' This suit for recovery of Rs, 5,08,000 under the Fatal Accidents Act has been filed by Hashmat Ali Beg and Mst. Idris Fatima, parents of deceased Hayat Hashmat Beg, who died in a traffic accident on 20-8-1981. The sole defendant in this case is Karachi Transport Corporation (hereinafter referred to as "the KTC"), as the accident involved KTC Bus No, 839-993. The case of the plaintiffs is that the deceased was their only child and he died on account of an accident caused by a passenger Bus No, KTC-839-993, which was being driven in a rash and negligent manner by driver, Murid Hussain, an employee of KTC. According to the plaintiffs, the deceased, the only son of the plaintiff, had obtained Degree of Bachelor of Architecture from NED University of Engineering & Technology, Karachi, in 1980, securing first class and that he was a brilliant young man enjoying good health and physique, and at the time of his death he was employed with Messrs Qadir and Associates, a firm of architects, engineers and planners as an assistant architect and he was getting Rs, 1,300 per month during his initial training/employment period. The plaintiffs have claimed a sum of Rs,5,08,000 from KTC on account of damages under the Fatal Accident Act. A written statement was filed by the defendant, in which a preliminary objection was taken that the suit was not maintainable, as the driver of the bus had not been impleaded as defendant. On merits it was denied that the driver, Murid Hussain, was driving the bus in question in rash and negligent manner.
It was averred that the accident resulted on account of the negligence of the deceased. On the pleadings of the parties the following issues were settled by the Court:-
(1) Is the suit not maintainable for non-joinder of driver?
(2) Whether the death of Hayat Hashmat Beg was caused due to the rash and negligent driving of the vehicle in question or due to his own negligence?
(3) Whether the plaintiffs are entitled to compensation, if yes, what should be the amount of compensation?
(4) Relief?
' On behalf of the plaintiffs, father of the deceased, plaintiff No, 1, gave evidence and on behalf of the defendant KTC, driver Murid Hussain appeared as DW-1 and one Buland Akhtar, Traffic Manager, KTC of Orange Depot, appeared as DW-2. I have heard the arguments of Mr. Khalid Javed, learned counsel for the plaintiffs and Mr. Mir Raza Hussain Hyderi, learned counsel for the defendants.
2. Issue No, 1 relates to the maintainability of the suit. According to the learned counsel for the defendant, without joining the driver as a defendant, the present suit was defective and was liable to be dismissed such. Learned counsel referred to Order I, rule 3, C.P.C. and relied upon PLD 1957 Lah.
882. The Lahore case cited by the learned counsel for the defendant is not applicable and is distinguishable. It is not a case under the Fatal Accident Act. Order I, rule 3 also does not come to the aid of the defendant for the proposition that the present suit is defective. On the other hand, Mr. Khalid Javed, learned counsel for the plaintiff, relied upon AIR 1959 Punjab 297. This decision supports the contention of the learned counsel for the plaintiffs that the present suit is maintainable without impleading the driver of the A bus as a defendant. The liability under the Fatal Accident Act of the driver and the owner of the vehicle causing the accident is joint and several and accordingly, in my view, the present suit is maintainable and is not defective, although the driver of the bus not been impleaded as a defendant. Further the defendant corporation itself has produced that driver as the main witness on their behalf in this case. In the circumstances, no prejudice has been caused to the defendant corporation on account of the driver not having been impleaded as a co-defendant in the present suit. Issue No, 1 is decided in the negative against the defendant.
' On issue No, 2, the evidence of the plaintiff No, 1, an eye witness, is that the accident had taken place near the Karimabad Bridge Petrol Pump, Karachi, between 6.30 to 7 p.m. on 20-8-1981 and it was caused by a bus belonging to KTC. According to this witness, his son was coming on a motor- cycle No, KCE-2324 from Lalukhait and going towards his house when the bus in question, being driven at a very high speed and also negligently and carelessly hit the motorcycle of the witness's son from the rear and on account of this accident, his son was thrown away from the motorcycle and the motorcycle came under the bus. According to the witness, the accident caused serious injuries to his son and blood was oozing from his ears, noze and mouth and he had also received injuries on his head. It was then deposed by the witness that a police constable by the name of Sultan Saboor took the witness's injured son in a rickshaw to the Hospital and later on the same day when the witness reached Abbasi Shaheed Hospital, where the injured had been taken, he came to know that his son had already expired on account of the injuries received by him in the accident..
Plaintiff No, 1, according to his own testimony, was going on another motorcycle behind the motorcycle of his son and this motorcycle was being driven by a friend of the deceased. According to plaintiff No, 1, he saw the entire accident with his own eyes, as the motorcycle, on which he was riding, was about 5 or 6 yards behind the motorcycle of his son. In cross-examination it was suggested to this witness that accident had actually been caused on account of the rash driving of deceased, who banged his motorcycle against the bus in question and that at the time the accident took place the bus in question was not moving. The suggestion was denied and it was further stated by the witness that if the motorcycle of his son had been seen after the accident, it could have been seen that the motorcycle had been completely smashed, which would not have been the case if the motorcycle had dashed against the bus. The evidence of plaintiff No, 1 inspires confidence and has not been shaken in his cross-examination. On behalf of the defendants, Murid Hussain, driver of the bus in question, appeared as D.W.1. According to him, at the time of the accident in question there was a great rush and there was lot of traffic and vehicles were moving very slowly and that he had come down the Bridge of Karimabad and reached the level of the road, when he heard the sound of some vehicle slipping and then a motorcycle hit the rear pumper of the bus, which was being driven by the witness. According to the witness, his bus was not moving at the time the motorcycle hit the bus. The witness came out of the bus and he saw that the person, who was injured in the accident, was taken in a rickshaw to the Hospital. The witness confirmed the version of the plaintiff No, 1 that a police constable had taken away the injured in a rickshaw to the Hospital. According to his testimony, the driver went to New Karachi and reported the matter to the KTC Depot. In cross-examination, the driver stated that he had reported the accident to Buland Akhtar, D.W.-2, who was at that time posted at New Karachi Depot of KTC.
According to his evidence, he was given a show-cause notice by the KTC and charge-sheeted and he was also suspended and was not allowed to drive the bus for a period of over two months. He further stated that in the charge-sheet it was mentioned by KTC that he had caused the accident.
The evidence given by the witness is contradictory to the stand taken on behalf of the KTC in their written statement. In the written statement it was stated that at the time of the accident the bus was moving, whereas in his evidence the driver states that the bus was not moving. Then in the written statement it is mentioned that the motorcycle had hit the rear tire of the bus, whereas, according to the driver, the motorcycle had hit the rear bumper of the bus. Then in the written statement it is mentioned that the injured had fallen on the footpath, whereas in the evidence the driver admitted that at the place of accident there is no footpath. Buland Akhtar, D.W.-2, stated that the driver Murid Hussain had reported the accident at the North Karachi Depot of KTC and that conductor of the bus Zakir Shah had also come with Murid Hussain for lodging the report. It may be observed that no reference has been made by the driver in his evidence about the conductor going with him to the North Karachi Depot for lodging the report. Buland Akhtar states that an entry about the accident was made in the Rozenamcha and then the witness had gone for inspection of the scene of the accident but when he reached the place of the accident he could see some signs that some accident had taken place but the motorcycle and the bus had already been removed by the police from the scene of the accident. This witness has stated that according to his opinion, the accident had not been caused on account of carelessness or negligence on the part of the driver of the bus. This opinion of witness Buland Akhtar is of no consequence. He was not an eye- witness. He did not make any proper enquiry. When he had reached the scene of the accident, the bus and motorcycle had already been removed from the scene of accident. By observing some signs, explanation or details of which have not been given, the witness could not come to the conclusion that the accident had not taken place on account of any carelessness or negligence on the part of the driver of the bus.
' I had asked the witness whether he could produce the charge-sheet given by KTC to the driver and his reply, to which he stated that if he was given some time he would produce these documents. The witness was directed to bring the office file and the case was taken up after about an hour. When the witness again went into the witness-box he stated that he had made a search in the office but the file relating to the case in question was not traceable and therefore he could not produce the copies of the charge-sheet and reply of Murid Hussain driver. From this statement an inference can be drawn that if these documents were produced they would have gone against KTC. On account of contradictions in the evidence of driver, the fact that the charge-sheet given by KTC and the reply of the driver have not been produced, the evidence on behalf of the defendants does not inspire confidence. According to me, the evidence has established that the accident had been caused on account of rash and negligent driving of driver Murid Hussain, an employee of KTC, and not on account of any negligence on the part of the deceased. It has further been established that on account of this accident, the deceased lost his life. Issue No, 2 is decided accordingly.
4. Issue No 3 relates to the quantum of compensation, to which the plaintiffs, the parents of the deceased are entitled. As noticed earlier, the plaintiffs have filed suit for recovery of Rs, 5,08,000.
The evidence has established that the deceased was a graduate of architecture having secured first class from NED University of Engineering, Karachi, and that during his training period he was employed with Qadir Associates, a firm of architect, he was getting a salary of Rs, 1,300. The evidence that he was a young man of good health and physique has gone uncontroverted. An argument was raised on behalf of the defendants that the ages of the parents have not been properly proved. I find no substance in this argument. The evidence has established that at the time of the death of deceased, plaintiff No, 1 was 57 years of age and plaintiff No, 2 was 52 years of age and that the deceased was the only child of the plaintiffs. With the qualification possessed by deceased, he had a bright future in store for him if he had not died in the fatal accident. No doubt he would have married after sometime and raised a family but being the only son of the plaintiffs, it could reasonably be expected that the plaintiffs would have been financially benefitted from the earnings of the deceased. It is difficult in such cases to ascertain the exact amount which the deceased would have given to his parents if he had not died in the accident. In my view, however, it would be reasonable to expect that if the deceased had lived, on an average he would have been paying about Rs, 500 per month each to the two plaintiffs. The age, to which the two plaintiffs are expected to live, is taken as 65 years, Plaintiff No, 1, therefore, would have expected to receive Rs, 500 per month from the deceased, if he had not died in the accident, for a period of 8 years and plaintiff No, 2 the same amount per month for a period of 13 years, Calculating in this manner, plaintiff No, 1 is entitled to compensation to the extent of Rs, 98,000 and plaintiff No, 2 to the extent of Rs,78,000. Issue No, 3 is decided accordingly.
5. Suit No, 321 of 1982 is decreed in the sum of Rs, 1,26,000 in favour of the two plaintiffs against the defendants with proportionate costs. The share of the plaintiff No, 1 in the decrial amount will be Rs, 48,000 whereas the share of plaintiff No, 2 will be Rs, 78,000.