1. ' This judgment will dispose of Suits Nos. 320, 321 and 322 of 1988 as they arise out of the same accident, the defendants therein are common and evidence of the defendants is also common.
2. The accident out of which the three suits arise occurred on the 5th January, 1988, when a truck bearing No,858545, belonging to defendant No,1, was being driven by defendant No,2, an employee of defendant No,1, and collided with a Suzuki van resulting in death of three persons, namely, Sufi Ghaib, Rahmatullah and Haji Jalaluddin. The ownership of the truck, the relationship between the defendants No,1 and 2 and the cause of death in each case are not in dispute.
3. ' The case of the plaintiffs is that the defendant No,2, at the relevant time, was driving the truck in rash and negligent manner and that the death of the deceased was caused by actionable wrong, negligence, default and wrongful act of defendant No,2.
4. Suit No,320 of 1988 has been filed by Mai Nooran, the widow of Sufi Ghaib, who died in the accident, for the benefit of herself and the following dependent legal heirs of the deceased--{{TABLE}} Faizunnisa Mother aged 60 years Hayatullah Son 10 Ataullah Son 8 Asadullah Son 5 Barkatullah Son 3 Humaira Daughter 2 ' It is alleged that Sufi Ghaib was 40 years old at the time of his death, was in good health and was earning Rs,1,500 to 1,800 per month by selling fruits; and that, by his death, his dependents have been deprived of pecuniary benefit amounting to Rs,5,50,000.
5. ' Suit No,321 of 1988 has been filed by Haji Juma Khan, the father of Rehmatullah, who died in the accident, for the benefit of himself and his wife Gohar, the mother of the deceased. It is alleged that Rehmatullah was 22 years old at the time of his death, was in good health and was earning Rs,1,500 per month by working at a local Tandoor besides Rs,1,000 per month by selling dry fruits; and that, by his death, his dependents have been deprived of pecuniary benefit amounting to Rs,5,80,000.Suit No,322 of 1988 has also been filed by Haji Juma Khan, the father of Haji Jalaluddin, who died in the accident, for the benefit of himself and the following dependent legal heirs of the deceased--{{TABLE}} Gohar Mother aged 55 years Ameela Widow 25 Najeeba Daughter 8 months ' It is alleged that Haji Jalaluddin was 32 years old at the time of his death, was in good health and was earning Rs,1,200 to 1,500 per month by working at a local Tandoor; and that, by his death, his dependents have been deprived of pecuniary benefit amounting to Rs,5,80,000.
6. The defendants have filed identical written statements in all the three suits. The case of the defendants Nos.1 and 2, in the written statements, is that the defendant No,2 was not negligent and that the accident was caused due to negligence of the driver of the Suzuki van. The defendant No,3, the insurance company, has neither admitted nor denied the allegation that the truck belonged to defendant No,1 and was insured by defendant No, 3 but has pleaded that, in any case, its liability is limited to Rs,20,000 in case of commercial vehicles. It has, however, denied the allegations as to the income of the deceased in each case.
7. ' In Suit No,320 of 1988 the following issues were settled by the Court on the 16th April, 1989:--
(1) Whether the death of Sufi Ghaib on 5-1-1988 at 1-20 p.m. At Super Highway, near Maymar Complex, Karachi, was caused by wrongful act, neglect or default by defendant No,2 Muhammad Sharif in driving Truck No, 858545 rashly and negligently and in dashing the truck against Suzuki No, 879-621 in which the deceased was travelling?
(2) Whether the defendant No, 1 being owner of Truck No, 858545 allowed the same to be driven on 5-1-1988 by its employee and driver Muhammad Sharif, defendant No,2, so rashly and negligently as to cause death of Sufi Ghaib by wrongful act, neglect or default?
(3) Whether the defendant No,1 is responsible for act of his driver and employee Muhammad Sharif
(4) Whether driver of Suzuki No,879-621 was necesry party to this suit?
(5) Whether the plaintiff is entitled to costs and interest as claimed?
(6) What should the decree be?
8. ' Similar issues were framed in the other two suits except that issue No,5 therein relates to the income of the respective deceased persons instead of costs and interest.
9. ' In the facts and circumstances of these suits, I consider that it is necessary to simplify and recast the issues to reflect the real controversy between the parties. I have, therefore, recast the issues as follows:
(1) Whether the defendant No,2 was driving the truck in rash and negligent manner?
(2) Whether the legal heirs of the deceased have been deprived by his death, of pecuniary benefit?
10. If so, what is the amount of such benefit?
(3) Whether the truck was insured by the defendant No,3?
(4) What relief, if any, are the plaintiffs and other dependents of the deceased entitled to?
(5) What should the decree be?
11. The parties have examined the following witnesses:-- ' Fazal Muhammad, Saeed Muhammad, Essa Khan and Haji Noor Ali for the plaintiff in Suit No,320/88; Najibullah for the plaintiffs in Suits Nos.321/88 and 322/88, and Muhammad Sharif and Salamat All for defendants Nos.1 and 2 in all the suits; and the evidence, by consent of the parties, is to be treated as evidence in all the three suits.
12. ' I have examined the record and the proceedings and have heard the learned counsel for the parties; and my findings on the issues, as recast are as follows.
13. ' Issue No,1.--Essa Khan (P.W.3) has deposed that he saw the accident himself. According to him the Suzuki was coming from Mohajir Camp to Sohrab Goth while the NLC truck was going in the opposite direction i,e, from Sohrab Goth towards Mohajir Camp; the NLC truck was "coming in a faster speed" and collided with the Suzuki pick-up and dragged it far 10 to 15 metres on the road; that when it stopped he saw that the driver of the Suzuki was unconscious while three persons, namely, Haji Rehmatullah, Haji Jalal and Haji Ghaib, were dead; and that the driver of truck escaped from the place of occurrence. In cross-examination he has stated that he was present at the scene because he "was waiting for the Datsun for going to Afghan Mohajir Camp. Datsun is plied for taking the passengers from Maymar Complex to Afghan Mohajir Camp"; and he has denied that the road was under repairs or that it was blocked for repairs and that the Suzuki and the truck were going in the same direction.
14. ' Muhammad Sharif, the defendant No,2, has deposed that the road was blocked for vehicles other than those which were engaged in construction; that, on seeing the Suzuki pick-up coming from the opposite direction, he blinked his lights to indicate that there was no way for the pick-up but the pick-up did not stop; that he slowed the truck to 15-20 KMPH and went to some extent on the Katcha side to his left; that the pick-up tried to cross him first from one side and then from the other and eventually hit the truck on the left side; and that both the vehicles fell into a ditch by the side of the road. He has denied that he was driving the truck at a very fast speed.
15. ' Salamat All has deposed that he was on duty on the portion of the road which was under construction and was blocked to private vehicles; that he signalled the Suzuki driver to stop but the latter, instead of stopping, accelerated his speed; and that the pick up first zigzagged on both sides and then went to the right side of the road and hit the NLC dumper truck; and that both the vehicles fell into ditch. He has, however, admitted in his cross-examination that vehicles coming from or going to the Afghan Mohajir Camp used to pass from the same under-construction road.
16. ' It would appear from Salamat Ali's evidence that the road where the accident occurred was not closed at least to the vehicles coming from and going to Afghan Mohajir Camp. That much is also clear from the deposition of Essa Khan who has stated that a Datsun vehicle plies from Maymar Complex to Afghan Mohajir Camp and that at the relevant time he was waiting for the Datsun to go to Afghan Mohajir Camp. The Suzuki was admittedly coming from the Mohajir Camp. There was, therefore, obviously no reason for any one to stop it or for it try to zigzag to go past the NLC truck.
17. The main thrust of the defence thus fails. Further, the version of Muhammad Sharif that he had reduced his speed to 15-20 KMPH and moved to Katcha portion to his left does not sound plausible in view of the fact that after the collision both the vehicles fell into the ditch to the left of the truck. If, as stated by Sharif, the Suzuki had hit the truck on its left side, it is conceivable that it would, as a result of the impact, have fallen in the ditch but that does not explain how a heavy dumper truck travelling at 15-20 KMPH would follow the Suzuki into the ditch. If such a heavy vehicle could move at all because of collision with a small vehicle like Suzuki pick-up, it would, surely move in the opposite direction.
18. ' In the circumstances, I am satisfied that the version of the plaintiff's witness, Essa Khan, is, on balance of probabilities, true; and Major (R) A. Rauf Khan, the learned counsel for defendants Nos.] and 2, has quite candidly and fairly conceded that, on evidence, the defendant No,2 was driving the truck in rash and negligent manner; and has chosen not to advance any argument on the issue. Issue No,1 is, therefore, answered accordingly.
19. ' Issue No,2.---The amount in each case will have to be determined on the basis of the income of the deceased therein. However, for the purpose of determining such income and the benefits of which the heirs have been deprived, the expected age of those persons is taken at 70 years.
20. ' Suit No,320/88.---Fazal Muhammad, the brother of the deceased Sufi Ghaib has deposed that the plaintiff (the widow of the deceased), he himself, Faizunnisa (mother of the deceased), Hayatullah, Ataullah, Asadullah and Barkatullah (sons of the deceased) and Humaira (daughter of the deceased) are heirs of the deceased; and that the deceased was in good health, used to earn Rs,1,500 to Rs,1,800 per month from vegetable shop and used to maintain the abovementioned persons. This evidence is supported by Saeed Muhammad and has not been challenged in cross- examination; and the learned counsel for the defendants Nos.1 and 2 fairly concedes that the income of the deceased may be taken at Rs,1,500 per month. The deceased was 40 years old at the time of his death. On that basis, the amount of the benefit of which the heirs of the deceased have been deprived comes to Rs,5,40,000 as follows:-- {{TABLE}} A. Income of the deceased at the rate of Rs,1,500 per month for 30 years. B. Increase in income at 20% Rs,5,40,000.
21. Less 1/6 on account of personal expenses of the deceased Rs,5,40,000 Rs1.08.000 Total: Rs,6,48,000 Rs,L08.000 Rs,5.40.000 Suit No,321/88.---Najibullah, a brother of the deceased, has deposed that the deceased was 22 years old at the time of his death, was in good health, employed at a Tandoor and earning thereby Rs,1,500 per month, and that the plaintiff and Mst. Gohar (the mother of the deceased) were the heirs of the deceased and were maintained by him. This evidence has not been challenged in the cross-examination and the learned counsel for the defendants Nos.1 and 2 fairly concedes that the income of the deceased may be taken at Rs,1,500 per month. According to the witness, the plaintiff was 62 years old and Mst. Gohar was 55 years old at the time of the death of the deceased.
22. Therefore, the period for which the heirs have been deprived of the benefit is 15 years and the amount of such benefit comes to Rs,2,16,000 as follows: {{TABLE}} A. Income of the deceased for 15 years at Rs,1,500 per month Rs,2,70,000 B. Increase in income at 20% of Rs,2,70,000 Rs,54.000 Total: Rs,3,24,000 C. Less 1/3 on account of personal expenses of the deceased Rs,1.08.000 Rs,2.16.000 Suit No,322/88.---Najibullah, a brother of the deceased, has deposed that the deceased was 32 years old at the time of his death, was in good health, was working at a Tandoor and earning thereby Rs,1,500 to Rs,2,000 per month; that the plaintiff (father of the deceased), Mst. Gohar (the mother of the deceased), Ameela (widow of the deceased) and Najeeba (daughter of the deceased) are heirs of the 'deceased; and that the deceased used to maintain those heirs. This evidence has not been challenged in cross-examination and the learned counsel for defendants Nos.1 and 2 concedes that the income of the deceased may be taken at Rs,1,500 per month. On that basis, the amount of the benefit of which the heirs of the deceased have been deprived comes to Rs,6,84,000 as follows:-- {{TABLE}} A. Income of the deceased at the rate of Rs,1,500 per month for 38 years. Rs,6,84,000 B. Increase in income at 20% of Rs,6,84,000 Rs,1.36,800 Total Rs,8,20,800 C. Less 1/6 on account of personal expenses of the deceased. Rs,1,36,800 Rs,6,84,000 ' The plaintiff has,, however, claimed only Rs,5,80,000. That amount will, therefore, be considered the amount of the benefit.
23. ' Issue No,3.---There is no evidence on this issue and no policy of insurance has been produced.
24. The issue is, therefore, answered in the negative.
25. ' Issue No,4.---The plaintiffs and other heirs of the deceased are therefore entitled to recover from the defendants Nos.1 and 2 the following amounts on account of loss of pecuniary benefit caused by the death of the deceased in each case- {{TABLE}} ' Suit No,320/88 Suit No,321/88 Suit No,322/88 to be apportioned among them as follows:-- Suit No,320/88 Mai Nooran Faizunnisa Rs,5,40,000 Rs,2,16,000 Rs,5,80,000 (Widow) 50% Rs,2,70,000 (Mother) 10% Rs,54,000 Hayatullah ] Ataullah ] (Sons minors) 8% Rs,43,200 each Asadullah ] Barkatullah ] Humaira (Daughter minor) 43,200 Suit No,321/88.--In this case the plaintiff and his wife Mst. Gohar are the only heirs and they have been deprived of the benefits for 8 and 15 years respectively. They will, therefore, share the amount of the benefits equally for 8 years and thereafter Mst. Gohar would be entitled to the full amount thereof. The amount of benefit for 8 years comes to Rs,1,15,200 leaving a balance of Rs,1,00,800. The plaintiff will, therefore, be entitled to receive Rs,57,600 (being 50%) of Rs,1,15,200 while Mst. Gohar will be entitled to receive Rs,57,600 (being the remaining 50% of Rs,1,15,200 plus the balance of Rs,1,00,800 thus making a total of Rs,1,58,400. {{TABLE}} Suit No,322/88 Ameela(widow) 50% Rs,2,90,000 Najeeba (daughter-minor) 30% Rs,1,74,000 Haji Juma (plaintiff) 10% Rs,58,000 Mst. Gohar -do- 10% Rs,58,000 Issue No,6.--In the circumstances, the suits as against the defendant No,3 are dismissed and are decreed against the defendants Nos.1 and 2, jointly and severally, in favour of-- Suit No,320/88 Mai Nooran widow Rs, 2, 70,000 Faizunnisa for Rs,54,000 Hayatullah Ataullah J Asadullah] for Rs,43,200 each to be invested by the Barkatullah] Nazir for their benefit until they, Humaira ] respectively attain majority. Suit No,321/88 Haji Juma (Plaintiff) for Rs,57,600 Mst. Gohar -do- for Rs,1,00,800 Suit No,322/88 Ameela for Rs,2,90,000 Haji Juma for Rs, 58,000 Mst. Gohar for Rs, 58,000 Najeeba for Rs,1,74,000 to be invested by the Nazir for her benefit until she attains majority.
26. ' The defendants Nos.1 and 2 shall deposit the amounts with the Nazir of this Court with interest thereon at the rate of 10% per annum from the date of the suit till payment and costs of the suit.
27. ' The Nazir shall invest the shares of the minors as indicated above and shall pay the shares of other beneficiaries to them.