SABIHUDDIN AHMED, J.---This appeal is directed against the judgment and decree of a learned Single Judge dismissing the appellant's suit for compensation under the Federal Accidents Act, 1855. Basically the plaintiffs/appellant, who is the father of one late Muhammad Ali (deceased) filed a suit for compensation for himself as well as his wife (mother of deceased) against the defendants alleging that the deceased met a fatal accident on account of rash and negligent driving on the part of respondent No.3, who was an employee of the respondents Nos.1 and 2.
2. Apparently the deceased was about 24 years old on the date of the accident (7-8-1988) was driving his motorcycle on Shahrah-e-Faisal towards Airport when a P.A.F. Trailer truck No.MR-0901, which was going in the same direction driven by the respondent No.3, allegedly dashed against the motorcycle whereupon the deceased was thrown on the ground and received serious injuries. He was taken to JPMC Hospital where he succumbed to injuries. Upon becoming aware of the accident one Riaz Muhammad from Kashif Motors (where the deceased was working) came to Police Station Saddar and informed the duty officer. A.S.-I. Afsar Khan that one of his colleagues Muhammad Ali (deceased) had died in an accident upon being hit by PAF vehicle No.MR-0901 near N.B.C. Building Shahrah-e-Faisal and requested that action be taken. The A.S.-I. Recorded an F.I.R.
And proceeded to investigate the matter. A site memo. Was prepared by him recording that he went to the scene of occurrence and found blood in sufficient quantity and a motorcycle lying there. He was informed that the motorcyclist (deceased) was driving on his own side when a PAF vehicle bearing No.0901 attempted to overtake him and hit the motorcyle. In the said report he mentioned Riaz Muhammad and one Muhammad Anwar son of Alladin resident of Behar Colony as witnesses.
3. It seems that prosecution was initiated against the respondent No.3 but while nine prosecution witnesses were cited in the challan only three could be examined during a period of about 3 years.
Summons issued to the remaining witnesses were returned unnerved. The trial Court was also informed that the Investigating Officer A.S.-I. Afsar Khan had also retired from service and was not available. In the circumstances an order stopping the prosecution without recording a, conviction or acquittal was passed by the Magistrate on 29-5-2002.
4. In the suit filed on the original side of this Court in October, 1988, the plaintiff/appellant himself entered the witness-box and produced three other witnesses. Obviously the appellant was not an eyewitness of the accident and only gave evidence regarding his age and that of the deceased and the earning capacity of the latter. He was corroborated with respect to the latter part of the evidence by P.W.1 Fazal Muhammad the employer of the deceased. P.W.2 Zaheer Ahmed produced some documents from the police record i.e. F.I.R., Superdiginama etc. Obviously none of these witnesses had seen the accident themselves. The only witness claiming to be an eye-witness of the accident was P.W.4 Muhammad Afzal. This witness claimed that by chance he happened to be present on the scene of accident and saw hat the motorcycle being driven by the deceased was hit by a truck driving at a fast speed and attempting to overtake it. As a result the deceased fell on the left side and came under the wheels of the truck, which was in such speed that it could only he stopped at some distance. He along with two or three persons took the dead body of the deceased to hospital in a Suzuki and left after about hour and half when his relatives reached the hospital. In cross-examination -he admitted that he did not know the names of the persons accompanying him in the Suzuki, as he had not known them before. However, he had given his visiting card to the appellant but had not taken his address.
5. In their joint written statement filed on behalf of all the defendants, they denied the existence of the accident but admitted that an Isuzu Truck bearing No.0901 belonging to the defendant No.1 was under the management and control of the defendant No.2 and was driven by the defendant No.3, on 7-8-1988 at about 0945 hours it was detained for taking official mail from PAF Base Masroor to be delivered at PAF Base Faisal and was being driven by the defendant No.3 who was accompanied by two airmen CPL Tech. Mushtaque and JNR Tech. Mashooq. It was further stated that when the truck reached near Saddar Police Station an Army Officer travelling in a service jeep stopped the truck and handed over the defendant No.3 to a police constable saying that a motorcyclist had been killed due to some accident. Nevertheless, it was categorically denied that the defendant No.3 was involved in any alleged accident.
6. Though a. Number of issues arising from the pleadings were framed it seems that the suit was dismissed on the basis of the findings recorded by the learned Single Judge on the first issue i.e. Whether the fatal accident was caused by a truck belonging to the defendants Nos.1 and 2 and driven by the defendant No.3. In this context the learned Single Judge primarily rested his decision on the fact that except for P.W.4 Muhammad Afzal no eye-witness of the accident was produced by the appellant. The testimony of this witness was not found to be creditworthy for a number of reasons including the fact that he was neither mentioned in the F.I.R. Nor in the list of witnesses filed by the plaintiff/appellant and was suddenly produced from nowhere.
7. In the above context, with all respects to the learned Single Judge, we are afraid, we are unable to share his view pertaining to absence of the name of said Muhammad Afzal in the F.I.R.
Admittedly the F.I.R. Was recorded on the basis of information conveyed to the police by one of the office colleagues of the deceased Riaz Muhammad. Admittedly Riaz Muhammad himself was not an eye-witness of the occasion and therefore, could not be conceivably aware of the existence of any person at the scene of accident. It may be pertinent to mention that the learned Single Judge also took into consideration the evidence led by the respondents and found that the same was liable to be discarded. Nevertheless, he proceeded to dismiss the suit on the principle that the case of the plaintiff must stand or fall on its own merits and not on the weakness of that of the defendants.
8. In any event, even if we were to exclude the evidence of P.W.4 Muhammad Afzal. It is quite evident from the documents produced by P.W.2 Zaheer Ahmed that apparently on the basis of information received from Riaz Muhammad A.S.-I. Afsar Khan recorded an F.I.R. And proceeded to investigate the matter. Thereafter the aforesaid defendant was sent up for trial under section 304- A, P.P.C. In the Court of the then ACM/SDM Saddar Karachi South, which culminated in the order dated 30th May, 1992. Indeed as rightly observed by the learned Single Judge Riaz Muhammad and Afsar Khan have not been examined as witnesses and therefore, the contents of the F.I.R. Could not be treated as evidence. Nevertheless, it stands clearly proved that an F.I.R. Was actually registered and the certified copy of the order of the Court clearly shows that prosecution of the defendant No.3 was initiated before a competent Court.
9. It may now be pertinent to consider the defence evidence. Though the written statement signed by an officer of PAF Masroor Base attempts to flatly deny the factum of any accident, important admissions have been made by witnesses on oath appearing before the Court. D.W.1 Muhammad Mashooq stated as follows:-- "At the same time the motorcyclist applied brakes with the result that the motorcycle skidded. At the time when the motorcycle skidded, it had already overtaken our vehicle and was about two or three yards ahead of us but was still on the left side of our vehicle. The motorcycle, after skidding, fell down on the left side of the road adjacent to the footpath. Our vehicle continued to move on its way. When we had passed 100 meters from the place of accident, an Army Jeep overtook us and waived us to stop. At that place a police sergeant was also standing by the side of the road along with his motorcycle. The officer in the Army Jeep told our driver that he had caused the accident.
Since I was sitting on the left of the driver and had seen the entire accident happening, I told the Army Officer hat it was not correct to say that our vehicle had caused the accident. The Army Officer then asked the sergeant to take our driver to the police station."
10. In cross-examination this witness further stated that he could not say whether the motorcyclist had died on the spot or whether he had died at all. The Army Major in the Jeep had told the police sergeant that the accident had been caused by us. F.I.R. Was recorded at the police station in which the driver of our vehicle Muhammad Arif was shown as an accused. At about 2000 hours the same night our vehicle and all three of us were allowed to go from the police station after our security officer and PAF Police had come to the police station and had recorded our statements.
D.W.2 the respondent No.3 admitted in cross-examination that the accident occurred at 0945 hours and that he did not possess a service driving licence.
11. Even if one were to ignore some other important admissions made by some of the defendant witnesses at least the fact that a motorcyclist had met an accident at the time when the defendants' vehicle was operating on the scene of occurrence, that the persons occupying were told by an Army Major and a police sergeant that they had killed a motorcyclist that they were taken to police station where an F.I.R. Was recorded and that the respondent No.3 was sent up for trial on a charge under section 304-A, P.P.C., are established beyond a shadow of doubt.
12. Mr. Nasir Maqsood learned counsel for the appellant argued that the learned Single Judge did not apply correct principles of law and in these circumstances the doctrine of res ipsa locuitur was fully attracted. He referred to a large number of precedents wherein it has been explained that the above expression means "things speak for themselves" and the applicability of this doctrine in cases of negligence to the effect that once the factum of accident is established by the plaintiffs, the burden to show absence of negligence shifts upon the defendant.
Normal Life expectancy in Pakistan= 70 years Age of the father = 55 years Age of the mother = 45 years Period for determining Compensation being remised on the life expectancy of the younger parent.= 25 years Actual income of the deceased. = Rs.60,00013. It may not be necessary to recapitulate the facts and principles of law laid down in all the cases cited at the bar. Nevertheless it may be appropriate to refer to the following observations of the Honourable Supreme Court in Pakistan Steel Mills Corporation Ltd. v. Abdul Habib (1993 SCM R 848):-- "Res ipsa locuitur means that the things speak for themselves. This doctrine applies firstly, when the thing that inflicted the 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."
14. Applying the above principle it may be seen that neither the appellant nor the office colleagues of the deceased were eye-witnesses to the extent and the deceased was driving the motorcycle all by himself as such it was physically impossible for the appellant to adduce any direct evidence regarding the cause of the accident or the extent of actual negligence of the respondent No.3. On the other hand, the witnesses for the respondents have chosen not to divulge the name of the Army Officer who could possibly be an independent witness. Unfortunately the police sergeant A.S.- I. Afsar Khan who was also the Investigating Officer had retired and could not be contacted by the department itself as is evident from the order of the Magistrate under section 249, Cr.P.C. Indeed it appears from the record that in the site inspection memo., he had recorded that the motorcycle was going on its own side and was hit by the truck while overtaking it.
15. In the circumstances, we are clearly of the opinion that the burden to prove absence of negligence had shifted upon the respondents, which they failed to discharge. Apart from the evidence of the three persons sitting in the truck no independent witness was produced. Indeed when the accident took place in the presence of these persons it should not have been difficult to find persons who actually saw the occurrence. Even the Army Major who had taken the vehicle and the respondent No.3 to the Police Station, who could be an independent witness was not produced though he appeared to be serving under the control and supervision of the respondent No. 1 . The factum of employment of respondent No.3 to drive the truck belonging to such a sensitive organization without possessing a service driving licence is by itself a very serious matter and ample proof of negligence on the part of the respondents Nos.1 and 2. The possibility of hushing up material evidence in these circumstances, cannot be entirely overlooked either. The liability of the respondents in our humble view stands clearly established and we are unable to uphold the findings of the learned Single Judge with respect to Issues Nos.1 and 2.
16. This brings us to the question of quantum of compensation, though compensation in the sum of Rs.1.5 Millions was claimed. Mr. Nasir Maqsood learned counsel for the appellant conceded that in accordance with the formulation of this Court in Dost Muhammad v. Pakistan Steel Mills Corporation Ltd. (1996 CLC 530). Rs.1,200,000 could be appropriate. In this context he used the following basis for consideration:-- Aggregate loss of Pecuniary benefits. [Rs.60,000 x 25]= Rs.1,500,000 ADD 20% on account of chances of increase in overall aggregate income. [15,00,000/5]= Rs.300,000 Gross Loss of pecuniary Benefit [15,00,000 + 300,000]= Rs.1,800, 000 LESS 1/3rd for personal expenses [18,00,000/3]= Rs.600,000 Net loss of pecuniary benefits.
[Rs.18,00,000 - Rs.600,000]= Rs.1,200,000
17. We do not find anything unreasonable in the above mentioned computation subject to the caveat that in our view each parent is entitled to compensation during his/her life span and one cannot claim the share of the other upon the latter's demise. Therefore, in our view compensation in the amount of Rs.8,46,000 would be adequate. The above are our reasons for the short order announced in Court on 28-8-2003.