' This suit was filed under the Fatal Accidents Act, claiming compensation of Rs, 2 lacs on account of the death of Shahabuddin, who died in an accident on 31st May, 1976. Plaintiff No, 1 is the widow, Plaintiff No, 2 is the father and plaintiffs Nos. 3 to 12 are the sons and daughters of deceased Shahabuddin. Muhammad Saeed was impleaded as defendant No, 1 being the driver of mini-bus No, KAZ-8798, which caused the accident. Mirza Ali Khan Afridi is defendant No, 2 and he was joined as the owner of mini-bus in question. Defendant No, 3 is Asian Mutual Insurance Company Limited.
Defendant No, 4 is Ajab Gul. A registered notice dated 21st October, 1976 was served on behalf of the plaintiffs on defendants Nos. 1, 2 and 3 and defendant No: 2 in his reply through his Advocate dated 3rd November, 1976 took the stand that defendant No, 2 had sold the mini-bus in question to Ajab Gul on 23rd December, 1975 and, therefore, defendant No, 2 was not liable for any damages or for any act after 23rd December, 1975. In view of this reply dated 3rd November, 1976, Ajab Gul was impleaded as defendant No, 4
2. Defendant No, 4 was ex parte, as he did not appear. The other three defendants filed written statements. The following consent issues were settled by this Court on 22nd December, 1979:-
(1) Whether the accident occurred due to the negligence of the deceased Shahabuddin.
(2) Whether the defendant No, 1 was the employee of the defendant No, 2 at the time of the accident ?
(3) Whether defendant No, 2 was the owner of the mini-bus No, KAZ8798 at the time of the accident?
(4) What damages, if any, the plaintiffs have suffered?
(5) Relief?
3. On behalf of the plaintiffs, 9 witnesses were examined being Exh. 7 to Exh.
15. On 10th August, 1982, Mr. Suleman Qureshi, learned counsel for the plaintiffs, stated that he did not wish to press the claim in the present suit against defendant No,
3. Asian Mutual Insurance Company Limited, as the plaintiffs have not been able to establish that the mini-bus in question was insured with defendant No,
3. The case was called several times on 10th August, 1982 but no one appeared on behalf of the defendants Nos. 1, 2 and 4. Counsel for defendants Nos. 1 and 2 was also not present. That side of the defendants was accordingly closed. The matter was fixed for arguments on 2nd September, 1982, 3rd September, 1982, 18th November, 1982 and 25th November, 1982 but no one appeared on these dates on behalf of the defendants. I heard the arguments of Mr. Suleman Qureshi on 25th November, 1982 and the judgment was then reserved. Mr. Suleman Qureshi, learned counsel for the plaintiffs, had stated that there was no evidence against defendant No, 4 and as such he was also not present. This suit is accordingly dismissed as against defendants No, 3 and 4 with no order as to costs.
' Before I discuss the various issues framed in the present suit, I may refer to the order dated 18th February, 1981 where it is observed as follows :- "Mr. Akmal Khan, learned counsel for the defendants Nos. 1 and 2, admits that deceased Shahabuddin died on account of the accident. Which took place on 31st May, 1976 in which two vehicles were involved, namely a mini-bus No, KAZ-8798 and the motor-cycle driven by the deceased. It is further admitted that at the time of the accident mini-bus was being driven by defendant No, 1 and that mini-bus in the record of the Excise and Taxation Department stood in the name of defendant No, 2 as owner. But prior to the date of accident he had sold the mini-bus on an open letter of transfer to defendant No,
4. What is disputed is the negligence of defendant No, 1 and the quantum of compensation."
4. Issue No, 1 relates to the negligence of deceased Shahabuddin. There is the evidence of P. W. 2, Abdus Salam (Exh. .8), P. W. 4, Muhammad Ikram (Exh. 10) and P. W. 5 Abdul Hafeez (Exh. 11), who have stated in their respective depositions that they were eye-witnesses of the accident. From the evidence of these witnesses it has been established that the accident had taken place on account of rash and negligent driving of defendant No,
1. According to the evidence adduced on behalf of the plaintiffs, the deceased was going on his motor-cycle on the correct side of the road, whereas defendant No, 1, driving mini-bus at a great speed, while coming on the wrong side of the road, dashed against the deceased. There are minor differences in the evidence of these three witnesses, but their evidence that the accident had taken place on account of negligent driving of defendant No, 1 was not shaken in their cross-examination. Further, defendant No, 1 having filed his written statement and contesting the suit and also having engaged an advocate, did not choose to appear and give evidence. On the basis of the evidence on record, I have come to the conclusion that the accident in question was caused on account of the negligence of defendant No, 1 and there was no contributory negligence on the part of the deceased. Issue No, 1 is decided accordingly.
5. I will take up issues Nos. 2 and 3 together. In his written statement, defendant No, 2 had taken up the stand that he had sold the mini-bus in question on an open transfer letter basis to defendant No, 4 prior to the date of the accident and, therefore, he was neither the owner of the minibus at the time of the accident nor defendant No, 1 was his employee. P. W. 1 Farooq Akhtar (Exh. 7), Junior Clerk in Court No, VII of A.C.M. West, Karachi, had brought the file of criminal case under section 304-A, P.P.C. Against defendant No,
1. He stated that the case was still pending in the Court of Magistrate against defendant No, 1 and that the surety was given by defendant No, 2 for bail of defendant No,
1. In the affidavit of surety filed by defendant No, 2 in the Court of Magistrate, defendant No, 2 had sworn that he was the owner of the mini-bus No, KAZ-8798 and he had filed the registration book of the mini-bus in question. This affidavit was sworn after the date of accident. Further, as observed earlier, neither, defendant No, 1 nor defendant No, 2 have appeared in the witness-box to give evidence. In my view, on the basis of the evidence on record; it has been established that on the date of the accident defendant No, 2 was still the owner of the mini-bus in question and the stand taken by him that he had sold the mini-bus to defendant No, 4 has not been proved. If the defendant No, 2 was the owner of the mini-bus in question on the date of accident, it naturally follows that defendant. No, 1 was his driver and was in his employment. Both Issues Nos. 2 and 3 are accordingly decided in the affirmative.
6. Issue No, 4 relates to damages. P. W. 3, Abdul Ghani (Exh. 9) is the brother-in-law of the deceased being the brother of Plaintiff No,
1. H stated that the deceased left behind 10 children and that only one son and one daughter were adults at the time of the accident. According to his A evidence, the deceased was running his own shop of sweetmeat on Jamshed Road and he was also a building contractor. According to this witness, deceased's income was about Rs, 2,000 to Rs, 2,500 per month and his father plaintiff No, 2, who is about 70 to 75 years of age, also resided with the deceased and all plaintiffs were dependant upon the deceased. In his cross-examination, the witness admitted that deceased's son, Plaintiff No, 4, also helped the deceased in his shop, and since the death of the deceased. Plaintiff No, 4 was running the shop. About building construction work very vague evidence has been given by this witness. Then P. W. 6, Badruddin (Exh. 12), who is the only brother of the deceased, had given evidence. According to his evidence, the deceased was carrying on business as a contractor under the name of "Shahab Sons" and that he also had a sweetmeat shop on Jamshed Road where he was carrying on business in the name of "Shahab Sweet-Meat." He stated that he did not know how much the deceased was earning but stated he might have been earning around Rs, 2,500 as the deceased and his 10 children were living comfortably. According to this witness also the deceased was the sole bread-earner of his entire family and that at the time of his death he was about 40 or 41 years of age and he was in good health.
7. The evidence about the earning of deceased Shahabuddin is rather vague and I find it difficult to believe that he was earning Rs, 2,500 per month. It was not stated in the evidence that he was an income-tax assessee or that he had ever paid any income-tax. On the basis of the evidence on record I am of the view that the deceased would have been earning around Rs, 1,000 per month at the time of his death. I am further of the view that in case the deceased had not died in the unfortunate accident, he would have lived at least upto the age of 65 years. With a big family of 10 children it can safely be assumed that about 3/4th of his earning the deceased must be giving to the members of his family. If the deceased had lived till the age of 65 years, on an average he would have given Rs, 700 per month to his wife and children for a period of 25 years as at the time of his death deceased Shahabuddin was about 40 years old. Damages calculated at this rate come to more than Rs, 2 lacs claimed in the present suit. The widow could have expected financial help till the age of 65 years. The children could have expected financial help till they reached the age of 22 years as by that time the male children would have started earning and become financially independent and the daughters would have been expected to get married becoming financially dependant on their husbands and not expecting any financial assistance from their father. Plaintiff No, 2, father of the deceased, is not entitled to any compensation, as his other sons have been supporting him.
8. Suit is, therefore, decreed in favour of plaintiffs No, 1 and Nos. 3 to 12 in the sum of Rs, 2,00,000 with interest @ 14 per cent. Per annum from the date of the decree till realisaticn, against the defendants Nos. 1 and 2, jointly and severally. These plaintiffs shall also be entitled to costs as against defendants Nos. 1 and 2. Suit of Plaintiff No, 2 is dismissed. As already observed, the suit is dismissed as against defendants Nos. 3 and 4 with no order as to costs.
9. The plaintiffs in whose favour this suit has been decreed will be {{TABLE}} Rs.
Plaintiff No. 190,000 Plaintiff No. 32,000 Plaintiff No. 44,000 Plaintiff No. 56,000 Plaintiff No. 68,000 Plaintiff No.710,000 Plaintiff No.812,000 Plaintiff No.914,000 Plaintiff No.1016,000 Plaintiff No.1118000 Plaintiff No.1220,000 ---.2,00,000 .{{TABLE}}