1. Mst. Amna BibiWidow 2.Liaquat Ali Son 3.Muhammad SajidSon 4.Tazeem AkhterDaughter 5.Samreen Bibi Daughter 6.Zahoor Ahmed Son 7.Saeed Ahmed Son 8.Noreen Bano Daughter 9.Zaheer Ahmed SonJUDGMENT ' KHILJI ARIF HUSSAIN, J.---The plaintiffs filed suit for recovery of Rs,3,000,000 from the defendants under Fatal Accidents Act, 1855.
1. Brief facts of the case are that plaintiff No.1 is widow and plaintiffs Nos.2 to 4 are the minor children of deceased Muhammad Irfan, who died in a road accident on 29-7-1991, while the vehicle was being driven by defendant No.2 during the course of his employment with defendant No.
1. The deceased left behind him following legal heirs.
2. 10.Kiran Daughter ' It is the case of the plaintiffs that defendant No.1 is the owner of the bus, bearing registration No.879-539 ("said bus"), which was running through Mehran Depot on Shershah route "Shershah Express". The defendant No.2 was the servant/employee/driver of the defendant No.1 at the time of accident and caused death of Muhammad Irfan on account of his carelessness and negligence in driving the said bus on Shahrah-e-Faisal near Natha Khan bus stop, Karachi. The said bus was impounded by the Airport Police Station and thereafter released on Supurdginama and was handed over to District Manager, Mehran Depot, Model Colony, vide order of District and Sessions Judge, Karachi-East. It is the case of the plaintiff that on 29-7-1991, the busNo.969-209 was de- boarding the passengers coming from Lea Market on Natha Khan bus stop. In the meanwhile the said bus, being driven by defendant No.2 on Shahrah-e-Faisal on its way towards Natha Khan from Saddar, came in a very rash, negligent and reckless manner and when reached near Natha Khan bus stop, became out of control of defendant No.2 due to excessively high speed and dashed two persons standing on the Natha Khan bus stop from the wrong side and also simultaneously knocked down conductor Taj Muhammad standing on the foot-board of another bus, bearing registration No.969-209 on the rear passenger gate from its front side and thereafter due to loss of balance on account of rash and rash speed the bus collided with the iron railing/fences on the left side of the road smashed and broke the same while mounting on the footpath. Consequently two persons, namely, Muhammad Irfan and Masood Ahmed received severe injuries and left leg of conductor Taj Muhammad was amputated from above the knee and he fell down from the bus to dashin violently by the said bus of defendant No.1 . Later on Muhammad Irfan succumbed to fatal injuries and died. The plaintiffs filed the suit for recovery of Rs,3,000,000 against the defendant under Fatal Accidents Act. After service, defendant No.1 filed written statement and denied the allegations levied in the memo of the plaint.
3. ' On the basis of the pleadings, the following issues were framed:--
(1) Whether the death of deceased Muhammad Irfan was caused by actionable wrong of defendant No.2 while driving bus No.879- 539 in rash and negligent? If so, its effect?
(2) Whether the plaintiffs are entitled for compensation/damages, as claimed?
(3) What should the decree be?
4. ' On behalf of the plaintiff one Ghulam Abbas, who was Investigating Officer of the case and investigated the criminal case, was examined. He produced Exh. 2 Memo of Site, Exh.3 Site Sketch, Exh.4 Motor Vehicle Inspection Report, Exh. 5 particulars of defendant No.2 provided by Mehran Depot and KTC, Exh.6 F.I.R. No.203/91, Exh.7 Post-Mortem Report, Exh.8 Medico Legal Report No.3257, Exh. 9 Medico Legal Report No.3259 and Exh.10 Roznamcha Entry No.47, dated 29-7-1991. The plaintiff also examined one Seemin Jamali. The plaintiff No.1 also appeared in the witness box and produced Exhs.19 to 29, Memorandum of Agreement, Medical Certificate, Extract from Registrar of Death, Newspaper Clipping, Certificate of Employment, 'B Form of NIC, Succession Certificate and new and old NICs of the deceased. The plaintiff also examined Taj Muhammad bus,conductor of bus bearing registration No.969-209 as Exh.30 and Dr. Dileep Kumar as Exh.34.
5. ' On behalf of the defendants Altaf Hussain Soomro, Secretary of the Corporation appeared in the witness box and was cross-examined by the learned counsel for the plaintiffs.
6. ' Heard Mr. Nasir Maqsood, learned counsel for the plaintiffs, and Mr. Abdul Jabbar Lakho, the learned Assistant Advocate-General, on behalf of the defendants and took into consideration evidence documents on record. My findings on the issues are as under:-- Issue No 1 ' In the memo of plaint as well as affidavit-in-evidence, the plaintiff had given narration about the manner in which accident had taken place. The defendant No. 1 did not specifically deny the case put up in the pleadings by the plaintiff with regard to the accident and the manner of occurrence, except by denying paragraphs 2 and 3 as "not admitted". The plaintiff examined "P.W.1 Ghulam Abbas", Investigating Officer of the case, who produced relevant police papers as Exhs. 2 to 10. He also produced Medico Legal Reports of the plaintiffs and Motor Vehicle Inspection Report. In the Motor Vehicle Inspection Report the damage caused to the said bus is shown as under:-- "Right side of the front body dented and scratched, front bumper bended, left side front indicator broken, left side front body dented."
7. ' P.W. Taj Muhammad, who is one of the eye-witnesses of the incident and also plaintiff in Suit No.278 of 1993, in his affidavit-inevidence categorically stated-that he saw and noted that a KTC bus, bearing No.879-539, driven by defendant No.2, came in a very rash, negligent and reckless manner, on Shahrah-e-Faisal on its way towards Natha Khan Goth from Saddar, and when reached near Natha Khan Bus Stop at about 1800 hours, the driver of the KTC bus appears to have lost the balance and the said bus became out of control of the defendant No.2 due to excessively high speed and dashed two persons/pedestrians, namely, Muhammad Irfan and Maqsood Ahmed, standing on the Natha Khan Bus Stop from the wrong side and also simultaneously knocked down and bumped into the bus No.969-902 which was ahead of the KTC bus at Natha Khan Bus Stop, due to its reckless operation and consequently I, being the conductor, was standing on the foot- board of the bus No.969-209 on the passenger gate, received severe traumatic hit on my left leg which was cut off and amputated and got separated from my body over there on the spot.
8. ' On behalf of the defendants Altaf Hussain Soomro, D.W.1, Secretary of the defendant Corporation, appeared in the witness box, but he was neither the eye-witness, nor in a position to deny about the detail of the accident, took place on the given date. The defendant's witness in his examination-in-chief categorically stated that he had no personal knowledge about the accident caused by bus No.879-539 and denied the very accident. I would like to observe here that in the written statement filed on behalf of the defendant, the defendant has not taken the plea that the accident has not taken place, nor any such issue has been framed. In paragraph 2-A of the memo of plaint the plaintiff has given detail of the accident and also narrated that the accident was caused due to rash and negligent driving of the said bus. In reply to the said paragraph, the plaintiff has stated that the contents of paragraph 2 are not admitted and the plaintiff had to prove each and every allegation and further that the defendant No.2 was driving the bus and caused the accident of the bus, but in the evidence the defendant failed to place on record any document that the defendant No.2 was not their employee and further on the date of accident he was not driving the vehicle in question and or that the accident was not caused by the said vehicle.
9. On the contrary he admitted that defendant No.2 was the employee of defendant No.1 and on the date of accident he was the driver of the bus in question. The Motor Vehicle Inspection Report clearly establishes that the accident was caused by the said bus. On the basis of the facts narrated in the plaint and affidavit-inevidence, which went unchallenged and unchecked it has been proved and established that the said bus, driven by the defendant No.2, was being driven in a very careless manner and caused accident in question. The issue is answered in affirmative.
10. Issues Nos.2 & 3: ' Both these issues pertain to quantum of damages and being interrelated have been taken together. The plaintiff No.1, i,e, the widow of deceased, has given narration of the prospective earning of deceased Muhammad Irfan, who, at the time of death, was 56 years of age. The expected pecuniary loss to the legal heirs of the deceased was 14 years as an average life span in our country is 70 years. The plaintiff was a cook and had been working in a five star hotel, namely, Pearl Continental and was drawing salary of Rs,4,500 per month, which is proved from Exh.P/7, a Average life span 70 years Loss of pecuniary benefits to legal heirs 14 years Monthly income of the deceased = Rs,10,000 Annual loss of pecuniary benefits Rs,4,500 x 12= Rs,120,000 Aggregate loss for 14 years = Rs .1 ,680,000 Add 20% advancement in the income = Rs,336,000 Gross loss of pecuniary benefits = Rs,2,016,000 Less Personal expenses at the rate of 1/6th x6= Rs,403,2.00 Damages in favour of 9 children due to death of their father for the loss of comfort, better education, association, etc @ Rs,25,000 each= Rs,1,612,800 = Rs,225,000certificate issued by Pearl Continental Hotel certifying that the deceased had been working in the, hotel as a cook in F&B (Kitchen Department) from 1968 to 1969. The plaintiff alleged that apart from this deceased used to work and offer his services to different ceremonies, marriage clubs and catering services and different functions and used to get Rs,1,000 to Rs,1,500 per ceremony and average income of the deceased Muhammad Irfan was Rs,15,000 per month. Accordingly, in my view plaintiffs are entitled for damages at the rate of Rs,10,000which normally a cook can earn in a month and calculated the amount of compensation as under:-- ' For the foregoing reasons plaintiffs suit is decreed in the sum of Rs,1,837,800 with interest at 10% per annum from the date of filing of suit-till realization. The amount of the decree be appropriated according to Muslim Law of Inheritance among the legal heirs of the deceased. The defendants are granted 60 days time to pay the amount.