1. ' The present suit has been filed by the plaintiffs for damages amounting to Rs,25,00,000 under Fatal Accidents Act.
2. ' Briefly the facts are that the plaintiffs are the parents of deceased Ziaullah Khan, who is said to have died in Fatal accident having occurred on 5-6-1986 in which he was hit by Wagon No,193-922 which belonged to the present defendant No,1 and was being driven by defendant No,2, who is employed as a driver with defendant No,1. The said wagon was insured with defendant No,3 at the time of accident. The plaintiffs have claimed that the deceased was employed as Civil Engineer in Qatar (UA.E.) drawing a consolidated salary of more than Rs,35,000 at the time of accident and was a young healthy man of about 31 years of age. It is claimed that the deceased was the only source of income and supporter of his family compromised of the plaintiffs i,e, his father and mother and his two brothers and one sister, who were minors and schoolgoing children and were solely dependant upon the deceased for their maintenance, education etc. It is also the case of the plaintiffs that he used to remit substantial amount from his earnings to his family in Pakistan, details of which have been mentioned in paragraph 11 of the plaint. The plaintiffs have further contended that on account of death of deceased, they have been deprived of their support. It is the case of the plaintiffs that the vehicle was being driven negligently and rashly at the time the accident occurred and the defendant No,2 is liable for the said act, who was also challaned in criminal case under section 304, P.P.C. Vide F.I.R. No,115/86 of 5-6-1986 registered at Sharae Faisal Police Station, Karachi. It is the case of the plaintiffs that for the abovesaid facts, the defendant No,2 is liable and so also the defendant No,1, the employer of defendant No,2, who is vicariously liable.
3. The defendant No3 being the Insurance Company with whom the vehicle was insured were also liable. For these reasons, the present suit was filed by the plaintiffs against all the abovesaid defendants with the prayer that a decree in the sum of Rs,25,00,000 be passed against all the defendants jointly and/or severally and also the cost of the suit be granted.
4. ' The defendants filed a joint written statement wherein they denied the allegations made in the plaint. It was denied by the defendants ' that the said vehicle was driven rashly or negligently by the defendant No,2 or that the death of deceased occurred on account of injuries sustained by him in accident with said vehicle. It was of course admitted that the said vehicle was owned by defendant No,1 and the defendant No,2 was an employee of defendant No,1 while the vehicle was insured with defendant No,3.
5. ' On these pleadings of the parties, the following issues were settled;
(1) Whether Wagon No,193-922 was involved in the incident in question and if so, whether the deceased was hit by the said wagon?
(2) Whether the death of Ziaullah Khan was caused by negligent and rash driving of the wagon by defendant No,2?
(3) Was the deceased employed and if so, what was his income?
(4) Whether the plaintiffs suffered any pecuniary loss on account of the death of Ziaullah Khan?
6. And if so, in what sum?
(5) What benefit/compensation, if any, are the plaintiffs entitled to recover and from which of the defendants?
7. ' The plaintiffs examined two neighbours, namely, Inamul Haque and Jawaid Mansoor Jalali and the plaintiff No,1 himself. All these witnesses had filed their affidavits-in-evidence and were cross- examined. The plaintiffs also examined Dr. Niaz Muhammad, the Medico-Legal Officer of Jinnah Post-Graduate Medical Centre.
8. ' As against this, the defendants filed affidavit-in-evidence of defendant No,2 and one Sher Ali, the supervisor of the defendant No,1, who was at that time riding in the said vehicle. Both these witnesses were also cross-examined.
9. ' I have heard the learned counsel for the parties and my findings on the issues are as under: ISSUES NOS.1. AND 2: ' These are interconnected issues. In evidence it is admitted fact that the said wagon involved in the incident belonged to the defendant No,1 and was insured in a third party risk with the defendant No,3. It is also admitted that the incident did take place on 5-6-1986 whereby the said wagon had become out of control of the driver and went above the footpath at the place of occurrence. It is also admitted that it was the defendant No,2, who was driving the said vehicle at that time. These facts are admitted by the defendant No,2 as well as his witness Sher Ali, who was at that time riding in the said wagon. However, the question which requires consideration is whether the deceased was hit by the said Wagon at that time. According to the evidence of the plaintiffs, it may be observed that the plaintiff No,1 is not an eye-witness of the incident. The other two witnesses, namely, Inamul Haque and Jawaid Mansoor Jalili who have been examined by the plaintiffs claimed to be eye-witnesses. Both of them in their affidavit-in-evidence have stated that on the said date at about 7-40 a.m. They were present at PA.F. Chowk, Bus Stop and saw that deceased Ziaullah Khan who is their neighbour was also standing and saw that a wagon bearing No,193-922 belonging to P.IA. Was coming in a very high speed and was being driven in a negligent manner; and that this vehicle dashed against a Car No,147-138 and after hitting the aforesaid car, the Wagon hit deceased Ziaullah Khan. Both of these witnesses said that they with the help of others, took the deceased Ziaullah Khan, who at that time was bleeding and had become unconscious, to Thumb Hospital, where the doctor declared him dead. In cross-examination also the P.W. Jawaid Mansoor Jalili has emphasised that this wagon first hit the Suzuki car and then dashed against the deceased and killed him. He has also stated in cross-examination that the car, against which this wagon had dashed, was badly damaged from the front door, which was on the other side of the driver's side. He has also said that the wagon had dashed against the front door of the car. This evidence of this witness shows that at the time if the wagon had dashed against the car, the wagon must have dashed the car on its side and obviously could not have proceeded further to dash with the deceased or any other thing. This fact is supported by sketch of place of occurrence prepared by police on the date of incident i,e, 5-6-1986, which is produced by the plaintiffs as Exh.7/21. This sketch shows that the said wagon was going to Sharae Faisal from Saddar and at the place of occurrence it first ran over footpath in front of M.E.S. Office and than after crossing the footpath it entered the street between the said M.E.S. Office and a Bungalow and hit a car which was coming from the street towards Sharae Faisal. This sketch also shows that the wagon having hit the car stopped there and did not Move further. Now this sketch was prepared by police on the very day the incident had taken place while the affidavit-inevidence given by these two P.Ws. Is about three years after the incident had taken place. The learned counsel for the defendants has submitted that the names of these two witnesses do not appear in the plaint nor is it contended by the plaintiffs that these two witnesses had taken the deceased to the hospital. Both these witnesses have admitted in their cross-examination that their statements were not recorded by the police although they claimed that they were the persons who had taken deceased at that time to Jinnah Hospital and if it be so, their names must have been entered in the record of Jinnah Hospital but no effort has been made to produce any such evidence. It is also argued by the learned counsel for the defendants that these two P.Ws. Are neighbours of the deceased and, therefore, are giving obliging statements in favour of the plaintiffs. He has also submitted that in view of above contradictory factual position as borne out by sketch Exh.7/21 no credence can be attached to the oral words of these witnesses. He has further pointed out that in the present case the plaintiffs have examined Dr. Niaz Muhammad, who was at the relevant time working as Medico Legal Officer in the J.P.M.C. This witness has affirmed that the Medical Certificate Exh.7/19 was issued by the then Assistant Police Surgeon Dr. Irfanullah Qureshi but this Dr. Irfanullah Qureshi has not been examined by the plaintiffs although the said Dr. Niaz Muhammad has stated in his cross- examination that this Dr. Irfanullah Qureshi is working at the Jinnah Hospital. This doctor has also stated that he cannot say whether the deceased was dead at the time he was brought to Jinnah Hospital. The Certificate Exh.7/19 shows that cause of death of deceased could be due to R.TA. As alleged. Of course date of death of, this certificate is shown as 5-6-1986 and is issued by Jinnah Hospital, Karachi but it does not mention as and when the injured or dead body was brought to the Hospital nor does it mention the time of death although a column is provided for that. Even the columns of approximate interval between onset and death are left blank. This certificate also does not show as to who had identified the deceased. This certificate, therefore, cannot conclusively prove that death of deceased was caused due to said accident specially when the doctor who had issued the certificate has not been examined although he was very much available. In these circumstances, I am of the view that the plaintiffs have failed to prove that the death of deceased Ziaullah Khan was caused due to his being hit by the said wagon, which was being driven by the said defendant No,2. Accordingly, I answer these issues as not proved.
10. ISSUES NOS. 3 AND 4: ' These issues are also. Interconnected. The case of the plaintiffs on these issues is that deceased was employed in Qatar being a Civil Engineer and his monthly income was Rs,35,000 (Pak currency) and that he used to remit a substantial amount of his income to his parents. Details of such remittances are mentioned in para. 11 of the plaint. The plaintiff has also in his evidence produced remittance slips in order to support his above contention. These slips are Exhs.7/1 to 7/16.
11. Exh. 7/1 is .The first remittance slip which shows a remittance of 3108-75 Riyal in the name of plaintiff No,1. This slip also shows that rate of exchange at the time was 3.38 and thus Rs,10,500 in Pak currency were remitted to the present plaintiff No,1. However, a total of remittances made by deceased to plaintiff No,1 during the period May, 1982 to June, 1986 shows that a total amount of Rs,1,97,054.56 was remitted, the average per month comes to Rs,4,021 per month. Exh.7/30 produced by the plaintiff is the Employment Contract of the deceased which shows that he was employed by "INTERBETON" Qatar N.V. At basic salary of Qatar Riyal 3,750 which comes to Rs, 13,125 and naturally out of this amount the deceased himself would be retaining sufficient amount, almost 50%, for his own maintenance and as shown above, an average at Rs,4,021 was remitted by him to his parents and that would be the pecuniary loss due to this accident which could be said to have been suffered by the plaintiffs. These issues are answered accordingly.
12. ISSUE NO.5: ' As held in Issues Nos.3 and 4, the plaintiffs had at the most suffered a pecuniary loss of Rs,4,021 and would be entitled to such damages for the period till they attained the age of 70 years as held in the case of Rashid Abdul Hafiz v. Ahmed 1991 CLC 370. In this case it has been held by a learned Single Judge of this Court that the life expectancy in these places in Pakistan would range, between 70 to 75 years. As regards the two brothers and a sister of the deceased it is admitted by the plaintiff in his cross-examination that the age of his elder son is 25 years and he has passed B.Com. Examination while the other son is a student, who has passed his Inter-Com examination; and that his daughter also passed B.A. Examination and her age is. 27 years. In these circumstances the said brothers and sister having attained the majority and educational qualifications and could have earned their own livelihood. However, without prejudice to the case of the parties, I refrain from giving any finding on this issue as in Issues Nos.1 and 2 I have already held that the plaintiffs have failed to prove that the death of the deceased Ziaullah Khan, son of the plaintiffs had occurred on account of his being hit by the Wagon No,193-922. In view of this finding, the defendants cannot be burdened with the C liability as claimed by the plaintiffs. It will not be out of place to observe here that Mr. Khawaja Sharaful Islam, learned counsel for the plaintiffs on a query during the course of arguments was unable to state as to what was the outcome of the criminal case against defendant No,2 in respect of the said accident, whereas Mr. Mazhar Lari, learned counsel for defendants had made a statement at Bar that he had been acquitted.
13. ' In view of the above discussion, I have come to the conclusion that the plaintiffs have not proved their case and accordingly the suit is dismissed. However, there will be no order as to costs.