' Plaintiff No,1 is the father, plaintiff No,2 is the mother, plaintiff No,3 is the wife and plaintiff No,4 is the posthumous daughter of deceased Syed Sardar Hussain who died in a road accident on 11-5-1985.
The said Syed Sardar Hussain was travelling as a passenger in a taxi in which an NLC trailer smashed. Both the vehicles were going in opposite directions in separate up and down lanes of Rashid Minhas Road when the NLC trailer went out of control, turned right and went up the middle aisle dividing the two up and down lanes and then entered the other lane and smashed in the taxi which was coming from the opposite direction. Four persons were travelling in the taxi. Out of them taxi-driver and Syed Sardar Hussain died and the remaining two suffered injuries. The deceased is stated to be 35 years old having an earning of Rs,2,000 to Rs,4,000 per month. Each plaintiff claims a sum of Rs,2 lakh as compensation except the daughter who claims Rs,four lakh. Thus, in all a sum of Rs,ten lakh is claimed. According to the plaintiffs, the accident was the result of negligent driving of the driver of NLC tanker.
2. In their written-statement defendant No,1 denied that the accident was the result of negligent driving of their driver. It was explained that a car had overtaken the trailer from the wrong side and at a very close range and the trailer-driver, in order to avoid it and keep a safe-distance from it swerved to the right and then hit the middle traffic island, went up it and smashed into the taxi and thus he had done his best to avoid the accident with the car and if, in the process it hit the taxi, it was due to circumstances beyond his control and on this assumption his liability or that of defendant No,1 was denied. On the ground of want of knowledge para. 8 of the plaint was denied in which the age and the monthly income of the deceased were given and the plaintiffs had given their relationship with the deceased.
3. Defendants Nos.2 and 3 have been deleted vide consent order dated 25-5-1992 passed on application under Order 1, Rule 10, C.P.C. Defendant No,4 is the insurance corporation with which the NLC tanker was insured. In its written-statement it had pleaded that its liability was only to the extent of Rs,20,000 which it deposited in the Court and its name was also deleted on 16-9-1991. This now leaves only defendant No,1 to defend the suit.
4. Plaintiffs Nos.1 and 2, the parents of the deceased, have died during the pendency of the suit and their legal heirs were brought on record through amended plaint. Mr. Muhammad Maqsood, Advocate, who appeared for the plaintiffs, concedes that the so-called legal heirs (whose relationship with plaintiffs Nos.1 and 2 has not been disclosed in the amended plaint and Amended title of the plaint) are not beneficiaries under the Fatal Accidents Act and does not press the suit- claim on their behalf. This leaves plaintiffs Nos. 3 and 4 only on whose behalf compensation is claimed.
5. Consent issues filed by the plaintiff and defendant No,1 were adopted on 30-11-1986.
Subsequently, some more issues filed by defendants Nos.1 and 4 were also adopted on 29-11-1987.
All these issues are hereby cancelled and the following issues are framed:---
(1) Is the suit bad for non-joinder of the driver of NLC tanker?
(2) Was the accident the result of rash and negligent driving of the driver of NLC Tanker?
(3) If issue No,2 is proved in the affirmative, are defendant No,1 liable to pay damages/compensation to the beneficiaries of deceased. Syed Sardar Hussain?
(4) To what compensation are the plaintiffs; as beneficiaries of the deceased, are entitled?
(5) Reliefs.
6. The only evidence recorded in the suit is the deposition of the plaintiff Syed Ghaffar Hussain as P.W.1 who produced copy of F.I.R. As Exh.8/1, Report of Motor Vehicles Examiner as Exh.8/2 and copy of the 5-page legal notice dated 20-10-1985 Exh.8/3 served by the plaintiff on all the defendants (except the insurance corporation). The report of Motor Vehicles Examiner Exh.8/2 was admitted subject to proof in the form of deposition of the Motor Vehicles Examiner but since the said Examiner was not examined the report Exh.8/2 is no more good evidence and has not been taken into consideration. From the side of the defendants, only defendant No,4 (National Insurance Corporation) examined its Assistant Manager as D.W.1 who deposed that defendant No,4 was only liable to the extent of Rs,20,000 which amount it had deposited in Court. Contesting defendant No,1 closed its side without leading any evidence.
7. Learned counsel of the parties have been heard.
8. My findings are as follows:---
9. ISSUE NO.1: Learned counsel of the parties did not address the Court on this issue. However, I am of the view that the owner as well as the driver of the vehicle are both jointly as well as severally responsible if an accident occurs due to the negligence of the driver and, therefore, the suit is not bad for non-joinder of the driver. The issue is decided in the negative.
10. ISSUE NO.2: 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 swered 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 sewering 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 gone over it, it would not have turned right in an uncontrolled manner.
11. The manner in which the accident has occurred shows conclusively 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-driver was under the influence of drugs. I would, therefore, hold the tanker driver directly responsible for the death of taxi driver Mussadaque Hussain and taxi-passenger Syed Sardar Hussain.
12. Issue No,2 is, therefore, decided in the affirmative.
13. ISSUE NO. 3: There can be no two opinions on the point as to whether defendant No,1 as the owner of the vehicle are responsible for the negligent act of their driver and to pay damages/compensation to the beneficiaries of the deceased. If at all any authority is required on the point, C reference may be made to the case of Punjab Road Transport Board v. Abdul Wahid Usmani PLD 1980 Lah.
584. Issue No,3 is, therefore, decided in the affirmative.
14. ISSUE NO. 4: It has already been noted above in paras. Nos.1 and 4 that plaintiffs Nos.1 and 2 were the parents of the deceased and both of them have died during the pendency of the suit and the only surviving plaintiffs now are plaintiff No,3 the widow and plaintiff No,4 the daughter of the deceased. Learned counsel of the plaintiffs, however, contends that the shares of the deceased plaintiffs Nos.1 and 2 would devolve upon the surviving plaintiffs Nos.3 and 4 and relies on the judgment reported as PLD 1980 Lah. 584 Punjab Road Transport Board v. Abdul Wahid Usmani the relevant portion from which is quoted below:--- "21. The next point raised by the learned counsel is that Abdul Wahid, father of the deceased, died during the pendency of the suit and, therefore, his share of compensation if any could not be awarded to the present respondents. In support of his contention, the learned counsel placed reliance on PLD 1979 Lah. 442 wherein Rs,30, share of the mother, was not awarded to the remaining statutory beneficiaries. This contention has also no force because it is the date of the cause of action which is relevant and not subsequent events. In Kulsoom's case, which was approved by the Supreme Court in Appeal No,K-44 of 1969, one of the beneficiaries had died still his share was allocated to the remaining beneficiaries."
' This position was not controverted by learned counsel of defendant No,1. I would, therefore, agree with learned counsel of the plaintiffs that the shares of deceased plaintiffs would devolve upon plaintiffs Nos.3 and 4.
15. The next thing for determination is the age of deceased Syed Sardar Hussain at the time of his death.
16. According to late Syed Ghaffar Hussain P.W.1 his son (the deceased) was 35 years of age at the time of his death (10-5-1985). He was not cross-examined on this point and there is no evidence from the side of the defendants. I would, therefore, accept the statement of P.W.1 Syed Ghaffar Hussain that his son, the deceased, was 35 years old at the time of his death.
17. There is no evidence as to the life expectancy of the deceased or of the plaintiffs but the consensus of the opinion is at 65 years as would appear from the case of Kulsoom v. Jail Ahmad Khan PLD 1964 Kar. 72 and Mst. Qaiser Jehan v. Karachi Transport Corporation and another 1991 MLD 415. I would, therefore, hold accordingly.
18. According to the plaint the monthly income of the deceased was between Rs,2,000 to Rs,4,000 but his occupation had not been disclosed. However, P.W.1 Syed Ghaffar Hussain (father of the deceased) says that the deceased used to do the business of purchase and sale of birds (pet birds) and he earned between Rs,3,000 and Rs,4,000. There is, however, no other evidence, either oral or documentary, in support of this claim. However, in view of the fact that even a peon or a manual labourer now earns a minimum of Rs,1,500 I would assess the monthly income of the deceased at Rs,2,000 per month.
19. The deceased being 35 years of age at the time of his death and having life expectancy of 65 years and having a monthly income of Rs,1,600 (excluding Rs,400 for his personal expenses), could be expected to provide sustenance to F his beneficiaries (the plaintiffs) for a period of 30 years.
This would amount to Rs,5,76,000. Defendant No,1 is, therefore, liable to pay this amount to the plaintiffs who are entitled to the decree in the said amount.
20. As pointed out in para. 4 of the judgment, and as held in para. 14, plaintiffs Nos.1 and 2 are dead but their share shall not lapse but develop upon plaintiffs Nos.3 and 4, the widow and minor daughter of the deceased. Apart from Punjab Road Transport Board v. Abdul Wahid Usmani PLD 1980 Lah. 584, reliance may also be placed on Kulsoom v. Jail Ahmad Khan PLD 1964 Kar. 72 in support of this view.
21. The mother and the minor daughter are held entitled to equal shares (half and half) in the decretal amount and it is directed that the share of the minor. Shall be invested by the Nazir in profit-bearing Government Securities and shall be payable to the minor on her attaining the age of 18 years unless the Court otherwise directs. Her date of birth being 2nd January 1986 as per G delivery certificate of Mothercare Hospital attached to C.MA. No,2481/87, she would attain the age of 18 years on 2nd January 2004 A.D. The profit accruing on the investment may, however, be paid on the application of minor's guardian.
22. ISSUE NO. 5 (RELIEF): In view of what has been stated above, a decree for Rs,5,76,000 (Rupees Five lakh seventy-six thousand only) is passed in favour of plaintiffs Nos.3 and 4 and against defendant No,1. The amount of Rs,20,000 deposited in the Court by the insurance company (defendant No,4) is refundable to defendant No,1. The plaintiffs are also allowed interest @ 6% from the date of judgment till the date of realisation of the decretal amount. The plaintiffs shall also have their costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.