' The plaintiffs filed this suit for the recovery of damages on account of an accident which took place on 22nd May, 1973. Two persons, namely Amin Yousuf Nizami and Aslam Yousuf Nizami were injured in the accident. Amin Yousuf Nizami, later on died. There are 7 plaintiffs who have filed the present suit. Plaintiff No. 1 is the mother, plaintiff No, 2 is the widow and plaintiffs Nos. 3 to 6 minor children of the deceased. Plaintiff No, 7 is Aslam Yousuf Nizami, who has claimed damages on account of injuries received in the accident. Defendant No. 1 was the owner and driver of the car at the time of the accident and defendant No, 2 is the Insurance Company with whom the car was comprehensively insured.
2. According to the plaint, on 22nd May, 1973, the deceased and his brother (planitiff No, 7) were travelling on a motor-scooter belonging to the deceased. The deceased was driving the scooter with plaintiff No, 7 sitting on the back seat. They were going on the scooter on the left side of the main North Nazimabad Road from Hydari towards the Railway Bridge when, according to the plaintiffs, defendant No. 1 who was driving his car in the second lane on the same side in the same direction suddenly, rashly and negligently, and without giving any signal, turned his car towards the footpath and brought his car to a sudden stop. This resulted in an accident as the scooter hit the car which caused serious injuries to the deceased and plaintiff No,
7. The deceased succumbed to his injuries on 27th May, 1973 in the Civil Hospital, Karachi. According to the plaint, the accident also caused plaintiff No, 7, three fractures on different parts of his body. Plaintiffs Nos. 1 to 6 as heirs and dependants of the deceased have claimed a sum of Rs, 1,50,000 as compensation for the loss resulting from the death of the deceased, Rs, 20,000 for shock and pain, Rs, 2,000 for medical and other expenses. Plaintiff No, 7 has claimed Rs, 70,000 as compensation for loss of income and permanent disability, Rs, 10,000 for pain and shock and Rs, 1,500 for medical and other expenses.
3. In the written statement filed by defendant No. 1 it has been denied that the defendant No. 1 was negligent. It has been further pleaded that in fact the accident took place on account of the negligence of the deceased who was 'driving the scooter at the time of the accident. The case of the defendant No. 1 on merit as far as the accident is concerned is given in the third sub- paragraph of para. 1 of his written statement which is reproduced here :- "Defendant No. 1 stated that on 22nd May, 1973 at about 8 a.m. Defendant No. 1 left his house in his car which was being driven by him from North Nazimabad to Saddar side on his way to his office. ,..His nephew Master Iqbal Ahmed and his son Master Qamrul Hoda were sitting on the rear seat alongwith Mr. B. A. Faruqui. The two boys had to be dropped as usual at the usual spot for reaching Taimurya Public School where they were studying. Defendant No. 1 was driving his car and Mr. Kalimullah his colleague was sitting next to him in the front seat. Defendant No. 1 after giving proper signal stopped his car at the usual spot, the place where later the accident occurred, to let the two boys get down for going to the school. Mr. B. A. Faruqui got down first to let the two boys alight from the car. After the two boys had got down on the footpath, Mr. B. A. Faruqui took his seat in the rear seat of the car and when defendant No. 1 started his car and was about to put the car in motion, the car was hit at the back by a scooter which was driven by a person who was later on identified as Amin Yousuf Nizami. Defendant No. 1 and the other two passengers got down to see what had happened and found that the scooter had rammed into the rear of the car and Amin Yousuf Nizami and another gentleman who was sitting on the pinion of the Scooter was lying injured.
Defendant No. 1 on humanitarian grounds at once took them in his car to Civil Hospital. Where they were admitted. The matter was reported to and investigated by the Police who found the driver of the scooter negligent. It is respectfully submitted that in the circumstances, the accident was caused by the gross negligence and reckless driving of the scooter by Amin Yousuf Nizami. The scooter rammed into the rear of car while the car was stationary. Defendant No, I has no knowledge about the nature of injuries received by the driver of the scooter and by plaintiff No 7 and does not admit the same."
4. Defendant No, 2, the Insurance Company, has filed a written statement which is identical to the written-statement of defendant No. 1. On the pleadings of the parties, the following issues were framed by the Court on 1st July, 1975 :--
(1) Whether the late Amin Yousuf Nizami and plaintiff No, 7 met with an accident as a result of rackless and negligent driving of defendant No. 1 as alleged ?
(2) Whether the plaintiffs are entitled to compensation as claimed ?
(3) Whether the suit is bad for misjoinder of parties and causes of action ?
(4) What should be the decree ?
5. On behalf of the plaintiffs, the following 5 witnesses were examined :-
(1) P. W. 1, Dr. Zainul Abedin Qazi (Exh. 6).
(ii) P. W. 2, Dr. Latifun Nisa Alam (Exh 7) examined on commission.
(iii) P. W. 3, plaintiff No, 7 (Exh. 8).
(iv) P. W. 4, Aini Nizami, plaintiff No, 2 and widow of the deceased (Exh. 9).
(v) P. W. 5, Dr. A. M. Qureshi (Exh. 10).
6. On behalf of the plaintiffs, the only evidence which deals with the cause of accident has been given by plaintiff No,
7. In his evidence, plaintiff No, 7 stated that on 25th May, 1973, he and his brother were going on a scooter to the factory on Manghopir and were passing Barkat Hydari area at about 8 a.m. When near about Barkat Hydari bus-stop a car driven by defendant No. 1 suddenly came in front of their scooter leaving the second lane and crossing over to the 3rd lane without giving any warning or signal. According to this witness defendant No. 1 suddenly stopped the car in order to give lift to some friend and in consequence thereof the scooter which was moving at a speed of 20 to 25 miles per hour dashed against the rear of the car. Due to this impact both the brothers fell down from scooter and received serious injuries. According to the version of the accident given on behalf of the plaintiffs through the evidence of plaintiff No, 7, the cause of accident was the negligence of defendant No. 1 in suddenly leaving the second lane without any signal or warning and crossing over the third lane and stopping the car on the left side of the road and coming in front of the scooter. If this evidence is to be believed, it would amount to negligent driving on the part of defendant No. 1 as before changing lane he was required to ensure that the left lane in which he was going was free from traffic and that the lane could be changed without coming in front suddenly of another vehicle which might cause an accident.
7. On behalf of the defendants, 3 witnesses were examined, namely, Muhammad Kaleemullah D. W.
I (Exh. 11). Basheer Ahmed Farooqui D. W. 2 (Exh. 12) and defendant No. 1 (Exh.
13.). The version given in the written-statement of the defendants was that defendant No. 1 had stopped the car on the extreme left hand side of the main road and at that time Kalimullah was sitting in front with him and his colleague, namely, Basheer Ahmed Farooqui was sitting with two boys, that is a son of defendant No. 1 and his nephew, on the back seat. After the car had come to a stop, the left rear door was opened by Basheer Ahmed Farooqui and he got out. Thereafter the two boys came out of the car to go to the school. After the two boys had got out. Basheer Farooqui again sat in the car and closed the left hand rear door. After this, just before defendant No. 1 could start his car again, the scooter with the two brothers hit the car of defendant No. 1 from behind resulting in the injuries to the two brothers. According to the defendant No, t therefore, there was no negligence on the part of defendant No. 1 and on the contrary the accident had taken place on account of negligence on the part of the deceased himself in hitting the car of defendant No. 1 from behind with open eyes. According to defendant No. 1, the deceased should have seen that the car of defendant No. 1 was not moving and was parked on the extreme left hand side of the road and if in spite of this the accident had taken place, only the deceased is to be blamed for the accident and the resultant injury.
8. Mr. Iqbal Kazi, learned counsel for the plaintiffs, has argued that of the two versions, the version given by plaintiff No, 7 as regards the exact cause of accident is not only more probable but also convincing and on the other hand the evidence on behalf of the defendants was conflicting and the story suggested by the defendants was not what probably had happened.
9. In his evidence, Muhammad Kaleemullah, D. W. 1 (Exh. 11). During his cross-examination, had denied that at the time the accident took place the car of the defendant No, I was in the middle or the right lane of the main road going towards the city. According to his evidence, the correct position was that after the car had crossed the Water Pump roundabout, defendant No, l had taken the car on the extreme left and the car had then been stopped for dropping the two boys. In Iris evidence Basheer Ahmed Farooqi, D. W. 2 (Exh. 12), who was one of the other occupants of the car at the time of accident, has stated that defendant No. 1, after crossing the roundabout known as "Water Pump" and before reaching Hydari bus-stop, was driving the car in the middle of the road.
Just before reaching Hydari bus-stop, according to this witness, defendant No. 1 started turning towards the left lane as the school where the boys were to be dropped is about 25 yards in front of Hyderi bus-stop. In his cross-examination, defendant No, I denied the suggestion that he had suddenly shifted his lane from the Centre to the left without- any indication and that this was the cause of the accident. According to deposition of the defendant No. 1, he slowly came to the left hand side and parked his car near Tamuria School. According to him, he had been doing this practically everyday while taking the children to school. I may point out here that the two other defence witnesses were colleagues of defendant No. 1 and had worked with him in the same company for a long time and D. W. 1 used to be given a lift by defendant No 1 everyday while going to their office and D. W. 2 also had taken lift in the car of the defendant No. 1 when the car of defendant No, 2 had gone for repairs.
10. In my view the- more probable of the two versions is the one given by plaintiff No,
7. If the version of defendant No, I is to be believed then the facts would be that the car of defendant No. 1 was stopped on the left hand side of the road, the left rear door was opened and D. W. I came out, and then the two boys also came out for going to their school. Thereafter D. W. 1 again sat in the car and closed the door and then the accident happened with the scooter hitting the car from behind. If this is the correct version, then there was agape of about 15 seconds to 30 seconds from the time the car was stopped and when the impact took place which would mean that at the time the car had been stopped the scooter of the deceased would be about 100 yards behind the car. In normal circumstances, if this was the position both P. W. 7 as well as the deceased should have seen the car standing on the left hand side of the road and if there was no place to overtake the car, the deceased would have had sufficient time to stop the scooter and avoid the accident. If in spite of this time of 15 to 30 seconds available, the accident takes place with such severity that as a result serious injuries were caused with the deceased dying after a few days, it would be a case more or less of suicide by the deceased. As 1 has observed earlier, the version given by plaintiff No, 7 appears to be the more probable of the two versions. The version of plaintiff No,7 is that he and the deceased were going on the left hand side of the main road when suddenly defendant No, I changed his lane without indication and came in front of their scooter leaving the deceased neither time nor space to stop the scooter and avoid the accident.
11. Mr. Iqbal Kazi has pointed out that according to D. W. 2 Bashir Ahmed Farooqui, defendant No. 1 started going towards the left hand side of the road from the point near the Hydari bus-stop. He has further given evidence that the place where the car was stopped was about 25 yards ahead of Hadari bus-stop. According, to this witness, therefore, at a time when the road is full of traffic with people going to their offices or for work at 8-00 a. m. In the morning, defendant No. 1 from the middle lane of the main North Nazimabad Road comes to the extreme left hand side of the road and stops within a distance of about 25 yards. This would show that a sudden turn was taken from the middle of the road to the left hand side. A prudent driver would, immediately on taking the round-about at Water Pump, have taken his car to the left hand side to give him ample room for stopping the car where he wanted to, without creating problems for other vehicles, instead of taking the middle lane of the main road after the roundabout and then within a space of about 25 yards, on a road full of traffic, coming from the middle of the road to the extreme left hand side of the road and stopping the car.
12. Apart from my conclusion that the version given by plaintiff No, 7 was the more probable of the 2 versions, 1 am of the view that learned counsel for the plaintiff is correct that there is conflict in the testimony of the witnesses on behalf of the defendants as regards the exact details of the incident.
According to D W. 2, defendant No. 1 after crossing the Water Pump round-about remained in the middle of the road and then just before reaching the place where he was to stop, changed the lane and came to a dead stop on the extreme left hand side of the road within a distance of about 25 yards. Defendant No, I, however, in his evidence have stated that after crossing the Water Pump round-about he remained on the left hand side and stopped the car. D. W. 1 has also given the same version as defendant No. 1, but much reliance cannot be placed on the evidence of Kaleemullah (D. W. 1) as in reply to the legal notice (Exh. 9/4) given on behalf of the plaintiffs, defendant No. 1 in his letter dated 22nd April, 1974 (Exhs. 9/7) mentions that in the car besides the two boys B. A. Farooqui was the other passenger. No mention is made of Kaleemullah (D. W. 1). In these circumstances, if it is to be assumed that Kaleemullah was not an occupant of the car, a completely different picture of the facts appear. Then Basheer Ahmed Farooqui would be sitting on the front seat with the defendant No. 1 and there would be no occasion for him to open the rear door and get out of the car to let the two boys alight from the car the two boys would be the only two persons at the back. The omission to mention the name of Kaleemullah and specific mention of the other for occupants of the car in Exhs. 9/7 affects not only the veracity of the evidence of Kaleemullah but casts doubts upon the version given on behalf of the defendants inasmuch as Kaleemullah finds a very important position in that version.
13. Another factor pointed out by learned counsel for the plaintiffs and which, according to me, has some substance, is that plaintiff No, 7 was not cross-examined as regards the version given by him about the accident. According to learned counsel, he was not properly cross-examined and the version of the defendants was not put to him. In view of this, according to learned counsel, veracity of the evidence of plaintiff No, 7 as regards the exact details of accident has not been challenged.
On the other hand. According to learned counsel for the plaintiffs, cross-examination had taken place of the three witnesses on behalf of the defendants as regards the factual details of the accident and the case of the plaintiff was in fact put to all these three witnesses. Standing alone this factor, in my view, would not have been sufficient but in addition to the reasons already given by me, this is an additional factor in coming to the conclusion that the version given by plaintiff No 7 in this regard is correct. I have already pointed out the fact that both D. W. 1 and D. W. 2 were colleagues of defendant No, I and were under his obligation on account of the lift being given by defendant No, I to these two in his car for going to their office.
14. I may also refer to another factor which is relevant here and that is that the defendants in their written statements and also in the cross-examination of plaintiff No, 7 had relied upon the F. I. R.
And the report of the motor vehicle Inspector in respect of this accident. In fact the Police report was relied upon by the defendants in the list of documents given in their written-statement as "documents relied upon' and both the documents also mentioned specifically in their affidavit-of- documents. In spite of placing such reliance on these two documents, these were not produced by the defendants, and in my view the conclusion that can fairly be drawn would be that had these documents been produced, these would have gone against the version given by the defendants.
15. Mr. M. H. Kazmi, learned counsel for the defendants had urged that it was more probable that the accident happened in the manner deposed by defendant No, I. According to him defendant No. 1 was taking two children in his car including his son and, therefore, it is to be presumed that he must have been very cautious. I don't see any substance in this contention as the same can be said about the deceased who was taking his brother on the scooter as a pillion passenger.
Therefore, on the same assumption, it can be argued that deceased also must have been very careful in driving his scooter. Then it was contended that the deceased should be presumed to be driving his scooter at a very fast speed keeping in consideration the severity of the accident.
According to the evidence of plaintiff No,
7. The deceased was driving at a speed of about 25 miles per hour at the time the accident took place. Even if there is an accident with the scooter going at this moderate speed, injuries that were suffered by the two brothers could have been caused.
There is nothing on the record to show that such injuries could not be caused with the scooter going at 25 miles per hour. In any case the evidence of plaintiff No, 7 that the scooter was going at 25 m. p. h. Has gone unchallenged. Mr. Kazmi had next contended that the Court may take judicial notice of the fact that, as a pillion passenger, the vision of plaintiff No, 7 was blocked by the deceased and reliance should not be placed on his evidence. Firstly there is no cross-examination of plaintiff on this point and secondly as a matter of generai observation it can be stated that the pillion passenger can see in the front without any difficulty. It was then argued by learned counsel for the defendants that no sketch had been produced to show the position of the vehicles involved in the accident and the scene of the accident. In my view this was not necessary and it was the case of the defendants that a motor vehicle inspector had inspected the scene of the accident. If the defendants wanted they could have produced the report of such Inspector and a sketch if prepared by him. However, although reliance was placed on such report by the defendants, the same was not produced in evidence.
16. Mr. Kazmi had also argued that the case of the plaintiffs in the plaint was that the defendant No. 1 had stopped the car on a signal from a friend on the roadside and as this fact of signalling had not been established, the version of the plaintiff should not be accepted. I am not impressed by this argument as, even if this signalling is not proved, negligence of the defendant No. 1 can be proved from other facts which point to the manner in which the accident had taken place.
17. It was contended by learned counsel for the defendants that the defendant No. 1 had not been challaned by the Police and this was relevant factor to be considered in view of sections 6 and 9 of the Eviden Act. In my view the fact whether the defendant No. 1 was or was no challaned in Criminal Court is not a relevant fact under sections 6 and of the Evidence Act and has no bearing in a Civil Suit filed for claimin damages.
18. In the circumstances, I have reached the conclusion that the accident had taken place on account of the defendant No, I suddenly changing lane and coming in front of the scooter of the deceased giving them no time to avoid the accident. In my view the accident took place on account of the negligent driving on the part of defendant No. 1. Issue No. 1 is, therefore, decided in the affirmative in favour of the plaintiffs.
19. Issue No, 2- "Whether the plaintiffs are entitled to compensation as claimed ?"
I will first deal with the question of compensation claimed by laintiffs Nos. 1 to 6 as the legal heirs and dependents of deceased. Amin Yousuf Nizami. The accident had taken place on 22nd May, 1973 but the deceased died ultimately on 27th May, 1973 at the Civil Hospital Karachi. If it had been denied that the death was the direct result of the accident, it would have been necessary for me to discuss the evidence brought on record in this behalf. However, I do not consider it necessary to deal with such evidence as during the examination of Dr. A. M. Qureshi (P. W. 4) Mr. Kazmi, learned counsel for the defendants had made a statement that he does not deny that the deceased died on account of the accident. As I have already held that the accident took place on account of the negligence of defendant No. 1 and it is now admitted that the deceased died on account of injuries received during the accident, it is obvious that plaintiffs Nos. 1 to 6 as legal heirs and dependents, are entitled to compensation if they have been deprived of any financial benefit they were receiving from the deceased. The extent of compensation depends on the evidence that has been led on behalf of the plaintiffs.
20. The widow of the deceased, plaintiff No, 2, in her evidence (Exh. 9) has stated that her husband was drawing a salary of Rs, 2,000 as a Weaving and Sizing Master from Karim Industries at the time of his death. It was also deposed by her that the deceased was in sound health and his age was 38 years at the time of the accident. The fact that the deceased was working in Karim Industries is confirmed from the income tax assessment orders for the years 1971-72 and 1972-73 produced as Exhs. 9/1 and 9/2 by the witness. These assessment orders show that the deceased was at least drawing a salary of Rs, 1,500 per month at the time of his death. Mr. Lqbal Kazi, learned counsel for the plaintiffs, had contended that out of his salary the deceased must have been spending 2/3rd on his widow and children and Mr. Kazmi has also not disputed that in normal circumstances a man with a wife and children spends about 2/3rd of his income on the maintenance of his wife and children. I, therefore, take Rs, 1,500 per month as the solar; of the deceased at the time of his death and further find that a sum of Rs, 1,000 per month was being spent by the deceased on his wife and children. There is no evidence that any amount was being spent by the deceased on plaintiff No. 1, the mother of the deceased and I, therefore, hold that plaintiff No. 1 is not entitled to any amount as damages on account of the death of the deceased.
21. The next question which arises is the expected age, to which the deceased was likely to live, in case his life had not been terminated abruptly by the unfortunate accident. I accept the age of the deceased as 38 years at the time of his death on the basis of the evidence of the widow. In the judgments delivered during the last decade, the superior Courts of or country have taken the expected span of life as 60 or 65 years but the recent trend in the judgments is to accept the conservative figure of 60 years in fatal accident cases, if there is no evidence on record that the deceased was suffering from any malady or disease which, on medical authority, was likely to curtail the life span of the deceased. In case, however, evidence comes on record that in the family of the deceased, the normal age in fact was more than 60 years, the Court would not be restricted to 60 years as the expected age of the deceased but may take 65 years or even more as the expected age. In the present case, no evidence has been brought on record on behalf of the plaintiffs That the normal age in their family was over 60 years. The deceased has been proved to be a person of good health. I accordingly hold that he would have lived at least to the age of 60 years if his life had not been terminated prematurely.
22. In the circumstances, the deceased would have lived for another period of 22 years to reach the age of 60 years. At the rate of Rs, 12,000 per annum as the amount he was expected to spend on his wife and children, the figure for 22 years far exceeds the claim of Rs, 1,50,000 made in this behalf. I accordingly hold that the plaintiffs Nos. 2 to 6 are entitled to an amount of Rs, 1,50,000 as damages on account of the death of the deceased.
23. I apportion, out of this amount of Rs, 1,50,000, the shares of plaintiffs 2 to 6 as follows :- (i)Rs, 70,000 to the widow, plaintiff No, 2.
(ii) Rs, 20,000 each to the for children namely plaintiffs Nos. 3 to 6.
' As far as other claims are concerned on behalf of plaintiffs Nos. 1 to 6, no arguments were addressed by the counsel for the plaintiffs and I dismiss the other claims made on behalf of plaintiffs Nos. 1 to 6.
24. Plaintiff No, 7 has claimed a sum of Rs, 70,000 on account of damages for loss of his income and disability. Rs, 10,000 for pain and shock and Rs, 1,500 for medical expenses. In his evidence, plaintiff No, 7 has given his age as 36 years. He has deposed that in the year 1973 he was doing business of manufacturing clothes and he was working on 10 looms on contract basis and his income then was Rs, 2,000 per month. As regards the injuries, his evidence is that due to the impact he and his brother fell down from the scooter and the witness became unconscious. He was removed to Civil Hospital, where he was given treatment. He suffered 3 fractures, one of fibula, the second of tibia and the third was a fracture in the right shoulder. His leg was bleeding on account of injuries received in the accident. His bones were X-rayed and thereafter they were put under plaster He was told at the time he was discharged from hospital that if his leg gigot swollen and gave pain, the doctors should be informed. On coming back from the hospital he found his leg was bleeding and that the bones were not put under plaster properly. After 4 days he was again removed to hospital through an ambulance, plaster was cut and his leg was again put under plaster putting the broken bones in proper order. He also consulted Dr. Kazi, who has given evidence (Exh. 6).
According to plaintiff No, 7 he remained under the treatment of Dr. Kazi for about 7 months. X-rays of his legs and reports of injuries to bones have been filed as Exhs. 6/1 to 6/6. On account of the injuries received, according to plaintiff No, 7, he could not work as.He used to work before and he was still handicapped when he gave evidence and continues to have constant pain and the pain was present when he gave evidence before the Court. According to his evidence, his ankle of the left leg does not move at all. If his loss for 7 months is calculated at Rs, 2,000 per month, it comes to Rs, 14,000. In my view for the injuries that he had suffered and the permanent disability and constant pain that he has acquired and the fact that he cannot work in the same manner as he used to do before the accident and that he was till handicapped, his claim of Rs, 70,000 which includes the loss of income at the rate of Rs, 2,000 for 7 months is not exaggerated. There is no cross-examination of plaintiff No, 7 on this point and in the circumstances, I find that the plaintiff No, 7 has been able to prove his claim for Rs, 70,000 as compensation for loss of his income and disability. Other claims made by him are rejected as no arguments were addressed in that behalf by learned counsel for the plaintiff.
"Issue No, 3.-Whethdt the suit is bad for misjoinder of parties and causes of action ?"
' The burden of this issue was on the defendants but Mr. S. H. Kazmi learned counsel for the defendants did not press this issue. In the circumstances, this issue is decided in the negative against the defendants.
26. Issue No, 4 is about what should be the decree. In view of my findings on Issues Nos. 1 and 2, I decree this suit in favour of plaintiffs No, 2 to 6 for a total sum of Rs, 1,50,000 jointly and severally against the defendants.
' This amount is apportioned in the following shares :-
(a) Plaintiff No, 2 shall be entitled to Rs, 70,000 out of this amount of Rs, 1,50.000 ; and
(b) the for children namely plaintiffs Nos. 3 to 6 will be entitled to a sum of Rs, 20,000 each.
' I also pass a decree of Rs, 70,000 in favour of the plaintiff No, 7 against the defendants jointly and severally.
' The defendants shall also be liable jointly and severally to pay interest at the rate of 9% per annum on the amounts decreed from the date of the decree till payment. Plaintiffs Nos. 2 to 7 shall also be entitled to proportionate costs.
' Suit of plaintiff No. 1 is dismissed.