1. ' By a short order dated the 8th September, 1993, I had decreed the suit against the defendants for Rs, 8 lacs with interest thereon at the rates of 14% per annum from the date of the decree till payment and costs of the suit. The following are the reasons for that short order.
2. ' The plaintiff has filed this suit for recovery of damages from the defendants, under the provisions of the Fatal Accidents Act, in the following circumstances.
3. ' Muhammad Nadeem, son of the plaintiff, was 15 years old on the 12th November, 1987, when he met with accident with Bus No, 840-973 belonging to the defendant No,1 which was being driven by defendant No,2. The case of the plaintiff is that the defendant No,
2. Was driving the bus in rash and negligent manner and is, therefore, guilty of negligence whereby he caused the death of Muhammad Nadeem. According to the allegations in the plaint, Muhammad Nadeem was a student of Class IX and before going to school, in the morning, he used to go for training in tailoring, stitching and sewing clothes and intended to be a master in that trade and to open a garment store. It is alleged that on completion of his training, within two years, Muhammad Nadeem could have earned Rs,3,000 to Rs,4,000 per month by selling the prepared and readymade clothes and was expected to support the plaintiff and other dependant legal heirs in befitting manner. It is further alleged that his income would have increased with the passage of time and, after a few years, he could have earned Rs,5,000 to Rs,6,000 per month. It is further alleged that he was a simple person, enjoyed good health and used to spend Rs,300 per month on himself.
4. ' The defendants have resisted the suit mainly on the plea contained in para. 3 of their written statement which is reproduced below:- "That para. 3 of the plaint is denied. It is denied that the bus in question was being driven by the defendant No, 2 in a rash and negligent manner. The defendant No, 2 was driving the bus in low speed and concentrating on the road in his front. The motor-cyclist who was racing with a motor- rickshaw due to negligence and rashness hit the bus on the left side. The defendants are not responsible for the same. It was a case of negligence on the part of the motor-cyclist."
5. ' They have generally denied the other averments in the plaint.
6. "(1) Whether the death of the deceased Muhammad Nadeem, was caused by rash negligent driving of the Bus No, 840-973, on 12-11-1987, by the defendant No,2, the driver/servant of the defendant No, 1 the owner of the said bus?
(2) Whether the defendants liable to pay compensation/damages to the plaintiff and other legal heirs as claimed, jointly and severally. If so, to what extent?
(3) Whether the plaintiff is entitled to cost and interest as claimed?
(4) What other relief or reliefs the plaintiff entitled to?
(5) What should be decree?
7. ' The plaintiff examined himself and one Ghulam Rasool (P.W.1) whereas the defendants examined Muhammad Sabir Khan (D.W.1), Shabbir Ahmad (D.W.2) and Sakhi Dad (D.W.3). Addititonally Aslam Noor Khan, S.H.O., Liaquatabad, was summoned and produced certain documents.
8. ' I have examined the record and heard the arguments of the learned counsel for the parties; and the following are my findings on the issues.
9. ISSUE NO.1: On the question of the alleged negligence of the defendant No,2, the plaintiff has examined Ghulam Rasool (P.W.1) and the defendants have examined Muhammad Sabir Khan, Shabbir Ahmad and Sakhi Dad, the defendant No,2. Ghulam Rasool, who is an independent witness has deposed that on the 12th November, 1987, at about 1-30 p.m. a motor-cycle was moving from Liaquatabad side towards Hassan Square and behind it was a Steel Mills Bus which was coming at very high speed. He says that he saw with his own eyes that this speeding bus rushed towards the motor-cycle in front, bumped in rear of the motor-cycle and threw aside its driver who was instantly killed. The witness claims to have seen the accident from the opposite side of the road where he has his shop. In cross-examination, Ghulam Rasool has stated that a rickshaw was running along side the motor-cycle ahead of the bus and both of them were also proceeding in speed. He, however, denied that any race was going on between the motor-cycle and rickshaw. He further stated that the rickshaw and the motor-cycle were moving side by side and behind them was the Steel Mills bus and they were all going in high speed as the road was clear. According to the witness, the collusion between the bus and motorcycle took place from the right hand side of the bus. The evidence of this witness inspires confidence not only because he is an independent witness but also because what he has stated is apparently within the realm of probabilities. As against that, the evidence of Sakhi Dad, the defendant No,2, who was the driver of the vehicle in question, is entirely vague and motivated. He says that on the day in question while he was driving the bus he had a sudden realization that there was a collision between my bus and motor-cycle driver/rider" and that on sensing this on hearing a horn/sound signal he stopped the bus and heard the passengers and say that there was an accident. He admitted that he could not give the details of the accident because he did not see it. According to him when he got down from the bus, he found that the deceased had been hit by the rear portion of the bus which was in the proximity of the left hand-side of the rear wheel. That is all he had to say in his examination-in-chief and he said nothing as to whether the motor-cycle, prior to the accident, was either in front or behind or beside the bus. There is also no mention of any rickshaw travelling alongwith motor-cycle.
10. Examination-inchief of this witness would appear to suggest that he was driving the bus unmindful of his surroundings and the traffic on the road. It is the case of the defence that the motor-cycle on which the deceased was travelling was following the bus and was not ahead of it. This defence is belied by the statement of Sakhi Dad in examination-in-chief that the body of the deceased was lying near that portion of the body of the bus which was in the proximity of the left hand side of the rear wheel. The rear wheel referred to his evidence could be either the right rear wheel or the left rear wheel but it is clear that if the deceased had hit the bus from behind, his body would not be lying near the bus because the driver Sakhi Dad was unaware of the accident and would obviously have driven on for a while before coming the stop thus leaving the body of the deceased some distance away from the bus. The statement of this witness in his cross-examination indicates quite clearly that he was, as observed by the learned Judge who recorded the evidence, "seriously subject to long sightedness". There is, thus, nothing in the evidence of this witness to support the defence version that the motor-cycle hit the bus from behind and that it was the deceased who was negligent.
11. ' Muhammad Sabir Khan is an employee of the defendant No, 1 and was travelling on the bus in question at the time of the accident. According to his' affidavit-in-evidence, the motor-cyclist i,e, the deceased, was racing side by side with a rickshaw which hit the motor-cycle so that the deceased lost his balance and hit the bus. Sabir Khan states in his cross-examination that the motor-cycle was at the back of the bus and that the Speed of the bus, at the time of the accident, was 10 to 12 kilometres per hour. The version of this witness that the motor-cycle was following the bus cannot, be believed because, sitting in the bus as a passenger he must quite probably have been facing forward. At least, there is nothing in the evidence to suggest that the witness or any other passengers were facing backward. Besides, the version of this witness that there was a race between the motor-cycle and the rickshaw, that the motor-cycle was hit by the rickshaw, and that consequently the deceased lost his balance is not reflected in the written statement of the defendants; nor was such a case put to the plaintiffs witness. His version that the motorcycle was coming behind the bus is also contradicted by the defendants, witness, Shabbir Ahmad, who has stated that the motor-cycle dashed with "the bus of Pakistan Steel which was coming just after it". .I am, therefore, satisfied that upon the evidence the negligence of the defendant No,2 has been established.
12. ' Mr. M.G. Dastagir, the learned counsel for the defendants, submitted that the deceased was 15 years of age and not only did he have no licence to drive a motor-cycle but was, under the provisions of the Motor Vehicles Ordinance, disqualified from having a licence. It was contended that, in the circumstances, the deceased must be presumed to have been negligent. I asked Mr. Dastagir whether the proposition advanced by him was supported by any principle or authority but he was not able to cite any principle or even authority to support his proposition. Granting that the deceased was not entitled to have, and did not in fact have, a licence to drive a motor-cycle, it does not follow that merely because of that he must be presumed to be negligent. Negligence is a question of fact arising from breach of duty to take care and is to be determined in the facts and circumstances of each case. The fact that the deceased did not or could not possess a driving licence may have rendered him liable to penalty for driving without a licence but it cannot by itself give rise to a presumption that he was negligent in the way he handled the motor-cycle. That the deceased did not have a driving licence, or was disqualified from obtaining one, at the time of the accident, is, therefore, non-sequitur. The principle is succinctly stated in the book entitled Casualty Claims Practice by James H. Donaldson (published by Richard D. Iruvin Inc., Homewood, Illinois), at page 358, as follows:--- "The fact that the driver of a vehicle involved in an accident did not have a driver's licence is not evidence of negligence as a matter of law or in itself. It is evidence of the fact that the operator has failed to comply with the statute, and, in operating the motor vehicle, has committed a crime. The criminal act will subject him to criminal liability and the penalties imposed for such an offence. But the true test of whether or not the operator is chargeable with negligence is how he operated the car under the circumstances of the accident; the fact that he did or did not have a valid driver's licence at the time of the accident has no bearing whatsoever on the issue of negligence."
13. ' In the case of Mohinder Singh Sohal and another v. Ramesh Kumar and others AIR 1981 Punjab and Haryana 199 it was held:--- "Contributory negligence could not be presumed merely from the facts that Suchwinder Singh did not hold a driving licence and that he was carrying more passengers on the vehicle than permitted under the law. If Suchwinder Singh was driving his motor-cycle with due care and caution in that case it could not be held that he was liable for contributory negligence. At time, even a most competent driver may be without a licence. For example he may, by sheer inadvertence, have failed to have his licence renewed. Such a driver cannot be held to be negligent merely from the fact that he was driving without a licence. The matter is not res integra."
14. ' In Sulaiman Rahim Mulani and another v. State of Maharashtra (AIR 1968 SC 829) the Supreme.
15. Court of India held that a person could not be convicted, under section 304-A of the Indian Penal Code, of rash and negligent driving merely because he did not have a driving licence; and observed (at page 831):--- "There is no presumption in law that a person who possesses only a learner's licence or possesses no licence at all does not know driving."
16. ' Reference may also be made to the case of Mst. Oaiser Jehan v. Karachi Transport Corporation and another (1991 M LD 415) wherein it was observed, obiter, that:--- "In any case, once negligence of the bus driver stands established, it is immaterial whether the deceased was holding driving licence or not."
17. ISSUE NO.2: The facts relevant to this issue are few and not in question. The deceased was 15 years old when he died and was expected to earn between Rs,3,000 to Rs,4,000 per month with the completion of his training as a tailor. The plaintiff was 53 years old when the deceased died and Mst. Sabra Ilyas, the mother of the deceased, was 43 years old at that time. Mr. Dastagir contended that there was no definite evidence to show that the deceased was learning tailoring. There is, however, sufficient evidence on the record to show that he was indeed obtaining such training and the mere fact that the person from whom he was learning has not been called as witness is not enough to throw any doubt on the evidence produced by the plaintiff. In any event, in the present day and age, the expectation of earning Rs,3,000 to 4,000 per month cannot be called extravagant.
18. I would, therefore, hold that the deceased, had he lived, would have earned minimum of Rs,3,500 per month.
19. 4r. Dastagir contended that the deceased could not have started earning until he was at least 25 years old but the argument is untenable because the deceased was not aspiring to become a member of any learned profession. All that he aspired to do in life was to become a tailor and a trader trading in garments. It is common knowledge that young boys of 17 or 18 years of age are sinfully employed and can earn a substantial wage. Mr. Dastagir also contended that the plaintiff, in his evidence, has stated that he used to spend Rs,1,100 per month on the deceased and that, therefore, a deduction should be made on that basis from any compensation that may be awarded to the plaintiffs. Mr. Nasir Maqsood,. The learned counsel for the plaintiff, readily agreed to this. In the circumstances, the plaintiff for himself and as representative of Mst. Sabira Ilyas, the mother of the deceased, is entitled to damages/compensation on the following basis.
20. ' The plaintiff was 53 years of age at the time of the accident and Mst. Sabira Ilyas was 43 years old at that time. The deceased was 15 years old at the time of his death and would not have started earning any money for at least two years after that. Taking the period of life expectancy to be 70 years, Mst. Sabira Ilyas could be expected to live for 25 years from the time when the deceased would have started earning money. The income of the deceased for the period of 25 years at the rate of Rs,3,500 come to Rs,12,60,000 to which must be added an amount equal to 20% thereof on account of normal increase in earnings in future. The amount of such increase comes to Rs,2,10,000 so that the total income of the deceased for 25 years would have been Rs,12,60,000. After deducting from Rs,12,60,000, Rs,4,20,000, being 1/3rd of that amount, on account of the expected personal expenses of the deceased, the remaining income would have been Rs,8,40,000. A further deduction, on account of the money which the plaintiff would have spent on the deceased during the period of two years before he could start earning has to be made. The counsel agreed that, in view of the plaintiffs statement in his evidence, such deduction has to be made at the rate of Rs,1,100 per month and that the amount to be deducted at that rate is Rs,26,400. The balance, thus, left would be Rs,8,13,600 and that is the amount to which the plaintiff would be entitled. The plaintiff has, however, claimed Rs,8,00,000 in the suit and Mr. Nasir Maqsood agrees that the suit be decreed for Rs,8 lacs.
21. ISSUE NO. 3: Mr. Dastagir advanced no arguments on this issue; and I am satisfied that, in the circumstances of the case, the plaintiff is entitled to interest and to costs of the suit.
22. ISSUES NOS. 4 AND 5: The reliefs. To which the plaintiff is entitled have been granted to him by the short order mentioned above.