SHAHJEHAN BEGUM Versus GOVERNMENT OF SIND

Plaintiff Mst. Shahjehan Begum has filed this suit for recovery of Rs.3,00,000 as compensation for the death of her son deceased Naeem Akhtar under the Fatal Accidents Act, 1855.

2. Case of the plaintiff is that on 26‑1‑1987 Mukhtar Ahmed while driving Pick‑up No. GS‑9934 in a rash and negligent manner on I.I. Chundrigar Road near Grindlays Bank dashed the same against Naeem Akhter who received fatal injuries and died on account of the said accident. The said vehicle belonged to Eagle Squad Wing of Sind Police Department, Government of Sind, the defendant No. 1 and Mukhtar Ahmed who was driving the jeep at the relevant time was an employee of defendant No.1. The deceased at the time of his death was earning Rs.1,200 per month by working as Computer Operator and also used to do private work of surgery in the clinic of his brother and used to earn Rs.500 to 600 per month. The plaintiff Mst. Shahjehan Begum is the only heir of the deceased. Her age at the time of the accident is shown as 57 years. She has been deprived of the pecuniary benefit that she would have received from her deceased son. Hence this suit.

3. The defendants were served by summons but they have chosen to remain absent. Hence the suit has proceeded ex parte against them. Plaintiff's elder son and the attorney of the plaintiff has filed his affidavit and the certificate of Grindlays Bank showing that at the time of the death the deceased was drawing gross salary of Rs.1,905.58. It is dated 15‑8‑1988. Appointment order has also been produced, which is dated 28‑2‑1983, which shows that the starting gross salary of the deceased was Rs.973.80. A photocopy of F.I.R. and that of the death certificate has also been produced. In addition affidavit of Anwar Ahmed, one of the eye‑witnesses, has also been filed. This evidence of the plaintiff has gone unchallenged and unrebutted. From the evidence thus produced I am satisfied that the death of the deceased Naeem Akhter was caused by the accident on 26‑1‑1987 when he was dashed by a Pick‑up/van which was being driven by Mukhtar Ahmed rashly and negligently. I am also satisfied that the said van was being driven by Mukhtar Ahmed who was employee of Eagle Squad Wing of the Police Department of Government of Sind. Hence the Government of Sind is vicariously liable for the act of their employee and driver Mukhtar Ahmed. I am also satisfied that Mst. Shahjehan is the mother and the only surviving heir of the deceased Naeem Akhter and that her age at the time of accident was 57 years.

The affidavit further shows that Mst. Shahjehan was maintaining an excellent health and therefore I hold that her expected life would be upto the age of 65 years.

4. The plaintiff has not joined Mukhtar Ahmed,' the driver who was driving the Pick‑up at the time of accident and therefore it could be argued that he being primarily responsible for the accident and the master i.e. Government of Sind being only vicariously liable for the same, failure of the plaintiff to implead the driver could be fatal to the suit. This argument is not sound. A Master is jointly and severally liable for any tort committed by his servant while acting during the course of his employment. Since this liability is joint and several the mere fact that the person who was primarily liable has not been sued does not absolve the person who was vicariously liable. Reference in this connection was made to the case of Mst. Gaurabai v. Jagdish Prasad reported in A I R 1984 Bom. 2311 where it was held as follows:‑

"It is well‑established that the master is bound by the act of the servant, even if the act is unauthorised or prohibited, provided the act was within the scope of the service or employment. The principle is that, when a servant does any act which he is authorised by his employment to do under such circumstances and conditions and does it in a manner which is unauthorised and improper, even then the employer is liable for the wrongful act of the servant. Moreover joint wrongdoers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any one of them separately for the full amount of the loss, or he may sue all of them jointly in the same action, and even in this latter case the judgment so obtained against all of them may be executed in full against any one of them."

Reference was also made to another Indian ruling in the case of Vanguard Fire and General Insurance Co. v. Sarla Devi reported in A.I.R. 1959 Punjab 297 where it was held that joint wrongdoers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any one of them separately for the full amount of the loss; or all of them jointly in the same action and even in this latter case the judgment so obtained against ail of them may be executed in full against any one of them. A master is jointly and severally liable for any tort committed by his servant while acting in the course of his employment.

5. Having taken into consideration the above discussion I am of the clear view that although the driver of a vehicle is primarily responsible for causing an accident, a suit for damages could be maintained against the employer of the said driver without making the driver a party.

6. I am also satisfied that the plaintiff would have received a support of Rs.1,200 per month from her deceased son after deducting the personal expenses etc. of the deceased. Calculating the amount of compensation at that rate for a period of 8 years comes to Rs 1,15,200. I, therefore, decree plaintiff's suit for the said amount against defendant No.1. The costs of the suit shall be borne by defendant No.1. I further allow interest at the rate of 10$ per annum from the date of suit till the realization of the decretal amount.

H.B.T./S‑246/K ????????????????????????????????????????????????????????????????????? Suit decreed.