' This suit was filed in Forma Pauperis under the Fatal Accidents Act for recovery of Rs, 1,05,840 as compensation for the death of Muhammad Yaqoob.
2. Briefly the facts are that on 23-5-1973 at about 8-00 a. m. Deceased Muhammad Yaqoob was travelling by Bus No, KAZ-6605 owned by Defendant No, I and driven by Defendant No, 2 who speeded up his bus, attempted to overtake two military trucks which were going ahead of it. He succeed in overtaking one truck but the bus dashed against the second truck with the result that the deceased who was standing inside the bus near the gate fell down and died in the hospital.
The plaintiffs have alleged that the death has resulted due to rash and negligent driving of the said bus by defendant No,
2. The plaintiffs have stated that the deceased was employed as fitter in grade "C" with K. M. C. And was earning salary and overtime to the extent of Rs, 237 per month. It has been alleged that from 1st July, 1973 his salary would have been Rs, 255 per month. In the plaint the age of the deceased has been shown as 30 ycars. The deceased has left behind plaintiff No, 1, the widow and plaintiffs Nos. 2 to 7 who are sons and daughters ranging between the age of 10 months to 13i years at the time of accident. Defendant No, 2 is ex parte but defendant No, 1 has filed his written statement. He has denied the claim of the plaintiff and has described the accident in para. 4 of the written statement in the following manner :- "The Driver Muhammad Ayoob was driving the Bus No, KAZ 8605 on route No, 17-A from K. Market No, 6 to Saddar. When the said driver reached KOS Korangi Depot on crossing, the driver of the bus wanted to pass one Military truck, which was going in very slow speed in front of said Bus. Bus was loaded with the passengers, some were hanging on rear gate of bus and even on the foot-board.
The conductor of the bus prevented them to travel on foot-board which is highly objectionable from the point of traffic rules. The passengers over-standing foot-board were asked by the bus conductor not to travel in such condition but they including the deceased did not care and the Military truck going ahead dashed the passengers who were travelling on foot-board."
' On the basis of the pleadings following issues were framed :-
(1) Whether Defendant No, 1 is the owner of Bus No, KAZ 8605 of Route No, 17-A and whether it was plied by it on 23-5-73 at Karachi?
(2) Whether defendant No, 2 was employed by defendant No, 1 as its driver on 23-5-1975 and was under the supervision and control of defendant No, 1?
(3) Whether defendant No, 2 on 23-5-1973 at the alleged time while driving the bus in question rashly and/or negligently and/or with such an excessive speed tried to overtake two military trucks in a manner that the rear of the bus dashed against the second military truck resulting in the fall of the deceased Muhammad Yaqoob who was standing inside the bus near the gate?
(4) Whether the deceased Muhammad Yaqoob received the injuries as a result of which he died?
(5) Whether the deceased was earning Rs, 197 per month as "C" grade Fitter in Karachi Municipal Corporation and also Rs, 60 per month as overtime and was about to be promoted as "B" grade Fitter and would have drawn Rs, 255 per month w. e. f. 1-7-1973?
(6) Whether the plaintiffs lost support for a period of 25 years and whether the plaintiffs were deprived of the support to the extent of Rs, 1,05,840.00?
(7) To what relief, if any, are the plaintiffs entitled?
Issues Nos. 1, 2 and 4. -These issues have not been disputed by the defendants and therefore the finding of these issues is in the affirmative.
Issue No, 3. -This issue has been hotly contested by the defendants, The accident has not been denied by either of the parties. The only dispute is about the manner in which it has happened, The plaintiffs have examined two witnesses who were travelling in the bus. Matin Ahmed. P. W. 1 has confirmed the statement made in the plaint. He has stated that the bus was driven by defendant No, 2 at the time of accident rashly, negligently and its speed could have been about 50 miles per hour or even more. According to him after overtaking the first military truck the bus dashed against the second military truck and three persons including the deceased were thrown out. According to him the deceased had boarded the bus at bus stop Korangi No,1 1/2 After that the bus driver had stopped at Korangi No, 1 bus stop and thereafter he would have stopped at his next stop at Saddar.
The bus had travelled about 6 furlong from Korangi 1 stop when the accident took place. P. W. 2 Syed Wajid Ali has given a somewhat different story of the incident. He has stated that the bus overtook one military truck going in the same direction and while overtaking another military truck the defendant No, 2 took such a sharp turn that the passengers standing in the bus were thrown out from one side to the other, and three passengers were thrown out from the bus. He has also stated that these 3 persons including the deceased were standing inside the bus and has described the speed of the bus at the time of incident at about 55 to 60 miles per hour. He has further stated that at the time of accident about 10 or 12 persons were standing on the bus. On the basis of this evidence the learned counsel for the defendant Mr. M. G. Dastgir has contended that the accident has not been proved and it cannot be said that defendant No, 2 was driving the bus negligently. He has also relied upon the case PLD 1965 Kar. 59 to show that the burden of proof of accident is on the plaintiffs. There can be no cavil with the proposition set out in this case but the facts and circumstances may be different and it may not be applicable to another set of facts. If the accident would have been required to be proved only by P. W. 1 and P. W. 2 perhaps by closely scrutinizing the statement of these two witnesses it could technically be correct to state that there seems to be some conflict mainly on one point that whether the bus had collided with the military truck or not. Otherwise on all other material points both the witnesses have made a firm statement.
This discrepancy will, however, not lead to the conclusion that the accident has not been proved particularly in view of the fact that the defendant himself admitted the accident in para. 4 of the written statement which has been reproduced above. This admission on the part of the defendant clearly proves that at least defendant No, 2 was overtaking two military trucks and in the process of overtaking according to the defendant the military truck dashed against the bus whereby the deceased fell down. Once the defendants have admitted that accident was caused due to overtaking by the defendant No, I the burden of proof shifts on the defendant to establish that while overtaking the military trucks defendant No, 2 was acting properly according to rules any was not negligent. In these circumstances, therefore, the defendants cannot contend that since the burden has not been properly discharged by the plaintiffs the accident has not been proved. The defendants in spite of the opportunity given to them have not led any evidence. The plaintiffs closed their side on 5-3-1981 and thereafter the defendants have not been able to produce any witness although admittedly they could have examined the driver and the bus conductor who according to their own application for adjournment are in their employment. Besides this in order to establish his case the defendants could have examined the drivers of the military trucks, other passengers of the bus and passers-by to establish their case. As the burden of proof to establish that the accident had not occurred due to the negligence of the defendant No, 2 has shifted upon them which they have failled to discharge. I hold that the defendant No, 2 while driving the bus tried to overtake the military trucks and collided with the second military truck resulting in the fall and death of the deceased.
3. In this connection it may also be seen that while the bus was being driven two military trucks were going ahead of it. Overtaking by itself is not permissible except in certain circumstances.
Defendant No, 2 was admittedly overtaking the two military trucks. Since there were two military trucks defendant No, 2 should have accelerated the speed at a higher limit so that in the shortest possible time he may complete the overtaking of both the military trucks. It is a matter of common knowledge and judicial notice of this fact can be taken that in Karachi on main roads connecting the suberbs of Landhi, Korangi and Nazimabad the roads are crowded with all types of vehicles. In these circumstances overtaking two military trucks is an act of sheer negligence and rashness.
4. The defendants have further contended that since the deceased was standing on the foot- board and as the military vehicle dashed the rear portion of the bus the deceased fell down and, therefore, the defendants cannot be held liable for the death of the deceased. The overwhelming evidence on the point is that the deceased was standing inside the bus. P. W. 1 and P. W. 2 have specifically stated that he was not standing on the foot-board. The defendant has not led any evidence to the contrary, and there is nothing on record to rebut this fact. The evidence on record shows that the deceased boarded the bus at Korangi bus stop No, 1 4 and thereafter the bus stopped of Korangi Bus Stop No, I from where it started for Saddar and met with the fateful accident. As the deceased had boarded at stop No, 14 some more passengers would have boarded from that stop and therefore the possibility that the deceased may have been inside the bus cannot be ruled out. The evidence is unanimous on the point that there were about 10 to 12 persons who were standing in the bus. If there were 10 or 12 persons then the question of any one standing on the foot-board would not arise. Furthermore, the passengers should not be allowed to travel on the foot-board and it is the duty of the Conductor to see that the passengers do not stand on the foot-board. If the passengers insist on standing on the foot-board the Conductor could stop the bus and ask then to get inside or leave the bus. I therefore hold that the defendant No, 2 was driving the bus rashly and negligently thereby dashing against the military truck causing death of Muhammad Yaqoob.
Issue No, 5. -In the plaint the deceased has been stated to be drawing Rs, 257 per month. The plaintiff No, 1 has stated that the deceased was paying her Rs, 250 to Rs, 300 per month for household expenses and according to the salary certificate issued by K. M. C. His salary was Rs, 311 per month. She has also stated that deceased's father is alive and is about 70 to 80 years old and the elder brother of the deceased who is 45 years of age is also alive. The deceased was a healthy man and nothing has been brought in evidence o show that what amount he was spending on himself or that he was of such abits from which it could be inferred that he had been spending a substantial amount on him. The learned counsel for defendant No, 1 has contended that in the plaint the plaintiffs have claimed compensation up to the age of retirement i.e, for 25 years whereas in the evidence she has tried to establish that the expectancy of life was about 70 years and have claimed compensation on the basis of the salary certificated which fixes the salary at Rs, 311 per month. This brings to the question about the age of the deceased. In the plaint he has stated to be 30 years of age in the Nikah Nama produced by the plaintiff No, 1 in November, 1958 he was stated to be about 20 years. This shows that he would have been born in 1938. On the basis of this evidence he would have been 35 years of age. I, therefore, hold that at the time of his death the deceased was about 35 years of age. The expectancy of life in the circumstances of the case should be fixed at 60 years, There are various authorities of our Courts where expectancy of age has been fixed between 55 to 70 years. The expectancy of life in the absence of any evidence to the contrary can be reasonably fixed at 60 years. However, in cases where evidence is brought on record to show the status of the man the facilities available to him, the family history denoting the length of life in the family, the same can be used as an aid in fixing the expectancy of life. In recent times due to the advanced medical facilities that are being made available to the workers and to the common man, it can be presumed that it has added to the normal expectancy of life which has sufficiently increased.
5. The learned counsel for the defendants has contended that the plaintiff has claimed damages only up to the age of 55 years when he would have retired and, therefore, no compensation can be allowed beyond that period. For this purpose the learned counsel has relied upon an unreported judgment passed in Suit No, 366/74 in which it was observed that as the Plaintiff has alleged in the plaint that the deceased would have earned the salary mentioned in the above para. Up to the age of 55 years and as the plaintiffs have calculated and claimed compensation for 13 years, compensation cannot be granted for 18 years. But the fact remains that the plaintiffs have stated that the deceased would have worked with K. M.C. Up to the age of 55 years and have calculated damages for 25 years. This does not in any manner restrain the plaintiffs from calculating the compensation on the basis of 25 years. The fact, however, remains that the plaintiffs unlike in Suit No, 366/74 has claimed compensation for 25 years and not for a lesser period. I will, therefore, hold the expectancy of life of the deceased at 60 years and as the deceased was 35 years of age at the time of death, the compensation awarded will be for 25 years as claimed by the plaintiffs. Such technical objections relating to the pleadings should not be allowed to defeat the claim where the interests of several minors are involved. It is true that there should be no variance between the pleading and the proof but in this case in the pleading also the plaintiffs have stated in somewhat different manner claiming compensation for 25 years and no more is being granted to them.
6. This brings to the question of amount of compensation. The plaintiff No, 1 has stated in her evidence that the deceased used to pay her Rs, 250 to Rs, 300 per month for household expenses.
The evidence on record is that the defendant was earning Rs, 311 per month. The learned counsel for the defendants has pointed out that in the plaint the salary of the deceased has been shown as Rs, 257 per month. This does not in any manner defeat the claim of the plaintiffs as it is possible that the Plaintiff No, 1 may not have been aware of the entire salary earned by the deceased which even included unascertained amounts of overtime. It is not uncommon in our society at the lower starts that wives are uneducated or have very little education and have little knowledge about the exact earnings of their husbands. They have an approxi-4 idea of the income. In the evidence the Plaintiff No, 1 has stated that- the deceased used to pay her Rs, 250 to Rs, 300 for the household expenses. This statement remains unrebutted. The learned counsel for the defendant No, 1 has stated that according to the accepted principle the deceased would have been spending at least 1/3rd on himself. There is no firm rule that the deceased shall always spend 1/3rd of his salary on himself. This entirely depends upon the facts and circumstances of each case. In cases where it is proved that the deceased was extravagant with expensive habits it is possible that he may be spending more than 1/3rd of his income on himself. However, if there is no evidence at all the courts have taken into consideratian in various authorities that normally personal expenses may be fixed at 1/3rd of the income. One cannot ignore the fact that a person who is drawing a salary of Rs, 311 per month having six minor children, a wife and a father and in absence of any evidence that he was in the habit of spending the money himself in an extravagant manner it cannot be held that the deceased was spending at least 1/3rd on himself. In this regard the statement of the plaintiff No, 1 that the deceased was paying Rs, 250 to Rs, 300 per month seems to be correct and I hold that the deceased was paying Rs, 250 per month and was spending about Rs, 61 on himself. In the circumstances the damage can be assessed in the following manner :---
(1) Monthly income Rs, 250.
(2) Expectancy at the life 60 years.
(3) Total damage will be 250 x 12 x 25.
(4) Total amount of compensation will be Rs, 75,000. I therefore award Rs, 75,000 as compensation to the plaintiffs.
7. Relying on section 67 of the West Pakistan Motor Vehicles Ordinance, 1965, the learned counsel for the defendant contended that as the defendant is a "permit holder" its liability is limited to Rs, 8000 only. He has however fairly pointed out that in PLD 1975 Kar.
4. It was held that defendant No, 1 is not a "permit holder" and therefore section 67 will be not applicable. The learned counsel however contended that in the year 1978 section 67 was amended and the word "owner" was added and the liability has been fixed at Rs, 16,000 and no decree can be passed in excess of this amount. The argument of the learned counsel is not tenable. The Provincial Motor Vehicles (Amendment) Ordinance, 1978 which introduced the aforestated amendment in section 67 was not with retrospective effect. The rights and liabilities of the parties will therefore be governed by the provisions of law which were prevalent at the time of filing the suit. At that time defendant No, 1 could not seek protection under section 67.
8. In the evidence it has been stated by defendant No, 1 that the father of the deceased is alive and his age is about 70 to 80 years, the plaintiff No, 1 is a widow. In the year 1958 when she was married she was about 15 years of age. At the time of accident she was 30 years of age. She is a young widow and the possibility of her remarriage cannot be ruled out. The plaintiff No, 2 is a daughter and in 1974 she was 134 years old. The Plaintiff No, 3 and 4 are sons and were aged 84 years and 64 years while plaintiff No, 5 is a daughter aged 34 years. Plaintiff No, 6 was 2 years and Plaintiff No, 7 was 10 months old. Looking to the age of these plaintiffs it seems that they are very young and have been deprived of the care, affection, guidance and the paternal love of their father due to negligence of defendant No, 2 in the discharge of his duties as an employee of defendant No, 1.
Therefore they are entitled to the compensation and the share is being apportioned in the following manner, while apportioning the share of the plaintiffs I have not strictly followed the principles of Muslim Law mainly for the reason that the compensation awarded to the plaintiff is not an estate inherited by the plaintiffs. It is compensation for the damage suffered by them due to the untimely death of the deceased.
9. In the circumstances I apportion the compensation of Rs, 75,000 in the following manner :- {{TABLE}} Rs, Plaintiff No, 1 7,000 Plaintiff No, 2 10,000 Plaintiff No, 3 e 14,000 Plaintiff No, 4 ?1. 14000 #TBS Plaintiff No, 5 Plaintiff No, 6 ..
10,000 10,000 #TBE Plaintiff No, 7 ... 10,000
10. The suit is decreed against the defendants for Rs, 75,000 with costs. The decretal amount should be deposited by the defendant No, 1 in Court within four weeks,