' This is a suit for recovery of Rs, 75,000 under the Fatal Accidents Act. Briefly the facts are that one Akbar Ali son of Ghulam Hussain died on 11-4-1974 as a car bearing No, KCC-1317, which was rashly and negligently driven by defendant No, 1, dashed him on J. I. Chundrigar Road, opposite Cotton Exchange Building. The car is owned by defendant No, 1 and insured with defendant No, 2 against 3rd party risk. It has further been averred that deceased at the time of his death was earning Rs, 500 per month and was spending Rs, 150 on himself and the rest was spent by him for the benefit of the plaintiffs. The deceased was born on 25th Feb. 1920 and maintained a good health and his expectancy of life has been estimated at 65 years. The Plaintiffs have claimed Rs, 50,000 as damages and Rs, 25,000 towards loss of companionship, affection, comfort and position caused to them due to the death of the deceased. Defendant No, 1 filed written statement denying all the allegations. It was pleaded that at the place of incident it is a two-way road and some car hit the deceased and his body was thrown on the bonnet of his car. Defendant No, 1 immediately stopped his car. It has been averred that the car of defendant No, 1 never dashed the deceased and it was not driven rashly and negligently. The defendant No, 1 took the deceased out of sympathy and moral duty to the Civil Hospital. The defendant No, 2 has taken up the plea that the car was not insured with them.
' On the pleadings of the parties the following Issues were settled by the Court:
(1) Whether the accident as alleged took place ?
(2) Whether the plaintiffs are entitled to the compensation claimed or any compensation from the defendants or any of them ?
(3) Whether the car was insured with defendant No, 2 ?
(4) Relief.
' Plaintiff No, 1 and defendant No, 1 have examined themselves. The evidence led by both the parties is short and scanty.
Issue No, 1 : So far this issue is concerned the Plaintiffs have examined Plaintiff No, 1 who has stated that on 11-4-1975 her husband was knocked down by Car No, KCC 1317 opposite Cotton Exchange Building which was driven by defendant No,
1. Consequently her husband died the same day in the hospital. It has not been claimed that she is an eye-witness to the incident. However, defendant No, 1 in his statement stated that the accident was not caused by his car nor his car hit the deceased.
According to him deceased was hit by another car and was thrown on his car's bonnet. He has further stated that the moment he fell on his car he applied the brakes and lifted him from the road, along with a Policeman and took him to the hospital. He has stated that he did not see the number of the car which hit the deceased as he himself was driving his car and was coming from the opposite side. The learned counsel for the plaintiffs has contended that it is correct that Plaintiff No, 1 is not an eye-witness but she has not been cross-examined on this point. Furthermore he has contended that since defendant No, 1 admits the accident and has given an explanation in order to avoid his liability be should have produced evidence to show that the accident occurred due to reasons stated by defendant No, 1 himself. It is a very sorry state of affairs that both the parties have not led sufficient evidence on this point. However on the basis of the statements made by the parties it has to be determined whether the deceased was hit by defendant No, 1, I, I. Chundrigar road is a busy road on which the traffic moves both ways. D. W. 1 has stated that the accident occurred between 4-5 p.m. This is a peak hour and it cannot be imagined that any person would hit any man would be able to run away unnoticed since defendant No, 1 has taken up the plea that the deceased was hit by a car and was thrown on his car's bonnet he took upon himself the burden to prove these facts. Mere words of the defendant No, 1 are not sufficient. As the incident occurred during peak hour it was possible to have a number of witnesses who could have deposed about the incident. The defendant No, 1 has chosen not to examine any one. In the facts and circumstances of the case and the plea taken by defendant No, I the burden had shifted upon him to prove that the deceased was not hit by his case but was hit by another car and thrown on his car. This has not been proved at all. The defendant No, 1 has failed to discharge the burden and therefore on the basis of evidence I hold that the deceased was hit by the car of the defendnat No, 1.
' The learned counsel for defendant No, 1 pointed out that defendant No, 1 was prosecuted in the criminal court from where he has been acquitted and on that basis he contended that it has been proved that defendant No, 1 did not hit the deceased. Defendant No, 1 has not filed certified copy of the judgment of the criminal court. However, even if it would have been filed such judgment would not be a conclusive proof of that which it states. This contention, therefore, has no force.
Issue No,
2. The Plaintiffs are the legal heirs of the deceased. First the suit was filed by Mrs. Gul Bano the widow, Kaniz Batool, Ghazala Parveen the daughters and Shabbir Hussain and Zahid Hussain, sons of the deceased. However during the pendency of the suit Kaniz Batool died and when the amended plaint was filed the name of Mazhar Hussain son of the deceased was added with the permission of the court. So the suit has been filed by the widow, three sons and two daughters of the deceased. All the sons and daughters are adult but no evidence has been led to show whether they are living independently and are maintaining themselves. Only in respect of plaintiff No, 2, it has been stated in the title of the plaint that he is in private employment. Except Plaintiff No, 2, the remaining plaintiffs seem to have been dependent on the deceased. Even in cross-examination nothing has been suggested to the P. W.
1. The only evidence on record is the evidence of the P. W. 1 that the deceased was earning Rs, 500 per month out of which Rs, 350 per month was contributed for the maintenance of the family. At the time of accident the deceased was 55 years of age. The learned counsel for the plaintiffs has contended that the statement of P. W. 1 has gone unchallenged. The contention of the learned counsel seems to be correct. The learned counsel has further contended that the deceased' expectancy of life should be estimated at 65 years as stated by the P. W.
1. However, in the absence of any evidence on mere unchallenged statement it is not possible to give the maximum benefit of expectancy of life of the deceased to the Plaintiffs. The expectancy of life in the decided cases has been fixed from 55 years to 65 years. In the absence of any specific evidence I would fix the expectancy of life of the deceased at 60 years. P. W. 1 has stated that the deceased was contributing Rs, 350 for the family members It has been stated by P. W. 1 that the income of the deceased was supplemented by the rental income received by her. This shows that the deceased had some property which would have been inherited by the plaintiffs. A no specific evidence has been led I would fix Rs, 5,000 as benefit which has accrued to the plaintiffs due to the death of the deceased and as such this is liable to be deducted from the compensation the Plaintiffs may be entitled.
' According to the aforestated calculation the Plaintiffs are entitled to compen-. Sation of Rs, 21,000 minus Rs, 5,00Q which comes to Rs, 16,000. Now it is to be considered how it has to be appropriated amongst the plaintiffs. From the plaint it seems that Shabbir Hussain the plaintiff No, 2 is in private employment and therefore he would have not been dependent upon the deceased. In these circumstances the compensation is payable to Gul Bano, Zahid Hussain, Ghazala Parveen and Mazhar Hussain in equal shares.
Plaintiff No, 1 has also claimed Rs, 25,000 towards loss of companion ship, affection, comfort, position and support of the deceased. The damage are granted only for the pecuniary loss suffered by the Plaintiffs. The loss claimed by the Plaintiffs are not entertainable under law and therefore the claim of Rs, 25,000 is rejected. The suit is decreed for Rs, 16,000.
Issue No, 3 No evidence has been produced to show that the car was insured with defendant No, 2.
My finding is therefore in the negative.
Issue No,
4. The suit is decreed in the aforestated terms with no order as to costs.