Mst. Halima Bano and Ors (Appellant) VS Habib Khan and Ors (Respondent)

ORDER SHEET

JUDGEMENT SHEET

IN THE HIGH COURT OF SINDH, KARACHI.

H.C.A. No. 195 of 2003

Present

Mr. Justice Khilji Arif Hussain

Mr. Justice Arshad Noor Khan.

Date of Hearing; 12/02/2009

Mr. K.B.Bhutto advocate for the appellant.

Mr. Badar Alam advocate for the respondent.

Khilji Arif Hussain,J:- Aggrieved by the Judgment and decree passed by the learned Single Judge in Suit No.731/1995, decreeing the suit against defendant No.1 and 2 for rs.24,48,000/- and against defendant No.4 for Rs.20,000/- and dismissing the suit against respondent No.3 and 4, the appellant preferred this appeal.

The appeal has been filed aggrieved by the Order of dismissal of Suit against Respondent Nos. 3 and 5. The facts to decide the dispute can be summarized as that on 27/02/1994 Mini Bus No.PE-1717 caused accident resulting victim Muhammad Iqbal died on the spot. Legal heirs of the deceased Muhammad Iqbal filed Suit under Section 1 of the Fatal Accident Act 1855 against respondents. Respondent No.1 was a driver of the Mini Bus, respondent No.2 was recorded owner of the said Mini Bus while respondent No.3 is said to have purchased the said vehicle and unrecorded owner of it at the time of accident, the respondent No.4 was Insurer of the Mini Bus and respondent No.5 gave the Bus under Hire Purchase Agreement to Respondent No.2 and was co-owner of it.

The respondent No.3 filed written statement and categorically denied that he is the owner of the vehicle in question. The respondent No.2 filed w/s and stated that he has purchased the vehicles under Prime Minister Scheme from respondent No.5 and after getting physical possession of the said vehicle has entered into an agreement with respondent No.3, the respondent No.3 handed over physical possession of the said vehicle to him.

On the basis of pleading, issues were framed and evidence was recorded, learned Single Judge decreed the suit against respondent Nos.1 and 2 for Rs.24,48,000/- and also against respondent No.4 for Rs.20,000/- and dismissed the suit against respondent Nos. 3 and 5.

Heard Mr. K. B. Bhutto learned advocate for the appellant and Mr.Badar Alam learned advocate for the respondent No.5.

Mr.

K. B. Bhutto learned advocate for the appellant vehemently argued that appellant in her statement stated that respondent No.5 is co-owner of the Mini Bus in question and appellant’s witness were not cross-examined by the respondent. The appellant Mst. Halima Bano in her examination-in-chief stated that respondent No.5 is also joint-owner of Mini Bus. It was argued by the learned advocate for the appellant that Mini Bus in question was purchased from finance provided by respondent No.5 and being co-owner respondent No.5 is liable for damages.

Mr.

Badar Alam advocate for respondent No.5 supported the impugned order.

We have taken into consideration arguments advanced by the learned advocates for the parties, perused the record. It appears that Registration Certificate of the Mini Bus was produced and as per certificate issued by the Excise & Taxation Department respondent No.2 has been shown as owner of the Mini Bus whereas it was recorded in the certificate that Mini Bus has been purchased by Hire Purchase Agreement from respondent No.5 and is non-transferable.

The Respondent No.1/driver who caused accident was under employment of respondent No.2 and respondent No.5 had no control over him as such respondent No.5 cannot be held liable for the act of respondent No.1.

An employer under Tort liability, liable not because of breach of his duty on his part towards the injured person but because later has been injured by some vicarious neglect conduct of the servant though he had no part in such conduct. The Motor Vehicle per se does not constitute a special category or item to impose absolute liability on the owner for damages done by it, irrespective of who was in control of or was driving it, however, could prove to be a powerful factor in determining the capacity of the driver. In the case of Northern IG Insurance Co. vs. Kanwarjit Sing, AIR 1973 All. 357, it was held that until the transfer of ownership is entered in certificate of registration the person in whose favour such Certificate stand is presumed to be the owner.

It is not the case of the appellant that Bus in question at the time when met with an accident was under the supervision of Respondent No.5 and respondent No.1 was employee of respondent No.5 and in due course of their business accident was occurred.

The Respondent No.5 had only lien charge on the Mini Bus in question and it was the respondent No.2, who was enjoying the possession of it, doing business, engaged respondent No.1 as his driver who caused the accident in question while in his employment.

In the case of Rajasthan State Road Transport Corporation vs. Kailash Nath Kothari & other, AIR 1997 SC 3444, the Hon’ble Supreme Court of India held that,

“The definition of owner under Section 2(19) of the act is not exhaustive. It has, therefore to be construed, in a wider sense, in the facts and circumstances of the given case. The expression owner must include, in a given case, the person who has the actual possession and control of the vehicle and under whose directions and commands the driver is obliged to operate the bus. To confine the meaning of ‘owner’ to registered owner only would in a case where the vehicle is in actual possession and control of the hirer, not be proper for the purpose of fastening of liability in case of an accident. The liability of the “owner” is vicarious for the tort committed by its employer during the course of his employment and it would be a question of fact in each case as to on whom can vicarious liability be fastened in the case of an accident.........

The general proposition of law and the presumption arising there from that an employer, that is the person who has right to hire and fire the employee, is generally responsible vicariously for tort committed by the concerned employee during the course of his employment and within the scope of his authority , is a refutable presumption . If the original employer is able to establish that when the servant was lent, the effective control over him was also transferred to the hirer, as the case may be, must be held vicariously liable for the tort committed by the concerned employee in the course of his employment while under the command and control of the hirer notwithstanding the fact that the driver would continue to be on the pay roll of the original owner.

We would like to mention here that in the agreement before the Hon’ble Supreme Court of India there was a term in the same missing liability in the case of accident of owner of the vehicle and in spite of that hiree was held liable for the tort of driver.

For the foregoing reasons, Appeal has no merit and accordingly dismissed.

JUDGE

JUDGE