The brief facts of the case are that on 3rd May, 1979 at about 5-00 p. m. In the evening one Ibrahim son of Adem Ali died in a road accident. The plaintiffs brought the suit against the defendant No. I owner of the bus K. A. K. 9689 of route 13-B and against Ghous Bux defendant No. 2 the driver in the employment of the defendant No. 1 who was driving the said bus in due course of his employment when the said Ibrahim was crushed by the said bus and thus fatally injured. The suit was originally brought in forma pauperis and after inquiry it was converted and registered as a suit by the order of this Court.
The defendant No. 1 in their written statement admitted that the defendant No. 2 was in their employment. They, however, pleaded that the defendant No. 2 had stopped the bus at Lal Kothi bus stop. After picking up the passengers at the said bus stop, the driver started the vehicle in first gear and while the bus was moving slowly, Ibrahim tried to board the said bus he could not get firm grip on the handle of the door and lost his balance, and thus he fell down on the ground that hit the road which resulted in his death. It was further pleaded . That the plaintiffs are not entitled for any compensation from the said defendants.
2. On the pleadings of the parties the following issues were framed :.-
(1) Whether the deceased Muhammad Ibrahim tried to board the moving bus at Lal Kothi stop, when the said bus after dropping and picking up the passengers moved out of the stop.
(2) Whether at the time of said accident the said bus was moving in the first gear and the deceased Muhammad Ibrahim failed to get firm grip on the handle of the door, while boarding the said moving bus and after losing his balance fell off on the ground.
(3) Whether the death of husband of plaintiff No. 1 was caused by wrongful act, neglect and default of the defendant No. 2? If so what is its effect ?
(4) Whether the accident resulted due to negligence of the plaintiff's husband? If so what is its effect?
(5) Whether the plaintiffs are entitled to compensation? If so to what amount?
On behalf of the plaintiffs Muhammad Yousaf (Exh. 5), A. S. I. Joharabad Police Station Karachi, and Mst. Asma (Exh.6) widow of the deceased Muhammad Ibrahim, were examined. On the other hand the defendants No. 1 examined one Mumtaz Ali Exh. 7 who was then the conductor in the abovementioned bus.
Having considered the arguments of the learned counsel for the plaintiffs, and gone through the record with their assistance of the learned counsel for parties the findings reached on the issues and reasons for the same are as follows :-
3. Issues Nos. 1 to 4.-The above issues can conveniently be dealt with and disposed of together. The learned counsel for the plaintiffs submitted that Muhammad Yousuf Exh. 5 who was then A. S. I.
Police in his evidence and had seen the accident taking place, has given a vivid account of the said accident. The witness deposed that on 3-5-1971 at the time when the accident took place he was at the bus stop and was going to the Headquarters for getting a truck. The bus in question was 9oming from Drigh Road side and was proceeding towards Saddar when about 50 paces away from the Lal Kothi Bus Stop it stopped and two passengers alighted. Thereafter it again started moving towards the aforementioned Bus Stop. It slowed down at the said bus stop and the passengers ran towards it. Ibrahim (deceased) also ran towards the bus and was the first person to reach the bus. He caught hold of the handle of the bus which at that time was in stationary condition. The bus thereafter was suddenly started at a very high speed so much so that due to the jerk the deceased fell down from the bus but still graping its handle. The driver started the bus at a very high speed as a result of which Ibrahim lost control of the handle and was thrown off, and thus dashed against the road with his face upwards, his head hitting the road. Muhammad Yousuf took Ibrahim to the hospital where the latter died. The evidence of this witness has remained unshaken.
The presence of the witness at the time and place of accident has not even been challenged. To a suggestion made, the witness denied that Ibrahim attempted to catch hold of the handle of the bus while it was moving. It is evident from the evidence of the above witness (Muhammad Yousuf) that the driver, had acted rashly and negligently without caring for the safety of the passengers and started the bus at a high speed with a jerk as a result of which Ibrahim who was trying to board the bus, was dragged and ultimately thrown off on the road receiving head injures which proved fatal. This witness Yousuf Exh. 5 is an independent person who had no interest in any of the parties and his evidence is a true account of the incident.
The submission of the learned counsel for the defendant No. I is that Mumtaz Ali D. W. 1 Exh. 7 who was the conductor in the employment of defendant No. I had stated in his evidence that after some persons got down from the said bus, at Lal Kothi he gave signal to the driver to start the bus and while he was distributing the tickets and the bus had gone about 15 yards be heard noises of the passengers that some passenger had fallen down. However, this defence witness neither mentioned the name of any of the passengers who gave this information nor he had witnessed the incident himself. It may be mentioned here that the learned counsel for the plaintiff, had promptly raised objection to this part of the evidence on the ground that it was hearsay and not admissible, whereupon the learned counsel for the defendants, made a statement that he intended to examine one of the passengers. The defendants, however, failed to produce any of the passengers as witness as undertaken and did not give any explanation for such an omission.
According to the defendants own case Mumtaz Ali (D. W. 1) the con--ductor was distributing tickets inside the bus which itself was over crowded and that he had not witnessed the incident personally. His evidence based as it is on what other persons told him is thus not admissible.
Mumtaz Ali, the conductor being in the employment of the defendant No. 1 was an interested person. He was responsible to give signal to the driver to start the bus after the persons intending to enter the bus had safely boarded it. In the present case the conductor who was inside the bus, distributing tickets, gave the signal to the driver to start the bus without caring to see that a person (Muhammad Ibrahim) who had caught the handle of the bus and was trying to board it. The driver on his own part started the bus rashly and negligently with a jerk at a very high speed as a result of which Ibrahim who was still holding the handle and trying to board it as an intending passenger was dragged and ultimately thrown off on the road and killed.
4. We have already seen above that though the plaintiffs examined one Muhammad Yousuf. (P. W.
1) an eye-witness who is an independent and disinterested person, the defendants neither examined their own employee the driver of the bus nor any of the passengers in spite of the statement made before the Court. The Court in the circumstances is entitled to raise pre-- sumption against the defendants and justified to hold that had these persons been examined in Court they would not have supported the case of the defendants.
At this stage while considering the liability of the defendant No. I and their employees, towards the passengers boarding or alighting a bus, I may refer to the case of the Wilkie v. London Passenger Transport Board (1947) 1 All E R 258In that case a passenger, was thrown off an omnibus while he was attempting to enter the bus because of the conductor who gave signal whereupon the driver proceeded without caring to see that every intending passenger was safely in the bus. The plaintiff had got hold of the rail and had one foot on the bus, when the bus started. He was carried along with one foot on the vehicle and one foot in the air, and eventually he was thrown off and suffered injuries. The said case proceeded mainly on the interpretation of contract for conveyance of a passenger on a free travelling pass and the liability for the injury caused to such a passenger and it was found that the plaintiff was entitled to claim damages, it was observed that;-- "The mere taking hold of the rail and putting his foot on the bus is a thing which the fare-paying passenger does, not by virtue of a contract, because at that moment the contract under which he is carried has not come into existence, but by virtue of the implied licence given by the bus company to the intending fare paying passenger to get to the position where he will make the contract, just in the same way as a railway company impliedly licenses an intending passenger to walk through the Company's premises to the booking office to make a contract of carriage. In the case of a pass-holder, however, the pass entitles him, not merely to enjoy the benefit of tree carriage in the ordinary way while seated or standing, as the case may be, but also to take such steps in relation to the bus as will enable him to obtain these benefits, and one of the steps which he had to take to get his free conveyance is to get on the bus, and it is as a pass-holder that he does get on the bus."
5. In the light of the evidence of eye-witness, Muhammad Yousub (P. W. 1), produced on behalf of the plaintiffs and failure of the defendant to produce the material witnesses, who could give first hand account of the matters in controversy and to throw light on them, the only conclusion which could be drawn in the circumstances, is that the death of Muhammad Ibrahim the husband of plaintiff No. 1 was caused due to the rash and negligent driving of the bus . By defendant No. 2 who suddenly started the vehicle at a high speed without caring to see that Muhammad Ibrahim, an, intending passenger who had already got hold of the handle and was trying to board was safely inside the bus. He was thus dragged and ultimately thrown off on the road resulting in his death due to the negligence and wrongful act of the defendant No. 2 who was then acting in the course of his employment with the defendant No. 1.
I also find that there is not the slightest evidence which could establish that the accident was caused due to any negligence on the part of Muham-imad Ibrahim or that he tried to board the moving bus.
In view of the above discussions, the defendants are jointly and severally liable for damages pecuniary loss caused to the plaintiffs as beneficiaries udder the Fatal. Accident Act.
The above issues are decided accordingly.
6. Re: Issues Nos. S & 6.-It has been proved by the evidence of Mts. Asma (widow) that her husband Muhammad Ibrahim was getting a salary of Rs. 300 per month and that he used to make extra earning by driving a taxi. Out of his earnings, he used to pay Rs. 6 to Rs. 7 every day to her besides the whole salary. She has further stated that the entire salary used to be spent on and for the benefit of the plaintiffs (wife and minor children). Mst. Asma a the time of the accident was hardly thirty years of age, while her husban Muhammad Ibrahim (deceased) was then 32 years old. He was a man of good health and sound physique. She produced id her evidence Identity Card issue by Commerce Bank Ltd. (Exh. 6/1) in which the designation of the deceased is given as a driver. On the basis of this evidence and keeping in view the earnings then made by Muhammad Ibrahim it can safely be concluded that Muhammad Ibrahim used to give Rs. 300 to Rs. 500 per month to the plaintiff No. 1, his wife for the benefit of his family. The pecuniary loss suffered by the plaintiff' beneficiaries would thus work out approximately to Rs. 4,000 per annum.
According to the principles laid down by the superior Courts of our country it is now settled law that the normal expectancy of the life of a person can be expected to be 65 years. Reference may be made to the case of Punjab Road Transport Board v. Abdul Waheed PLD 1980 Lab. 584
7. Here we may also refer to the pronouncement of the Honourable Supreme Court of Pakistan in the case of Jalil Ahmad v. Kulsoom C. A. No. K-44/69 where it was held that according to the judicial decisions the expectancy of life ranges from 45 to 65 years and that determination of the life expectancy in a given case up to the age of 65 years is within the range of judicial precedents.
8. Thus taking 65 years of age as normal expectancy of life, the total loss of pecuniary benefits to the plaintiff would come to Rs. 1,34,000. Out of this amount deduction will have to be made on account of personal expenses/ benefits which Ibrahim himself would have utilised. Deduction of Rs.
33,500 being 1/4th of the amount calculated as aforementioned on this account would appear to be reasonable.
The nett pecuniary loss thus sustained .By the plaintiffs as beneficiaries under the Fatal Accidents Act would, therefore, amount to Rs. 1,00,500.
9. The suit is therefore decreed in favour of the Plaintiffs against the defendants jointly and severally for Rs. 1,00,500 (Rupees one lac and five hundred only) with costs and interest @10Y. Per annum from the date of suit till payment.
The plaintiffs would share the decretal amount in accordance with the Muslim Law of inheritance by which the deceased was governed at the time of his death.