court held: ‘[It] is, therefore,
proved from the evidence of the defendants that accident occurred on account of
mechanical fault due to negligence of the defendants.’ Whereas, in the case in
hand, there is nothing on record which may establish that the Bus carrying the
Plaintiffs had any mechanical fault, which fault was then instrumental for
causing the accident. It is generally understood that culpability must be
inferred from circumstances where such inference is fairly reasonable.[26]
16. The above brings us to another question i.e.
under what law the Suit was brought before the Civil Court and which law
regulates such suits. Since the Suit was for grant of damages, therefore, we
considered as to whether any of the provisions of the Contract Act, 1872 (the “Contract
Act”) would come into play for such suits? Chapter VI of the Contract Act
lays down the consequences of a breach of a contract in terms of sections 73 to
75 of the Contract Act but the said provisions are of no help to the cause of
the Appellants/Plaintiffs since the claim lodged by them had not arisen out of
breach of any contract. Suit is not covered under any of the provisions of the
Specific Relief Act, 1877 either. The next question which comes to mind is that
whether the case of the Appellants/Plaintiffs is covered under a well
recognised Latin maxim: jus ibi remedium (where there is a right, there
should be corresponding remedy). It postulates that where law has established a
right, there should be a corresponding remedy for its breach. The issue with
the case in hand is that in the facts and circumstances of the case, at the
time of filing of the suit or even now, there is no law in Punjab which
establishes the rights sought to be enforced by filing the Suit. However, this
does not mean that there is no remedy for even laying a claim for such damages
in Punjab as the Suit is not regulated by any specific Law in Punjab for the
time being. The answer lies in Section 9 of the C.P.C as it would operate and
vest jurisdiction in the Civil Court to adjudicate the suits for recovery of
damages of the nature filed by the Appellants/Respondents and the Civil Court
was not robbed of its jurisdiction to try the Suit as the said provision is all
encompassing. This is based on well settled position of law that Ouster of
Jurisdiction of Civil Court conferred upon it under Section 9 cannot be readily
inferred and an ouster by special law has to be specific, clear and
unambiguous.[27]
Exclusion of jurisdiction of civil Court must be expressed[28]
and ouster clause, ousting general law’s jurisdiction, must be construed very
strictly.[29]
17. We specifically asked the learned counsel
for the Appellants/Plaintiffs as to which law regulates the claim of damages
sought by the Plaintiffs, learned counsel responded that it is claim under
“Tort”. Considering the basic definition, tort is an act or omission that gives
rise to an injury either to person or property. Without putting too fine a
point on it, a tortious breach is where one party (the tort-feasor) breaches
the legally protected rights of another party (the claimant).[30]
This brings us to the question which need to be determined in this Appeal i.e.
what legally protected right of the Appellants/Plaintiffs was breached, if any,
by the Respondents/ Defendants. Seeking guidance, with immense advantage, we
seek to reproduce the following paragraph from Noor Sanat Shah,[31]
“11. Torts, broadly speaking, tend to fall within
four categories. They are: 1) torts of physical integrity; 2) torts of
interests in property; 3) torts of use and enjoyment of land and 4) torts of
reputation”
In
view of the above and considering a general duty of care, owed by the Defendant
Company towards its passengers, the main perceivable damage that the Appellant
may lay a claim of was physical as well as economic and monitory loss as the
Appellants/Plaintiffs may claim that Plaintiff No. 1 in particular has been
subjected to physical loss, amongst that, stress, anxiety, economic loss,
financial costs etc. subjected to all of them, allegedly due to accident. Can
the Appellants/Plaintiffs claim redressal of such a tort? The answer to the
said question is in affirmative but for that the Appellants had to cross
another bridge. The Appellants/Plaintiffs were not only required to prove that
they sustained all such losses which they had claimed, instead they had to prove
at the outset that the liability ensued from any breach by the Defendant
Company, which they have failed to establish in this case.
18. The learned
counsel for the Appellants/Plaintiff has half-heartedly attempted to argue that
by offering to pay the amount in terms of Thirteenth Schedule of West Pakistan
Motor Vehicle Ordinance, 1965, the Defendant Company has admitted the
liability, therefore, they were liable to pay the damages sustained by the
Appellants/Plaintiffs. We are not impressed by this submission as it is well
settled by now that an admission by the Defendant should be unambiguous,
unqualified and specific and cannot be inferred for granting a claim or Decree.[32]
19. Finally, coming to the earnest argument of
the learned counsel whereby he pleaded the apathy on the part of the Defendant
Company to leave the passengers on their own and the life of the Plaintiffs
having been left in lurch due to technicalities. Learned counsel argued that
mere fact of extreme hardship entitles the Plaintiffs to the relief claimed by
them. We may have our hearts wrenched for the Plaintiffs but ours are Courts of
Law, not mandated to rule on the basis of mere agony, unfortunate pain and
helplessness. The Supreme Court of Pakistan has settled that it is duty of every
Court to implement the enforced laws and to decide the disputes in accordance
therewith, rather than on the basis of compassion[33]
and any relief granted on the touchstone of subjective standards of leniency
and compassions, rather than the law, cannot be sustained.[34]
In the words of Shahid Karim, J, written in POSCO International Corporation:[35]
“[justice] or morality do not signify any concept of precision as morality
may fluctuate from one community to another and from one country to the other.
Courts are not required to enforce moral standards but as Courts of law are
merely concerned with the enforcement of law enacted by the legislature. This
holds true for “justice” as well for judge’s man Courts of law and not justice.
20. After a careful examination of the merits
of the case and Impugned Judgment, we are poised to conclude that the findings
rendered by the Trial Court are in accordance with law and calls for no
interference. This appeal is without merit and the same is accordingly dismissed.
(R.A.) Appeal dismissed