1. ' This is a suit for recovery of Rs,500,000 under the Fatal Accidents Act, 1855. The plaintiffs are the parents of deceased Rashid aged 12 years who died in a traffic accident on 3-11-1983. Defendant No,1 is the owner of Car No,097-168 which hit the deceased while he was coming from his school namely Aisha Bawany School Shahrah-e-Faisal, Karachi. It is alleged that the said car was being driven by defenant No,2 rashly and negligently resulting into the death of the said Rashid.
2. ' The deceased is stated to be a very healthy boy and had very simple habits. He was a student of Class III in the said school and was very much interested to get a diploma in Engineering and would have gone to Middle East and earned lot of money, saving about Rs,7,000 per month. He would have maintained his parents up to the age of 65 years who presently are 33 and 27 years old respectively. They were deprived of the expected pecuniary benefit by the death of their son to the extent of Rs,500,000.
3. ' In the written statement, the defendants except owning the car by defendant No,1 in it being driven by defendant No,2 as driver and employee of defendant No,1 and factum of the death of the said boy have denied every thing. It is specifically alleged by them that some other car on Shahrah-e- Faisal had hit the body and ran away. The car in question was immediately following the car and applied its breaks when the former hit the boy and the latter dashed against it and turned up side down on the adjacent footpath. The police instead of apprehending the car which hit the boy took the defendant No,2 in custody who later on was released on bail. A criminal case bearing No,2 of 1987 proceeded against the defendant No,2 before A.C.M. II (South) which was dropped under section 249-A Cr.P.C. For want of evidence against him. It was pointed out that defendant No,2 had taken the injured boy to the hospital for which reason the prosecution falsely implicated him.
4. ' It may be stated here that subsequently the plaintiff sought an order far adding the name of M/s. Standard Insurance Company as defendant No,3 on the ground that the car in question was insured by the said Insurance Company and covered risk of defendants Nos.1 and 2 vide Policy No, 101AX/M/1751/1/83 dated 1-1-1983 for the period from 1-1-1983 to 1-1-1984. Defendant No,3 denied their liability to the plaintiffs and contended that the defendants had nothing to do with the accident.
5. ' On the basis of the pleadings, the following consent issues were framed by the Court:
(1) Whether the death of the deceased Rashid aged 12 years was caused by the rash and negligent driving of the Car No,097-168 on 3-11-1983 by the defendant No,2 the employee/servant of the defendant No,1
(2) Whether defendant No,1 is vicariously liable to pay compensation to the plaintiffs or the defendants are liable to pay compensation jointly and severally.?
(3) Whether plaintiffs are entitled to cost and interest as claimed. ?
(4) What other relief or reliefs the plaintiffs are entitled to.?
(5) Whether the plaintiffs were dependent on the deceased?"
6. ' However, on 29-3-1992, the plaintiffs' counsel moved an application under Order I, Rule 10 (2), C.P.C. Praying for striking off the name of the said defendant No,3, on which date learned counsel for defendant No,1 sought time to file objections. No objections were filed by defendant No,1 nor any cogent reason was shown by him opposing this application. In his written statement there is nothing to indicate that defendant No,3 is either a necessary or even a proper party. I have therefore allowed this application and will now proceed against the plaintiffs' claim against defendants Nos.1 and 2.
7. ' At the outset it may be stated here that although Riaz Muhammad father of the deceased has verified the plaint, he has not cared to examine himself. Plaintiff No,2 Najma has examined herself and produced Ismail Raza, an eye-witness to the accident. According to her the whereabouts of plaintiff No,1 are not known for the past three years. He had become a heroin addict and in spite of many efforts made by her she has not been able to trace him out. She has produced a photo copy of her National Identity Card which shows her name as Azra Jehan. However, within brackets the name of `Najma' is also fc and. As per her version, her name is both Azra Jehan and Najma Begum.
8. She has also produced the School Identity Card of the deceased child and a report book showing that he was a student of Class III. She has also produced the death certificate of the deceased from Jinnah Post-Graduate. Medical Centre, Karachi. Her case is that the deceased intended to obtain Diploma in Engineering which he would have got within 10 years from the date of his death.
9. She would have sent him abroad where he would have earned about Rs,10,000 per month and saved Rs,7,000 per month. She came to know of his death through Ismail Raza P.W.1 who lives in her Mohallah. It is admitted by her that she did not report the loss of her identity card to police nor she got published any notice in newspapers with regard to disappearance of her husband. The other witness adduced by the plaintiff is Ismail Raza who is stated to be an eye-witness. According to him the car was coming from the Airport side and going towards Saddar when it hit the deceased Rashid, who vas standing on the footpath, waiting to cross the road. The car after hitting Rashid, was about to run away from the scene of the accident but it was stopped by the people present there. The deceased vkaas taken in a Suzuki Pickup to Jinnah Hospital. Afterward, he informed about the accident to Najma plaintiff No,2, who lives in the same area. According to him, the car which hit the deceased boy was white and there was no zebra crossing on the spot where Rashid was standing on the footpath. On the day of accident, he was working at one of the Navy Quarters situated behind Aisha Bawany School. He admitted that he did not know the make of the car which was involved in the accident. When he went to the police station, his name was noted and he was informed that he would be called if so required. There are about two lanes in-between his house and the house of plaintiff No,2. He also talked to S.P. But he did not know his name.
10. ' Defendant No,1 in his deposition stated that his car had gone to the Airport to drop some guests.
11. When the car did not reach his office till about 5-30 p.m., he had to take a rickshaw for his house, where he received telephone from defendant No,2, informing him that on his way from Airport near Aisha. Bawany School, a car ahead of the car in question had hit a boy, whereupon he applied brakes and his car overturned. Afterwards defendant No,2 was taken to the police custody, where he was released on bail. Defendant No,2 in his deposition affirmed the statement attributed to him by the defendant No,1 and stated that near Aisha Bawany School a fast moving car overtook him, which hit the deceased. He applied brakes but his car dashed against footpath and overturned. He came out of his car and saw people standing around the boy. He stopped a passing Suzuki Van and took the boy to the Jinnah Hospital At the police station he made statement that he had nothing to do with the accident. He also produced papers with regard to his acquittal in the criminal case. According to him he remained in the Hospital with the boy for about 30/45 minutes when the police came there. He did not lodge any FIR, about the accident. Issue Not: ' There are two eye-witnesses to the accident, Ismail Raza P.W. 2 and Amir, D.W.2 who was the driver of the car and is defendant No,2. The version of the P.W.2 is entirely different from that of D.W.2 inasmuch as accoring to the former the latter hit the boy and wanted to run away in the car in question but was stopped by the people present there. D.W.2 on the other hand, states that a car preceding his car had knocked down the deceased boy, whereupon he used brakes of his car, as a result of which it overturned. Similarly both claim that they stopped a Suzuki van and took the boy to the Jinnah Hospital. None of them has named the other while taking the deceased boy to hospital or mentioned the presence of the other at the hospital. What however is pertinent to note for the purpose of deciding this issue is that the defendants in their defence have come out with an explanation as to the manner in which the accident had taken place so that they may be exonerated of any liability. In doing so they have taken upon themselves the burden of proof of the assertions made by them in their defence. They have, however, failed to produce any satsifactory evidence in this regard. Admittedly a large number of persons were present at the time of the accident but none of them was produced by them to corroborate the stand taken by them. They have failed to adduce any other evidence as to how the car defendant No,2 was driving overturned. As established from record, Shahrah-e-Faisal is a busy road and the accident had taken place during busy hours. It was not difficult for defendants to find witnesses supporting their version of the accident from among the various persons who had also accompanied defendant No,1 in a Suzuki van to the hospital. What also may not be lost sight of is the fact that D.W.2 although a driver by profession has not even cared to mention the make, the model and the colour of preceding car, least of all its number. Accordingly I reply issue No,1 in affirmative and hold that defendant No,2 was driving the car in question rashly and negligently which resulted into the death of deceased Rashid.
12. Issue No,2: ' There is no dispute that defendant No,2 is an employee of defendant No,1. He had gone to Airport as per instructions given by the defendant No,1 and was coming back during the course of his employment when the accident took place. Since, I have already held that the defendant No,2 had been driving the car in question rashly and negligently, the defendant No,1 is vicariously liable.
13. While holding that both the defendants are liable under law for compensation, the question whether they are liable to pay it to the plaintiffs has been left open here as I have discussed this question under issues Nos.4 and 5 below. Issues Nos.4 and 5: ' What disturbs most and cannot be overlooked is the shadow of doubt which casts upon the very identity of the plaintiff No,2. She is said to be the mother of the deceased child. The plaint has been signed and verified by one Riaz Muhammad the alleged father of the deceased and the husband of plaintiff No,2 whose whereabouts according to her, are not known for the past three years. The question of identity of the plaintiff No,2 arose on the basis of documents produced by her at the stage of evidence. She had produced photostat copy of her National Identity Card as the original had been lost by her. No plausible explanation has been offered by her as to why fresh National Identity Card has not been applied for by her or why advertisement for its recovery was not given in a newspaper. Photostat copy of National Identity Card produced by her shows that her name is 'Azra Jehan' but within bracket the name of `Najma' also appears. She first attempted to clarify that she has two names but subsequently retracted from her statement in cross-examination saying that her name is Azra Jehan. What further adds to the suspicion as to her identity is that he husband's name appears as Riaz Muhammad in the title of the plaint whereas in the photostat copy of her National Identity Card (Exh.X) her husband's name is shown as `Riaz Ahmed' and in the Report Book of the School (Exh.1) and School Identity Card (Exh.3) his name appears as 'Muhammad Riaz'. The address of the plaintiff No,2 as given in Exh.'X' is Jugi near Ration Shop No,693 but her address as given in the plaint is Quarter No,186-H behind Jacob Lines. These facts taken together create great doubt as to the identity of the plaintiffs. It may be stated here that at no stage any effort was made on behalf of the plaintiffs to amend the title of the plaint and/or adduce any evidence to establish the identity of the plaintiff No,2 despite objection raised by defendants at the time of evidence. It will be worthwhile here to refer to the Halsbury's Laws of England, Fourth Edition, Volume 17, para. 41 relating to personal identity as follows:-- "Identity generally.--Where the question of personal identity arises, without reference to the doing of any particular act, it may be proved or disproved not only by direct testimony but also by evidence of similarity or dissimilarity of personal characteristics, including a party's name. If A claims property on the ground that he is B, it is relevant to show that A possesses all or any, of the known attributes or peculiarities of B. The question of identity commonly occurs with respect to the doing of some specific act forming the subject-matter of the proceedings, the point being whether A is or is not the author of that act. This act is often the signing of some contract or instrument. And in the absence of direct evidence of the identity of the alleged and the actual author, similarity of name and handwriting and sometimes also of residence and occupation, may have to be proved."
14. It is the foremost duty of the Court to ascertain if a person suing is the right person or not and if there is any doubt, satisfactory evidence must be brought on record. The evidence adduced by the plaintiffs by itself creates strong doubts as their identity as father and mother of the deceased child and the discrepancy appearing in the names of both the plaintiffs has to be satisfactorily explained from the record itself, otherwise, adverse inference will be readily made by a Court of law disentitling them of relief sought for. The suit as such is liable to be dismissed on the ground of the plaintiffs having failed to establish their identity as parents of the deceased.
15. Next, the plaint was not verified on oath by plaintiff No,2. Nothing is brought in her deposition by way of her examination-in-chief which purports to affirm or verify the contents of the plaint signed by her and as such it has no evidentiary value. In addition, there is not a word in her deposition as to how and on what basis she claims Rs,5,00,000 (Rupees Five Lacs) or any other amount by way of compensation. She has failed to establish by her own examination-in-chief as to how she would suffer losses on account of the demise of her alleged son. In the absence of such evidence, the suit must fail.
16. ' In the result, issues 4 and 5 are replied in negative and the question if the plaintiffs are entitled to cost and interest under issue No,3 also does not arise.
17. Accordingly the suit is dismissed but with no order as to costs.