' This is a suit for the recovery of Rs, 65,600 as damages under sections 1 and 2 of the Fatal Accidents Act, 1885. The facts leading to the filing of the above suit as disclosed in the plaint, are that the plaintiffs Nos, 1 and 2 are father and mother respectively, of the deceased Mohammad Farooque son of Mohammad Siddik, who died as a result of an accident on 7-4-72 in the Civil Hospital, Karachi. It has been averred that the defendant No, 1 had caused the accident due to rash and negligent driving of the Toyota car belonging to the defendant No, 2 at about 8 a.m. On 4-4-72 as a result thereof Mohammad Farooque son of Siddik died. It has also been averred that the said car was insured with the defendant No,
3. It has been further averred that the deceased was working as a supervisor in the Dada Soap Factory Ltd. Site, Karachi and that on 4-4-72 at 8 a.m. The deceased was crossing the road in front of the Dada Soap Factory. It has also been averred that the defendant No, 1 while going towards the city in high speed caused the accident due to his rash and negligent driving of the above car. It has also been averred that on account of the above accident the wind screen on the front side of the said car was completely damaged and that the deceased struck the bumper and engine and as a result of the impact he was thrown over the wind screen and that when the defendant No, 1 applied the brakes of the car the deceased fell about 15 ft. Away passing over the roof of the aforesaid car. It has further been averred that the deceased with some other workers was taken to the Civil Hospital by the defendant No, 1 in his aforesaid Car. It has also been averred that the defendant No, 1 is said to be a doctor working in the Dow Medical College and in collusion with C. M.
0. Civil Hospital, Karachi such injunction was administered that the internal injury of the deceased became less painful. It has also been averred that the deceased was admitted in the Hospital as an indoor patient on bed No, 31 in Orthpaedy department on 4-4.72 and that his condition deteriorated day by day and as a result thereof he died on 7-4-72. It has also been averred that the deceased left behind the plaintiffs as the beneficiaries being the parents of the deceased. It has also been asserted that at the time of the death, the age of the deceased was 25 years, and he possessed sound health and good physique and that he was earning Rs, 200 per month by working as a Superviser in the aforesaid factory. The plaintiffs have claimed a sum of Rs, 65,600 on the basis of calculating the total earning for a period of 41 years at the rate of Rs, 200 per month minus 1/3rd income on account of personal expenses.
2. The defendants Nos, 1 and 2 have filed their joint written statement, in which it has not been denied that the defendant No, 1 was driving the car in question on the day under reference. It has also not been denied that the defendant No, 2 is the owner of the aforesaid car. However, it has been denied that the aforesaid car was involved in any accident on 4-4-72 at 8 a.m. It has also been denied that the defendant No, 1 while going towards the city in high speed caused the accident due to his negligent and rash driving of the said car. It has further been denied that the wind screen of the said car was completely damaged. However, it has been admitted that the deceased was taken to the Civil Hospital by the defendant No, 1 but it has been asserted that it was done in good faith and on humanatarian consideration. It has also been denied that the defendant No, 1 is working as a doctor in the Dow Medical College. It has also been denied that the defendant No, 1 in collusion with the C. M. O. Of the Civil Hospital, Karachi, got such injunction administered that the internal injury of the deceased became less painful. It has also been denied that the deceased was earning Rs, 200 per month as the Supervisor working in Messrs Dada Soap Factory Ltd. The defendants Nos, 1 and 2 have also taken additional pleas including that the suit is bad for misjoinder of the parties,' namely, defendant No, 3 and that the plaintiffs are not entitled to any compensation and/or damages as the plaintiffs have sufficient enormous means of living. It has been averred that the plaintiff No, 1 is a clearing and forwarding agent on the roll of the K. P. T. And as such he is a good earning member of his family. It has been averred that in the early morning of 4-4-72 while the defendant No, 1 was leaving for the Dow Medical College he took the road via Site with a view to keep appointment with his friend Aftab Kazi residing at 122-D/1 Baldia Colony, Karachi. It has also been averred that the defendant No, 1 was accompanied with one Mr. Farooq Hussain and by another person. It has further been averred that while the car reached Dada Soap Factory there was a crowd of buses and some of the persons stopped the defendant No, l's car and requested him to take the injured to the Civil Hospital, Karachi and that looking to the condition of the injured the defendant No, 1 took the injured to the Hospital and got the injured admitted. The defendants have denied their liability to pay any compensation.
3. The defendant No, 3 was impleaded in pursuance of an order passed by this Court. This defendant No, 3 has denied the various averments of the plaint for want of knowledge. The defendant No, 3 has also raised certain additional pleas in the written. Statement which inter alia include that the defendant No, 1 was not the insured person and as such the answering defendants are not liable to indemnify him and that the defendant No, 1 had not passed the driving test and had no valid driving licence, and as such the answering defendants are not legally liable to indemnify the alleged insured.
4. On the basis of the above pleadings following issues were framed: "(1) Whether the accident took place on 4-4-1972 due to rash and negligent driving of car registration No, KAG 3883 by the defendant No, 1, in front of Dada Soap Factory Limited, S. I. T. E., Karachi which was owned by defendant No, 2?
(2) Whether the deceased Mohammad Farooq son of plaintiffs died on 7-4-1972 as result of the accident and injuries sustained by him on 4-4-1972 with Car registration No, KAG 3883?
(3) Whether the deceased Mohammad Farooq was working as supervisor in. Dada Soap Factory S. I. T. E., Karachi and was earning Rs, 200 per month?
(4) Whether defendant No, 1 had valid driving licence at the time of accident. If not, what is the effect?
(5) To what relief if any, the plaintiffs are entitled to? My findings of the above issues are as under :
5. (a) Issues Nos, 1 and 2.-These issues can be taken up conveniently together. In support of the above issues the learned counsel for the plaintiff Mr. M. M. Beg has relied upon the evidence of P. W.
1 Mohammad Siddiqi Exh. 6, P. W. 3 Nawab Mian Exh. 7, P. W. 4 Hyder Ali Exh. 9 and P. W. 5 Dr. Abdul Sattar Leghari Exh.
12.
(b) P. W. 1 has deposed that at about 9 a.m. On.The day of the accident two wofkers of Dada Soap Factory informed him that the deceased was carried in the car in question to the Civil Hospital and thereupon he went to the Civil Hospital and found the said car parked in the compound with some damage to its bonnet and front side. He has further deposed that his son was to get some medical aid and that after some time he was brought out on a strecher, when his son told him that he was knocked down by the car of Dr.Gul Majid while he was crossing the road towards the Soap Factory and that Dr. Gul Majid was present in the Hospital. He has also deposed that his son had pointed out the person and told him that it was his car which had dashed down on the road due to the fast speed.
(c) P. W. 2 Nawab Mian has deposed that on 4-4-72 at about 8 a.m. He was going on his motor cycle from Paposh Nagar to Agra Taj Colony and that when he reached opposite Dada Soap Factory in the S. I. T. E. Area he saw a car of the light green colour coming from Gulbai side and going to Nazimabad side the number of which was KAG 3883. He has further deposed that the car was coming at a very high speed and that it dashed against a man who was crossing the road and going towards Dada Soap Factory. He has also stated that the person had got down from the bus and that the car dashed against him was driven with high speed as a result of which he fell down on its bonnet due to impact and then on the 'eiling of the car and then be fell down on the road. The car was stopped and that it was driven by the person who called himself as Dr. Gul Majid who was present in the car. The people collected there and detained the car and the driver on the spot.
(d) P. W. 4 Hyder Ali Exh. 9 has deposed that on 4-4-72 at 8 a.m. In the morning he was going towards his client Messrs Nur Confectionary Works who had factory at Shershah in a rickshaw and when he alighted from the rickshaw he saw that a car was coming from the side of Gulbai at a very high speed and that he wanted to cross the road but the car was coming very fast so he did not cross and stayed back on the road side. He has further deposed that one boy about 25/26 years who was trying to cross the road in front of him and that the car dashed against him and d ae to the impact the boy was lifted up and dashed against the wind screen of the car.
(e) P. W. 5 Dr. Abdul Sattar Leghari Exh. 12 has deposed that he was working as a Senior Registrar in the Civil Hospital Karachi and that on 4-4-72 he was working as Casualty Medical Officer in the Hospital. He has further deposed that the injured person Mohammad Farooq was brought to the Hospital. The above witness has produced the extract from the Medical Legal Register Exh. 12/1.
Which was taken on record. He has further deposed that the above register shows the history of the accident which had taken place with Car No, KAG 3883. He has also stated that it is the practice that whenever an injured is brought to the Hospital the number of the vehicle or the person causing the injury is mentioned in the report and that it was in keeping with this practice that the number of the car was mentioned in the report. The above witness in order to substantiate his above assertion had invited the attention of the Court to the various entries of the Medico Legal Register which inter alia included legal reports Nos, 7933, 7937, 7944, 7946, 7955, 7956, 7957 and 7959 which preceded to the entry in question relating to the deceased.
(f) Mr. Beg has also referred to the death report dated 25-4-72 issued by the Civil Hospital Karachi, Exh. 6/1 as well as the above extract from the Medico Legal Register Exh. 12/1. On the basis of the above testimony and documentary evidence it was urged by the learned counsel for the plaintiff that it has been established that the accident was caused on 4-4-72 due to rash and negligent driving of the car in question as a result of which the deceased died.
(g) On the other hand, Mr. Umrani learned counsel for the defendants Nos, 1 and 2 has urged that the evidence of P. Ws. 2 and 4 Nawab Mian and Hyder Ali cannot be relied upon inter alia for the following reasons.
(i) That in para. 4 of the plaint it was averred by the plaintiff that the deceased was taken to the Hospital with some workers and that the above two witnesses were not workers referred to in the para.
(ii) That the names of the above two witnesses did not figure in the criminal case which was filed against the defendant No, 1 in the Court of the A. C. And S. D. M., Central Division, Karachi (Case No, 1150/73) and, therefore, the above witnesses are chance witnesses and not the the actual witnesses. In support of the latter contention he has drawn my attention to the last para. At page 2 of the learned AC/S. D. M., Central Division date 3-2-75 passed in the above criminal case discharging the defendant No, Exh. 10/1, which indicates that in fact one Rafi Ahmed was the alleged eye-witness and was working in the Dada Soap Factory. Mr. Umrani has also urged that the evidence of P. W. 5 Dr. Leghari cannot be relied upon inter alia for the reason that he was personally involved in the case inasmuch as he did not report the matter to the Police on receiving the injured in the Hospital as was required under the law. He has also urged that Exh. 12/1 shows that the deceased was brought in the Hospital and was examined on 19-8-72, and therefore, the same cannot be relied upon as admittedly the deceased died on 7-4-72.
(h) In my view merely the fact that the names of the P. Ws. 2 and 4 were not mentioned in the above criminal case or that they were not examined in the aforesaid criminal case will not exclude their testimony from consideration. What is to be seen is as to whether their testimony are reliable and contain material particulars or whether they have any motive to depose falsely. Mr. Umrani has also urged that P. W. 4 Hyder Ali being a clearing agent is an interested witness inasmuch as the plaintiff No, 1 was also working as a clearing agent but the learned counsel for the defendants Nos, 1 and 2 was unable to attribute any motive to P. W. 2 Nawab Mian. Even if we exclude the evidence of P. W. 4 in my view there is still sufficient oral and documentary evidence on the record to prove the plaintiff's case. P. W. I Mohammad Siddiq's statement that when he reached the Hospital he saw the car in question standing in the compound with some damage to its bonnet and front side cannot be doubted nor his statement to the effect that his son told him that he had received the injury because of rash and negligent driving by the defendant No, 1 can be excluded from consideration. Mr. M. M. Beg the learned counsel for the plaintiff has urged that the above statement of P. W. 1 is admissible by virtue of section 32 of the Evidence Act which provides that the statement written or verbal of relevant facts made by a person who is dead etc. Is admissible in the circumstances narrated in subsections (1) to (6) of the above section, which inter alia include the statement made by a person as to the cause of his death. Furthermore, the testimony of Dr. Abdul Sattar cannot be doubted merely on the ground that he did not report the matter to the Police. The above witness has given the explanation as to why the accident was not reported to the Police by stating that the defendant No, 1 as well as the injured Mohammad Farooq told him that a non-medico report should be prepared because they would not want to go to the Police. He has further deposed that the medico legal report was prepared on 19-8-1972 because the injured person expired in the meantime as a result of the injuries, he has also given explanation as to why he was unable to produce the non-medico report which was prepared on 4.4-1972. His explanation was that the non-medico legal reports according to the instructions of the Government are destroyed after 5 years while the medico reports are destroyed after 12 years. In support of his above explanation he has produced a letter dated 19.7-1966 from the then Government of Pakistan, Health Department Exh. 12/2 containing the relevant instructions: It may also be observed that the defendant No, 1 was working in the Dow Medical College for over two decades at the time of the accident. When his testimony was recorded he was working as a Laboratory Technician in the aforesaid College. So it cannot be ruled out that the defendant No, 1 might have manoeuvred that the matter should not be reported to the police.
(i) Reverting to Mr. Umrani's contention that in the column of arrival in Exh. 12/1 19-8-72 has been given as the date of the arrival and not 4-4-72, it may be observed that the above document also contained at the top against the column of date of examination as 4.4-72/19-8-72. The reason for the second date i,e, 19-8-72 has been explained by P. W. 5 that on the expiry of the deceased medico legal report was prepared on 19-8-72. This explanation appears to be plausible.
( j) It was also urged that in the death report dated 25-4-72 Exh. P. 6/1 referred to by me earlier the reason for the death given is pulmonary embolisis and not accident. Mr. Riazul- Hassan, the learned counsel for the defendant No, 3 has explained that the ailment mentioned in Exh. P. 6/1 B relates to clotting of blood in the lungs. It may be observed that the nature of the injuries received by the deceased was such that he could die because of the above ailment.
(k) It may be observed that the plea taken up by the defendant No, I that when he reached near Dada Soap Factory he found a crowd and saw the injured person lying on the road and that at the request of the crowd he carried the injured in his car to the Civil Hospital is belied by the testimony of his witness Farooq Hussain D. W. 2 Exh. 11 who in the cross-examination has stated as follows.: "The Gul Bai road is a two way traffic road. It is correct that while proceeding in the manner we were going in the car towards Baldia Town, Dada Soap Factory falls on the right side, on the other side of the road. The injured was picked from in front of Dada Soap Factory from the other side of the road."
' It is highly improbable that the defendant No, 1 would have picked up the injured from the other side of the road. The time of the accident was about 8 a.m. When there is always very heavy traffic in the Industrial Area, It would have been impossible for the defendant No, 1 to cross over the other side of the road for picking the injured.
' In view of my above discussion my finding on Issues Nos, 1 and 2 are in the affirmative.
6. Issue No, 3.-In support of the above issue Mr. Beg the learned counsel for the plaintiff has relied upon the evidence of P. W. 1 Mohammad Siddique, Exh. 6/4 certificate dated 2-4-73 issued by Messrs Dada Soap Factory Ltd., and the testimony of P. W. 3 Exh. 8 Nisar Ahmed one of the directors of the Soap Factory. It was urged by Mr. Umrani that the plaintiff has not produced the appointment letter. In my view the above objection is devoid of any force inasmuch as it is an admitted postion that the deceased met with the fatal accident in front of the Dada Soap Factory.
Mr. Umrani was unable to attribute any reason to P. W. 3 Nisar Ahmed for supporting the plaintiff's case. 1 he above witness has proved Exh. 6/4 (as he was the signatory of the above certificate). He has also deposed that the deceased was employed in his factory at Rs, 200 per month as a supervisor. The very fact that the amount of the salary mentioned in the above certificate was only Rs, 200 per month is indicative of the fact that the testimony of the above witness and the certificate Exh. P. 6/4 are genuine keeping in view of the fact that the deceased had passed Intermediate Examination.
' My finding on this issue is in the affirmative.
7. (a) Issue No, 4.-D. W. 1 Exh. 10 Gul Majid in reply to the the question put by the learned counsel for the defendant No, 3 has stated that he had a learning licence on the date of the accident and that the licence was taken by the police. It has also been deposed by him that one driver Mohammad Amin was also sitting with him in his car but in his cross-examination he has admitted that the above driver was not in his service but was living in Landhi. Be that as it may, the learning licence is a driving licence.
' It was urged by the learned counsel for the defendant No, 3 Mr. Riazul Hassan that a learning licence cannot be placed at par with a regular licence and, therefore, the insurance company will not be liable under the insurance policy if it is to be held that the defendant No, 1 had merely a learning licence. He referred to rule 15 of the Sind Motor Vehicles Rules, 1940 which inter alia provides that a person holding a learning should be ccompany by a duly licensed driver in the vehicle as an instructor. He has also referred to section 96(2) (b) of the Motor Vehicles Act, 1939, which provides as follows: ' Section 96(1) - (2)(.................................. ............................................
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:-
(I) a condition excluding the use of the vehicle.
(a) for hire or reward, where the vehicle is on the date of the contract . Of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is wed, where the vehicie is a public service vehicle or a goods vehicle, or
(d) without side car being attached, where the vehicle is a motorcycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, Civil War, riot or civil commotion; or"
(b) It may be observed that in case an insurance company desires to exclude its liability for the payment of compensation for the reasons mentioned in clause (b) of subsection (2) of section 95 of the Motor Vehicles Act, the same should be specified in the insurance policy. The burden of proof that the insurance policy contained a clause to the effect that insurance Company would not be liable under the policy if the person driving was not duly licensed was on the defendant No,
3. D. W. 1 in his statement has deposed that the car in question was insured with the defendant No,
3. The same stand was taken in the written statement. The defendant No, 3 did not question the veracity of the above statement in the cross-examination of the above witness though he was cross- examined by him. A perusal of the written statement filed by the defendant No, 3 also shows that it has not been specifically denied by the defendant No, 3 that the car in question was insured with it.
The plea taken was that the defendant No, 1 was not the insured person. Mr. Umrani has referred to the case of Hussain and another v. Mohammad Rafique and 4 others (1) wherein it was held that in order to avail of the defences provided under section 96 of the Act the Insurance Company has to reserve its right in this respect in the insurance policy issued by it and the burden of proof that such reservation was made, is on the insurance company. I, respectfully agree with the above exposition of the law and i. Hold that as the defendant No, 3 has not produced the relevant record of the insurance policy in question indicating as to whether they had reserved the rights provided under section 96(2)(6) of the Act and, therefore, they have not discharged the required burden. Mr. Umarani has also referred to the case of Mst. Aisha Bai v. Abdul Ghafoor D and others (2) in which inter alia it was held that insurance policy covers any driver driving the vehicle with the permission insured and not insured person alone.
' My finding on this issue is in the affirmative.
(8)(a) Issue No, S.-The plaintiffs have claimed an amount of 65600 calculated for a period of 41 years at the rate of Rs, 200 per month minus 1/3rd being the amount of personal expenses of the deceased. While computing the period of 41 years the plaintiffs have assumed 65 years as the expected age of the deceased. On the other hand Mr. Umrani, the learned counsel for the defendants Nos, 1 and 2 has referred to the case of Qudsia Begum v. Younus Khan and 4 others (3) and the case of Mst. Momin Bai and 3 others v. Ghulam Mohammad and 2 others (4). In both the above cases, it was held that the expected age was 60 years. In a few cases decided by me recently. I had also accepted 60 years as the expected age. I accordingly hold that the amount of the compensation is to be computed on the basis of 60 years as the expected age of the deceased.
(b) It was submitted by the learned counsel for the defendants that the age of the plaintiff No, 1 at the time of the accident was 52 years and whereas the plaintiffs have not proved the age of the plaintiff No,
2. It was urged by the learned counsel for the defendants that the plaintiff cannot claim for 41 years or 36 years being the balance of the normal expected span of life of the deceased on the basis of 65 or 60 years ages respectively, as the plaintiffs may not live so long. Mr. Beg, the learned counsel for the plaintiffs has referred to the case of All Gohar v. Mohammad Hajif (5) wherein a learned Single Judge of this Court had awarded compensation for a period of 30 years to the father of the deceased who was 52 years of age.
' On the other hand Mr. Umrani has referred to the case of Din Mohammad and 3 others v. Fakir Mohammad and 2 others (6) and the case of Syed Nusrat Ali v. Messrs U. K. Construction Co. And another (7). In the above Lahore case a Division Bench of the erstwhile High Court of West Pakistan, Lahore had granted compensation for a period of 10 years at the rate of
(1) PLD 1971 Kar. 129 (2) PLD 1977 Kar. 542
(3) PLD 1973 Kar. 636 (4) PLD 1977 Kar. 685
(5) PLD 1975 Kar. 432 (6) PLD 1970 Lah. 472
(7) PLD 963 Kar. 841 Rs, 30 per month to the father whose age was 60 years at the time of the death of his son involved in the accident, and whereas in the aforesaid Karachi case, a learned Single Judge of the earstwhile High Court of West Pakistan, Karachi Bench granted damages for period of 7 years to the father whose age was 65 years at the time of the filing of the suit.
' It may be noticed that in the above Karachi case of 1975 relied upon by the learned counsel for the plaintiffs the question as to whether the deceased's father would survive for a period of 30 years was not considered. In my view no hard and fast rule can be laid for the purpose of determining a reasonable period or a reasonable amount for the purpose of computing compensation to be paid to the parents of a deceased son involved in a fatal accident. It will vary from case to case according to the facts of each case. In the instant case the plaintiffs are not entitled to claim for the entire period of of 36 years being the balance period of the normal expected age of 60 years. I am of the view that 13 years period at Rs, 100 per month will be a reasonable period and a reasonable amount keeping in view the fact that the deceased was expected to get married, and to maintain his family and also keeping in view the fact that the plaintiffs has two other sons. I accordingly hold that the plaintiffs are entitled to Rs, 100 x 12 x 13 =Rs, 15,600.
(c) I accordingly decree the suit as follows:-
(a) a decree for a sum of Rs, 15,600 against the defendants jointly and severally.
(b) 9% interest thereon from the date of the suit till payment.
(c) Proportionate costs.