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)--
---ص ۹ -- نقصانات -- دیوانی عدالت کا دائرہ اختیار -- نقصانات کی وصولی کے لیے مقدمہ -- سڑک حادثہ -- قانونِ ضرر اور فاتل ایکسیڈنٹ ایکٹ -- دائرہ اختیار کی کمی -- حادثہ مدعا علیہ کی گاڑی کی غلطی کی وجہ سے ہوا -- کمپنی کی غفلت -- کمپنی کی جانب سے گاڑی کی مناسب دیکھ بھال کا فقدان -- ٹرائل کورٹ نہ دائرہ اختیار رکھتا تھا اور نہ ہی نقصان کا حکم دینے کا اہل تھا -- اصولِ ریز ایپسا لوکیوٹر -- مدعا علیہان کی جانب سے پیش کردہ ثبوت چیلنج نہیں کیے گئے -- ایسے حادثات عموماً نہیں ہوتے لیکن مدعیوں نے یہ خاص موقف اپنایا کہ حادثہ بس کی مکینیکل اور فٹنس کی خرابی کی وجہ سے ہوا، لہٰذا انہیں کچھ ثبوت پیش کر کے یہ بات ثابت کرنی تھی مگر وہ ناکام رہے -- اصولِ ریز ایپسا لوکیوٹر -- ثبوت کا معمول کا قاعدہ -- موجودہ معاملے میں اصولِ ریز ایپسا لوکیوٹر لاگو نہیں ہوتا اور معمول کا قاعدہ ثبوت بر قرار رہتا ہے، لہٰذا غفلت ثابت کرنے کی ذمہ داری مدعیوں/درخواست گزاروں پر تھی، خاص طور پر جب مدعا علیہ نے بس کے ڈرائیور، بس ہوسٹس اور ورکشاپ انچارج کو پیش کر کے ظاہری طور پر شک مندرجہ ذیل شکوک کو دور کر دیا تھا، کیونکہ یہ مدعیوں کی پوزیشن تھی کہ حادثہ بس کی خرابی کی وجہ سے ہوا -- سی پی سی کے سیکشن 9 کے تحت دیوانی عدالت کو درخواست گزاروں کے دائرہ کار کے مطابق نقصانات کی وصولی کے مقدمات سننے کا اختیار حاصل ہے اور دیوانی عدالت کو مقدمہ سنانے سے محروم نہیں کیا گیا کیونکہ مذکورہ دفعات جامع نوعیت کی ہیں -- یہ قانون کا ایک معروف اور مستحکم اصول ہے کہ دیوانی عدالت کے سیکشن 9 کے تحت دائرہ اختیار کو با آسانی ختم نہیں کیا جا سکتا اور کسی خاص قانون کے ذریعے اس کی ممانعت واضح، مخصوص اور غیر مبہم ہونی چاہیے ----دیوانی عدالت کے دائرہ کار کے اخراج کا اظہار واضح ہونا چاہیے اور اخراجی شق، جو عمومی قانون کے دائرہ کار کو خارج کرتی ہے، اسے بہت سختی سے سمجھنا چاہیے--اصل قابلِ دید نقصان جو درخواست دہندہ دعوی کر سکتے ہیں وہ جسمانی کے ساتھ ساتھ معاشی اور مالی نقصان بھی ہو سکتا ہے کیونکہ خاص طور پر مدعی نمبر 1 کو جسمانی نقصان برداشت کرنا پڑا، جن میں ذہنی دباؤ، اضطراب، معاشی نقصان، مالی اخراجات وغیرہ شامل ہیں جو مبینہ طور پر حادثے کی وجہ سے ہوئے، کیا درخواست دہندگان ایسے زیادتی کا ازالہ مانگ سکتے ہیں؟--یہ اب اچھی طرح قائم ہو چکا ہے کہ مدعا علیہ کا اعتراف غیر مبہم، غیر مشروط اور مخصوص ہونا چاہیے اور دعوی یا حکم دینے کے لیے اس کا استنباط نہیں کیا جا سکتا--ابتدائی عدالت کے فیصلے قانون کے مطابق تھے اور ان میں کوئی مداخلت کی ضرورت نہیں تھی۔
----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--
دفعہ 199 - آئینی درخواست - قانون اور ضمیر کے نقصانات - عمومی اور خاص نقصانات - خاص حالات کی وجہ - ایسے خاص نقصانات کو خاص طور پر دعویٰ کرنا اور ثابت کرنا لازم ہے - اس سے عدالت یہ نتیجہ نکالتی ہے کہ نقصانات کے مقدمے میں مدعی کو نقصان پہنچانے والے فعل یا غفلت کے فوری، براہ راست یا قریب ترین نتیجہ کے طور پر ثابت کیا جانا چاہیے جو مدعا علیہ کی طرف منسوب ہو - موجودہ مقدمے میں، اگرچہ یہ ثابت ہوا کہ مدعیہ نمبر 1 کو چوٹیں آئیں، وہ زندگی بھر بستر پر رہی اور اس کے اہل خانہ کو زندگی بھر صدمہ اور ذہنی دباؤ کا سامنا کرنا پڑا، تاہم یہ ثابت نہیں ہوا کہ یہ نقصانات مدعا علیہان کی براہ راست غفلت کی وجہ سے ہوئے۔
----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--
- اس کا مفروضہ یہ ہے کہ جہاں قانون کسی حق کو قائم کرتا ہے، وہاں اس کی خلاف ورزی کے لیے مناسب تدارک ہونا چاہیے-- زیر بحث معاملے میں مسئلہ یہ ہے کہ مقدمے کے حقائق و حالات میں، مقدمہ دائر کرنے کے وقت یا اب بھی، پنجاب میں کوئی ایسا قانون نہیں ہے جو مقدمہ دائر کرنے کے ذریعے نافذ کیے جانے والے حقوق کو قائم کرتا ہو۔
----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
[1]. Black’s Law Dictionary [11th ed. 2019].
[2]. (per Morris L.J, Judson v. British Transport Commission [1954] 1 W.L.R. 585).
[3]. “Mst. Kamina and another v. Al-Amin Goods Transport Agency through L.R.s and 2 others” (1992 SCMR 1715); Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib & another” (1993 SCMR 848).
[4]. Dermatossian v New York City Tr. Auth. (67 NY2d 219 [1986]) and its progeny. (E.g. James v Wormuth, 21 NY3d 540 [2013]; Morejon v Rais Constr. Co., 7 NY3d 203 [2006]; States v Lourdes Hosp., 100 NY2d 208 [2003].
[5]. Abbott v Page Airways (23 NY2d 502, 511 [1969].
[6]. Kambat (89 NY2d at 497) and States (100 NY2d at 212).
[7]. (Kambat v St. Francis Hosp., 89 NY2d 489.
[8]. (Morejon v Rais Const. Co., 7 NY3d at 209.)
[9]. (States v Lourdes Hosp., 100 NY2d at 214.)
[10]. Esso Petroleum Co. Ltd. v. Southport Corpn. {[1956] AC 218, [1955] 3 All ER 864}.
[11]. Collvilles Ltd. v. Devine {[1969] 2 All ER 53}.
[12]. Monforti v. K-Mart Inc., [690 Sol. 2d 631 (Fla. Dist. Ct. App.5th Dist. 1997].
[13]. Thompson v. Volles, (37 Del. 83).
[14]. Transit Homes, Inc. v. Bellamy, (282 Ark. 453).
[15]. Callvert v. Katy Taxi, Inc. [413 F.2d 841 (2d Cir. 1969)].
[16]. Bourke v. Watts, [223 Neb. 511, 391 N.W. 2d 552 (1986)].
[17]. Hayes v. Alsburg, (52 III, App. 3d 355, 10 III. Dec 180).
[18]. “Road Traffic Accident Analysis of Motorways in Pakistan” Published in Vol. 2, Issue 11, November, 2013 by International Journal of Engineering Research and Technology (IJERT), authored by Afaq Khattak, Lecturer National Institute of Transportation, School of Civil and Environmental Engineering (SCEE) National University of Sciences and Technology (NUST). https://www.ijert.org/research/road-traffic-accident-analysis-of-motorways-in-pakistan-. The ratio remains the same even today. As per Year Book published by National Highways and Motorway Police for the year 2023-24, chapter – Major causes of accidents.
https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://nhmp.gov.pk/ Press_Releases&ved=2ahUKEwjp4fjUwI6MAxXuTaQEHR2oNasQFnoECDIQAQ&usg=AOvV aw39uUv7HbJ6LQ-4Q7zAlwn9. Similarly, a report published by Punjab Economic Research Institute (PERI) i.e. Explanatory Analysis of Road Traffic Accidents in Punjab (2015-2019) concludes that 90% of the causes of road accidents are attributed to the drivers. See. Chapter 3 (3.3). https://peri.punjab.gov.pk/system/files/456%2520Exploratory%2520Analysis%2520of%2520Road%2520Traffic%2520Accidents%2520in%2520Punjab%2520%25282015-
[19]. Brown v. Rolls Royce Ltd. {[1960] 1 All ER 577}.
[20]. Ellor v. Selfridge & Co. Ltd. [(1930) 46 TLR 236]
[21]. Isaac Walton & Co. Ltd. v. Vanguard Motor Bus Co. Ltd. [(1908) 25 TLR 13].
[22]. Bhagyawati Mittal v. Uttar Pradesh State Road Transport Corpn Lucknow (AIR 1978 All 356).
[23]. Gopibai Ghansbamdas Advani v. Food Corpn of India, Bombay (AIR 1983 Bom 137).
[24]. “Rustam and others v. Jehangir (deceased) through L.R.s” (2023 SCMR 730); “Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others” (PLD 2021 SC 715); “Manzoor Hussain v. Misri Khan” (PLD 2020 SC 749); “Hameeda Begum v. Irshad Begum” (2007 SCMR 996).
[25]. Pakistan through Secretary, Ministry of Defence and others v. Haji Abdul Razzaque (2005 SCMR 587); Al-Amin Goods & Malik Abdul Habib supra.
[26]. N K V Bros (Pvt) Ltd. v. M Karumai Ammal [AIR 1980 SC 1354].
[27]. Messrs Sui Northern Gas Pipelines Limited (SNGPL) v. Messrs Noor CNG Filling Station (2022 SCMR 1501).
[28]. Keramat Ali and another v. Muhammad Yunus Haji and others (PLD 1963 SC 191); Khulna and 4 others v. Abdul Jabbar and 9 others (PLD 1968 SC 381).
[29]. Abbasia Cooperative Bank (Now Punjab Provincial Cooperative Bank Ltd.) through Manager and another v. Hakeem Rafiz Muhammad Ghaus and 5 others (PLD 1997 SC 03).
[30]. Pakistan Television Corporation v. Noor Sanat Shah (2023 SCMR 616).
[31]. Noor Sanat Shah ibid (2023 SCMR 616).
[32]. Sardar Yar Muhammad Rind v. Election Tribunal Balochistan, Quetta and others (PLD 2020 SC 137); Amir Bibi through Legal Heirs v. Muhammad Khurshid and others (2003 SCMR 1261); Macdonald Layton & Company Pakistan Ltd. v. Uzin Export-Import Foreign Trade Co. and others (1996 SCMR 696).
[33]. “Sundas and others v. Khyber Medical University through V.C. Peshawar and others” (2024 SCMR 46).
[34]. Superintendent of Police, Headquarters, Lahore and others v. Ijaz Aslam and others” (2024 SCMR 1831).
[35]. POSCO International Corporation through Authorized Officer v. RIKANS International through Managing Partner / Director and 4 others (PLD 2023 LHR 116).
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