KAMINA Versus A1-AMIN GOODS TRANSPORT AGENCY

This suit has been filed by Mst. Kamina widow and Amir Khan father of deceased Nasim Khan for recovery of damages in the following circumstances:

2. Plaintiff No. 2, the father of the deceased, was owner of Truck No.PRA‑7937. He also used to drive the said truck, while his son deceased Nasim Khan used to work as conductor on it. Besides the two persons mentioned above Syed Hawaz was employed as co‑driver and Illyas as Conductor on the said truck. The plaintiff used to pay Rs.400 per month to each of them. It is claimed that out of his income the deceased used to give Rs.300 per month to his wife plaintiff No. 1. On 23‑7‑1975 the defendant No.1, which is Transport Agency, engaged the truck of plaintiff No. 2 on hire for transporting 23 drums to Lahore. These drums belonged to defendants Nos. 2 and 3. It is alleged that neither defendants Nos.2 and 3, nor plaintiff No. 2 disclosed that the drums contained any poisonous stuff. The drums also did not carry any insignia to show that these contained any poison, D.D.T. or any pesticides. Plaintiff No. 2 started his journey on 23‑7‑1975 alongwith the above 3 persons namely Syed Hawaz Khan co‑driver, Nasim Khan and Ilyas conductors. When the truck reached between Patoki city and Lahore the two conductors, who were sitting with drums inside the body of truck, felt a stinky smell, resulting into giddiness. The driver also felt similar smell. As the defendants had not taken any precaution to avoid leakage the result was that the drums which were in the deteriorated condition started leaking. The plaintiff No. 2 unloaded the drums at the destination and carried Nasim Khan and Illyas to Mayo Hospital, Lahore where both of them died. It is stated that the material contained in the drums was highly poisonous insecticide, as a result of which both of them had died. By this suit compensation is claimed only in respect of Nasim Khan who is said to be aged about 25 years and enjoyed a good health and was expected to live upto 65 years. The compensation has been calculated as Rs.2, 09, 000. Besides this interest and cost has also been claimed.

3. The suit has been contested by all the 3 defendants. Defendant No. 1 has admitted having engaged truck No. PRA‑7937 of plaintiff No‑2 on hire for transporting the goods of defendants Nos. 2 and 3 which were about 23 drums. It is stated by defendant No.l that it was disclosed at the time of loading of the said drums that these drums contained poisonous stuff and displayed the insignia of bones, skull and poison. It is stated that an officer of defendants Nos. 2 and 3 who loaded the said drums in his presence also explained to and cautioned the driver and conductors that the drums contained poisonous items and should be handled properly with all due care. The drums were in good condition at the time when they were loaded. It was denied that the death of the two deceased was due to the poisonous material carried in the drums. Besides this plea various other pleas were taken which were evident from issues.

4. The defendants Nos. 2 and 3 also filed a written statement wherein they have alleged that the material transported was pesticide and marked with Insecticide and Insignia of cross bones skull and the word 'Poison' on all the drums. It is further stated that in the bilty there was written in Zariy fasal kera mar dawai and directions were given to the drivers/owner to contract on phone in case of any hazard. It is submitted that the truck was loaded on 23‑7‑1975 and reached Lahore on 26‑7‑1975. It is alleged that the deceased conductors had apparently fallen ill while returning from Lahore on 27‑7‑1975 due to some other reasons and had died.

5. On the pleadings of the parties following issues were framed:

(1) Whether the suit is bad for non‑joinder. If so, to what effect?

(2) Whether the defendants disclosed to the owner/drivers/ conductors of truck No. PRA‑7937 at the time of loading the drums that they contained pesticide marked with insecticide insignia of cross bones skull and the word 'Poison' on all the drums? If so, to what effect?

(3) Whether the defendants imparted necessary instructions to the owner/drivers/conductors of truck No. PRA‑7937 regarding loading and unloading of drums containing the said poisonous pesticides /insecticides? And whether they were directed to contact the defendants on phone, the phone number mentioned in the bitty, in case of any hazard?

(4) Whether the death of Nasim Khan was occasioned due to the direct result of the poisonous D . D . T . being so negligently loaded without observing the necessary precautions on the part of the defendants? If so, to what effect?

(5) Whether the deceased, Nasim Khan, died on account of his own negligence and for not observing the necessary instructions/directions/given to him and the owner/driver conductor of the Truck No. 7937 by the defendants at the time of loading drums? If so, to what effect?

(6) Whether plaintiffs have paid proper court‑fees? If not, to what effect? '

(7) Whether the defendants, are liable to pay compensation to the plaintiffs on account of the death so caused to the said Nasim Khan as alleged in the plaint.

My findings on these issues are as under:‑

(1) No.

(2) No.

(3) No.

(4) Yes.

(5) No.

(6) Not pressed.

(7) Yes, but only defendants Nos. 2 and 3.

(8) Suit decreed for Rs.1,00,000 (Rs. one lac) and costs against defendants Nos. 2 and 3.

Issues Nos. 1 to 8:

Since all the issues are inter‑connected, therefore, I propose to take up all these issues together.

6. It is an admitted position that 23 drums containing agricultural insecticides which belonged to defendant No.2. Government of Punjab were booked by their employee defendant No.3 Deputy Assistant Director Technical, Karachi from Karachi, on 23‑7‑1975 for being transported to Lahore. These drums were loaded with defendant No.l which is a transporting agency and were carried on the truck which was engaged by defendant No.l. The number of truck was PRA 7937 and it was owned by plaintiff No.2. He was also the driver. Plaintiff No.2 was accompanied by his son deceased Nasim Khan who was helping his father and working as a conductor. Besides co‑driver Hawaz Khan and another conductor, Illyas were also accompanying plaintiff No. 2.

Plaintiff No.2 has examined himself as Exh.7. His evidence is very important. He is an eye‑witness of the incident. He has stated that when the drums were being loaded, no one at the place of loading, told them about the nature of contents of the drums. They started journey towards Lahore at 5 p.m. on 23rd July, 1975. On 26‑7‑1975 they reached Patoki where they found that some of the drums were leaking. 2 drums were sticking to each other. There was a very stinky smell coming out from the drums. Both the conductors were feeling like vomiting. They made efforts to stop the leakage but without any success. After unloading the drums at their destination the witness removed 'both the conductors to Mayo Hospital, Lahore. They were admitted in the hospital as due to vomiting and pain in the stomach their condition had become very precarious they had gone unconscious. Thereafter both of them died in the hospital.

No doubt the defendants have denied in their written statement that the death of the two conductors was due to the effect of insecticide but they have not led any evidence to that effect. Plaintiffs have examined Mian Muhammad Saqib Statistical Officer, Mayo Hospital, Lahore on commission who has produced the death certificates of both Nasim Khan and Illyas as Exhs. 7/2 and 7/1, which make it clear that the two deceased had died due to poisoning by insecticide. The plaintiff's evidence is most convincing and natural and gives a ring of truth and fits in with the circumstances of the case.

7. Burden to prove that they had taken necessary precautions and imparted necessary instructions while sending these drums was on the defendants Nos. 2 and 3. Defendants Nos. 2 and 3 have examined Rana Mohammad Yousuf an Under‑Secretary of Agricultural Department of Punjab Government as Exh.8, who claims to have been present at the time the drums were loaded. He states that they had pasted on each drum insignia showing skull and cross‑bones on which word 'poison' was written. He has also stated that there was no leakage from the drums at the time of loading. He had told the driver that the material contained in the drums was poison. I do not find his evidence worthy of belief. Normally senior officers are not present at the time of loading of Government consignments. All such loading is done by labourers and is at the most supervised by junior ministerial staff. The loading was done in the Store of the defendants Nos. 2 and 3. The claim of the witness that he was the only officer present at the time of loading and no other official was present, in itself shows that the claim is not believable. The bilty produced by witness no doubt shows that the consignment was mentioned therein as agricultural insecticide but there is no mention that the same was dangerous to human life or highly poisonous. The question 'as to on whom the burden of proof in such circumstances would lie, has been dealt with in the case of Ursulina D'Lima v. Orient Airways Limited reported in P L D 1960 Kar. 712 Wahiduddin Ahmed, J. while discussing the rule of res ipsa loquitur observed that the accident speaks for itself and it is sufficient for the plaintiff to prove the accident and nothing more. It is then for the defendants to persuade the Court that the accident arose not through their negligence. The relevant para reads as under:‑

"Thus, it is obvious that there is no direct evidence about the cause of the crash. In fact there could be none as none of the persons travelling in the aircraft survived. The best evidence which could throw light on this point was the report of the official enquiry held to find out the cause of the accident. It is true that the general rule is for the plaintiff to prove negligence and not for the defendant to disprove it, but in those cases where the true cause of the accident lies solely within the knowledge of the defendants this hardship is avoided by invoking the rule of res ipsa loquitur. Under it in those cases where the accident speaks for itself it is sufficient for the plaintiff to prove the accident and nothing more. It is then for the defendants to persuade the Court that the accident arose not through their negligence. This principle was recognised by their Lordships of the Privy Council in Aspro Limited v. Commissioner of Taxes and in Grant v. Australian Knitting Mills Limited and others. This maxim was also applied by Goddard, J. in Fosbroke Hobbes v. Airwork Ltd. and British American Air Services Ltd. in a case of aircraft crash."

In another case Mst. Sharifan v. KESC reported in P L D 1981 Kar. 701 where the evidence established that the deceased died of electrocution and the defendants having knowledge of dangerous situation and defaulting in performance of their duty and on the basis of evidence on record and probability of accident having happened on account of protective measures not being of required standard the fatal accident was held as having taken place due to direct negligence of the defendants. It was further observed by the Court as follows and it will be useful to reproduce the said observation:

"I am, therefore, of the view that evidence has not been brought on record that all reasonable protective measures had been adopted by the defendant corporation in the instant case and on the basis of the evidence on record and the probability being that the accident happened on account of the protective measures being not of the required standard the accident that took place was the direct result of the negligence of the defendant. The contention that the accident was the direct result of an act of God has no merit. In my view it was an accident which could have been avoided if requisite steps for maintenance of protective measures had been taken by the defendant. I accordingly decide this issue in the affirmative and against the defendant."

9. Similar view has also been taken in the case of Barkat Ali v. KESC reported in P L D 1983 Kar. 453 where the death was caused by electrocution. No evidence was produced on record that the Electric Company had properly maintained electric pole and wires and had taken protective measures. The company was held to have been negligent.

10. Mr. Munawar Ghani, Advocate appeared for the defendant No.l and has submitted that defendant No.l A1‑Amin Goods Transport Agency cannot be held liable for the said accident. According to him the goods belonged to defendant No.2 The same were booked by defendant No.3 from Karachi. It was the duty of defendants Nos. 2 and 3 to have taken full protective measures against any danger from the said poison and to have warned the plaintiff No.2 and the three persons accompanying him of the consequences and the risk from the transportation of the said goods. They had not even warned defendant No.l about the risks involved in the transport of the said consignment. Since he was unaware of the said danger himself now was he expected to warn others of the same. No evidence has been led by the defendants Nos. 2 and 3 which can show that defendant No.l was made aware of the risk surrounding the transport of the said consignment. The contention of Mr. Munawar Ghani appears to be sound and reasonable.

10. I, therefore, hold that defendants Nos. 2 and 3 had not taken necessary precautions and had not warned the drivers, conductors or even the defendant No. l about the danger surrounding the transport of the consignment.

11. Now I come to the question of compensation to which the plaintiffs are entitled. The plaintiffs have shown that the deceased was contributing Rs.300 per month to them. He was a young man of 25 years. The income of deceased Nasim Khan and his age do not appear to have been disputed. Even otherwise with the rising cost of living such amount of earning is not unreasonable. The plaintiffs have shown the expected age upto which the deceased would have lived as 65 years but in the absence of evidence in support thereof the same can be fixed in view of the settled law on the point as 60 years. After taking into consideration various factors I fix the amount of compensation to which the plaintiffs would be entitled at Rupees one lac. I direct that this amount be apportioned between the plaintiffs Nos. 1 and 2 equally. The suit is, therefore, decreed in the sum of Rupees one lac as against defendants Nos. 2 and 3. The liability of defendants Nos. 2 and 3 will be joint and several. No order for interest is passed but it is directed that the costs of the suit shall be borne by defendants Nos. 2 and 3. The suit against defendant No. 1 is dismissed with no orders as to costs.

M . Y. H . / K‑61/ K Suit decreed.