SALAHUDDIN PANHWAR, J: Succinctly, facts set out in the plaint are that plaintiffs filed instant suit for recovery of Rs.4 Millions under Fatal Accidents Act, 1855 wherein pleading that plaintiffs are minor children of the deceased Choudhri Abdul Malik, aged 37 years who died in a traffic accident on 22.4.1991 at about 1720 hours within territorial jurisdiction of Garden police station on account of rash and negligent driving of the defendant No.2 during the course of employment of defendant No.1. Deceased left surviving a widow, mother, minor daughters and sons. It was pleaded that defendant No.1 was owner of the Bus bearing No.879-576 and the defendant No.2 was driving the above said bus at the time of accident i.e. on 22.4.1991 as per police record during the course of employment of defendant No.1, being their servant/driver/employee. The bus was impounded by the Garden Police station and driver was also arrested consequent upon the First Information Report, lodged with the Garden police station in respect of the accident in question but the said bus was later on released by the order of District & Sessions Judge, Karachi (South) and was handed over to the officers of defendant No.1 on superdari. Death of deceased was pleaded by the plaintiffs to have been caused by actionable wrong, negligence, default and wrongful act of defendant No.2, during employment of defendant No.1, as such the defendant No.1 is legally liable to pay the compensation/damages to the plaintiffs being jointly and severally liable. The plaintiffs, claimed compensation to tune of Rs.4 Millions, while referring that deceased was working as Tea- boy and was also doing part time jobs. The death in result of accident caused serious prejudice to the plaintiffs, being minors of deceased as deceased had planned much for them.
2. In such back ground the plaintiffs prayed for following relief(s):- a) decree in the sum of Rs.40,00,000/- against the defendants who are liable jointly and severally to pay the said sum to the plaintiff on account of damages / compensation; b) Increase at the rate of 15% per annum on the amount claimed in clause (a) above from the date of the filing of the suit till realization of the decreetal amount be awarded; c) Cost of the suit may be awarded to the plaintiff; d) Any other relief or relief or reliefs that this Hon'ble Court may deem just and proper under the circumstances of the case be granted.
3. Defendant No.1 denied most of the assertions and claims of the plaintiff. However, the defendant No.1 in the Written Statement though admitted ownership of the bus and that of status of the defendant No.2 as its (defendant No.1's) driver / employee but denied that death of the deceased Choudhry Abdul Malik was caused by defendant's bus and that accident occurred due to rash and negligent driving of defendant No.2; defendant No.1 denied any liability for tortious acts of any other person. It was pleaded that life span has decreased due to worries unhygienic conditions, carbon- dioxide atmosphere and other social thing prevailing in the third world countries. The claimed compensation of Rs.4 million was also claimed by defendant No.1 as unjustified and unreasonable.
4. The defendant No.2 despite service through substitute mode did not cause his appearance hence was declared exparte vide order dated 17.3.1998. The defendant No.3 on his impleading was provided an opportunity to file the written statement but did not file it.
5. The record shows that no issues were framed however, the matter was referred to Commissioner for recording of the evidence.
6. The importance of framing of the issues cannot be denied but since the object and purpose of the issues was / is nothing but to put parties onto notice with regard to material controversy (ies) , involved in the matter hence if nature of matter is one like putting parties on complete notice and knowledge about material controversies then mere non-framing of the issues may be ignored to do substantial justice because putting the parties back at initial stageshall mean a delayed justice which otherwise shall be a denial to justice. (1993 SCMR 2018).
7. Since, in instant matter there could be no other issues but : 1) Whether the death of the deceased was result of negligence of defendant No.2, the employee of defendant No.1?
2) Whether the defendants are liable jointly and severally to pay compensation to the plaintiffs and other legal heirs. If so, to what extent?
3) What should the decree be?
8. The widow of the deceased was examined as Ex.PW-1 and produced her affidavit in evidence which included FIR No.104/1991 registered with PS Garden Karachi, Attested copy of police report, death certificates of deceased, issued from Civil Hospital and Zonal Municipal Committee Karachi South, B-Form showing name of statutory beneficiaries , last pay certificates of deceased issued from Lever Brothers Pakistan ltd. Identity card of deceased and Identity card of Kishwar Khursheed as Ex.P-2 to P-8 respectively; PW-2 Gulzar Hussain, eye witnesses and PW-3 Muhammad Iqbal, Human Resources Consultant of Employer of deceased.
9. In rebuttal, the defendants did not lead any evidence despite opportunity provided hence side of the defendants was closed.
10. Learned counsel for plaintiffs inter alia contends that sufficient evidence has been brought on record by the plaintiffs to substantiate the onus probandi according to issues, lies upon plaintiffs; accident is undisputed; deceased died at young age and due to untoward incident committed by drive of trailer by negligent driving; act of incident is not denied thus admitted and it is settled proposition of law that in cases of law of torts when accident is not disputed burden lies upon defendants who have not failed to discharge the same. In support of his arguments he relied upon PLD 1997 Karachi 253, PLJ 1996 Karachi 1039, PLD 1995 SC 314, 1988 CLC 1062, PLD 1963 Karachi 182, AIR 1970 SC 479, AIR 1964 SC 544, AIR 1985 (Delhi) 76, AIR 1983 (P&H) 289, 2006 SCMR 207, NLR 1992 Civil (SC) 36, 1997 MLD 2013, 1988 MLD 1651, 1997 CLC 1517, 1998 SCMR 753, 1991 SCMR 2126, 1998 MLD 1122, 1986 MLD 1613, 1984 CLC 3172, 1987 CLC 933, 1988 CLC 2063, 1995 CLC 1714, PLD 1965 Karachi 127, 1995 CLC 986, 1995 CLC 1974, 1996 CLC 1197, 1997 CLC 1510, 1997 MLD 2556, 1997 CLC 932, 1997 CLC 1297, 1997 MLD 2682, 1997 CLC 631, 1998 CLC 575, PLD 1968 Karachi 464, AIR 1977 Karnatka 7, AIR 1967 MP 110, AIR 1983 Delhi 365, PLD 1965 (West Pakistan) Karachi 127, PLD 1982 Karachi 236, PLD 1964 Karachi 72, 1982 CLC 1228, 1987 CLC 933, 1993 SCMR 848 and unreported judgment of honourable Supreme Court passed on 30.01.2015 in Civil Appeals No.1001 & 1002 of 2006.
11. Conversely, learned counsel for defendants argued that plaintiffs have to prove their case; plaintiffs not proved the accident to be result of accident by vehicle of the defendant's hence instant suit is not maintainable and liable to be dismissed.
FINDINGS.
Issue No.1 In affirmative.
Issue No.2 In affirmative.
Issue No.3 Suit is decreed for an amount of Rs.36,30,000/- ISSUE NO.1
12. Before going into further merits of the case, I need to sketch a line regarding onus probandi in fatal accident matters. Normally, the burden lies upon the one who asserts but in fatal accident matters where the defendants either deny negligence or take specific plea of not causing accident then burden shifts upon shoulder of the defendants to prove their stand. Reference can be made to the case of Anisur Rehman v. Govt. of Sindh (1997 CLC 615) and Mst. Sakina v. National Logistic Cell (1995 MLD 633) wherein it was held that: 'The defendants having given a different version of the accident were burdened with to discharge the same and to....."
In another case of Pakistan Steel Mills Corporation v. Malik Abdul Habib (1993 SCMR 848), it was held that: 'If defendant in the suit for damages took the plea that accident had occurred on account of negligence of deceased himself it was his duty to produce evidence to show that machine was in perfect order and there was no defect in the same anddeceased died on account of his own negligence"
In the instant matter, happening of the unfortunate incident, costing life of deceased Choudhry Abdul Malik in road accident is not disputed. The plaintiffs have claimed that accident was the result of negligent and rash driving of the defendant No.1 while the defendant No.2 has come forward with a specific stand that it was not caused by defendant no.1. Such stand of the defendants, having admitted the death of the deceased in result of accident, results in shifting the burden upon the defendants.
13. Thus, in view of above legal proposition, I would proceed further to examine as to whether the defendant(s) discharged the burden which they themselves legally agreed to shoulder. The defendant no.2 did admit that defendant no.2 was owner of bus in question i.e bearing Reg.
No.879-576 and even admitted that defendant no.1 was driver of the defendant no.2 however took an exception that it was not caused by defendant's bus. This shall stand clear from reproduction of para-2 of the written statement of defendant No.1 which is: 'That the contents of para-2 of the plaint are partly admitted and partly denied. It is admitted that the bus bearing No.879-576, belonged to defendant No.1, and defendant No.2 is driver / employee of defendant No.1 but it is specifically denied that death of deceased Choudhry Abdul Malik was caused by defendant's bus and accident occurred due to rash and negligent driving of defendant No.2' (Emphasis supplied)
Albeit, the defendants took such specific stand yet did not examine a single witness hence failure on part of the defendants is prima facie and needs no much debate.
14. Since equity and good conscious demands that it would be fair enough to say what the plaintiffs have produced in order to establish happening of the incident by defendant no.2 (the driver of defendant no.2) and that it was result of negligent driving of defendant no.1. The PW-1 Kishwer Khursheed, the widow of deceased, produced number of documents, including the FIR No.104 of 1991 of PS Garden Karachi so as to prove that death of deceased was result of negligence of driver of bus No.879-576 (defendant No.1). This FIR was not lodged by plaintiffs but it was lodged by SI Muhammad Siddique of PS Garden Karachi wherein he (complainant SI Muhammad Siddique) alleged negligence and rash driving on part of defendant no.1. The lodgment of FIR against defendant no.1 is not denied by the defendants nor has it been denied that vehicle in question was obtained on superdari. Further, death certificates, produced on record, also show death in result of accident. In existence of such undisputed documents and facts, mere denial of the defendants was never sufficient particularly when the defendants brought nothing on record.
15. Not only this, but the plaintiffs have also examined PW-2 Gulzar Hussain who categorically stated that accident was result of rash, negligent and reckless driving of bus of defendant no.2 by the defendant no.1. This specific stand of this witness was not disputed by the defendants even while enjoying opportunity of cross-examination. The defendants while cross examining the PW Gulzar Hussain only put suggestion(s) that: 'It is incorrect to suggest that I had not seen the accident and falsely deposed before this Court.
'It is incorrect to suggest that the Buses cannot fastly run at the peak hours.'
At this place, I would without hesitation insist that speed is never an important factor while gauging the negligence of a heavy vehicle because the single or slightest move of the steering results into change upto the last part of such huge vehicle. In Suit No.1395/2005 (Mst. Hina Ghori and others versus National Logistic Cell and others), I, being author of judgment, already held that: "Let me make it clear that the words 'negligent' is not synonym to 'rash' therefore, in accident cases the plea of slow-speed is not sufficient to dislodge the cases of road accident rather it always rests on the point of negligence. I have no reluctance in saying that mere speed alone cannot necessarily result into accident but it is always the negligence of the holder of the steering which normally results into accident (s). The negligence and carelessness can well be available even when the vehicle is being reversed or being plied at very low speed which, if results into any damage (accident) shall open the guilty to legal consequences. This is the reason because of which the relevant laws, dealing with motor vehicles, do permit driving with high speed from place to place but at no place allows driving of the vehicle with 'negligence' even at very low speed.
Having said so, I am not persuaded in accepting the plea of the defendants that since the speed of the vehicle was slow hence instant suit is not maintainable."
I find strength in such conclusion with the case of Pakistan Steel Mills Corporation Ltd. Karachi & ors V Ehteshamuddin Qureshi (2005 SCMR 1392) wherein it is held that: "The general rule is that driver of heavy vehicle on busy roads must take extra care and must not act in a manner which may be dangerous to the life of others. The slightest carelessness of a driver of a heavy vehicle may badly disturb the traffic on the road and bring the serious consequence of a fatal accident. The high speed or fast driving is not only rash and negligent driving rather carelessness even at low speed may also constitute an act of negligence to hold the driver responsible for the damages."
(Emphasis supplied)
16. The defendants neither examined the driver (defendant no.3) nor examined any other person so as to prove their stand that it was not their vehicle which caused accident or that it was not the negligence of defendant no.1 which resulted into accident.
Further, the defendants have admitted the fact :- i) Bus in question was belonging to them; ii) Defendant no.1 was driver of the bus; iii) accident, resulting into death of Choudhri Abdul Malik; Thus, it cannot be said that the defendants discharged the burden rested upon their shoulders except by mere denial or disputing the claim of other side. The deliberate failure or omission to produce any evidence shall result in drawing adverse inference against the defendants.
Accordingly, in result of what has been discussed above, I answer the issue no.1 as affirmative'
ISSUE NO.2.
17. The burden to prove this issue was upon the plaintiffs. In this regard the plaintiffs claimed the defendant No.1 was the employee/ driver of defendant No.2. The defendants nowhere denied such assertion/claim of the plaintiffs in their pleading (written statement). It is the defendant No.1 who is ultimate beneficiary of its vehicles. The defendant No.2, being the controlling and beneficiary, cannot claim any exception of its own negligence even coming on surface through its servant/driver because the driver/employee would be deemed to be carrying/plying the bus in question under direction and implied control of its employer. Without diving into much debate and to make question of vicarious liability clear, Reference can be made to the case of the Catholic Child Welfare society v Various Claimant (FC) the institute of the Brothers of the Christian Schools (2013 SCMR 787) wherein it is held: '35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicarious liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i). the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii). The tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii). The employee's activity is likely to be part of the business activity of the employer; (iv). The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v). The employee will, to a greater or lesser degree, have been under the control of employer.'
In the instant matter there can be no denial to the fact or legal presumption that: i) defendant Nos.2 and 3 have means to compensate and not the defendant No.1 (employee); ii) the defendant No.1 was driving the bus of defendant No.2 at time of accident being employee; iii) the act of defendant No.1 plying / running bus was part of business activity of the defendant No.2; iv) it was the defendant No.2 who by allowing the defendant No.1 to ply the bus on road has knowledge of creation of any tort by its (defendant No.2's) employee i.e defendant No.1; v) the defendant No.2 (being employee) was under direct control of the defendant No.1.
Accordingly, it is safe to say that all above conditions stand established hence it is not difficult to conclude that the defendants are jointly and severally liable for the tort in question. Accordingly, the part issue is in affirmation.
18. Thus, it is pertinent to mention that the plaintiffs specifically pleaded that deceased was a healthy person; was earning sufficient amount for his family even by labour. Though, the deceased happened to be a Tea-boy and was earning only Rs.3554/- per month however, what is not disputed is the fact that deceased was the only bread earner of a large family. The plaintiffs however produced nothing on record to substantiate the average life in the family but since the defendants have also brought nothing on record to prove otherwise. In such eventuality it would be appropriate to take guidance from Honourable Apex Court hence I would like to refer the operative part of the judgment of honourable Supreme Court, reported as 2011 SCMR 1836 which reads as: "Besides, the above we would like to add here, that when a person has surmounted his teenage, and the early youth and enters into his practical life by joining an employment or a business etc., it can be legitimately expected that he shall complete his inning by attaining the age of his normal retirement from such practical life, meaning thereby, that he shall remain engaged in some gainful activity, obviously till the time he in the ordinary course, is mentally and physically fit and capable.
Such an age on the touchstone of 'reasonable standard' can be termed to be somewhat around sixty five to seventy years; to support the above age limit there is preponderance of judicial view in our jurisdiction, that it should be seventy years; some of the judgments in this behalf are Hassan Jehan v. Islamic Republic of Pakistan ...... "
The deceased died at the age of 37 years hence has surmounted his teenage and has joined the practical life. Therefore, following the above principle, I would also take the age of the deceased for compensation/damage as 'seventy years'. It is pleaded that the deceased was working as a tea- boy. To ascertain the quantum of minimum wages for unskilled worker reference can be made to the Minimum Wages for unskilled Workers Ordinance, 1969 wherein minimum wages for unskilled workers are provided, amendment as to quantum of minimum wages made from time to time are as under:- {{table}} Rs.8,000 per month (w.e.f. 1st July 2012 till 30th June, 2013)
Rs.10,000 per month (w.e.f. 1st July 2013 till 30th June, 2014)
Rs.12,000 per month (w.e.f. 1st July 2014 till 30th June, 2015)
Rs.13,000 per month (w.e.f. 1st July 2015)
Hence, average monthly income of the deceased could not be believed to be less than Rs.10,000/- in a city like Karachi.
Therefore, the compensation / damage is awarded as: Loss of pecuniary benefits to plaintiffs/LRs of deceased 33 x 12 x 10,000/- = Rs.39,60,000/- ADD 10% increase chances on the aggregate income of over all years: Rs.3,96,000/- Thus TOTAL amount comes to : Rs.43,56,0000/- LESS: Personal expenses at 1/6th i.e : Rs.7,26,000/- Net loss of pecuniary benefits: Rs.36,30,000/- Accordingly, it is safe to say that all above conditions stand established hence it is not difficult to conclude that the defendants are jointly and severally liable for the tort in question. Accordingly, the part issue is in affirmation.
ISSUE NO.3.
19. In result of the discussion made on issue Nos.1 and 2, the suit of the plaintiffs is decreed in above terms. Let such decree be drawn. However, parties are left to bear their own costs.
20. Before parting, it is observed that the cases filed under the Fatal Accident Act 1855 need urgent disposal as these cases involve deceased's widow, orphan(s), mother and/or father, which is a case of hardship, and on the other hand these cases remain pending for considerably long period (as in this case filed back in 1992) therefore judicial propriety demands that the cases filed under the Act 1855 (either the cases pending for disposal or the ones to be filed in future) may also be treated as fast track cases from the day one, within the ambit of circular No.GAZ/XII.Z.14(HC)(i) dated 16th October 2012 relating to fast track cases. Office to place such recommendation before the honourable Chief Justice for orders as deemed fit and proper.