On 9.8.1994 the plaintiffs being minors through their next friend, mother Mst. Naseem Akhtar, widow of Sher Azam Khan filed the suit for recovery of Rs, 35 lacs under the provisions of Fatal Accident Act, 1855 against the defendants.
2. Brief facts are that 'deceased Sher Azam Khan was driver on a PIA van on a contract basis. On 11.4.1993 the deceased was driving the van in which three air hostesses were sitting who were being driven to their homes. At about 5:30 a.m. when the van reached near Muhammad Ali housing society it met with an accident with the NLC trailer which was coming from opposite direction in a rash and negligent manner. In the accident the deceased and three air hostesses died. It is alleged in the plaint that the Defendants No, 4 was getting the road repaired through their contractor with the result that one side of Shahrai Faisal road was closed. The traffic was diverted to the other side of the road on which two way traffic was allowed to continue without making any precautionary measures by putting any signal, flicker lights or deploying traffic police constables therefore the the accident occurred due to the negligence of the defendants hence the plaintiffs have claimed compensation of the Rs, 35,00,000/- against all the defendants severely and jointly with 15% profit per annum on the said amount.
3. The Defendants 1 to 3 in their written statement admitted that the accident took place in which the driver and three airhostesses died but they denied that the Defendant No, 3, driver of Defendant No, 2 was driving the trailer rashly and negligently. They stated that Defendant No, 4 were instrumental in causing the accident as the road was being carpeted at the scene of incident and traffic was diverted to wrong side of the road without due caution and care by the Defendant No, 4 or the workers who were working on the road. They further alleged that the accident was caused due to solo negligence of the Defendant No,
4. They shifted the responsibility of the accident on the Defendant No, 4.
4. The Defendant No, 4 filed the written statement in which they admitted the accident but took the plea that the work on the road was in progress and proper arguments for the smooth flow of the traffic, under the supervision of traffic police constables were. made. They further claimed that proper 'arrangements were made to caution the traffic flow by affixing barricades, flicker lights with a standby generators and diversaion sign Boards fixed on either ends of the intersection of the road and the traffic police was deputed to control the traffic. The Defendant No, 4 further stated that the accident took place due to the negligence of drivers of NLC trailer and the van of PIA.
5. Out of the pleadings of the parties following consent, issues were framed on 24.9.1995:-- ISSUES
1. Whether the death of the deceased Sher Azam Khan was caused by the composite negligence and wrongful act of the defendants, if so, it's effect?
2. Whether the defendants are liable to pay the compensation to the plaintiffs and other legal heirs, if so, to what extent?
6. In order to prove the case the plaintiffs examined Mst. Naseem Akhtar widow of Sher Azam Khan as Ex. 1/2. She produced FIR No, 99/93 about the accident as Ex. P/1, Police report dated 09.6.1993 as Ex. P/2, certificate of the deceased issued by JMPC as Ex. P/3, graveyard certificate as Ex. P/4, newspaper clippings in which the accident was reported as Ex. P/5, driving licence of the deceased as Ex. P/6, Nikahnama between the deceased and Mst. Naseem Akhtar as Ex. P/7, income certificate of the deceased as Ex. P/8, Service Card of deceased as Ex. P/9, national identity card of the deceased as Ex. P/10 and identity card of Mst. Naseem Akhtar as Ex. P/11. The plaintiffs also examined Muhammad Ihsanul Haq, eyewitness of the incident as Ex. 2/1. They also examined Muhammad Iqbal ASI of Police Station Bahadurabad who produced the certified copy of FIR No, 99/93 lodged on 11.4.1993 under Section 320, PPC in respect of the accident as Ex. 3/1, attested copy of inspection report of vehicle as Ex. 3/2, sketch of the place of incident as Ex. 3/3, postmortem report of the deceased as Ex. 3/4, certified copy of judicial inquiry report into the cause of accidents as Ex. 3/5. The plaintiffs have also examined Abdul Razzak Shaikh, Accounts Officer of PIA. He produced revised salary of the drivers as Ex. 4/1 and an agreement executed between Farqan Enterprises and PIA for providing services of drivers on contract basis as Ex. 4/2.
7. The defendants did not lead any evidence in support of their claims.
8. I have heard the arguments of the advocates for the plaintiffs, Defendants Nos, 1, 2 and 3. The Defendant No, 4 and their advocate were absent. I have perused the record of this case very carefully. My findings on the above issues are as under for the following reasons: Findings: Issue No,1 In affirmative.
Issue No, 2 In affirmative. The suit is decreed for an amount of Rs, 27,09,743.62 with 15% markup per annum on the decreetal amount.
Reasons: ISSUE No, 1.
ISSUE No, 1.
9. In order to prove the issue Mst.. Naseem Akhtar mother of the plaintiffs filed her affidavit-in- evidence in which she has narrated the same facts as disclosed in the plaint which facts are mentioned in the earlier part of the judgment. The plaintiffs have examined eyewitness Muhammad Ihsanul Haq. His evidence reveals that on 11.4.1993 he was driving a PIA van and following the van of the deceased in which he was going to the drop three airhostesses to their houses. One side of Shahrai Faisal road was closed and the traffic was diverted to the other side of the road. At about 5.30 a.m. When the van of the deceased reached, Muhammad All Housing Society, a trailer belonging to NLC came from city side in a very rash, negligent and careless manner. In a bid to wrongly overtake the other vehicles, it dashed with PIA van driven by the deceased. The trailer was being driver in a excessively high speed. Consequently the PIA van which was going on its proper and correct side and was keeping on the left side, was hit on its front portion by the NLC trailer which knocked the front side portion of the van in a such a violent way that the said van was dragged to a considerable distance and was not stopped unless came across the middle island. He and other road users gathered on the spot as the bodies were entangled in the van. He found deceased Sher Azam Khan and one airhostess Ghazala Mehmood died at the spot where as two other airhostesses were in critical condition. They also succumbed to the injuries while taking to the hospital. In the cross-examination he admitted, that the Defendant No, 4 had not taken any proper steps to avoid any accident, as no traffic police officer was available on the spot, no signboards were erected nor any flicker lights were installed at the place of incident and there was no bifurcating lane on the road.
10.The third witness examined by the plaintiffs was Muhammad Iqbal, He was ASI police station Bahadurabad. He produced the relevant documents of the investigation of the case and also produced a copy of judicial inquiry in which it was observed that the track towards air port was used for both sides by vehicles without installation of any signboard or deployment of traffic police constable for the guidance of drivers therefore the accident took place.
11.The last witness examiner by the plaintiffs was Abdul Razzak Shaikh. He was accounts officer in PIA., His statement reveals that the deceased was working as driven on contract basis and was drawing a salary of Rs, 2200/- per month but from 1-4-1995; it was increased to Rs, 2800/-per month. He has produced the relevant documents.
12.The defendants did not cross-examine the last two witnesses. The defendants cross-examined Mst. Naseem Akhtar in which she denied the suggestion of the Defendants Nos, 1 to 3 that NLC, Defendant No, 2 had paid Rs, 20,000/- as compensation for the deceased. She also denied the suggestion that she had contracted second marriage. She admitted that Defendants Nos, 4 and 2 are also liable to pay compensation.
13.From the above evidence it is clear that one side of Shahrai Faisal road was being repaired by the Defendant No, 4 through contractor therefore it was closed for traffic. The traffic was diverted to the. other side of the road. Under the circumstances the Defendant No, 4 were required to make proper arrangements for the smooth flow of the traffic and to make adequate arrangements to caution the traffic flow by affixing barricades, flicker lights with standby generators, diversion signboards fixed on either end of the intersections of the road, also barricades and flicker lights in the middle of the road for smooth flow of the traffic on the road and for the guidance of the dual traffic on one side of the road and should have also deployed traffic constables on the road. The eyewitness Muhammad Ihsanul Huq clearly admitted that no such signs or lights were available on the road for the guidance of the traffic. The evidence of the witness went unchallenged as the Defendant. No, 4 did not cross-examine him on the above points of his evidence nor the Defendant No, 4 has led any evidence to disprove the said allegations or prove the plea taken by them in their written statement. As such, the Defendant No, 4 were grossly negligent in performing their public duties with the result that the accident took place.
14.It is further clear from the evidence that the Defendant No, 3 was the driver of the NLC, Defendant No,
2. He was driving the vehicle very rashly, negligently, carelessly and in a high-speed with the result that the accident took place. The evidence of eyewitness. of the incident also Went unchallenged as no cross-examination was conducted by the Defendants 1 to 3 on the evidence of the witness on the above point. It is well settled principle of law that if any piece of evidence is not challenged in the cross-examination then it is presumed to be accepted to be true by the other side. Reliance is placed on a case of Muhammad Akthar v. Manna (2001 SCM R 1700). Furthermore, the Defendants 1 to 3 did not lead any evidence to disprove the allegation made by the eyewitness Muhammad Ihsanul Huq. At least the Defendant No, 3 should have examined himself to prove that he was not driving the trailer rashly, negligently, carelessly and in a high-speed but no such evidence has been led by the defendants. As such, it has been established beyond any shadow of doubt that the Defendant No, 3, the driver of the NLC trailer, which was owned by the Defendant No, 2 was driving the NLC trailer rashly and negligently with the result that the accident took place. As such, the Defendant No, 2 is also responsible along with the Defendant No, 3 being the master of the Defendant No, 3.
15.From the above position it is clear that the Defendant No, 4 and Defendants Nos, 2 and 3 were negligent and the accident took place due to their negligence therefore, it is a case of normally styled in the legal parlance as composite negligence. The principles of composite negligence are that the victim has a choice of proceeding against all or any one or more than one of the wrong doers and every wrong doer is liable for the whole damages if it is otherwise made out. Reliance is placed on Andhora Marine Exports (P) Ltd. v. P. Radhakirshina, AIR 1984 Madrass 358, and Vanguard F. & G.I Co. v. Sarla Devi, AIR 1959 Punjab 297.
16.From the evidence available on the record I am of the considered view that the plaintiffs have proved the issue, as such the same is replied in affirmative.
Issue No, 2.
17.In view of my findings on Issue No, 1 the defendants are jointly and severally liable to pay compensation to the plaintiffs and legal heirs of the deceased.
18.As regards the compensation the deceased has left a widow, two sons and a daughter therefore, they are entitled to receive the compensation. As regards the income of the deceased, at the time of incident he was drawing Rs, 2200/- per month. Mg. Naseem further added in her statement that the deceased was earning Rs, 2000/- to Rs, 3000/- per month as a part-time worker. The plaintiffs witnesses Abdul Razzak Shaikh who was accounts officer in PIA deposed that from 1.4.1995 the salary of drivers was increased to Rs, 2800/- from Rs, 2200/- per month. The statements of both the witnesses went unchallenged as no cross-examination was conducted to these witnesses on the above point. However keeping in view all the relevant circumstances and increase in pay I take an average sum of Rs, 3500/- per month as monthly income of the deceased including overtime income, The deceased was about 32 years of age at the time of incident. The average span of life is taken, as 70 years therefore, he would have been in a funding position for the next 38 years. In aggregate pecuniary benefits for 38 years would be Rs, 1596000/-. During the periods there were chances of increment of salary and income, therefore, over all 20% is awarded on account of chances of increment on the aggregate income for all the years as such the plaintiffs will be entitled, for a further amount of Rs, 3,19,200/-. The deceased's personal expenditure would be taken at 1/6 of his total income which comes to Rs, 31,9200/-. The widow is also entitled to compensation for loss of association and loneliness which is granted at Rs, 100,000/-. The children are also entitled to the damages at the rate of Rs, 3 lacs for each child. Under Islamic law if a person is dead due to intentional, unintentional, unlawful, neglectful act, rash or negligent driving or by mistake, then the legal heirs of the victim are entitled to compensation which is know as Diyat equivalent to the value of the 30,630 grams of the silver, which is fixed and declared by the Federal Government by notification. For the financial years 1992-93 the Federal Government, vide notification No, SOR 649(1)/92 dated 1.7.1992 declared Rs, 98,743,62 as Diyat (compensation) amount. Taking the benefit of such notification the legal heirs of the deceased are also entitled to Rs, 98,743.62 as compensation for the' loss of life of the deceased The plaintiffs are also entitled to funeral expenses of Rs, 15,000/-. Thus, the plaintiffs are entitled for the following compensation: (a)loss of pecuniary benefits for 38 years at the rate of Rs, 3500/- per MonthRs, 15,96,000/- (b)20% because of chances of increment of aggregate income over all the years.Rs, 3,19,200/- (c)Damages in favour of widow for loss of association and loneliness under the head of "consortium"Rs, 100,000/- (d)damages in favour of children due to death of their father for the loss of education, comfort and position in society which they would have enjoyed if the father had lived and maintained the income which had died with him at the rate of Rs, 300,000/- each of three children.Rs, 900,000/- (d)Compensation for loss of life of the deceased.Rs, 98,743.62 (f)funeral expenses Rs, 15,000/- Total: Rs, 30,28,943.62 Deduction 1/6 on account of personal expenses of the deceased of the gross pecuniary benefits for 38 years.Rs, 3,19,200/- Net compensation: Rs, 27,09,743,62
19. Thus, the suit of the plain-Offs is decreed against the defendants jointly and severally in the sum of Rs, 27,09,743,62 with profit/markup at the rate of 15% per annum from the date of judgment till the recovery of amount with costs. The decree shall be satisfied within a period of 30 days.