' This Constitutional petition seeks judgment/ order dated 23-6-2000 passed by the Additional District Judge, Lahore, whereby revision petition of the respondents was accepted and application tinder Order IX rule. 9 C.P.C., filed by the petitioners was ordered to he dismissed, to be declared as illegal and void.
2. A short factual background of the case is that the petitioners filed a suit for specific performance of an agreement to "'sell-lated 11-8-1986 with declaration, as consequential relief, on 4-1-1990.i The respondents being defendants. In the suit contested it by filing a written statement. Subsequently, the petitioners suit was dismissed, on account of its non-prosecution by them on 15-1-1996. The petitioners filed an application for restoration of the suit on 7-4-1996 and asserted that on 1-4-1996, the suit was enlisted on the daily cause list of Senior Civil Judge, Lahore, and they were directed to file an amended plaint on 8-1-1996. On this adjourned date, suit of the petitioners was shown in the daily cause list of Senior Civil Judge but the Presiding Officer wason leave and the Reader of the Court, adjourned the case, on the cause list with him, by fixing a date as 10-1-1996. On the next adjourned date, suit was dismissed for non-prosecution by some other Civil Judge to whom it was transferred by the learned District Judge, on administrative side. The petitioners claimed that file of their suit was not traceable and thence they could not file an application, for restoration, in time.
3. The respondents contested the restoration application on the ground that the petitioners deliberately did not appear on the date fixed in the suit, as parties were negotiating for compromise which subsequently failed. They also asserted that application of the petitioners seeking restoration of suit, was barred by limitation. Ultimately, the learned Civil Judge, who was seized of the matter, vide his order dated 25-9-1996 accepting both the applications of the petitioners, one for restoration of the suit and the other seeking for condonation of delay in filing this application, restored the suit subject to payment of costs of Rs.1000 which were received by the learned counsel for the defendants.
4. The respondents were not satisfied, in spite of receipt of costs under the orders of the trial Court dated 25-9-1996 and consequently filed a civil revision before the Additional District Judge which was accepted by him vide his judgment dated 23-6-2000, setting aside the order of the trial Court, directing restoration of the suit and dismissed the application of the petitioners under Order IX rule.
9 C.P.C. As well as, application under section 5 of the Limitation Act, 1908. The petitioners have now come up in Constitutional jurisdiction of this Court against the judgment/order of the Additional District Judge seeking its annulment, as noted above.
5. Civil Miscellaneous No.2 of 2000 was filed by the writ-petitioners praying restraint order against the respondents from alienating the property in dispute. On this application. This Court on 7-8- 2002 directed status quo to be maintained, now is fixed for confirmation of the stay order. The office had issued notice to the respondents and their service had been effected. Fixation of case for today was intimated to them through notice under postal cover but nobody turns up to defend this petition except respondent ,No.2 who is represented through his counsel, who submits that his client is the only contesting party and thus, instead or hearing stay matter, main writ petition may be heard. Learned Counsel for the writ petitioners has no objection to the hearing of main case today. Remaining respondents are absent in spite of service, they are proceeded ex parte.
6. Learned counsel for the petitioners submits that the trial Court had exercised a discretion vesting in it, in form of restoration of suit,condoning the delay and this exercise could not have been interfered in revisional jurisdiction and that too, without there being any just cause or reason for setting aside a reasoned order of the trial Court. He further submits that judgment of the revisional Court is conjectural in nature and proceeds on extraneous reasons which is not recognized by law, thus, the same is not sustainable. He also contends that respondents had accepted/received costs of Rs.1000/- awarded by the trial Court for restoration of the suit and after this receipt they were estopped under law to challenge the order and thus, revision petition before the Additional District Judge was not maintainable. He also urged that restoration application filed by the petitioners under Order IX, rule 9, C.P.C. Makes out a sufficient cause for restoration of the suit as it contained a rightful explanation for their non-appearance in the suit when the same was called on for hearing on account of transfer by the District Judge on administrative side, without notice to them and in this manner he claimed that order dated 25-9-1996 passed by the trial Court was in consonance with the settled principles pronounced by the superior Courts while dealing with the matters under Order IX rule. 9 C.P.C.
7. Conversely, the learned counsel appearing on behalf of respondent No.2 besides supporting the judgment of the Additional District Judge, refuted the submissions of the petitioners and urged that no doubt case was transferred from the Court of Senior Civil Judge to an other Civil Judge under administrative orders of the District Judge, but a list of cases transferred under these orders, was duly displayed outside the Court room which was a necessary compliance of the rules and a fresh notice cannot be claimed from the transferee Court by the petitioners. He further argues that since the case in hand was also included in the list displayed by the Senior Civil Judge, on the day of transfer, it will be presumed that the transfer was within the notice of the petitioners, as such, condonation of delay in filing a time-barred application, cannot be allowed. The answering arguments with regard to receipt of costs under the order of restoration, he urged that acceptance of costs do not create estoppel to challenge the order itself in the higher forum. In this behalf, he relied on The Crown v. Mahmood Khan and 2 others (PLD 1954 Baghdad-ul-Jadid 18) and Hashmat Ali v. Sheikh Hafizullah and others (PLD.1956 (W.P.) Baghdad-ul-Jadeed 33).
8. 1 have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith.
9. Reasons advanced for non-appearance by the plaintiffs for restoration of their suit, furnished sufficient cause for the order passed by the learned trial Judge under Order IX rule. 9 C.P.C. On these grounds invocation of discretion in favour of the petitioners under section 5 of Limitation Act, 1908, by the trial Court was also justified. Without going into the merits or demerits of the order passed by the trial Court, I find that discretion by it was exercised in favour of the petitioners, judiciously subject to payment of costs of Rs.1000 compensating the respondents/defendants, for inconvenience suffered by them due to non-appearance of the petitioners and it could not have been interfered with in revisional jurisdiction as the trial Court had not acted illegally and materially irregularity. Jurisdiction vesting in a Court when not shown to have been exercised arbitrarily or fancifully, no interference in revisional jurisdiction is justified because revisional Court, cannot under law, substitute its own viewpoint, in place of the one taken by the Court, trying the suit. Had there been any jurisdictional defect in the order passed by the trial Court or there had been any illegality or irregularity, interference could have been justified but in absence of all these pre- requisites, I find that order of Additional District Judge is not justified. Above all, respondents having admittedly received an amount of Rs.1000/- from the petitioners, as costs, awarded to them, were estopped under law to challenge that order.In this manner, revision petition filed by the respondents was not maintainable. Both the judgments relied by the learned counsel for the respondents proceed on altogether different facts and have no applicability to the facts of the case in hand. Latter this Court in case of Elahi Baksh and others v. Sardar Begum (PLD 1967 Baghdad-ul-Jadeed 5) changed its viewpoint and held that costs accepted under some order, would amount to acquiescing the order. In another case the Hon'ble Supreme Court of Pakistan in their alighted judgment Sultan alias Sultan Ahmed v. Mehr Nawazish Ali and another (1971 SCMR 185) took the view that by acceptance of costs, party is estopped to challenge the order under which the costs were awarded. In the precedent case amendment of plaint was allowed subject to costs which were accepted by the defendants whereafter they challenged the order of amendment in revision before this Court which was dismissed on account of acceptance of costs.
The Hon'ble Supreme Court of Pakistan upheld the order passed by this Court and held that revision petition by the party accepting costs, is not maintainable. I respectfully following the view taken by the Hon'ble Supreme Court of Pakistan, hold that since the respondents had accepted the costs under the order of restoration of suit, passed by the trial Court, they were estopped to challenge the order of restoration dated 25-9-1996 and thus, their revision petition before the Additional District Judge was not maintainable.
10. For what has been discussed above, judgment/order impugned herein, being tainted with material irregularity and illegality is not sustainable at law and consequently, I accept this Constitutional petition and declare the judgment/order dated 23-6-2000 passed by the Additional District Judge as illegal and void and in result thereof suit of the E petitioners shall be deemed to be pending before the trial Court under its order dated 25-9-1996.
11. It is informed that the trial Court has since been demolished, parties are directed to appear before the District Judge, Lahore, on 12-1-2004, who shall entrust the suit of the petitioners to any Civil Judge having jurisdiction in the matter for its decision on merits in accordance with law.
Parties are left to bear their own costs.
Petition allowed.
2004 MLD 491 [Karachi] &fore Maqbool Baqar, J AIJAZ and 6 others---Plaintiffs. versus KARACHI TRANSPORT CORPORATION through Chairman, Director or Secretary and 2 others---Defendants Suit No. 1210 of 1991, decided on 17th November, 2003. (a) Fatal Accidents Act (XIII of 1855)--- ----S.1---Death caused by rash and negligent driving---Recovery of damages---Doctrine of `res ipsa loquitur'---Applicability---Onus to prove accident---Failure to produce driver of the bus--- Effect---Where defendants failed to produce driver of the bus involved in the accident, adverse presumption would be drawn against them---Once factum of fatal accident was proved, the burden of plaintiff was discharged and presumption of negligence arose and it was for the defendants to prove the absence of negligence and rashness on their part---Doctrine of `res ipsa loquitur' was applicable in circumstances. [p. 496] A Mst. Zaibun Nisa v. Muhammad and others PLD 1965 Kar.127; Chaman Baig v. Karachi Transport Corporation 1995 CLC 1714; Qazi Arifuddin and another v. Government of Sindh PLD 1991 Kar.291; Pakistan Steel Mill Corporation v. Malik Abdul Hameed and another 1973 SCMR 848; Kandan v. Al Hayat Service (Pvt.) I td 1988 CLC 525; Al Hayat Services (Pvt.) Ltd. v. Kandan 1989 CLC 2153; Bhurmal and Mitra Motor Association v. Raghunath Bansilal Kassat AIR 1963 Bom. 144; Barkway -v. South Wales Transport Co. Ltd. (1950) 1 All ER 392; Halsbury's Laws of England; Mst. Shamim Akhtar v. Javedan Cement 1997 CLC 955 amd Mst. Sakina and 3 others' case 1995 CLC 633 ref.
(b) Fatal Accidents Act (XIII of 1855)--- ----S.1---Recovery of damages---Liability to pay damages---Death due to rash and negligent driving---Onus to prove---Plaintiffs established that the death was caused by accident involving the bus owned by one of the defendants and driven by the other---Effect---Upon proving the occurrence by plaintiffs, the defendants were to prove that the accident had not occurred as a result of negligence and rashness on the part of defendants---Plaintiffs had not only proved the occurrence of fatal accident but had fully established through their witnesses that the same had occurred on account of rash and negligent driving by the defendant whereas nothing was brought on record by the defendants so as to establish that the accident was not caused due to rashness and negligence on the part of driver---Rash and negligent act of the bus driver resulted in the death of the deceased and that the deceased had not contributed chiefly or otherwise to the occurrence of the event---Driver was employee of one of the defendants and the bus was owned by the employee who had assumed the liabilities of the accident, therefore, defendants were liable to compensate the plaintiffs---Judgment and decree were passed against the defendants jointly and severally---Suit was decreed accordingly. [pp. 498, 499, 500] B, C, E & F Inam Naqshbandi v.
Haji Shaikh Ijaz Ahmed PLD 1995 SC 314; Khursheeda v. Haji Qudruttllah 1988 CLC 1062; Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1997 Kar. 253; General Manager Banglore Transport Service v. Narasima Haiah and others AIR 1977 Karnataka 6 and Qudsia Begum v. Younus Khan PLD 1973 Kar. 636 ref.
(c) Fatal Accidents Act (XIII of 1855)--- ----S.1---Recovery of damages---Acquittal by Criminal Court---Death due to rash and negligent driving---Effect---Finding in a criminal case was not conclusive proof of absence of negligence--- In a criminal case it was the duty of prosecution to prove the offence beyond reasonable doubt whereas in suit under Fatal Accidents Act, 1855, onus to prove absence of negligence was upon the defendants---Acquittal in criminal case had no relevance in circumstances. [p. 499] D Nisar Ahmed v. Messrs Hospital Supply Corporation 1999 MLD 13; Chaman Baig v. Karachi Transport Corporation 1995 CLC 1714; Nimi Francee and other v. Mohammad Saeed Qureshi 1982 CLC 1703 and Mst. Qudsia Begum v. Younus Khan and four others PLD 1973 Kar. 636 ref.
Nasir Maqsood, for Plaintiffs.
Tabasum Gazanfer Assistant Advocate-General for the Defendant No3.
Date of hearing: 7th Noverabctr, 2002.
' The brief facts of the case, as narrated in the plaint, are, that on 17-2-1991, the defendant No.2 while driving a Bus bearing No. 855-444, in a rash, negligent and careless manner, on M.A. Jinnah Road, when reached in front of office of Nawa-e-Waqt applied the breaks of the bus in such an abrupt and violent manner that deceased Mohammad Sharif Abbasi who was travelling on the said bus, fell down from the bus, with the impact thereof, and died because of fatal injuries thus suffered by him. F.I.R. In respect of the accident was recorded against the defendant No.2 (driver of the bus owned by defendant No.1 Corporation). It was contended that since the death of the deceased was caused by actionable, wrong, negligence, and wrongful act of defendant No.2 being an employee of defendant No.1 both the defendants are liable to pay compensation. It was averred that the deceased was 38 years of age and was the sole bread winner of the family consisting of eight members. That the plaintiffs, the mother and the widow of the deceased, have been deprived of their present and future pecuniary benefits. It was claimed that the deceased, who was working as a Peon in Sindh Social Security Departmerit, 'was drawing a monthly salary of Rs.1,800. He was also earning Rs.800 p.m by way of overtime each month and with the passage of time, his salary would have increased to Rs.4,500 per month. In addition to his income from his regular employment, the deceased also used to earn a daily wage of Rs.70- by working as a waiter during the evening hours, in Gulistan Hotel, at Ancholi and used to give Rs.4,000 to Rs.4,500 to his widow. It was further claimed that the deceased intended to get retirement after some time and set up a small hotel which could have fetched him an income of Rs.10,000/, to Rs.15,000/- per month. It was contended that since, the plaintiffs have been deprived of paternal training, care, monitory support, proper nourishment and grooming, on account of the death of the deceased and have thus been deprived of better prospects in life, each of them is, therefore, entitled to a compensation of Rs.2,00,000 on this account also. An amount of Rs.2,00,000 was also claimed as compensation for the widow of deceased for loss of association of her husband. An amount of Rs.10,000was claimed, towards funeral expenses.
' The defendants Nos. 1 and 2 were duly served with the summonses of the suit. However, defendant No.2 failed to appear and written statement was filed on behalf of the defendant No.1 only. The defendant No.2 was thus proceeded ex parte. The defendant No.1 in their written statement admitted the ownership of the bus involved in the accident and also that the defendant No.2 was their employee. They however, traversed the allegations pertaining to the cause of accident, as contained in paras Nos.2 and 3 of the plaint, merely by stating that contents of the said paras are not admitted and that the reading of the plaint itself shows that the deceased himself was at fault.
' On the pleadings of the parties, the following issues wereframed:
(1) Whether the death of the deceased Sharif Abbasi was caused on account of rash, negligent and careless driving of the defendantNo.2, driver/employee of defendant No.1 during the course of employment, on 17-2-1992 while driving the Bus bearing No.855-444 of defendant No.1?
(2) Whether the defendants are jointly and severally liable to pay the compensation/damage, as claimed, by the plaintiffs?
(3) Whether the plaintiffs are entitled to cost and interest , as claimed ?
(4) Any other relief or reliefs this Hon'ble Court may deem fit?
(5) What should the decree be?
' During the pendency of the suit, the defendant No.1 Corporation suspended its operation and the defendant No.3 took over the liabilities of defendant No.1, arising out of or likely to arise out of pending cases and thus by a consent order dated 8-9-1998 the defendant No.3 was impleaded in the suit as such, who adopted the written statement filed by defendant No.1.
' After the impleadment of defendant No.3, an additional issue was adopted as follows: ' Whether the defendant No.3 has taken over the liabilities of the defendant No.1 and is liable to pay the compensation to the plaintiff and other statutory beneficiaries by virtue of clause 4 (k) of the Memorandum of Agreement dated 13-3-1997 entered into, inter alia, between defendant No.1 and defendantNo.3, if so, to what extent?
' In support of their case, the plaintiffs examined their uncle/next friend, Mohammad Zaman through his affidavit-in-evidence, who produced the death certificate and medical certificate of the deceased and photo-copies of national identity cards of the deceased, his widow and of plaintiffs Nos. 1 and 2.
' The other witnesses examined by the plaintiffs were, ASI Muhammad Sarwar of Police Station Soldier Bazar and Muhammad Iqbal, an eye-witness of the accident. While the contesting defendants examined Gul Mohammed Soomro, who was at the relevant time, the Manager of the defendant No.1 Corporation.
' Upon consideration of the evidence and hearing the arguments of learned counsel for the plaintiffs and learned Assistant Advocate-General, who appeared on behalf of defendant No.3, my findings on the issues are: ' Issue No.1:The plaintiffs' case was that the fatal accident occurred because of rash and negligent driving of the bus by defendant No.2 (the employee of defendant No.1 Corporation). The defendant No.1 in their written statement, admitted the ownership of the bus involved and also that the defendant No.2 was their employee. They however, traversed the allegations/detailed account, pertaining to the accident, as contained in paragraphs 2 and 3 of the plaint, merely by stating, that the contents of the said paras. Are not admitted. Since the allegations have not been denied specifically, in law the same are deemed to be admitted. In this regard Mr. Nasir Maqsood the learned counsel for the plaintiff has relied on the judgments discussed herein below.
' In the case of Inam Naqshabandi v. Haji Shaikh Ijaz Ahmed, PLD 1995 SC 314, it was held by a Full Bench of the Hon'ble Supreme Court, that where the allegations of the facts in the plaint are not denied specifically, or by necessary implication, or are stated to be not admitted in the pleadings of the defendants the same shall be taken to be admitted against them, except against the person under disability.
' In the case of Khursheeda v. Haji Qudruttllah, 1988 CLC 1062, where allegation of rash and negligent driving of the driver was not denied specifically, the same was deemed to have been admitted.
' As observed above, although the defendants have not denied the allegation of rashness and negligence, specifically, it .Was, however, contended that the reading of the plaint, itself shows that deceased himself was at fault. The plaintiffs in order to prove their case examined their uncle Mohammad Zaman, who in his affidavit-in-evidence, reiterated the details of the accident, as narrated in the plaint. The eyewitness P.W. Mohammad Iqbal, who was travelling on the same bus when the accident occurred, fully corroborated the plaintiffs version of the accident. The witness in his affidavit-in-evidence narrated the detailed account of the accident, thereby attributing the cause of accidentcopy of the relevant F.I.R. Msolely to the negligent and rackless driving of defendant No.2. A.S.-I., Muhammad Sarwar, who also r was examined by the plaintiffs, producedof arrest of defendant No.2 and theMedico-legal Report of the deceased. The witnesses were examined by the defence counsel. However, the material statement of fact as narrated by them was not controverted. The witnesses have successfully with stood the touchstone of cross- examination. In his evidence Gul Mohammad Soomro, the only witness examined on behalf of the contesting defendants, who at the time of the incident was Manager Legal of defendant Corporation, did not say a word which could possibly impute any negligence on the part of the deceased. This witness did not state anything regarding the incident itself. All that he stated was that the ease of defendant No.2 was not referred to him, as defendant No.2 was not held guilty during the departmental inquiry, held at Depot level. However, he could not disclose the name of the Inquiry Officer or the source of his information regarding the alleged inquiry and admitted that he had not seen the purported inquiry report. The witness also failed to produce a single document pertaining to the alleged inquiry, although, he admitted that the cases of fatal accidents were sent to him for opinion by the Depot Managers and that the inquiry report and reference used to contain site report, statement of driver and conductor of the bus involved and the site plan prepared by the Inquiry Officer. The defendants' side also ' failed to produce the driver of the bus and in fact, as admitted by witness Gul Mohammad Soomro, no efforts were made by them to call the driver as a witness. The position that emerges from the foregoing is that the details pertaining to the incident of the accident and the allegation that the accident occurred as a direct consequence of rash, negligent driving by the defendant No.2 have been admitted by the contesting defendants as there is no specific denial of the same in their written statement. The plaintiffs have also proved their case through an eyewitness of the incident, whose evidence remained uncontroverted in the material details. The versions of the plaintiffs' witnesses could not be shaken by the defence counsel during the cross-examination. The sole witness examined on behalf of contesting defendant did not utter a single word as to how and in what manner the accident occurred. He even failed to produce a single document pertaining to the purported departmental inquiry, which allegedly absolved the defendant of the responsibility of the accident.
The contesting defendant failed to produce defendant No.2, the driver of the bus. The defendants thus having withheld the best possible evidence, available to them have themselves given rise to adverse presumption against them. The learned counsel for the plaintiffs has relied on the judgment discussed hereunder.
In the cases of Mst. Zaibun Nisa v. Muhammad and others PLD 1965 (W.P.) Kar.127 and Chaman Baig v. ' Karachi Transport Corporation 1995 CLC 1714, it was held that where in a fatal accident case the defendants failed to produce the driver of the bus involved, adverse presumption shall be drawn against the defendant. It is nowwell-settled principle of law that once the factum of fatal accident is proved the burden of plaintiff is discharged and presumption of negligence arises and it is for the defendant to prove the absence of negligence and rashness on their part. This rule of evidence has been derived from the doctrine of `res ipsa loquitor' which means, thing speaks for itself. The doctrine was followed by this Court in the case Qazi Arifuddin and another v. Government of Sindh PLD 1991 Karachi 291 and was subsequently approved by a Full Bench of Hon'ble Supreme Court in the case of Pakistan Steel Mill Corporation v. Malik Abdul Hameed and another 1973 SCMR 848, wherein, it was held as follows: "This doctrine applies firstly, when the thing that inflicted damage was under the sole management and control of the defendant and, 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, defendants have to persuade the Court that accident did not occur on account of their negligence."
' The above rule of evidence was also applied in the case Kandan v. Al Hayat Service (Pvt.) Ltd. 1988 CLC 525, and upheld by a Division Bench in-an appeal of Al Hayat Service (Pvt.) Ltd. v. Kandan 1989 CLC 2153. The Division Bench in its above judgment, while relying on Bhurmal and Mitra Motor Association v. Raghunath Bansilal Kassat, AIR 1963 Bombay 144, Barkway v. South Wales Transport Co. Ltd. 1950 1 All E.R. 392 and Halsbury's Law of England observed as follows: "This maxim means that in all the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained with the result that the natural and reasonable inference from the fact has to be drawn. But it must be made clear that such inference from the fact has to be drawn. But it must be made clear that such inference should not be based on conjecture and surmises. The burden is on the plaintiff to prove the actual cause of accident but in case where it is not possible for him, as such facts are within the exclusive knowledge of the defendant, then in those circumstances, if the incident is provided, the defendant is called upon to explain its conduct to bring about the correct and true facts. Due to non-accessibility to vital part of the evidence the plaintiff is put to great disadvantage, therefore, this maxim is applied to avoid the rigors created by procedural difficulties."
' The rule of res ispa loquitur has been applied in numerous otherreported cases including the cases, reported as, Mst. Shamim Akhtar v. Javedan Cement 1997 CLC 955, and Mst. Sakina and three others, 1995 CLC 633.
In the instant case all that was required by the plaintiff was to establish that the death of the deceased was caused by an accident involving the bus owned by defendant No.1 and driven by defendant No.2, the employee of the former. Upon proving such unfortunate occurrence by the plaintiffs, the defendants were to prove that the accident has not occurred as a result of negligence and rashness on the part of defendants. However, as observed earlier, the plaintiffs have not only proved the occurrence of the fatal accident but have fully established through their witnesses that the same has occurred on account of rash and negligent driving by defendant No.2, whereas absolutely nothing was brought on record by the defendants, so as to establish that accident was not caused due to rashness and negligence on the part of the defendant No.2. With regard to the contention of the contesting defendants, as raised in their written statement, that the reading of the plaint itself shows that the deceased himself was at fault. It may be noted that there is nothing in the plaint which could possibly impute negligence on the part of the deceased. Nor has it, even otherwise, been explained as to how and in what manner any contributory negligence could possibly be attributed to the deceased. However during his cross-examination, the plaintiffs' witness Mohammad Zaman, has stated that the deceased was standing at the front door of the bus, but such fact also would not absolve the defendants of their liability as the defendant No.2, being in control of the bus could have easily avoided the accident, just by driving the same with ordinary care and caution and was by no means prevented by the deceased in doing so. The defendant No.2, however, despite having overloaded the bus, in violation of Traffic Rule, drove the same in such a negligent manner, that resulted in the accident, causing death of the deceased. In the case of Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1997 Kar. '253, this Court, relying on a judgment of a Division Bench of Karnataka High Court, in the general Manager Bunglore Transport Service v. Narasima Haiah and others AIR1977 Karnataka 6, wherein it was held that in case it is found that the negligent act or omission of a deceased driver was the appropriate causeof the accident, it will not be a valid defence to show that the person injured. Was also negligent unless it is established that the person injured had made 4t extremely difficult for the other to avoid the accident, rejected the plea of contributory negligent.
' In the case of Qudsia Begum v. Younis Khan PLD 1973 Kar. 636 wherein a bus, while overtaking a tram-car in a rash and negligent manner, hit the foot board of the tram-car where the deceased was standing, causing fatal injuries to the deceased and it was argued that the deceased, had no business to stand on the foot board of the to in fact, but for his so standing there would have been no ace held therefore, if it was to assume that the deceased was standing on the foot board the last opportunity for avoiding was with the bus driver and the defence of contributory n therefore not available to the defendant. My conclusion there issue is, that the rash and negligent act of the bus driver re death of the deceased and that the deceased had not contra or otherwise to the occurrence of that unfortunate learned A-A.-G. Appearing for the contesting defendants, that the defendants are not liable as the defendant No.2, the acquitted, though challenged. The alleged acquittal has no the present case and is of no avail to the defendants as the criminal case are no conclusive proof of absence of newly criminal case it is the duty of the prosecution to prove car, and end. It was negligent in e accident gligence is ore on this led in the ted chiefly event. The has argued river, was evince to endings in a fence. In a he offencebeyond reasonable doubt whereas in the instant suit the onus to prove absence of the negligence was upon the defendants. Moreover, no document has been placed before this Court so as to know the ground which led to the alleged acquittal.
' In this regard Mr. Nasir Maqsood has relied on the judgments in Nisar Ahmed v. Messrs Hospital Supply Corporation 1999 MLD 13, Chaman Baig v. Karachi Transport Corporation 1995 CLC 1714, Nimi Francee and others v. Mohammad Saeed Qureshi 1982 CLC 1703 and Mst. Qudsia Begum v. Younis Khan and four others PLD 1973 Kar.636.
In view of the above discussion, I hold that the death of the deceased has been caused on account of rash and negligent driving by defendant No.2, the driver/employee of the defendant No.1 while driving the bus owned by the former. Admittedly the defendant No.3, has assumed the liabilities of the defendant Corporation, the defendants are thus liable to, compensate the plaintiff's. Issues Nos. 2, 3, 4 and the additional issue: ' I propose to deal these issues jointly as these involve question of liability of the defendants towards the legal heirs of the deceased.
' The plaintiffs, who are sons and daughter of the deceased have claimed compensation of Rs.35,50,000 against the defendants. It was claimed that the deceased was 38 years of age, with simple habits and was the sole bread winner of the family consisting of twelve members. He was drawing a monthly salary of Rs.1,800 from Sindh Social Security Department where he was working as a Peon and was earning an additional amount of Rs.800 p.m. By way of overtime. It is claimed that, in addition to his regular job, he used to work as waiter, in the evening hours, in Gulistan Hotel at Ancholi, earning a wage of Rs.70 perday and as such he used to give to the widow Rs.4,000 to 4,500 each month. It was further claimed that the salary of the deceased would have increased to Rs.4,500 per month. It was also claimed that he was planning to establish his own small hotel after seeking retirement from his job after some time. In addition to the above, it was contended that since on account of the death of deceased the plaintiffs have been deprived of paternal training, monitory support and proper nourishment and other facilities, and have thus been deprived of better prospect in life, each of them is therefore, entitled to a compensation of Rs.2,00,000 on this account also and an amount of Rs.2,00,000 was also claimed as compensation for the widow of deceased for loss of association of her husband whereas Rs.10,000 were claimed towards funeral expenses.
' In his affidavit-in-evidence, the plaintiffs' witness Mohammad Zaman reiterated the contents of the plaint. He however, stated that the monthly salary of the deceased was Rs.2000 whereas in plaint cvas averred that monthly salary of the defendant was Rs.1800.
' As can be seen from the photo-copy of the National Identity Card of the deceased, produced by plaintiffs witness Mohammad Zaman, the deceased was born in the year 1953. Undisputedly, the deceased has died at the age of 38 years. Neither the claim of the plaintiffs, as put forward by them through their witness has been controverted nor the defendants denied the same in their evidence.
' Since admittedly the defendant No.3, has assumed the liabilities of the defendant No.1 the defendants Nos.2 and 3 are therefore liable to compensate the legal heirs of the deceased. The average life in Pakistan is assumed to be 70 years. The quantum of compensation payable may thus be calculated as follows: {{TABLE}}
1. Average income of the deceased for 32 Rs. 58,800 X 32 years. = 18,81,600/-
2. Add 20% expected increase in the Rs. 22,57,980.00 income.
3. Less 1/6th towards presumed personal Rs. 18,81,600.00 expenses.
4. Funeral Expenses. Rs. 10,000.00 Net amont payable Rs. 18,91,600.00 {{TABLE}} In view of the above, the suit is decreed for Rs.18,91,600.00 against the defendants jointly and severally with interest/mark-up at the rate of 14% per annum, from the date of the suit till final payment. The plaintiffs shall also be entitled to the cost of the suit. The decretal amount shall be paid within two months.