KARACHI TRANSPORT CORPN. and another vs MUHAMMAD HANIF and others

ORDER

' SABIHUDDIN AHMED, J.--- These petitions are directed against a Division Bench judgment of the Honourable High Court of Sindh upholding the judgment and decree of a learned Single Judge, dated 21-2-2002 decreeing the respondents' suit for Rs,1,428,000.

2. Briefly, the facts appear to be that one Samandar Khan died while standing on footpath upon being hit by a bus on 5-5-1997. He was. Survived by a number of legal heirs including the respondents Nos.1 to 4 who were minors at the time of his demise. It appears that whereas no suit for recovery of compensation was filed within the time prescribed by the Limitation Act, a suit on behalf of the respondents Nos.1 to 4 was filed on 3-8-1988 alleging that the death was caused through the rash and negligent driving by the driver of the bus hitting the deceased. The suit was contested and apparently it appears that on 13-11-1996 two additional issues were framed in the following terms:--- "(1) Whether the plaintiffs who are minor legal heirs of the deceased can bring a suit for compensation under sections 1 and 2 of the Fatal Accidents Act, 1855 after expiry of period of limitation as provided under Article 21 of the Limitation Act and before the period of disability ceased to exist, as provided under section 6 of the Limitation Act? And

(2) Whether to avail benefits of section 6 of the Limitation Act, plaintiffs are required to show that no other person was competent to give discharge on behalf of minors as provided under section 7 of the Limitation Act?

3. During the pendency of the suit it was brought to the notice of the Court that the petitioner No,1 (Karachi Transportation Corporation) was being wound up through an agreement dated 12-3-1997 the petitioner No,2 (Government of Sindh) acquired its assets. Consequently, the aforesaid petitioner was also arrayed as a party. Evidence was recorded and the learned single Judge vide judgment dated 21-1-2002 decreed the suit jointly and severally against the defendants i,e, the petitioners Nos.1 and 2 as well as the driver of the vehicle.

4. The judgment was called in question in appeal and apart from factual issues it was urged that the suit was barred by limitation and that since the accident occurred, long before the assets and liabilities of the petitioner No,1 were taken over by the petitioner No,1, the latter was not liable to compensate the respondents. The Division Bench hearing the appeal found through well-reasoned judgment that both the contentions amongst others were untenable and accordingly dismissed the appeal.

5. Mr. Abdul Fateh Malik, learned Additional Advocate-General appearing for the petitioners attempted to call in question both the aforesaid findings of the Honourable High. Court. As regards the question of limitation he urged that since the suit was eventually filed during the minority of the respondents through a next friend the benefit of sections 6 and 7 were not available to them. The above contention we are afraid is untenable. It is evident from the plain language of section 6 that an extended period of limitation has been made available to persons suffering from a legal disability. However, there is nothing to suggest that such benefit could not be availed merely because of a possibility to sue through a next fried or even upon filing a suit during the period of minority. The consistent view of the High Court of Sindh in cases under the Fatal Accidents Act itself reflected in the cases of (i) Iftekhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550, (ii) Muhammad Aqil Khan v. Akhtar Hussain and others PLD 1971 Kar. 864, (iii)

Mariyum and 3 others v. Ali Bahadur 1991 CLC 692 and (iv) Karachi Electric Supply Corporation through Secretary v. Aisha Kanwal and 3 others 2000 MLD 697 reflects the correct state of law and we are inclined to endorse the same.

6. As regards the contention that the petitioner No,2 is not accountable for the liabilities of the petitioner No,1 incurred prior to the agreement dated 12-3-1997 it is evident from the impugned judgment that in terms of the agreement, dated 13-3-1997 both the assets as well as the liabilities of the petitioner No,1 were taken over by the petitioner No,2 and there was no clause in the agreement indicating otherwise. Even otherwise when such takeover was effected through an agreement with the respondent No,1 (which obviously did not loose its corporate entity as is evident from the memo. Of petition itself) it does not appeal to common sense how a party through a voluntary agreement would part with its assets and at the same time retain its liabilities.

In any event even the agreement dated 12-3-1997 has not been placed on record to enable us to take a view different from one taken in the impugned judgment. The plea in the memo. Of petition to the effect that the petitioners were not liable for the wrongful acts of its employees taken in the memo. Of petition was not even pressed as the learned Additional Advocate-General is well aware of the settled principle of law that an employer is always vicariously liable for acts of its employees performed in the course of duties. Nevertheless he attempted to persuade us to take the view that the accident did not occur owing to negligent driving but on account of failure of brakes. In this context he contended that the driver had been acquitted in a' criminal case arising from the same incident and that the respondents witness had himself admitted failure of brakes.

5.(sic) All that needs to be said in the above context is that standards of appraisement of evidence in criminal and civil cases are altogether different and the findings of a Criminal Court would not bind a Civil Court. Moreover, apart from the above even the judgment of the Criminal Court or the depositions of the respondents' witness were not placed on record. In any event it is not the function of this Court to sit in judgment over appraisal of evidence undertaken in the concurrent findings of the Courts below in civil disputes.

6.(sic) For the above reasons we are of the view that there is absolutely no merit in these petitions which are dismissed. Leave to appeal is, therefore, refused.