' ANWAR ZAHEER JAMALI, J.---This appeal is directed against the judgment and decree dated 24- 12-2002 passed by the learned Single Judge of this Court in Suit No.1128 of 1990 whereby suit for recovery of Rs.59,30,000 instituted by the respondents under the Fatal Accidents Act 1855 was decreed against the appellants in the sum of Rs.17,45,000 with mark-up at the rate of 10. Per annum from the date of decree.
2. Relevant facts of the case are that by. Filing the above referred suit. The respondents being legal heirs of Syed Mohiuddin Ahmed (aged 3lyears), who died on 1-3-1990 on account of fatal injuries caused to him. Due to collision of railway engine and car bearing No. 216-150 at Jumma Goth, railway level crossing have claimed damages under the Fatal Accidents Act in the sum of Rs.59,30,000, holding the respondents negligent and responsible for such accident as the Railway gate at the Jumma Goth level crossing was left open at the relevant time by the gate keeper, while railway engine was also driven by its driver at higher speed.
3. In the written statement appellants did not deny the accident which occurred on 1-3-1990 at 7.45pm at Jamma Goth Railway level crossing due to head-on collision of railway engine with three cars and injuries sustained by Muhammad Aslam and many others in such accident and consequent death of Muhammad Aslam on 1-3-1990 but they disputed the allegations of negligence on their part and held the deceased responsible for such accident.
4. After framing of issues in the suit on 18-8-2000, from the side of respondents, respondent No.1 (widow of the deceased) examined herself and produced documents. Exhs. P/1 to P/9, including copy of F.I.R. Death certificate, newspaper clippings of the accident and National Identity Card of deceased, besides examining other witness Ali Akbar, who is eye-witness of the accident. From the side of appellants, they examined Tariq Javed, Fireman on locomotive engine and Khuda Bakhsh, gate man at Jamma Goth railway crossing, who were cross-examined by the other side.
5. Learned Single Judge after extensively examining and evaluating the evidence brought on record by the parties, recorded his findings on both the issues in the affirmative and consequently passed the impugned decree in favour of respondents (legal heirs of deceased Syed Mohiduddin Ahmed) in the sum of Rs.17,45,000 only.
6. Chowdhary Rasheed Ahmed, learned counsel for appellants, vehemently argued that the impugned decree passed against the appellants is not based on proper appreciation of evidence, thus, it is liable to be set aside. He however, did not dispute that on 1-3-1990 at the relevant time when three cars, including the car of deceased Syed Mohiuddin Ahmed, were crashed in collision with railway engine at Jumma Goth railway level crossing, the gate was left open by the gate man despite crossing of railway engine. However, in this regard, he urged that earlier the railways crossing gate was closed by the gate man but due to insistence of the public he contacted the Assistant Station Master and by press their respective button they both opened the gate/barriers, which resulted in the tragic accident.
7. We have carefully considered the arguments of the learned counsel and also minutely gone through the case record.
8. We are not in agreement with the submissions of the learned counsel that impugned judgment and decree passed by the learned Single Judge of this Court against the appellants in any manner suffer from any misreading or non-reading of evidence. The perusal of case record show that the status of respondents in their capacity as legal heirs of the deceased is not disputed; that element of sheer negligence of the employees of appellants Nos.2 and 3 is fully exposed not only from the evidence of eye-witness Ali Akbar, but even from the evidence of appellants' own witnesses. Who despite knowledge that railway engine is to be given crossing from Jumma Goth railway level crossing deliberately opened the barrier/gate in a irresponsible, negligent manner and in clear violation of rule 229 of General Rules for Pakistan Railways which reads as under: "229. Road Traffic.---(1) Subject to such Special Instructions in that behalf as are permitted by these rules, all gates at level-crossings shall be kept constantly closed and securely fastened across the thoroughfare on both sides of the Railway and shall only be opened when it is necessary and safe to open them for the passage of road traffic: ' Provided always that any Railway Administration may from time to time issue Special Instructions for any particular level crossing or class of level crossing and may be such Special Instructions permit the gates at any level-crossing or class of level-crossing to be normally kept open to road traffic and may therein prescribe the conditions under which gates are to be kept closed against road traffic for the passage of a train or trains or for the purposes of any other railway operation; and all such Special Instructions so long as they be not cancelled or superseded shall for the purposes only of the railway issuing the same be deemed to be General Rules within the meaning and subject to the provision of section 47 of the Act.
(2) Gatemen, where provided shall at all level crossings other than those controlled by gates designed to close across the line, be prepared, whenever such level-crossings be opened to traffic, to show a danger signal to any approaching train.
(3) Where no gatemen is specially posted for night duty at level crossing the gates thereat (if any) shall, subject to Special Instructions, be locked at night except when opened for the passage of road traffic."
9. It is well-settled principle of law that in the cases under the Fatal Accidents Act once the happening of an accident is proved and such evidence is brought on record by the aggrieved party then doctrine of "res ipsa loquitur" comes into play which shifts the burden on the C other side to discharge that it was not due to his/their negligence or fault that the accident has occurred. This view is fortified from the following cases:--
1. Pakistan Steel Mills Corporation Ltd. And another v. Malik Abdul Habib and another (1993 SCMR 848).
2. Qazi Arifuddin and another v. Government of Sindh and others (PLD 1991 Karachi 291).
3. Syed Afzal Hussain v. Karachi Transport Corporation and another (PLD 1997 Karachi 253).
4. Mst. Shamim Akhtar v. Javedan Cement (1997 CLC 955).
10. In the present case, not only sufficient evidence has come on record showing the irresponsible conduct of the gate man by opening the railway crossing gate and of the driver of railway engine for driving the railway engine at a high speed, but the negligence of the employees of appellants which resulted in the loss of three human lives is also established beyond any doubt. Rather the important features of the case which prove sheer negligence of the employees of appellants Nos.2 and 3 D have not been even disputed by the appellants. Considering all these aspects of this case we are clear in our mind that the impugned judgment and decree passed against the appellants, to that extent, require no interference in this appeal. The appeal is accordingly dismissed.
11. Foregoing are the reasons for short order dated 29-9-2004.
12. Coming to the cross-objections under Order XLI Rules 22 C.P.C. Submitted on behalf of respondents it will be seen that by this mode the respondents have challenged the judgment and decree, firstly to the extent of non-awarding of damages to the legal heirs (widow and minor children) of deceased Syed Mohiuddin Ahmed for loss suffered on account of loss of association of the widow and two minor children of the deceased. For this purpose, learned counsel has placed reliance on the following cases.
(,1) PLD 1969 SC 565.
(ii) 1997 CLC 955.
(iii) 2001 YLR 788.
(iv) AIR 1968 Bombay 269.
13. The other grievance agitated in the cross-objections is about non-awarding of any compensation by way of expected increase in the income of deceased in future. The claim of the respondents is that the learned Single Judge should have at least awarded 20% increase in the income of the deceased for the coming years and also actual funeral expenses and such sums should also have been added towards the decretal amount. For this purpose, learned counsel has referred series of reported and unreported judgments wherein consistently such practice has been followed for awarding equitable and fair compensation to the legal heirs of the deceased.
Reference may be made to a recent judgment of this Court in the case of Aijaz and 6 others v.
Karachi Transport Corporation (2004 MLD 491) authored by one of us namely Maqbool Baqar, J.
14. In reply to the cross-objections, learned counsel for the appellant simply disputed such claim of the respondents, but he could not refer any material from the case record or case-laws to the contrary.
15. After going through the evidence and other material available on record and examining the ratio of judgments cited at the bar by Mr: Nasir Maqsood, Advocate, with reference to two grounds urged in the cross-objection, we are persuaded to hold that the respondents are entitled for 20% addition in the expected income of deceased Syed Mohiuddin Ahmed on the basis of income determined by the learned Single Judge in the impugned judgment and Rs.1,00,000 (Rupees one lac) each to the widow of the deceased and her two children as compensation for the loss of association and loss of fatherly supervision of children for their education, comfort and position in the society, which they would have enjoyed if deceased would have survived his normal expected life. In addition to it, on the basis of unchallenged evidence of respondent No.1 claim of funeral expenses in the sum of Rs.20,000 is also allowed. The decree passed by the trial Court be modified accordingly.