MUHAMMAD HALEEM, J.--This letters patent appeal is directed against the judgment dated 24th January 1968, of a learned Single Judge, by which he decreed the respondents' suit for Rs, 62,000 with interest at 6 % per annum from the date of suit until payment and proportionate costs against the appellant. Out of the above decretal amount the liability of respondent No, 2 was limited to Rs, 20,000 together with interest and proportionate costs and to this extent it was ordered that the decree would be executable against this respondent.
2. On 25th November 1964, the respondents 1 to 5, who were minors, sued the appellant and respondent No, 6 through their next friend Manzoorul Hassan, their uncle, and claimed Rs, 75,000 as damages for the loss of life of Shafqat Hussain Siddiqui, their father, whose dependents they were.
The suit was filed under the Fatal Accidents Act, 1855 (Act XIII of 1855). It was averred in the plaint that deceased Shafqat Husain Siddiqui was employed as a lower division clerk on a salary of Rs, 172 per month in the Engineering Department, Pakistan Naval Dockyard, in 1962. On 22nd December 1962, at about 1 p.m. while returning home on a cycle he met with an accident, in which he lost his life ; it is said that when he was on West Wharf Road near a way-side hotel, he was run over by bus No, KAT 1173 of Route No, 80 belonging to the appellant which was at that time driven by Bismillah Khan and was crushed under one of its front wheels. The deceased was at that time aged 29 years and in good health. Respondents 1 to 5 had no other source of their livelihood and solely depended on his support for their existence. Besides respondents 1 to 5 he had left a widow, Mst. Fahmida Khatoon, who, it is said, had lost her balance of mind after the death of the deceased. The bus was insured against third party risk with respondent No, 6 and it was, therefore, made a party in the suit.
On 11th April 1963, a notice was served on the appellant by Syed Hassan and Mst. Fahmida Khatoon, on their behalf and on behalf of the minor respondents, through their Advocate, in which they claimed a sum of Rs, 63,059-14-8 from him (appellant) as compensation for the loss of life of the deceased. The suit was filed in forma pauperis on 25th November 1964, as the appellant had failed to pay the above amount. In para. 10 of the plaint, section 6 of the Limitation Act was pleaded for saving limitation. Bismillah Khan, the driver, however, died before the institution of the suit and was, therefore, not impleaded in it.
3. The appellant in his defence, however, admitted that the bus in question was involved in the accident but took the stand that it was neither due to the negligence nor rash driving of the bus driver. He also denied for want of knowledge the fact whether respondents 1 to 5 were the minor sons and daughter of the deceased and that he was employed as a lower division clerk on a monthly salary of Rs,
172. He also denied the other allegations in the plaint except the fact that his bus was insured with respondent No, 6 against third party risk. He also took the plea that the suit was time-barred; that it was not maintainable; that it was not in proper form and bad for non- joinder of proper parties.
4. Respondent No, 6 denied the allegations in the plaint and took the stand that life expectancy of the deceased was overestimated; this respondent, however, admitted that the bus in question was insured with it and took the objection that no particulars of the damages have been stated in the plaint and, therefore, the suit as framed was bad in law. It also took the plea that the suit was time-barred and finally contended that this suit should be dismissed for the above reasons.
5. The parties on 14th November 1966, filed the following consent issues:-- "(1) Whether the plaintiffs are the minor sons and daughters of the deceased Shafqat Hussain Siddiqui?
(2)Whether the alleged accident took place due to the rashness and negligence of the driver of the defendant No, 1?
(3)Whether the plaintiffs are the beneficiaries of the late Mr. Shafqat Husain Siddiqui?
(4)Whether the plaintiffs are entitled to the damages claimed or any damages?
(5)Whether the defendant No, 2 is liable and to what extent?
(6)Whether the suit is barred by time?
(7)Whether the suit is bad for non-joinder of necessary parties?
(8)Whether the suit is bad for want of particulars of negli-gence and damages?
(9)To what relief the plaintiffs are entitled?
Again on 12th September 1967, counsel for the appellant and respondent No, 6 submitted their statements in writing while the examination of the witness on behalf of the minor respondents was in progress, in which they confined their cases to the extent indicated therein. These statements appear to have been filed under Order X, C. P. C. and or reproduced as under:-- "Statement of Mr. Iqbal Ahmed.--The defendant No, 1 does not deny the relationship of the deceased with the plaintiff as shown in the plaint. This defendant also does not deny that the deceased died as a result of an accident, but maintains that the bus did not pass over the body of the deceased but only the foot-board separated from the bus and fell on the deceased.
Statement of Mr. S. Riazul Hasan.--I say that the defendant No, 2 contests the suit on the limited question as to the extent of this defendant's liability which, I maintain, is limited to Rs, 20,000 only."
The learned Single Judge thereupon with the consent of the parties recast the issues as under:-- "(1) Is the suit barred by limitation?
(2)Whether the death of the deceased was caused by the negligence of defendant No, l's servant, namely driver Bismillah Khan?
(3)Are the plaintiffs entitled to any damages. If so, in what amount?
(4)What is the extent of defendant No, 2's liability?
(5)Relief?"
6. Respondents 1 to 5 examined six witnesses, of whom Dr. Major A. Hassan was examined to establish the cause of death as he had performed the autopsy on the dead body. Liaqat Ali and Mushid Hussain were examined to establish how the deceased was run over by the bus; they were alleged to be the eye-witnesses of the occurrence. Syed Hasan is the father of the deceased and was examined to establish the age of the deceased at the time of his death. The record of Criminal Case No, 19/63 State v. Bismillah Khan relating to the trial of the driver Bismillah Khan was produced through Farooq Ahmed, Head Clerk in the Naval Dockyard, was examined to establish the salary of the deceased. He had produced his last pay certificate.
7. The appellant examined five witnesses, of whom Fazlur Rahman was examined to establish the death of Bismillah Khan before the institution of the suit. Muhammad Ashfaq, who was a conductor in the bus, Salahuddin, a supervisor and in the employment of respondent No, 1 and Samiuz Zaman, an employee of Glaxo Laboratories, were examined to establish that there was no negligence or rashness on the part of the driver at the time of the accident.
8. The learned Single Judge decided issue No, 1 in the negative, issues 2 and 3 in the affirmative and under issue No, 4 held that the liability of respondent No, 6 was limited to Rs, 20,000 and decreed the suit for Rs, 62,000 with interest and proportionate costs under issue No,
5. The appellant being thus aggrieved filed this letters patent appeal. Respondent No, 6, however, was impleaded as a respondent; it did not file a separate appeal to challenge the finding of the learned Single Judge under issue No, 4.
9. Mr. All Ahmed Fazeel, the learned counsel for the appellant, has challenged the findings of the learned Single Judge on each of the five issues. We now propose to deal with them:-- Issue No, 1.--This issue relates to the point of limitation. According to the learned counsel for the appellant, the suit was filed beyond time and that neither section 6 nor section 7 of the Limitation Act saved it. The accident occurred on 22nd December 1962, while the suit was brought on 25th November 1964 after the lapse of a period of one year as prescribed under Article 21 of the Limitation Act. It will, therefore, be convenient here to reproduce sections 6 and 7 and Article 21 of the Limitation Act: Section 6 reads:-- "6. (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would other wise have been allowed from the time prescribed therefor in the third column of the First Schedule "(7) Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all ; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without or until the disability has ceased.
Article 21. By executors, administrators or representatives under the Indian Fatal Accidents Act, 1855One Year The date of the death of the person Killed."
Emphasis was laid on the fact that amongst the dependents of the deceased were his father Syed Hasan and his widow Mst. Fahmida Khatoon and either of them could have filed the suit as a representative of the minor respondents in view of section 1 of the Fatal Accidents Act within the time prescribed under Article 21 of the Limitation Act. He next urged that section 6 of the Limitation Act would not apply because it contemplates legal disability of a minor while in the instant case the dependents were not only minors but majors who were not labouring under any legal disability and, therefore, this section did not save limitation. With regard to the applicability of section 7 of the Limitation Act he raised two-fold objections: "The first was that the words "jointly entitled to institute a suit" in section 7 contemplate a joint substantial right of the persons which is not the case here. According to the learned counsel, under the Fatal Accidents Act; the right of the dependents to compensation is a right distinct in each as they are entitled to claim compensation jointly but to relief severally in respect of the same cause of action which is enforceable at the suit of all or any one of them suing for himself and the rest. The second was in the alternative; it was contended that assuming that the above expression did apply to the case of one minor respondents, yet section 7 would not apply as Syed Hasan, the grandfather of the minor respon- dents, could give a discharge without their concurrence of their claim for compensation as their guardian under the Muhammadan Law. In this context be further contended that the non-filing of the suit would amount to a discharge within the meaning of this section. In effect, according to the learned counsel, the non-filing of the suit had resulted in the discharge of their claim. In the result he argued that the suit was plainly barred by time as it was not brought within one year of the date of accident.
10. It is true that in the notice dated 11th April 1963 (Exh. 10/5) Syed Hasan, the father of the deceased, had claimed to be one of the dependents of the deceased yet we find from his evidence that be denied the suggestion that he and his wife were being maintained by the deceased. On the contrary, he stated that he and his wife were being maintained by his younger son, Manzoor Hasan and that he had an income of Rs, 3,000 per year from his land and Rs, 200 per month from his Homeopathic Drug Stores. He admitted that the notice (Exh. 10/5) was given by him, but the learned counsel for the appellant failed to confront him with the contents of the notice with regard to his claim of being supported by the deceased. This factual position in his evidence has not been controverted by any evidence on record; mere production of the notice without taking any explanation from him on the stand that he took in his evidence would be of no avail. The notice itself shows that the claim to compensation was not only based on section 1 of the Fatal Accidents Act but also on his right of inheritence to a specific share under the Muhammadan Law. The notice was on behalf of the minors as well as their widowed mother, Mst. Fahmida Khatoon. It was, therefore, jointly given on behalf of all of them. In the circumstance, it was necessary that an explanation should have been taken from him as to whether he had claimed compensation as a dependent of the deceased or under a conception that he was entitled to it as an heir of the deceased even though the notice purported to be under "Act V, 1872 and Muhammadan Law and Soora Alnesa". Even the number of the Act and the year have been wrongly quoted. We have, therefore, no reason to disbelieve Syed Hasan when he stated that he was not a dependent of the deceased and he was being maintained by his younger son Manzoor Hassan. Therefore, even though a suit could be filed by a representative of the person deceased for the benefit of the minors yet the non-filing of the suit by him cannot come in the way of the saving of limitation under section 6 or 7 of the Limitation Act as the right of the minors to claim compensation under the Act is a statutory one and cannot be allowed to be defeated if the representative acts fraudulently or in collusion or merely abstains from filing a suit for some reason or other. Moreover, section 1 of the Fatal Accidents Act nowhere limits the applicability of section 6 or 7 of the Limitation Act and. therefore, even if the suit was not filed by a representative of the person deceased within one year of the date of the accident yet the minor respondents cannot be deprived of the benefit of either section 6 or section 7 of the Limitation Act.
11.It is true that the dependents were not only the respondents 1 to 5 who were minors but also the widow of the deceased Mst. Famida Khatoon. Section 6 of the Limitation Act contemplates a legal disability either in one or in all and therefore this section will not apply to the instant case to save limitation. In the plaint, limitation was sought to be saved under Article 6 of the Limitation Act.
Section 6 of the Limitation Act was pleaded and we feel that this was so because the suit was filed on behalf of the minors by their next friend and it was for this reason that section 6 was relied on.
Before the learned Single Judge there was a controversy as to the applicability of section 7 and the finding of the learned Single Judge was that limitation was saved under section 7 of the Limitation Act. In the circumstance, respondents 1 to 5 cannot be precluded from pleading section 7 with a view to save limitation as urged by the learned counsel for the appellant.
12.The applicability of section 7 to the instant case was challenged on the authority of the decision in the case of Johnson and another v. Madras Railway Company . This decision was based on the interpretation of section 8 of Limitation Act (Act XV of 1877). It reads:-- "8. When one of several joint creditors or claimants is under any such disability, and when a discharge can be given without the concurrence of such person, time will run against them all; but where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others."
This section has been amended and is renumbered as section 7 in Act IX of 1908 which has already been reproduced earlier. The expression "joint creditors or claimants" in section 8 of the old Act has been omitted and the expression now in section 7 is "jointly entitled to institute a suit". In the Madras case the words "joint claimants" were interpreted to mean persons having joint substantial rights and it was argued that the same meaning should be given to the words "jointly entitled to institute a suit" in section 7 of Act IX of 1908. This contention was considered in the case of Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. by Qadeeruddin, J., as he then was. His Lordship distinguished the Madras case and observed:-- "There is apparently only one reported judgment in which the question of limitation under section 8 of the Limitation Act, 1877 (Act X V of 1877) which was the equivalent of section 7 of the present Limitation Act, 1908, has been considered with reference to the Fatal Accidents Act, 1855. It is a judgment of a Division Bench of the Madras High Court in Johnson and another v. Porto Novo Cundasamy I L R 28 Mad. 479. The language of section 8 was essentially different from the language of the present section 7, as pointed out by Chitley and Rao in the third paragraph of their Note No, 4 of their Commentary on section 7 of the Indian Limitation Act, 1908 (3rd edition). That j judgment is therefore no authority on the interpretation of the present section 7.
The words, 'persons jointly entitled to institute a suit' mean persons who have a right to bring a suit jointly. Mr. Parma nand contended that though the language did not require that they should be necessarily arrayed as plaintiffs in a suit, it conveyed the sense that they should have a joint cause of action. I think that the language excludes the possibility of separate actions on the principle that 'the express mention of one thing implies the exclusion of another', but there is nothing in it to import the sense that the reason for such joint action must be a joint substantive right or a joint cause of action and not merely a procedural necessity. Such a joint action may be legally necessary due to procedural requirements only. In this connection I should mention Note No, 4 of Chitaley and Rao's Commentary on section 7 of the Indian Limitation Act, 1908--Third Edition, to which reference was made by Mr. Muhammad Nasim. In the present case the three claimants could not, by reasons of section 2 of the Fatal Accidents Act, 1855, bring separate suits to recover damages sustained by them separately and as such they were entitled to bring this suit jointly in the 'sense of section 7 of the Limitation Act, 1908. They, therefore, come within the scope of the words 'persons jointly entitled to institute a suit'."
This decision was followed by Kadir Nawaz Awan, J., in the case of Sahibzadi Begum and others v.
Hamid Ali and others Civil Revision Petition No, 212/63 and it was held that limitation was saved by section 7 of the Act.1 2
13. The learned counsel for the appellant challenged the correctness of the interpretation of the expression "jointly entitled to institute a suit" and relied on the case of Mst. Zubaida Bai v. Seth Adam Haji Pir Muhammad Essaq , in support of his contenion that this expression contemplates a case where the substantive right is joint. In this case one Haji Adam Shakoor, a partner of defendant No, 1 died in 1943. The claimants were his minor daughter, who had filed the suit within 3 years after attaining majority, and defendants 2 to 6, who had also claimed their respective shares and who were either the heirs of the deceased Shakoor or the deceased's widow Mst. Khadija. They were all major at the time of the death of Shakoor and his widow Mst. Khadija. All the claimants had their distinct shares according to Muhammadan Law and were entitled to enforce their claims separately or jointly. It was, therefore, contended that limitation was not saved in their case as they had not brought a suit within 3 years of the death of Shakoor and that further with regard to the claim of one of the claimants in the 1/8th share of the widow time had begun to run under section 9 of the Limitation Act as the widow was then alive and that the subsequent disability or inability to sue could not stop it. Even if the claimant was a minor her claim was barred by time. In this case also the Madras case was relied on by the defendants with a view to save limitation under section 7 as it was contended that "the right to claim accounts was a joint and indivisible right, and inasmuch as one of the claimants was a minor and a complete discharge could not be given to defendant No, 1 without her concurrence, the fact of her minority saved the limitation not only for her but also for all the other claimants". A. S. Faruqui, J , repelled this contention and observed:-- "This section (section 7) can only apply when several persons are jointly entitled to institute a suit and the second condition is that a complete discharge can be given without the concurrence of a person under disability who is one amongst others who were all jointly entitled to sue. When these two conditions are present two results follow : firstly, that where such a discharge can be given time will run against all of them including the person under disability and secondly, that where no such discharge can be given time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased. The two illustrations to this section makes the position absolutely clear. These are: "(a) A incurs a debt to a firm of which B, C and D are partners is insane, and C is a minor. D can give a discharge of the debt without the concurrence of B and C. Time runs against B, C and D.
(b) A incurs a debt to a firm of which E, F and G are partners. E and F are insane, and G, is a minor.
Time will not run against any of them until either E, or F becomes sane, or G attains majority".
Section 7, therefore, would aptly apply to cases such as of firms or of a joint Hindu family, where a partner in the case of the former and karts in the case of the latter, can give a complete discharge notwithstanding the disability of one of the partners or one of the members of the joint Hindu family; therefore, to attract the provisions of section 7 the claimants must be persons whose substantive right is joint, that is, where more than one individual possesses the same identical substantive right. But, where the rights of the persons are distinct, this section will not apply notwithstanding the fact that all of them may be permitted to enforce their claim in one suit."
It was held that section 7 did not apply because defendants 2 to 6 had specific shares and anyone of them could have instituted a suit for accounts or for her share in the money due to the deceased partner and the mere fact that one suit could have been brought to enforce the claims of several heirs whose shares were distinct and fixed according to Muhammadan Law would not justify the saving of limitation. In that case, therefore each had a separate cause of action and that these causes of action could not be combined with a view to save limitation. This was the reasoning for the non-applicability of section 7 of the Limitation Act. In this case, the question whether the right to institute one suit which arises from the same cause of action where the right to compensation of the dependents is distinct and several, was not considered. We may observe here that the illustrations are not exhaustive of the cases covered by the expression "jointly entitled to institute a3 suit"; they provide instances of the applicability of the expression and it is not, therefore, possible to limit the meaning of the expression "jointly entitled to institute a suit" to a case where the substantive right is joint. It is, therefore, not possible to accept the restricted meaning given the expression "jointly entitled to institute a suit" by Faruqui, J., in the above case. We would respectfully agree with the meaning given to this expression by Qadeeruddin, J., in the case o Iftikhar Hussain.
14. What is of significance is that the right to sue or apply must be joint and this is the connotation of the expression "jointly entitled to institute a suit". There are instances where persons are entitled to distinct interest but they can only enforce it jointly through one suit and are precluded from bringing separate suits in regard to their separate interest as in the case of a co-mortgagee or Muhammadan co-heirs who are precluded from bringing separate suits in respect of the causes of action arising from transactions that had taken place prior to the death of the deceased. In our view, section 7 will also be applicable to such cases as well. The learned counsel for the appellant then invited our attention to the objects and reasons at page 480 of AIR Manual, Volume 9, second edition, for enacting section 7 in its present form with a view to impress that this section even after the amendment will still refer to a case where the substantive right is joint. According to him, the words "joint creditors or claimants" have the same meaning as the expression "jointly entitled to institute a suit". The discussion in the objects and reasons is confined to the conflict of decisions on the question as to the applicability of section 8 of Act XV of 1877 to applications for execution in which one of several joint decree-holders was under a disability at the commencement of limitation. The majority of decisions held that section 8 did not apply because the expression "joint creditors or claiments" referred to those joint creditors or claimants whose claims had not merged into a decree. This expression therefore did not include joint execution creditors. It was with a view to settle this conflict that section 7 was enacted in its present form. This section now applies to suits as well as applications for execution. No benefit, therefore, can be derived from the discussion in the objects and reasons for enacting section 7.
15.The next question which requires consideration is whether Syed Hasan could give a discharge without the con-currence of the minor respondents in the context of the second submission of the learned counsel for the appellant with regard to the non-applicability of section 7 of the Limitation Act. We have already held that Syed Hasan was not a dependent of the deceased. He could not, therefore, be a joint claimant in his own right and as such could not give a discharge without the concurrence of the minor respondents within the meaning of section 7 of the Limitation Act even though he was their E guardian and bad a power of disposal over their property. The question of discharge has to be considered with reference to the language of section 7, which requires that power to be exercised by a joint claimant and not by a guardian. It is not necessary to consider the question whether the non-filing of the suit in his capacity as the representative of the minors amounted to a discharge as that question in our view does not arise for determination.
16.In the instant case apart from the minor respondents there is also the widow of the deceased.
The question, therefore, would be whether she could have given a discharge without the concurrence of the minor respondents? This point was also considered in the case of Iftikhar Hussain and it was held that "a discharge without the concurrence of such person means a discharge of a claim in which the person under disability is also interested." Such a discharge the mother could not give". This observation was based upon the reasoning that each of the dependents was a tenant in common with others in respect of a claim and he was entitled to give a discharge to the extent of his interest in such a claim. This appears to us to be the correct position as the interest of the beneficiaries under the provisions of the Fatal Accidents Act is also distinct and several. The learned single Judge followed this observation of Qadeeruddin, J. and rightly repelled the plea of the appellant that the mother, who was a joint claimant, could give a discharge without the concurrence of the minors.
17.Issue No, 2.--The appellant in his written statement admitted that the bus in question was involved in the accident but contended that there was no negligence or rash driving of the bus driver. No definite stand was taken as to how the deceased was killed in the accident. However, in the written statement filed under Order X, C. P. C. the appellant took a definite stand that "the bus did not pass over the body of the deceased but only the foot-board separated from the bus and fell on the deceased". This stand was suggested to the witnesses examined by the respondents but it was denied; the appellant's witnesses supported this stand. Even to Dr. Major A. Hasan it was suggested whether the injury on the body of the deceased could be caused by falling of the foot- board with 7 or 8 persons on him. We now propose to examine this stand of the appellant in the context of the evidence led at the trial.
18.Liaquat Ali, a peon and Mushahid Hussain, a time-keeper of the Pakistan Naval Dockyard, were examined as eyewitnesses by the minor respondents; the criticism of the learned counsel for the appellant against these two witnesses was that they had not witnessed the incident. The presence of Liaquat Ali was challenged on the ground that his name was not mentioned in the F. I. R. and that he stated that he did not give his name or address to any one at the spot. It was, therefore, suggested that he was discovered afterwards and brought in as an eye-witness to support the case of the minor respondents. We are unable to agree with this suggestion. This witness was also employed in the Dockyard and he knew the deceased. It was, therefore, that he gave a report to the Welfare Officer of the Dockyard about his having seen the incident. He figured as a prosecution witness at the trial of the bus driver in the criminal Court and he was, therefore, examined as an eye-witness. According to his version he stayed at the spot for 10 or 15 minutes after the body of the deceased was taken away. Till that time the F. I. R. was not lodged and the Investigating Officer had, therefore, not come. There was, therefore, no question of giving his name or address to any passer- by at the spot.
19.Mushahid Hussain was employed as a time-keeper in the Dockyard at the relevant time. He also knew the deceased and gave the information in his office on Monday, the next working day after the day of the incident, that he had seen the accident. He was, therefore, examined as a witness in the criminal Court and was produced as a witness by the minor respondents at the trial of the suit. An objection was also taken that he was a time-keeper and that he could not have left his place of duty until all the workers had left at 1-30 p. m. as he had to note down their departure.
He has explained his presence at the spot by stating that he took a short leave from 11-30 a. m. and it took half an hour for him to reach the bus stop and he had to wait there as he could not get accommodation in the bus, According to this witness, he had also made an application in writing for this short leave which would be on the file in his office. No attempt was made by the appellant to rebut his assertion that he had taken short leave that day. It was then urged that he could not have remained at the bus stand for a long time as there was bus at the bus stop every minute to take away the passengers. This witness has stated that "there were difficulties in those days in getting accommodation in the bus. There is, therefore, no reason for us to disbelieve him when he stated that he had waited at the bus stand and witnessed the incident. It was also suggested to this witness that he had not given his name or address to any person at the spot though he remained there for about 15 or 20 minutes. He replied that the police did not examine any witness in his presence and that his statement was recorded 10 or 12 days after the incident. When asked as to whether any body had come to him during these 10 or 12 days, he replied that he had given the information of the incident in his office and that the police had not reached the spot while he was there. We are not inclined to feel that he was a got-up witness merely because he was not examined with promptness, for he had already made a disclosure of his presence at the spot and if there was a delay in his examination, that can be attributed only to the Investigating Officer whose duty it was to record his statement at the earliest has been brought out hi his evidence in favour of the deceased and it is, therefore, not possible to accept that he would offer himself as an eye- witness though he had not witnessed the occurrence.
20.The F. I. R. has not been brought on record and the Investigating Officer has not been examined. It is, therefore, not possible to say as to at what time after the incident he came at the spot. This much, however, is certain that he did not come to the spot while these two witnesses were there. The F. I. R. was not lodged by Muhammad Ashfaq or any one who had seen the incident.
The absence of the names of the witnesses in the F. I. R. assumes significance only when it is lodged by a person G who knew the witnesses. This is not the case here. It is not, therefore, possible to lay any emphasis on the names of the two witnesses as they are not mentioned in the F. I. R. and therefore their presence at the spot was doubtful.
21.The learned counsel for the appellant next urged that Liaquat All had not actually seen the bus "striking the deceased". This criticism was based on the reply given by this witness to a Court question. He was thereupon confronted with his statement made in the criminal Court in which he had stated that "the bus was driving at a fast speed and took a turn and speeded towards Shafqat Hussain and ran over him and he and his cycle came under the bus", and he admitted that this statement was correct. It is, therefore, clear that in his evidence before the criminal Court he had given the manner in which the accident had taken place, but here he did not stick to that position.
It is not possible to say as to the reason which impelled the witness to change his statement.
However, he has admitted that he was following the deceased on his cycle and that the bus took a turn at a fast speed and at that point of time the accident happened. Even though it may not be possible to accept his earlier version given before the criminal Court in view of the fact that he has not stuck to it yet certain features appear from his statement which render the defence theory of the accident highly improbable. The first is that the body of the deceased was picked up from the place a little behind the front wheel; the second is that he did not see any portion of the foot-board lying on the ground and the third is that as soon as the accident happened persons on the foot- board got down, he, however, could not say whether they had in that process fallen down.
22. Coming now to the evidence of Mushahid Hussain, the second eye-witness, the learned counsel lavelled the same criticism against his evidence. Though he stated that the left wheel of the bus struck Shafqat Hussain's cycle yet he showed his inability to say affirmatively whether the cycle came under the bus. At the same time he admitted that the cycle was damaged. He also shoved his ignorance about the fact as to whether Shafqat Hussain was taken out from under the wheel of the bus. He was thereupon confronted with the statement that the statement that he made before the criminal Court that "Shafqat Hussain was going on the left of the road. The left front wheel of the bus ran over Shafqat Hussain's cycle and the cyclist and the cycle came under the bus", and he stated that this statement was correct. Thus on the point as to the manner in which the bus had struck the deceased he stuck to his earlier version. Even if this witness has stated in reply that he cannot say whether the cycle also came under the bus or that Shafqat Hussain was taken out from under the wheel, yet in the context of his earlier statement that he had seen the left wheel of the bus striking Shafqat Hussain's cycle it is not possible to entertain a doubt that the cycle as well as Shafqat Hussain had come under one of the wheels of the bus. The learned counsel for the appellant then invited our attention to the answer that he gave to a question as to which part of the bus struck Shafqat Hussain. It was then stated that he did not see the bus striking Shafqat Hussain. This appears to us to be an obliging admission in the context of what he had stated in his examination-in-chief and we would disregard his admission. It is clear from his evidence that he saw the deceased under the bus and that his cycle was also damaged. It is, therefore, not possible to give due weight to that admission in view of these two important circumstances which support his ocular version. Additionally he has stated that he, the deceased and the bus were on the same side in reply to the question whether the bus was between him and the deceased. It is, therefore, not possible to accept that he would not have seen the bus actually striking the deceased as there was no obstruction between him and the deceased. The learned counsel for the appellant also emphasised the fact that the witness was unable to give the colour of the bus and this was so because he had not seen the bus. It is not possible to remember the colour of the bus after lapse of many years and it will be of no consequence even if he has been unable to recall the colour of the bus. It is clear from the evidence of this witness that the bus came at a fast speed from the opposite direction and took a turn round a tree in front of a way-side hotel; at that point of time the deceased was on his cycle on the left side of the road and proceeding towards Tower. The bus again moved in the same direction in which the deceased was proceeding and the left wheel of the bus struck the cycle of the deceased and he and his cycle came under the bus. Liaquat Ali has also stated that the deceased was proceeding from Dockyard towards Mereweather Tower and that he was following him on his cycle. He has also stated that the bus took a turn at a fast speed and for sometime it went towards the same direction in which the deceased was going. The left of the road was kutcha and full of sand and the deceased was near the edge of the road on its left side. In the context of the evidence of these two witnesses and the fact that the deceased was taken out from a place a little behind the front wheel and his cycle was damaged, it is established beyond doubt that he was struck and run over under one of the wheels of the bus.
23, Dr. Major A. Hasan who had performed autopsy on the body of the deceased had noticed multiple and deep abrasions on the right knee, right side of chest and abdomen and on the right calf extending up to the waist. On examination he found the following injuries:-- "(1) Right V to X ribs and left VIII to X ribs were fractured with lacerated wound in both lungs and bleeding in planeal cavities.
(2) The abdomen was full of blood which was very extensive with lacerated wound of liver and splean."
In his opinion the injuries to the chest and abdomen were of a crushing nature. The ocular version that the deceased was struck and run over is thus corroborated by the opinion of the doctor. The deceased could not have received the crushing injuries if he had not come under one of wheels of the bus. In the context of this evidence we propose to examine the defence of the appellant.
24. According to Muhammad Ashfaq, the bus conductor, some persons had stood on the mudguard and some on the foot board. He then persuaded those on the mudguard to get down and they did so; however, those standing on the foot board did not get down and the bus started.
What happened thereafter is thus stated in his own words:-- "The bus must have proceeded 10 or 12 paces. There were sand mounds on the side of the road, due to which the cycle went out of control, whereupon the cycle fell down on the right and the cyclist fell towards the left. Then the foot board with the passengers also fell down on the cyclist.
The bus broke down."
Even according to his version, the cyclist was on the left side a little behind the front wheel of the bus when the accident happened. He also stated that there was no one between the bus and the cyclist but again he changed his statement and stated that there were persons between the deceased and the bus when the accident happened. He was then confronted with his statement made in the Criminal Court in which he stated that "the ladies foot board broke down and people also fell on the road; the cyclist collided with these persons and then with the bus and fell towards the left side of the bus between the front and the rear wheels" and he admitted having made that statement but at the same time emphasised that he could not say whether the cyclist struck the side of the bus. In the earlier version the impression that is given is that it was after the foot board had broken down that the cyclist had collided with the persons who were standing on the foot board while in his later version before this Court it was stated that after he had fallen down that the foot board with the passengers fell on the cyclist. Both, these versions appear to us to be wholly improbable. It is inconceivable in the first place that 10 or 12 persons could stand on the first step of the foot board which gave way as its length was between 3 and 3f feet. This space is hardly sufficient to accommodate as many as 10 to 12 persons. The height of the first step as given by this witness was about 2 feet above the ground. The estimation of the height from the ground appears to be over-exaggerated for if that is so then it will not be possible for the ladies to use the step of the foot board while entering the bus. In our view, it could not be more than 1(1/2) feet. It is, therefore, not possible for the deceased and his cycle to come under it in the manner in which it has been alleged by Muhammad Ashfaq. If at all the incident had happened in the manner as alleged by this witness then the body of the deceased would have been nearer to the rear wheel than the front one, for the bus was then in motion. Moreover, there is no evidence on record whether any of the persons standing on the foot board had received any injury. It is impossible that those persons would not have suffered any injury if the bus was in motion. This witness has also stated before this Court that when the cyclist lost control "the cycle fell down on the right side and the cyclist fell towards the left. It is not possible for the deceased to have come under the foot board if he had fallen towards the left as in that position he would have been away from the foot board and it would only be the cycle that could have come under it as it was nearer to it. His version in the criminal Court is not consistent with the one that he gave in this Court and we feel that neither of the two versions could be probable in the circumstances of the case. The appellant when examined stated that the driver, deceased Bismillah, informed him in the evening that "the foot board of the bus broke down. People fell down and the man died." This statement appears to us to be inadmissible as the deceased driver was dead and could not therefore be examined. Thus, if we were to exclude this statement then there is nothing in his evidence to suggest as to in what manner the deceased was killed. There is, therefore, no corroboration of either of the two versions as given by Muhammad Ashfaq.
25.The appellant also examined Salahuddin Qureshi, his supervisor, and his cousin and brother- in-law, Samiuz Zaman. According to the defence version Samiuz Zaman was employed in the Glaxo Laboratories and was at the relevant time waiting at the bus stand for getting accommodation in a bus. Salahuddin Qureshi was alleged to be travelling in the same bus. None of these two witnesses was produced at the trial in the criminal Court. There is also no evidence that their names transpired during investigation as eye-witnesses to the occurrence. Salahuddin Qureshi has claimed that he had informed the police about the accident yet the report is not signed by him. There is, therefore, strong reason for us to suspect that because of their connection with the appellant they were examined as eye witnesses. We would not, therefore, place any reliance on their evidence.
26.The learned counsel for the appellant has urged that the defence version gets support from the evidence of Dr. Major A. Hassan. He has invited our attention to the following question and answer."
"Q.--Which is the more probable cause of the injuries in the present case, the passing of the vehicle on the body or the falling of the foot board with 7 or 8 persons on a person?
A.--in my opinion, the latter."
We have already held that it was not possible for the deceased to have been crushed in the manner as alleged by the appellant. The opinion of the doctor which is conjectural cannot be of any assistance to the appellant's case. Moreover, the appellant himself is a doctor and he has admitted that Major A. Hassan had been his teacher. This relationship itself is very meaningful and it cannot be ruled out that the above answer may have been given with a view to support the appellant's case.
27.In the post-mortem report (Exh. 7/1), the doctor has mentioned that the shirt and Pyjama "were torn irregularly". It was, therefore, urged by the learned counsel for the appellant that this feature was consistent with the defence version, for the clothes could not have been torn in such a fashion unless the deceased was entangled in the step of the foot board which had broken down. He also relied on the fact that there is nothing in the post-mortem report to show that there were any wheel marks on the clothes. The learned counsel for the appellant did not bring out in the evidence of the doctor his observations about the clothes which he had recorded in the post-mortem report.
It is, therefore, not possible to rely on this circumstance if it is not in his evidence, for the post- mortem report is not substantive evidence. It is also not possible to give any weight to the suggestion that if the deceased had been run over there would have been wheel marks on his clothes. It is a matter of obser-vation and it may be that the doctor may not have observed the marks or the impressions were not of a permanent nature and did not last till the time the dead body was examined by the doctor.
28.The learned counsel for the appellant also invited our attention to the Mashirnama of the vardat prepared by the investigating officer during the investigation of the case. This Mashirnama was produced in the criminal Court. His emphasis was that in the Mashirnama it had been mentioned that the step of the foot board was lying on the ground. Neither the investigating officer nor the Mashir has been examined at the trial of the suit. This Mashirnama cannot be used as substantive evidence ; we would therefore place no reliance on it. Similarly the report of the Motor Vehicles Inspector (Exh. 13/2) has been brought on record without examining the Inspector who had prepared it. This is also inadmissible in evidence for the above reason.
29.The next contention of the learned counsel for the appellant was that there was no rashness on the part of the driver. In support of this stand he relied on the statement of Muhammad Ashfaq.
According to this witness the bus stand was about 15 or 20 paces away from the place where the accident had taken place; the bus had just started from the bus stop and was in the first gear and its speed was 8 to 10 miles an hour. In the circumstances he urged that it cannot be said that there was any rashness of the bus driver. It is not possible to accept the statement of this witness on its face value, for it appears from his testimony that he is not a truthful witness. His demeanour has been noted down as unsatisfactory and that he had been evading replies. Moreover, the counsel for the appellant also described him as a stupid witness. Additionally, he was in the employment of the appellant and he has therefore minimised the role of the bus driver. It is, therefore, not possible to accept that the bus was at a slow speed. The fact and circumstances have clearly established that the accident took place on the left side of the road and the deceased was taken out from under the bus and his cycle was damaged. There was no reason for the bus driver to have gone on the left side if the road was clear and he could have avoided the collision with the deceased if the bus was in his control. We are, therefore, not inclined to accept his contention.
30.Issue No, 3.--This issue relates to the entitlement of damages. The learned counsel for the appellant has not challenged the expectancy of life which has been put at 60 years; the deceased was aged 29 years at the time of the accident. The learned counsel for the appellant has questioned the correctness of his age. He has invited our attention to post-mortem report (Exh. 7/1) and the death certificate (Exh. 10/2) and in both these documents his age has been mentioned as 35 years. In this context he has urged that his date of birth viz., 15th December 1933 entered in the High School Certificate (Exh. 10/1) should not be accepted as correct in view of what is mentioned in the other two documents. In support of his contention that the certificate was not an authentic document for conveying the correct date of birth, he relied on the following cases:--
(1) Asa Nand v. Gian Chand AIR 1936 Lab. 598.
(2) Mirza Muhammad llasan v. Safdar Mirza I L R 14
31. In the first case the question was as to what weight should be given to the entry relating to the date of birth in School register. There was a difference in the date of birth as recorded in the municipal register and that in the school register and in the circumstances of that case it was held that the entry in the school register was of little value as evidence of age. In the second case, reliance was not placed on the age in the Matriculation certificate because it was the same as disclosed while entering school as it was of a common occurrence that at the time of entering school a person was shown younger in age that he was in order not to be too old for government employment when his education was completed and for other reasons. This reasoning cannot be held to be of universal application. These two authorities cannot, therefore, be of any assistance to the instant case as they do not lay down any principle as to why this piece of evidence should not be relied on. In the instant case, Syed Hasan, the father of the deceased, has been examined and he has produced the Matriculation certificate. He has also stated in his evidence the year of the deceased's birth and this year is mentioned in his service record. The appellant has not produced any evidence to controvert this statement or to throw any suspicion on the authenticity of his age as recorded in the Matriculation certificate. There is no material on record as to who gave the age to the doctor and how it came to be recorded as 35 years. The doctor has not deposed in his evidence about the age of the deceased. Even otherwise the age shown in the post-mortem report cannot be considered as that document is not substantive evidence. Similarly the appellant has not summoned the application given to the Karachi Municipal Corporation on the basis of which the entry was made. It is, therefore, not possible to say as to who was the author of that information. In our view, the age as shown in the death certificate, therefore, cannot be regarded as authentic. The learned counsel for the appellant emphasised before us that the death certificate should be given due weight in view of section 46 of the Municipal Administration Ordinance, 1960, which cast a statutory duty upon the Municipal Committee to maintain the record of births, deaths and marriages. The question is not one of the authenticity of the certificate but the correctness of the date of birth. The learned counsel also relied for the above proposition on the following two cases:-- (1)Mst. Anwari Jan v. Baldua and others AIR 1936 All. 218.
(2)Mst. Kornai v. Gurcharan Prasad and others AIR 1938, All. 242. In both these cases the question was one of admissibility and relevancy of extracts from the register of birth and death; these authorities will therefore be of no assistance to the above contention. We cannot, therefore, lay any emphasis on the correctness of the age in the absence of proof that it was given by the person who had knowledge of his date of birth.
32. The learned counsel for the appellant next challenged the quantum of damages awarded to the respondents and their mother. The learned Single Judge had fixed the deceased working age at 60 years and his monthly income at Rs, 250 during the next 31 years if he had remained alive.
The learned counsel -- invited our attention to para. 1 of the plaint, in which it was Muhammad stated that the deceased was drawing a salary of Rs, 172 per month at the time of his death and the last pay certificate (Exh. 5/1) in which the same salary was shown. He, therefore, urged that the average monthly income of the deceased could not exceed Rs, 172 and that this amount less the conveyance allowance of Rs, 15, which was not a part of the salary, should be the basis for calculating the damages. The learned counsel for the minor respondents was unable to show us as to how his average monthly income could be fixed at Rs, 250 even if we were to accept that the deceased's case for fixation of his pay at the rate of Rs, 156 per month plus Rs, 10 as L. C. A. under the revised prescribed scale was under consideration. He also conceded that there is no other material for arriving at the figure of Rs, 250 per month. The deceased was in government service and was drawing a salary of Rs, 172 per month and, therefore, in estimating damages it is his earning capacity that should be taken into account. No evidence has been led in the case as to the chances of his advancement in the course of his service. It is, therefore, not possible to estimate any amount on that basis for it would be merely speculative. The learned counsel then contended that the government servant retires at the age of 55 years and thereafter it is only 1/3rd of his salary that he gets as his pension. The amount, therefore, could not be calculated at a flat rate for a period of 31 years. We do not find any substance in this contention as we are of the view that even after his retirement his earning capacity could not have been impaired. We would, therefore, accept the figure of Rs, 172 as the basis for estimating the damages. After the usual deduction of 1/3rd from this amount on account of personal expenses and Rs, 15 on account of conveyance allowance the amount of damages comes to Rs, 38,688 for 31 years.
33. It was next contended by the learned counsel for the appellant that we should take into consideration the scaling down factor and therefore there should be a deduction of an amount varying between 10 and 12 per cent. from the amount awarded as damages. In support of this stand he relied on Notes 813 and 814 at pages 691 and 692 of Mayne and McGregor on Damages, 12th edition. The following is the relevant passage in Note 813:-- "The Courts have evolved a particular method for calculating the value of the dependency, or the amount of pecuniary benefit that the dependent could reasonably expect to have received. The basis is the amount of pecuniary benefit that the deceased would have conferred upon the dependent in the future. This may be calculated by taking the annual figure of the dependency, whether stemming from money or goods provided or services rendered, and multiplying it by the number of years that the dependency might reasonably be expected to last. This latter figure is generally referred to as the multiplier. The resulting amount must then be scaled down by reasons of two considerations, first that a lump sum is being given instead of the various sums over the year, and second that contingencies might have arisen to cut off the benefit prematurely."
This scaling down factor was considered in the following cases:-- (1)Iftikhar Hussain and another v. Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550.
(2)Government of Pakistan v. Mst. Sakina Begun! PLD 1962 Pesh. 70.
(3)Kulsoom v. Jalil Ahrnad Khan and another PLD 1964 Kar. 72.
34.In the first case, the discount was allowed because the beneficiaries were getting the benefits in lump sum. In the second case also this was the consideration. In the third case. A. R. Kharal, J. disagreed with the view taken by Qadeeruddin, J. in allowing the deduction in the case of Iftikhar Hussain on the ground that "under the Fatal Accidents Act, the liability of the defendants for the loss suffered by the beneficiaries commences and is effective from the date of the death of the deceased and not on or from the date or dates on which the deceased would have made his contributions to the beneficiaries". The plea in support of the deduction that the expected contribution from the deceased would have spread themselves throughout the period of his life was thus repelled. In the fourth case, Qadeeruddin, J. disallowed the deduction on the ground that "the defendants have retained and enjoyed the benefits of the amount of compensation for about 7(1/2) years and the beneficiaries have suffered by deprivation in that period". It is, therefore, clear from the above authorities that there is no rigid rule, a practice for allowing this deduction. On this view of the matter the learned counsel for the appellant candidly contended that the scaling down factor has no statutory backing but because the benefits will be paid in lump sum it is therefore that discount should be disallowed. This is, however, not the only consideration.
Qadeeruddin, J. in the case of Kulsoom v. Jalil Ahmad Khan also took delay in depositing the amount as a relevant consideration and disallowed the deduction as the defendants in that case had retained and enjoyed the benefits of the amount of compensation for about 71 years. We would upon the same reasoning disallow the discount.
35.Issue No, 5.--In view of our conclusion that the net amount payable is Rs, 38,688 the judgment and decree shall stand modified to this extent only. We would, however, uphold the judgment and decree in all other respects.
36.Lastly, the learned counsel for the appellant challenged the form of decree. According to him the insurer was liable to the extent of Rs, 20,000 only in view of clause (b) of subsection (2) of section 95 of the Motor Vehicles Act and that, therefore, there should have been a direction in the decree that this amount should be recoverable from respondent No, 6 and the balance from the appellant. This direction according to the learned counsel was based on good reason and not on any rule or law. In reply to this contention Mr. Riazul Hasan, the learned counsel for respondent No, 6, invited our attention to the case of Rajappa and others v. Andalammal and others and relied on the following observation of Bashir Ahmad Sayeed, J. :-- "The main point that has to be kept in view in this is, that after a decree is passed against the assured, the insurer that is the Insurance company is bound to satisfy the decree unless it is otherwise made ineffective. A further point to be noticed is that so far as the Motor Vehicles Act is concerned, it does not contemplate a decree being passed against the Insurance company and it will not be correct to say that the injured person could proceed against the Insurance company alone for enforcing the third-party risk undertaken by the company, leaving out the assured or his heirs and legal representatives, and without seeking to enforce his remedies against the assured whose vehicle and whose employees were responsible for the accident and damage suffered by the passengers."
The above contention was dealt with in that case and repelled It is true that in some of the judgments directions have been given but that cannot be pleaded as a precedent before us for giving the same direction in view of the language of section 1 of the Fatal Accidents Act.
37. In conclusion we would partly allow the appeal to the extent just indicated above and dismiss it in all other respects. The appellant has partially succeeded on the question as to the amount of damages payable to respondents 1 to 5. We would, therefore, order him to pay 2/3rd of the costs of this appeal to respondents 1 to 5. Respondent No, 6 will bear its own costs. I L R 28 Mad. 479 PLD 1959 Kar. 550 PLD 1963 Kar, 631 AIR 1957 Mad. 236