1. ' ABDUL RASHEED KALWAR, J.---This appeal under section 3 of the Law Reforms Ordinance, 1973 is directed against the judgment and decree, dated 2-7-1992 and 2-5-1993 respectively passed by learned Single Judge of this Court in Suit No.549 of 1984 whereby the suit of appellant was dismissed. The facts relevant for decision of this appeal are as follows:-- ' The appellant is father of deceased Talib Hussain aged about 11 years, had filed suit for recovery of Rs.3,50,000 under the provisions of Fatal Accidents Act, 1855 against the respondents as his son had died on 23-6-1983 in a road accident. The appellant and his wife Fateh Bibi aged about 35 years, who are only surviving legal heirs of their deceased son. The respondent No. 1 was owner of offending-bus whereas the respondent No.2 was its driver. The appellant had averred in the plaint that his son had died due to fatal injuries received by rash and negligent driving of respondent No.2, who hit the bus to deceased while he was standing on the road near Murghi Khana, Qaidabad, Karachi. The appellant had claimed Rs.3,50,000 as compensation with interest 15% per annum on the said claimed amount from the date of filing of the suit till the realization of the decretal amount.
2. ' From the record, it appears that the instant suit was filed and plaint was present on 5-8-1984. After service of summons, the respondent No. 1 filed his written statement whereas the respondent No. 2 chosen to remain absent, as such, proceed ex A parte. The respondent No. 1 did not deny the factum of killing of deceased son of appellant in the accident with their bus but denied the negligence on the part of the driver.
3. ' In order to justify the claim, the appellant had claimed that the deceased was 'earning Rs.25 per day by selling chollas but was expected to earn Rs.2000 in the next 4 or 5 years. This claim was also denied by the respondent.
4. ' By consent, the Court had adopted the following issues:--
(1) Whether the accident was caused due to rash and negligent driving of the driver or the deceased was contributory to the accident?
(2) Whether the plaintiff is entitled to compensation? If so, to what extent?
(3) Whether the plaintiff is entitled costs and interest?
(4) What should the decree be?
5. ' The appellant supported his case by examining himself and his cousin Ghulam Muhammad whereas the defendants examined Mr. Jehangir Abdullah its Company Manager.
6. ' Learned Single Judge held that onus to prove negligence of the driver always lies on the plaintiff and he having not found the plaintiff's side evidence, sufficient to prove this fact had decided the Issue No.1 in negative.
7. ' As regards the contention of earning of deceased, learned Single Judge had held that since deceased left school after Class-II, he was illiterate and could have secured job at 18 years of age as peon or like nature for Rs.1500 per month. It was further observed that deceased could have shared compensation at the rate of Rs.200 per month for 22 years of age life of deceased which comes to Rs.52,800 if the Issue No.1 was decided in favour of the appellant. Resultantly, in view of these findings, the suit was dismissed leaving the parties to bear their own costs vide judgment and decree as referred above, which have been impugned in the instant appeal.
8. ' Instant appeal filed on 7-10-1993 and came up for final hearing today i.e. 20-9-2007.
9. ' Main contention of learned counsel for the appellant was that the learned Single Judge had wrongly placed the burden of proof on the appellant, to prove the negligence of driver. He contended that when the cause of death of deceased was admitted due to accident with the bus of respondent No.1 and the respondent No.1 neither denied the facts nor adduced the evidence of any witness who had seen the incident. The burden of the Issue No.1 was on the shoulders of the respondent No. 5 which he failed to discharge. In support of his contention, he has relied upon the case-law reported as Federation of Pakistan v. Hafiza Malika Khatoon 1996 SCM R 406 (410) and another case reported as Haji Abdul Razzaq v.. Pakistan Ministry of Defence, 2005 MLD 14 Upheld in Haji Abdul Razzak v. Pakistan Ministry of Defence 2005 SCM R 587. It was held that once accident is admitted and proved, burden of proof is on defendant to prove absence of negligence is on defendant. In instant case, defendant failed to produce best evidence. Neither the driver nor conductor nor any other person riding the bus at the time of accident was produced in such cases drawing adverse presumption is but natural.
10. ' The respondent was under obligation to prove the diligence of the driver but he has failed to satisfy the Court on this point in issue. Mr. Abdul Jabbar Lakho, learned A.A.-G. Has not denied the factum of death of appellant's son in the road accident with the bus of respondent No.1 and he has also not cited any case-law which may have supported, the case of respondents.
11. ' We have heard the arguments, perused the record and examined the case laws cited by the learned counsel for appellant.
12. In view of the above admitted position and the case laws hereinabove, we are of the considered view that it is proved that Talib Hussain had died due to accident with bus owned by the respondent No.1 and respondent has failed to discharge the burden of, proof. Therefore, Issue No.1 is proved against the respondents.
13. ' As regards the question of compensation, learned counsel for the appellant had invited our attention to the impugned judgment at para. 11 wherein learned Single Judge himself had shown the accepted income of Rs.1500 per month of the deceased and even making calculation on the basis of amount mentioned by the learned Single Judge the total sum shall be more than the amount claimed in the suit. As such, in all fairness, since the prayer in the suit appears to be very reasonable, instant appeal is allowed and the suit is decreed as prayed. Let the decree be prepared in accordance with law.
14. ' In consequence, we had allowed his appeal and set aside the impugned judgment and decree, dated 2-7-1992 by our short order, dated 20-9-2007 and above are the reasons for the same.