1. ' MAQBOOL BAQAR, J.---The present suit has been filed by the widow of deceased Shah Alam for herself and for the benefit of the following legal heirs/statutory beneficiaries of the deceased under the Fatal Accident Act.
2. S. No.Name Relation Age 1 Zianul Abdedin Father 60 years 2 Sabiha Khatoon Mother 50 years 3 Mushtari Widow 30 years 4 Sajjad Son 14 years 5 Munawwar Son 12 years 6 Reema Daughter 10 years 7 Madiha Daughter 8 years 8 Rubab Daughter 6 years 9 Shah Zaib Son 2-1/2 years 10 Jehan Zaib Son 1-1/2 years ' The brief facts of the case are that on 17-8-1996 while the deceased along with other passengers was travelling in a Coach, bearing No,PE-0628, on the National Highway for Karachi, and when at about 0730 hours it reached near Channel-III Petrol Pump, Razzaqabad within the jurisdiction of Shah Latif Town Police Station a Trailer, bearing No,829-050, owned by defendant No,2, which was proceedings towards Karachi on the other side of the road and was being driven by defendant No,3 in a rash, negligent and careless manner came over to the extreme right side of the road and dashed into the aforesaid coach. The impact of the collusion was so severe that the coach turned turtle and fell of the road causing extensive damage to the coach and severe injuries to its passengers, out of whom Shah Alam and three others died on the spot while the remaining injured were taken to Jinnah Post-Graduate Medical, Centre, Karachi. F.I.R. Bearing No,83 of 1996 under sections 320/327G/427, P.P.C., was registered at Shah Latif Town Police Station against defendant No,3, for causing death of the aforesaid deceased and injuries to the other passengers. The Trailer was impounded and the defendant No,2 was apprehended.
3. ' The plaintiff has through the instant suit claimed compensation against the defendants in the sum of Rs,68,14,000. According to the plaintiff the deceased was 36 years of age and since he was maintaining a good health there was a likelihood of his surviving up to the age of 70 years and more so in view of the long life span in his family pedigree. It is claimed that the deceased at the time of his death was employed in Latif Spinning Mills, Landhi as foreman and was drawing salary of Rs,4,500 per month and overtime of Rs,1,500 per month from his employer. The deceased being a hardworking person and a dedicated worker was likely to be promoted as a Spinning Master in a short while as would have thus drawn a salary of about Rs,15,000 per month. In Addition to the pecuniary benefits, a sum of Rs,5,00,000 has been claimed as compensation for each of the seven children of the deceased, towards deprivation of the paternal care, grooming and training that they suffered as a result of the death of their father. An amount of Rs,5,00,000 has been claimed by the plaintiff towards compensation for loss of consortium with her husband and a further sum of Rs,10,000 has been claimed on account of funeral expenses.
4. ' Along with the instant suit Mr. Nasir Maqsood, the learned counsel for the plaintiff also filed before this Court, two other similar suits against the same defendants, bearing Suits Nos.391 of 1997 and 393 of 1997. The said suits were filed by the son and the father of Awwal Khan and Ayub Khan respectively. The said deceased being the two other passengers out of the four passengers who died in the accident in question. The said two suits were tagged together with the present suit and all the three suits proceeded together before the same Bench and identical orders were passed therein.
5. ' Although the defendants were served in all the three suits. However, despite opportunity they failed to file their written statements in any of the suits and were, therefore, debarred from filing written statements. All the three plaintiffs filed their affidavits-in-evidence in their respective suits and were cross-examined by Mr.. M. Sarfaraz Sulheri, the counsel for defendant No,2 on 31-3-2003.
6. On 7-2-2003 affidavit-in-evidence of an eye-witness namely, Muhammad Iqbal was filed on behalf of the plaintiff in Suit No,391 of 1997. The said witness appeared before this Court on 26-5- 2005, on which date all the three suits were fixed for evidence and Muhammad Iqbal was cross- examined by the counsel for the defendant No,2. The said eye-witness in his affidavit-in-evidence deposed that on 17-8-1996 at about 6-40 p.m. He boarded Coach No,PE-0628 at Dhabeji Bus Stop along with other passengers for Karachi. According to him, the Coach was proceedings in a normal speed on the right track on the highway and as it reached near Channel-III Petrol Pump, Razzaqabad at about 0730 hours of NLC Trailer bearing No,829-050 which was proceedings in the opposite direction in a rash and negligent manner abruptly came over to the extreme right of the road and after colliding with the coach, dragged it along and fell of the road up side down. The accident badly damaged the coach and caused injuries to the witness and several other passengers including deceased Shah Alam. Shah Alam and three other injured passengers died on the spot while the rest of the injured passengers were taken to Jinnah Post-Graduate Medical Centre, Karachi. He further alleged that he was treated for fracture of his left humorous and was given medico legal No,4200 of 1996 and was ultimately discharged after being operated upon.
7. ' In her affidavit in ex parte proof/evidence, the plaintiff in the instant suit reiterated the contents of the plaint and produced before this Court an attested copy of an F.I.R. Bearing No,83 of 1996 as Exh.5/2, a photostat copy of clipping of news item published in Daily Jang dated 18-8-1996 in respect of the incident as Exh.5/3, B-Form of her husband, deceased Shah Alam, as Exh.5/4, original NIC of the deceased as Exh.5/5, her original NIC as Exh.5/6, original NIC of the mother of deceased as Exh.5/7, original NIC of father of deceased as Exh.5/8, original service card of deceased as Exh.5/9, original death certificate of deceased as Exh.5/10, birth certificate of son of deceased namely Jehanzeb as Exh.5/11, birth certificate of another son of deceased namely Shahzeb as Exh.5/12, birth certificates of two daughters of deceased namely Madhia and Rubab as Exh.5/13 and 5/14, School Leaching Certificates of sons of deceased as Exh.5/15 and 5/16, Memo. Of handing over of dead body as Exh.5/17. During the cross-examination, the plaintiff denied the suggestion that the claim filed by her is excessive or unwarranted.
8. ' However, during the course of arguments counsel for defendant No,2 submitted that the plaintiff cannot rely on the evidence of Muhammad Iqbal as his affidavit-in-evidence was filed only in Suit No,391 of 1997 and no specific order has been passed for treating his evidence as evidence in all the three suits. However, the order sheet dated 26-5-2005 in the said suit reveals that the evidence of Muhammad Iqbal, as noted above, was so recorded in all the three suits. Order-sheet dated 26- 5-2005 in all the three suits reads as "Plaintiff's evidence recorded", whereas on the said date evidence of Muhammad Iqbal only was recorded before the Court and no other witness either appeared or deposed before the Court in any of the three suits and as such the fact of recording of evidence as noted in the order sheets, referred above, leaves no doubt that the evidence of Muhammad Iqbal was recorded in respect of all the three suits. The evidence of the witness Muhammad Iqbal can therefore be read and relied upon in the present case also.
9. The plaintiff has proved her case through her evidence and the evidence of the eye-witness Muhammad Iqbal, which clearly establishes the factum of negligence of the driver of defendant No,2's vehicle, the defendant No,3. It has been clearly established that the accident which resulted in the death of the deceased was solely caused due to reckless and negligent driving of the Trailer by defendant No,3 which was owned by defendant No,2. Neither any of the defendant filed written statement nor did they record any evidence although in view of the doctrine of "res ipsa loquitur" and as held by numerous judgments of this Court including those in the cases of Aijaz and 6 others v. The Karachi Transport Corporation (2004 M LD 491) and Najma Parveen and another v. Karachi Transport Corporation (2004 M LD 518), once the factum of a fatal accident is proved the burden of the plaintiff is discharged and presumption of negligence arises against the defendants and it is for the defendants to prove the absence of negligence and rashness on their part and that failure to produce driver of the vehicle involved in the accident creates adverse presumption against the defendant. The plaintiff and the witness have withstood the test of cross-examination and counsel for the defendants have failed to create any dent in the version as narrated by them in their evidence. In the circumstances, the factum of rash and negligent driving of the trailer (that was owned by defendant No,2) by defendant No,3, which caused the fatal accident resulting in the death of the deceased stood proved beyond any doubt and the plaintiff who is the widow of the deceased and the other legal heirs/statutory beneficiaries of the deceased are thus fully entitled to be compensated by the defendants in that regard. In view of the preponderance of the judgments to the effect that the normal life expectancy in Pakistan is 70 years and the deceased having died at the age of 36 years the statutory beneficiaries of the deceased are entitled to be compensated for the loss of monthly income of the deceased for the remaining period of his life i.e, 34 years, excluding 1/6th thereof as the same would have been spent by the deceased on his person.
10. Although in her evidence the plaintiff deposed that the deceased was earning about Rs,6,500 per month. However, as per averments made in the plaint the deceased was earning about Rs,6,000 per month and thus the amount for 34 years of his life expectancy would come to Rs,24,48,000. In addition the plaintiff and the other legal heirs/statutory beneficiaries of the deceased are also entitled to an amount calculated at the rate of 20% per annum for the aforesaid period of 34 years being the rate of prospective appreciation in the income of the deceased as permissible in terms of judgment of the Court in the case of Aijaz and 6 others v. Karachi Tra'nsport Corporation (1995 MLD 1992) and upheld by a Division Bench of this Court in an appeal filed by Government of Pakistan through Secretary of Defence and another v. Ishrat Begum (1999 M LD 768-II). The gross compensation towards the pecuniary benefit would, therefore, come to Rs,29,37,600, 1/6th of which, amounting to Rs,4,89,600 is reduced towards the personal expenses, that the deceased would have incurred had he lived. The net amount towards the monetary loss would come to Rs,24,48,000. In addition to the above, the plaintiff herself is entitled to a compensation in the sum of Rs,5,00,000 on account of loss of consortium. The children of the deceased who are seven in number are also entitled to be compensated in the sum of Rs,5,00,000 each for deprivation of paternal care, training, love and grooming. The plaintiff is further entitled for payment of Rs,10,000 towards the funeral expenses. The total amount would thus come to Rs,,64,58,000. The plaintiff's suit is, therefore, decreed in the sum of Rs,64,58,000 with cost and profits/returns at the prevailing bank rate from the date of the decree till realization. The decretal amount shall be paid by the defendants to the plaintiff within a period of three months.