1. ' KHILJI ARIF HUSSAIN, J.---Brief facts of the case are that the plaintiff suffered severe injuries in a traffic accident on 29-7-1991 while Bus No. 879-539 owned by defendant No.1 was driven by defendant No.2, accident took place due to the negligence on the part of the defendant No.2 It is the case of the plaintiff that on 29-1-1991 private bus bearing No.969-209 was de-boarding the passenger coming from Lea Market in stationary condition at Natha Khan Bus Stop, KTC Bus bearing No.879-539 driven by defendant No.2 coming 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 the driver of the KTC bus appeared to have lost the balance and the said bus become out of the control of the defendant No.2 due to excessively high speed and dashed two pedestrians, namely, Muhammad Irfan and Maqsood Ahmed standing on 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 the plaintiff being the conductor was standing on the foot-board of the bus No.969- 209 on the passenger gate received severe traumatic hit on his left leg which was cut off and amputated and got separate from his body on the spot. Thereafter due to loss of balance on account of fast and rash speed, the said KTC bus after dashing against two pedestrians and hitting the private bus, continued to proceed ahead and was ultimately collided with the iron railing on the left side of the road. The accident was reported at Airport Police Station against the defendant No.2 alleging rashness, carelessness, and negligence in driving the above said bus vide F.I.R.
2. No.203/91. It is alleged in the plaint that the plaintiff received severe injuries, which was caused to him by negligence, default and wrongful act of the defendant No.2 as such defendant No.1 is legally liable to pay the compensation/damages to the plaintiff. The plaintiff claimed a sum of Rs,75,06,000 against the defendants jointly and severally and also claimed interest/profit/markup at the rate of 15% per annum from the date of filing of suit till realization. Defendant No.1 filed written statement and not specifically denied the allegation made in the memo of plaint also denied general and special damages. On the basis of the pleadings following issues were framed:-- "(1) Whether the plaintiff was injured as mentioned in para (4) of the plaint on account of the rash and negligent driving of the defendant No.2 on 29-7-1991 while driving the bus bearing No.879-539 during the course of employment of the defendant No.1, if so, its effect?
(2) Whether the defendants are liable jointly and severally to pay damages to the plaintiff, if so, to what extent?
3. ' On behalf of Plaintiff P.W.1 Ghulam Abbas appeared in the witness box and produced memo of site, site sketch, motor vehicle inspection report, particulars of defendants No.2 provided by Mehran Depot of KTC, F.I.R. 203/91, dated 29-7-1991, post-mortem report of deceased Muhammad Irfan, Medicolegal Report No.3257 of 1991, Medicolegal Report No.3259 of 1991, Roznamcha entry No.47, dated 29-7-1991, P.S. Airport as Exh.1 to Exh.10. P.W.2 Seemin Jamali Deputy Director and Incharge Accidental Emergency Department,JPMC, P.W.3 Amna Bibi widow of Muhammad Irfan also appeared in witness-box and produced Exh.19 to Exh. 29 memorandum of agreement, Medical Certificate. P.W.4 Taj Muhammad produced Memorandum of Agreement executed between defendant No.1 and defendant No.2, F.I.R. 203/91, treatment slip of outpatient department JPMC, Medicolegal Report No.3258 of 1991 pertaining to plaintiff Taj Muhammad, newspapers clippings of the daily Dawn showing the position, of offending bus consequent upon the accident, certificate issued from JPMC showing the hospitalization of the plaintiff at the said hospital from 8-8-1991 to 26-8-1991, certificate of JPMC showing the left leg amputation of the plaintiff during surgery, dated 31-7-1997, discharge card showing admission on 29-7-1991, and discharge on 23-9-1991, photographs of the plaintiff and divorce deed as Exh.39 to 41. The plaintiff also examined Dr. Dilip Kumar to prove Exh.34. On behalf of the defendant Altaf Hussain Soomro, Secretary Karachi Transport Corporation appeared and cross-examined by the plaintiff.
4. ' Heard Mr. Nasir Maqsood, learned counsel for the plaintiff, and Mr. Abdul Jabbar Lakho, learned A.A.-G.
5. ' Mr. Abdul Jabbar Lakho learned A.A.-G. On behalf of the defendants vehemently argued that the plaintiff failed to prove that the accident was caused by the defendants' bus bearing No.879-539 and defendant No.2 was driving the said bus. Learned Advocate further argued that since plaintiff failed to prove that the bus of the defendant involved in the accident the plaintiff suit is liable to be dismissed.
6. ' I have taken into consideration respective arguments advanced by the learned advocate for the parties and my finding on the issues is as under:-- Issue No.1: ' In the memo of plaint as well as affidavit in evidence plaintiff had given elaborate narration about the manner in which accident had taken plate. The defendant did not specifically denied about the manner in which the accident took place. The defendant did not specifically denied the case put up in the pleadings with regard to accident and the manner of occurrence except by saying that the contents of para. 2 and 3 of the plaint are not admitted. The plaintiff examined Ghulam Abbas, Investigating Officer, of the case and had produced relevant police papers. Apart from the evidence of P.W.1, Investigating Officer from the Motor Vehicle Inspection Report (Exh.4) and F.I.R.
7. (Exh.6) it is established that accident was caused by Bus No.879-539 owned by defendant No.1 and at the relevant time defendant No.2 was driving the same.
8. ' Coming of the question that the accident was caused due tonegligence, carelessness, and rash driving of defendant No.2 while discharging his duty as driver of defendant No.
1. The plaintiff an eyewitness of the accident being conductor of the bus stated as under:- "That it is further submitted that on 29-7-1991, the private bus bearing No.969-209 of Route No.51, was de-boarding the passenger coming from Lea Market in stationary condition at Natha Khan Bus Stop at about 1800 hours. In the meantime, I 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 appeared 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 Bux 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 servere traumatic hit on my left leg which was cut off and amputated and got separated from the body over there on the spot. Thereafter due to loss of balance on account of fast and rash speed, the said KTC bus after dashing against two pedestrians and hitting my bus and cutting of my leg continued to proceed ahead and was ultimately halted after colliding with the iron railing fences on the left side of the road. The said KTC bus was so rash that due to impact of collision the railing iron fences were even broken and uprooted and thereafter the bus still continued to go ahead and mounted on the footpath. As a result of such reckless operation of KTC bus two persons namely Muhammad Irfan and Masood Ahmad received severe injuries and my left leg was amputated from above the knee on the spot due to collision and I fell down from the above said private bus due to dashing by the bus bearing No.819-539 of defendant No.1 from the wrong side. Later on Muhammad Irfan succumbed to fatal injuries and died. The accident was reported to Airport Police Station against the defendant No.2 alleging rashness, carelessness and negligence in driving the bus vide F.I.R. Bearing No.203/91. The incident was also reported in the Daily Dawn of next day issue wherein the offending KTC Bus was shown to be mounted on footpath after breaking the railing due its negligent operation at Natha Khan Bus Stop."
9. ' The said witness was cross-examined by the defendants but the evidence of the said witness on the material aspect pertaining to the rash and negligent driving of the KTC bus by the defendant No.2 and consequent amputation of left leg of the plaintiff and also the death of the deceased Muhammad Irfan owing to such carelessness was not questioned and as such this omission to cross-examine by the defendants would lend support of the plaintiff. The manner in which accident has taken place and as narrated in the plaint and affidavit-in-evidence which went unchallenged by the defendants is quite vocal about the negligence and carelessness in operating the bus. The defendant failed to lead any material evidence in rebuttal that accident was not caused due to negligence of defendant No.2 while discharging his duty as a driver of defendant No.
1. The defendant's witness admitted that defendant No.2 was employee of defendant No.1, but said defendant No.2 was not produced as witness, nor any evidence was brought on record that the bus on the given date was not plying on the route where the accident took place. MVI report as well as evidence of Investigating Officer and evidence of the plaintiff clearly established that defendant No.2 while discharging his duty with defendant No.1 was driving the bus in careless and negligence manner caused accident.
10. ' For the foregoing reasons the issue No.1 is answered in affirmative. Issue No.2: ' The plaintiff in his statement on Oath stated that his left leg was amputated above knee and he produced medical report as Exh.33, 34, 36, 37 and 38. The plaintiff also produced photographs and was present in Court at the time of arguments. Since there is no doubt that the plaintiff has lost his left leg, which naturally affected the plaintiff in monetarily and non-monetarily resulting into both special and general damages for catering pecuniary and non-pecuniary sufferings on account of traumatic personal injuries.
11. ' I have taken into consideration evidence on record and arguments advanced on behalf of the parties. On account of damages no doubt a person injured physically or otherwise is entitled to be compensated both with pecuniary losses as well as non-pecuniary losses. The broad general principle which should govern the assessment of damages in cases of bodily injuries is that Court should award to injured person such compensation as will put him in the same position as he would have been if he had not sustained the injuries while keeping in view that money cannot possibly compensate a man and renew a shattered human frame. Coming to the pecuniary loss the plaintiff claimed a sum of Rs,25,000 being cost of medicines,laboratory tests, injections, physiotherapy, wheel chair, arm pits, crutches and other allied material expenses, Rs,5000 as cost of special food and special diet suitable to the plaintiff, Rs,5000 cost of transportation for movement from one place to other place on hiring taxi or ambulance, Rs,3000 cost of engaging attendant, Rs,1000 cost of entertainment of visitors, Rs,6000 cost of getting services from others which the plaintiff could have done, had he not been injured e.g. Marketing, ironing, dropping the child to the school, depositing bills of the utility etc., Rs,6000 loss of earnings due to discontinuance of business on account of permanent disability, and Rs,6000 hospital expenses, Rs,1,50,000 towards damages for restricted movements, affecting his personality and de-shaping, Rs,50,000 damages on account of ugly looking, Rs,1,00,000 for loss of amenities, Rs,80,000 being dependent upon other, Rs,1,00,000 damages for feeling of not having a child, Rs,1,00,000 damages for being incapacitated to nourish look-after, train his children and Rs,50,000 for shortening of expectancy of life. Plaintiff also claimed a sum of Rs,38,20,000 towards different heads stated hereinabove.
12. ' As regards the past expense, looking to the nature of the injuries caused to the plaintiff apparently an amount of Rs,25,000 being cost of medicines, laboratory tests, etc., same appears to be reasonable amount and the plaintiff is entitled for the same. A sum of Rs,5,000 claimed as cost of special food also appears to be reasonable and the plaintiff is entitled for the said claim. As regards loss of earnings of Rs,6,000 during the period in which plaintiff remained out of job due to accident the same also appears to be reasonable amount and accordingly is entitled for the said loss. The plaintiff's claim of special damages of Rs,56,000 appears to be very reasonable and the plaintiff is entitled for the same. Coming to prospective loss claimed by the plaintiff the accident was occurred on 29-7-1991, whereas the plaintiff has filed his affidavit-in-evidence on 21-3-2005 but along with the said affidavit in evidence plaintiff has not produced any evidence that after discharge from the hospital, he had incurred any medical expenses or need any special food etc. Accordingly plaintiff is not entitled for any prospective damages claimed by him.
13. ' Now I will come to the most difficult issue in the matter that is non-pecuniary which losses by its nature are discretionary. It is not possible to lay down any formula or yardstick by which it can be measured or translated in terms of money. However while awarding the same the Court has to take into consideration the aspects of the matter like age, sex, nature, intensity, duration, resulting pain and possibility of total or partial recovery, aggravating or mitigating condition, effect on over all quality of life so as to compensate plaintiff as far as possible in terms of money. The plaintiff was a conductor in a bus and due toaccident obviously he would have been relieved from the service and would not be in position to continue with the job as conductor for rest of the life. Keeping in view of the nature of the job of the plaintiff and nature of the injury I am of the view that the plaintiff is entitled for non-pecuniary losses/general damages for a sum of Rs,1,000,000. Plaintiff's suit is, therefore, decreed in the sum of Rs,1, 056,000 with interest at the rate of 10% per cent per annum from the date of filing of the suit till recovery. The defendant granted 60 days time to pay the amount.