1. ' This is a suit for recovery of Rs.12,00,000 under the Fatal Accidents Act, 1855.
2. ' One Qazi Akbaruddin aged about 18 years son of the plaintiffs met with his death on 10-10-1983 in a fatal accident near KDA Civic Centre on Sir Shah Suleman Road near Hassan Square due to a collusion between Bus bearing No. DMC-14 belonging to defendants Nos. 1 and 2 and a motorcycle on which the deceased was riding on his way when reached near KDA Civic Centre on Sir Shah Suleman Road.
3. ' The plaintiffs' case is that on 10-10-1983 the deceased was going on his motorcycle and when he reached near KDA Civic Centre on Sir Shah Suleman Road near Hassan Square, the defendant No. 3 driver of Bus No.DMC-14 rashly and negligently dashed the motorcycle and consequntly the deceased got fatal injuries and died. The deceased at the time of his death, was 18 years old and a student in second year of Polytechnic in Civil Engineering. The deceased was also earning about Rs.1,800 per month from tutions and he used to give all his earning to them.
4. ' Defendants Nos. 1 and 2's case is that the accident was caused due to the negligence of deceased Qazi Akbaruddin and the defendant No. 3 is in no way responsible for the same. It is further case of the defendants Nos.1 and 2 that the plaintiffs have drawn a hypothical conclusion.
5. There is no evidence to that effect and as such their claims for compensation against defendants Nos. 1 and 2 are not tenable.
6. ' Defendant No. 3's case is that on 10-10-1983, he while driving bus No. DMC-14 was proceeding from Liaquatabad towards the National Stadium. Defendant No. 3 entered the roundabout at Hassan Square before the deceased at normal speed and having exercised all caution and due care. He had negotiated more than two-third of the roundabout and was proceeding towards National Stadium when the deceased despite being required to right of way to the vehicle on his right rammed into the rear wheel of the bus being driven by him. He pleaded that the disobeyance by the deceased of the rule of right of way was the sine qua non of death. He also pleaded that the deceased failed to observe Rule 7 of the 10th Schedule read with Section 82 of the Motor Vehicles Ordinance, 1965. He also pleaded that the deceased wilfully and negligently failed to wear the crash helmet as required by section 89-A.
7. ' On these pleadings the following issues were framed on 15-9-1985:
(1) Whether the death of deceased Akbaruddin was caused by rash and negligent driving by defendant No.3 of Bus No.DMC-14 or whether it was on account of the negligence of the deceased?
(2) To what damages, if any, the defendants are liable to the plaintiffs?
(3) Relief.
8. ' The plaintiffs in support of their case have examined P.W.No.I Syed Villayat Hussain Shah (Ext.6), P.W.2 Qazi Arifuddin and P.W.3 Amjad Karim Ansari (Ext.8). The defendant No.3 in support of his case filed his affidavit-in-evidence (Ext.9) and submitted himself for cross-examination. The defendants Nos.1 and 2 have not examined any witness in support of their case.
9. ' Issue No.1.--The most important question for consideration in this case is whether the death of deceased Akbaruddin was caused by rash and negligent driving by defendant No.3 of the Bus No.DMC-14 or whether it was on account of the negligence of the deceased. P.W.3 Amjad Karim Ansari is eye-witness of the accident in question. P.W. Amjad Karim was class-fellow upto Intermediate of the deceased and the deceased used to give tution to him. P.W.3 stated that on 10- 10-1983 at about 7-45 a.m. The deceased was riding on his motorcycle while he was following him on his motorcycle. He stated:-- "When the deceased turned from the Chowk of Hassan Square Bus No.14 of DMC, which was being driven rashly and negligently came at a high speed and struck the motorcycle of the deceased.
10. The deceased died at the spot. Many persons collected there."
11. ' He admitted in his cross-examination that police had not recorded his statement. To a question in cross-examination he replied that the deceased was going on his motorcycle ahead of him while he was following him on his motorcycle. He admitted in his cross-examination that, was Bus No.DMC-14 coming from Liaquatabad and going towards Stadium. He also admitted in his cross- examination that they were coming from Unkiersity Road towards Hassan Square. He also admitted that the bus was coming from other road and going to left side. To a question in cross- examination he stated that the bus had entered in the roundabout before he entered in the roundabout. Some students were already sitting in the bus. To another question he replied he cannot say which part of the bus had hit the deceased. He had seen him when the dead body was lying on the road. He denied the suggestion that the deceased had hit the rear wheels of the bus.
12. ' This is the version of the eye-witness examined in this case.
13. ' The other set of witnesses produced on behalf of the plaintiffs consist of the Police Officer who investigated the accident. P.W.1 Syed Villayat Hussain Shah (Ext.6) at the relevant time was attached to Gulshan-e-Iqbal Police Station, Karachi and investigated the accident in dispute. He stated that initial investigation in Crime Case No.288 of 1983 was done by A.S.-I. Gulab Khan: According to Gulab Khan's investigation at 0800 hours deceased Qazi Akbaruddin while driving his motorcycle KCW/4987 was going towards Stadium Sir Shah Suleman Road from Hassan Square Chowrangi when during this, Mehboob Illahi (defendant No.3), while driving the Bus DMC-14, negligently and carelessly came to the same direction and hit the above motorcycle from behind as a result of which deceased Qazi, Akbaruddin fell on the road from over the motorcycle while the left rear wheel of the bus ran over his head so he died on the spot. He prepared inqUest report of the deceased (Photocopy as Ext.6/2). He produced post-mortem report (Photocopy thereof as Ext.6/3). He also prepared sketch of the report of the accident (Ext. 6/4). He also produced inspection report of the place of accident (Ext.6/5).
14. ' As far as the defendant's evidence is concerned DW-1 Mehboob Illahi who was the driver of the bus in question. He stated in paragraph 2 of the Affidavit-in-evidence as under:- "2. That on 10-10-1983 I was driving a bus bearing No.DMC-14 and was proceeding from Liaqatabad towards the National Stadium. After picking some students just before the crossing at Hassan Square off University Road, I entered the said roundabout and when I had completed the circle and was proceeding towards the National Stadium the deceased namely Kazi Akbaruddin hit the back wheels of the above-said bus. I immediately stopped the bus".
15. ' In paragraphs 3 and 4, he stated as follows:- 3 ' That the said deceased Kazi Akbaruddin was neither holding any valid driving licence nor was wearing any helmet. Besides, the deponent was entitled to the right to cross the roundabout first since I was on the right hand of the deceased motorcyclist and had entered the said roundabout much earlier to the entry of the said deceased who was coming from the University end and was going towards Sabzimandi. I hereby rely on the sketch filed by me as annexure 'A' to my written statement.
4. I say that I have neither committed any negligence nor I was driving the said bus rashly and/or negligently. It was the deceased who was driving his vehicle most carelessly, rashly and negligently. Before entering the said roundabout the deceased should have adopted all care and caution by, checking his speed and by giving right of way to the vehicle coming from right side."
16. ' Thus he threw the sole responsibility of the accident on the deceased. In support of his version he filed the sketch (Ext.9/1). In his cross-examination he replied that the sketch (Ext.9/1) had been obtained from the police station. He did not say how this sketch was with police. He admittbd that he did not inform the police about the accident. It is pertinent to note that P.W.1 was cross- examined at length but no question was put to him in cross-examination about delivery of sketch (Ext.9/1) to defendant No.3. It has also come in evidence that students were sitting in the bus and some people were also collected at the time of accident but none of them was examined by the defendants.
17. ' Mr. Mohammad Maqsood urged that as the defendants have not led any evidence, the rashness and negligence of defendant No.3 is to be inferred.
18. I have given thoughtful consideration to the arguments of the learned counsel for the plaintiffs and find force in it. In suits for damages in accident cases normally the rule is that it is for the plaintiffs to prove negligence. In some cases the above principle may cause hardship to the plaintiffs, because it may be that the true cause of the accident lies solely within the knowledge of the defendants who caused it. This hardship is, however, avoided to a considerable extent by the maxim res ipsa loquitur. This maxim means that an accident may by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other cause, and that in such a case the mere fact of the accident is prima facie evidence of such negligence.
19. ' In such cases it is sufficient for the plaintiffs to prove accident and therefore a presumption of negligence arises. The onus then shifts on the defendants to show that the accident could not be avoided at any cost. Adverting to the facts of the present case, it is evident from the evidence of the plaintiffs that the accident occurred due to the rash and negligent driving of the Bus No.DMC-14 by defendant No.3. This fact could be within the knowledge of defendant No.3 (the driver). On the evidence produced before me I am fully satisfied that the cause of the accident which resulted in Qazi Akbaruddin's death was the negligence of defendant Nos.1 and 2's driver. The version of eye- witness produced on behalf of the plaintiff's proves beyond doubt that the deceased turned from the Chowk of Hassan Square, Bus DMC No.14, which was being driven rashly and negligently came at a high speed and dashed against the motorcycle of the deceased. The sketch Ext.6(4) produced in this case clearly shows that the bus dashed the motorcycle. As a matter of fact defendant No.3's case in the written statement was that "he entered the roundabout at Hassan Square before the deceased at normal speed and having exercised all caution and due care. He negotiated more than two-third of the roundabout and was proceeding towards the National Stadium when the deceased despite being required to give right of way to the vehicle on his right rammed into the rear wheels of the bus being driven by him", but Mr.Rashid A. Rizvi, the learned counsel for defendant No.3, conceded that it does not fit in with the evidence on the record. The main argument of Mr.Rashid is that the cause of the death was the contributory negligence of the deceased. He referred me to the sketch (Ext.9/1) produced by the defendant No.3. I am not prepared to accept this contention. This sketch was not shown to P.W.1, when he was in the witness box. Even no suggestion was made to P.W.1. That this sketch was given by the Police. There is no conclusive evidence that the deceased rammed into the rear wheels of the bus. Thus the evidence on this point does not help the defendants and the defendants' case in this respect appears to be without substance. The statement of the plaintiffs' witness who was following the deceased and who saw the accident is convincing and proves to the hilt that the bus was being rashly and negligently came at a high speed and dashed against the motorcycle of the deceased.
20. Accordingly I will hold that the accident in question was caused due to the rash and negligent driving of defendants 1 and 2's driver and deceased Qazi Akbaruddin was not driving his motorcycle rashly and he did not contribute to the negligence and was not responsible for the accident involved in this matter.
21. ' Before dealing with issue No.2, I would like to dispose of certain legal obligation raised on behalf of defendants 1 and 2. The plea of defendants 1 and 2 is that plaintiffs have to prove that at the relevant time person who was driving the bus was duly authorised by defendant Nos.I and 2 to drive the bus. In support of his submission, reliance is placed on in the reported case Mukhtiar Begum v. Karachi Tranport Corporation and another 1987 CLC 1557.
22. ' On the other hand Mr.Maqsood submitted that the plaintiffs have alleged that it was on account of the negligence of the driver (defendant No.3) of the bus the accident had taken place and the defendants 1 and 2 are liable for the negligence of their employee in the course of his employment.
23. I have already held that the plaintiffs had proved by evidence that the driver was negligent. It is an admitted fact that the defendants 1 and 2 ply buses for bringing students of Dow Medical College from pickup points and vice versa. In view of the above the submission of Mr. U. Naimat Moulvi is rejected. The case cited by him is not applicable to the facts of the present case.
24. ' Issue No.2.--It may be seen that the pecuniary loss sustained by the parents as a result of the death of their son can be determined on the basis of life expectancy of the parents (see PLD 1980 Karachi 78, 1982 CLC 1057 and PLD 1985 Kar. 353). The only evidence brought on the record regarding life expectancy of the plaintiffs is the statement of the plaintiff No.I himself, in which he stated that his father died at the age of 50 and his mother had died at the age of 55/60 years. In Jalil Ahmed v. Kalsoom CA.No.K-44/69 the Hon'ble Supreme Court had held that the life expectancy of life ranges from 56 to 65 years. In Mrs. Asima Ibrahim v. Sindh Road Transport Corporation PLD 1982 Karachi 236 it was found that 65 years of age is as normal expectancy of life. In view of the above judicial pronouncement I consider 65 years as reasonable expectancy of life in the case of the plaintiffs. The plaintiffs No.1 was about 49 years and whereas the plaintiff No.2 was 36 years old, when the accident took place, and their son Qazi Akbaruddin died. He, therefore, expected financial assistance from the deceased for 16 years and she expected financial assistance from the deceased for 29 years. The deceased used to earn Rs.1,800 by giving tution. The earning capacity of deceased for one year is assessed at Rs.1,800 per month, allowing one third as expenses for maintenance, net amount works out Rs.1,200 per month. According to the plaintiff No.1 the deceased would complete his education within one year, had he lived, he would earn Rs.4,000 to Rs.5,000 or Rs.10,000 to Rs.15,000 per month he would have earned if he would go abroad. I will assess Rs.6,500 per month i.e. Rs.78,000 per year as income.
25. ' Mr. Rashid A. Rizvi contended that if a person, riding a motorcycle, does not wear helmet, he is guilty of contributory negligence and the damages ought to be reduced.
26. ' This is a first case about helmet. Section 89-A of Motor Vehicles Ordinance, 1965 provides that no person shall drive, or ride the pillcoin seat of, a two-wheeled motorcycle except when he is wearing a crash helmet. Explanation provides that in this section "crash helmet" means helmet made of such material and meeting much other requirements as may be prescribed.
27. ' In Geier v. Kujawa, Weston and Warne Bross. (Transport) Ltd. 1970 I Lloyd's Law Reports 364, a German girl was a passenger in a car. She had never seen seat belts and did not know what they were for. Brabin, J. Held that she was not guilty of contributory negligence.
28. ' In Paster-nack v. Poulton (1973) 2 A.E.R. 74 a young woman under-graduate was a passenger on a short trip in Bristol. It was driven by a fellow student. He drove into a Lamp post and she was seriously injured in the face. Kennetenth Jones, J. Held that if she had worn a seat belt it would have saved her from her injuries. He held it was contributory negligence and reduced her damages by five per cent.
29. ' In Froom and others v. Butcher, (1975) 3 AER 520, a car was driven by the plaintiff collided with another car driven by the defendant. The plaintiff was not responsible for the accident which was wholly attributable to the defendant's negligent driving. At the time of the accident the plaintiff was not wearing seat belt which was fitted to his seat. Nield J. Held that the plaintiff was not guilty of contributory negligence and awarded 450 general damages. The defendant appealed against the award.
30. ' Lord Denning MR. Held that negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen, if he did not act as a reasonable prudent man he might he hurt himself.
31. "P.528. Everyone knows, or ought to know, that when he goes out in a car he should fasten the seat belt. It is so well-known that it goes without saying, not only for the driver, but also the passenger. If either the driver or the passenger fails to wear it and an accident happens--and the injuries would have been prevented or lessened if he had worn it--then his damages should be reduced."
32. ' It was held that "if such passengers do not fasten their seat belts, their own lack of care for their own safety may be the cause of their injuries. In the present case the injuries to the head and chest would have been prevented by the fastening of .a seat belt and the damages on that account might be reduced by 25 per cent.
33. ' In view of the above, the appeal was allowed and the damages were reduced to 100. Lawton L.J.
34. And Soarman L.J.Agreed with the above views. I am in respectful agreement with their views.
35. Their Lordships rightly came to the conclusion that if such rider does not wear helmet, his own lack of care for his own safety may be the cause of his injuries. In the present case the bus rammed against the motorcycle from behind as a result of which deceased fell on the road and the rear wheel of the bus ran over his head and he died at the spot. I will reduce the damages on that account by 25 per cent.
36. ' In the case of Kelli Patel and two others v.Abdul Latif and another (HCA No.94 of 1985 decided on 2-9-1987) the learned Single Judge allowed apportionment at one-third. A Division Bench of this Court held as follows:- "In our view, the apportionment of the income made by the learned Single Judge namely, 1/3 x 1/3rd of the net amount of Rs.3,000 per month assessed by the learned Single Judge is not just and proper. It would have been more appropriate to apportion half of net income to the parents of the deceased. We would accordingly modify the judgment and decree and would fix the deceased's contribution as Rs.1,500 to his parents."
37. ' Their Lordships rightly assessed the apportionment. In my view this decision correctly laid down the apportionment. The apportionment is applicable to the facts of the present case.
38. I, therefore, decree the suit in favour of the plaintiff No.1 to the extent of Rs.2,38,050 and in favour of the plaintiff No.2 in the sum of Rs.4,28,175 and also allow them proportionate costs. I will also allow interest at the rate of Rs.10 per cent, from the date of decree till the realization of the decretal amount.