' Plaintiff Rukhsana Perveen is the widow of Mussadaque Hussain, owner and driver of a taxi which was involved in a road accident on 11-5-1985 in which he died leaving behind the plaintiff and two minor daughters Farzana and Kulsoom who were then 6 years and 3 years old respectively.
Deceased Mussadaque Hussain was driving his taxi with some passengers on Rashid Minhas Road when an oil tanker of N.L.C. Coming from the opposite direction went out of control, jumped over the partition strip, turned right and smashed into the taxi on its right side killing Mussadaque Hussain who was driving the taxi and also a passenger Syed Sardar Hussain. According to the plaintiff, the accident was the result of rash and negligent driving of the driver of N.L.C. Tanker.
2. Before proceeding further, I would like to observe that the plaint was filed in an extremely careless manner and it suffered from the following defects:---
(a) Title of the plaint shows that it was filed by the plaintiff herself but in fact it was filed by one Ghulam Nabi acting as the attorney of the plaintiff but this fact was not disclosed anywhere in the plaint.
(b) The power-of-attorney was not filed and it was not available on the file.
(c) The plaint is verified on oath but the name of the deponent is not given and the space is lying blank.
(d) Amount of the claim is not given in the plaint and the relevant space is lying blank in paras. 6 and 7 of the plaint.
(e) The Vakalatnama is signed by Ghulam Nabi as plaintiff and not as attorney.
' These discrepancies were brought to the notice of learned counsel of the plaintiff who produced the plaintiff and her attorney before the Court on 4-6-1992 and relied on PLD 1988 SC (AJ&K) 42 in which it is held that non-signing of Vakalatnama or plaint by the plaintiff is only an irregularity which can be cured when the needful is done at the late stage and he also filed the special power of attorney.
3. In their written statement defendant No,1 (N.L.C.) denied the negligence of their driver. According to them their driver attempted to avert an accident with a car which overtook it from the wrong side (left side) and in doing so he swerved to the right but hit the island dividing the up and down lanes, went over it, turned right and smashed into the taxi.
4. N.L.C. Tanker driver Muhammad Arshad defendant No,2 was proceeded against ex parte on 15-5- 1988. On an application moved by defendant No,1 under section 96 of Motor Vehicles Act, 1939 (C.MA. No,1099/87), notice was issued to Insurance Corporation and Mr. Jamil Ran Zaidi appeared for it on 19-4-1987 and 15-5-1988 but did not thereafter appear nor he filed any written statement.
Insurance Corporation is, however, added on the title of the plaint as defendant No,3,
5. The Court adopted the following issues:---
(1) Whether the death of the deceased Mussadaque Hussain was caused by the rash and negligent driving of the Truck bearing No,BA. No,836482-836539 by the defendant No,2 belong to the defendant No,1?
(2) Whether the defendants are jointly and severally liable to pay the damages/compensation to the plaintiff and other dependent legal heirs?
(3) Whether the plaintiff and other dependent legal heirs are entitled to cost and interest as claimed?
(4) What other relief or reliefs the plaintiffs and other dependent legal heirs are entitled to?
6. My findings are as follows:
7. ISSUE NO.1.. There is no dispute between the parties as to the manner in which the accident occurred. However, notwithstanding this admission, defendant No,1 denies the negligence of their driver and maintain that a private car overtook their vehicle from the wrong side, from the left side, in a rash and negligent manner and in doing so came dangerously close to the tanker's left side whereupon the driver of the NLC-tanker sewered sharply to the right and then hit the side of the partition-island dividing the two lanes, went up the said island and then turned right and smashed into the taxi. Now, firstly, there is no evidence whatsoever that any private car was, in this manner, the cause of the accident. Defendant No,1 has not examined any witness to prove this. Secondly, even if this were true that a private car had overtaken the NLC tanker from the left, it would still show that the driver of NLC tanker was driving rashly and negligently on the basis of the following grounds:---
(a) The proper course of conduct for the tanker driver was to ignore the private car and to let it reap the fruits of its own rashness in overtaking it from the left, specially when there was not enough space for it to undertake the overtaking-operation safely.
(b) The very fact that a private car tried to overtake the NLC tanker from the left side, and in fact did overtake it in that manner, shows that the NLC tanker was being driven on the extreme right of the road. This in itself was a flagrant violation of traffic rules. All heavy and slow-moving vehicles are expected to drive on the extreme left side of the road, leaving enough space on their right for fast moving vehicles to overtake them. When the NLC tanker, by occupying the right-side lane, had left no room for the private car to overtake it from the appropriate side (from the right side), the private car was left with no alternative but to overtake it from the wrong side (from its left side).
After all, no one can expect the private car to trail behind the tanker. As such, the tanker driver was directly responsible for the wrongful act of the private car driver.
(c) The very fact that on swerving to the right, the tanker hit the kerb on the right side, went over it and then turned to the right and smashed into the taxi shows beyond any shadow of doubt that the tanker was being driven extremely rashly and negligently and at high speed. Otherwise it would not have hit the kerb, or if it had hit it, it would not have gone over it, or if it had gone over it, it would not have turned right in an uncontrolled manner.
8. The manner in which the accident has occurred shows that the tanker-driver was not driving in the appropriate lane and was driving at an extraordinarily fast speed in utter disregard to his own safety and to the safety of other road-users. In fact, there are grounds to suspect that the tanker- A driver was under the influence of drugs. I would, therefore, hold the tanker driver (defendant No,2) directly responsible for the death of taxi-driver Mussadaque Hussain and taxi-passenger Syed Sardar Hussain.
9. Issue No,1
10. ISSUE NO.2.---There is no doubt that defendant No,1 as the owner of the tanker and employer of its driver (defendant No,2), and defendant No,2 as the man directly responsible for the accident due to his rash and negligent driving, are both liable, jointly as well as severally, to pay damages/compensation to the beneficiaries of the victims.
11. ISSUE NO.3.---Costs are always within the discretion of the Court and they should not have been made the subject-matter of any issue. As for interest, I would allow interest @ 6% from the date of the judgment till the date of realisation.
12. ISSUE NO.4.---The first thing is to determine the average monthly income of deceased driver Mussadaque Hussain.
13. According to para. 6 of the plaint, the deceased was earning about Rs,3,000 per month. There is no reliable evidence in support of this claim. In her examination-in-chief the plaintiff says that she used to get from the deceased Rs,2,700 or Rs,2,800 per month for household expenses. But she also said that the deceased was paying Ra000 per month towards the instalments on the purchase of the taxi. So, if his income was Rs,3,000 and he paid Rs,1,000 towards the instalments, he was only left with Rs,2,000. Thus he could not give the plaintiff Rs,2,700 or Rs,2,800 for household expenses. At the most he could pay only Rs,2,000. However, he must be expending about Rs,1,000 on his own person on his meals in the hotels (since he could not take his mid-day meals at home) and on his `Niswa ar' and other addictions which are common in the type of the persons to which the deceased belonged. I would, therefore, conclude that the plaintiff was getting about Rs,1,000 per month from the deceased.
14. According to the plaint Farzana and Kulsoom are daughters of the deceased and thus the beneficiaries of the deceased under the Fatal Accidents Act. Even though the plaintiff has not produced their birth certificates of Form-B of the Registration Office (Identity Card Office), there appears no reason to disbelieve the plaintiff in this regard and I would, therefore, hold that the plaintiff and her above-noted two daughters are the beneficiaries of the deceased and entitled to claim compensation.
15. The next thing for consideration is the period for which the deceased would have provided sustenance to the plaintiff and the two daughters. The deceased was born on 4th January 1954 per copy of his National Identity Card Exh.5/2. Average earning age may be taken to be 65 years. So the deceased could be expected to provide sustenance upto 4th January 2019. So the plaintiff is entitled to compensation from the date of accident on 11-5-1985 to 4th January 2019 which comes to 34 years. The plaintiff has, however, since remarried and is being maintained by her new husband. The question, therefore, arises whether she can claim compensation under the Fatal Accidents Act when she is being maintained by her new husband. Learned counsel of the plaintiff argued that the plaintiff is entitled to compensation in spite of her second marriage and he relied on the judgment in the case of Kulsoom v. Jalil Ahmad Khan PLD 1964 Kar.
72. In that judgment the plaintiff-wife was maintaining herself and her children for as long as 7-1/2 years and this circumstance had weighed with the learned Judge in holding that she was entitled to full compensation. I am, however, of the view that in the present case the, plaintiff did not maintain herself for a single day. It is quite apparent that immediately after the death of her husband, she had moved to Lahore where she was maintained by her father and then married another person. She has not disclosed the date of her second marriage. In fact, as has been pointed out under Issue No,3, she has tried to conceal the second marriage. In view of this position I would assume that she was remarried after one year of the death of her first husband and I would allow her and the daughters compensation @ Rs,1,000 per month for the 1st year when the plaintiff and her daughters were maintained by her father but after that @ Rs,500 per month. I would, therefore, hold that the plaintiff and her daughters are entitled to the following amounts by way of compensation:--- {{TABLE}}
(1) At the rate of Rs.1,000 per month from 11-5-1985 to 11-5-1986 ------------------------------------------Rs.12,000.00
(2) From 11-5-1986 to 4th January 2019 (392 months)---------------------------Rs.96,000.00 Total:---------Rs.108,000.00 #TBS 17. The suit is accordingly decreed in the sum of Rs,2,08,000 (Rupees two lakh and eight thousand only) with costs. As held under Issue No.3, interest is #TBE (1)Plaintiff Ruksana (widow) Rs. 69333.00 (2)Farzana daughter .Rs.
69333.00 (3)Kalsoom daughter .Rs.
69334.00 Total: Rs.2 08 000.00 allowed @ 6% from the date of judgment till the payment of the decretal amount.{{TABLE}}
18. It is further ordered that the decretal amount shall be deposited in Court. The share of the plaintiff shall be paid only to her in person on proper identification and not to any attorney or Advocate. The share of the minor c daughters shall be invested by the Nazir in profit bearing Government Securities, preferable Defence Savings Certificates and shall be regularly reinvested, alongwith the profit earned thereon, in the like manner without seeking further orders from the Court. It shall be paid to the minors on their attaining the age of 18 years, that is, to Farzana on or after 29-10-1997 and to Kulsoom on or after 29-10-2000.