ABDUL LATIF QURESHI, J.- This suit is filed by father of Adil Beg who met with a fatal accident on 2-4- 1987 at about 7 pm within the jurisdiction of PS New Karachi, by bus owned by defendant No. 1 being driven by defendant No. 2 for recovery of Rs. 3,50,000/- under Fatal Accidental Act.
2. As per plaintiff defendant No. 2 was driving the bus in a rash and negligent manner which dashed against Adil Baig, a healthy boy of five years, resulting in his death. The amount is claimed as the support which deceased Adil Beg would have rendered to the plaintiff and his wife from his earning when he would have attend majority.
3. Defendant No. 1 was served who filed his written statement whereas defendant No. 2 did not appear after service of summons and suit was ordered to proceed ex parte against him.
4. Defendant No. 1 in his written statement in para Nos. 1 and 3 had denied the fact of the accident, whereas in para. No. 4 of the statement he took the plea that it is a case of contributory negligence, as such, defendant is not liable to pay compensation. In the written statement quantum of further income of the deceased was also disputed.
5. On the pleading of the parties, following issues were framed:-
1. Whether death of Adil Baig son of Chaman Baig on 2-4-1987 at Idgah Maidan in Sector 5-D, New Karachi was caused by wrongful act, . Neglect and default by defendant No. 2 Yousuf Khan while driving bus No. 866-836 rashly and negligently and in dashing the bus against the deceased boy?
2. Whether the defendant No. 1 being owner of bus No. 866-836 allowed the same to be driven On 2-4-1987 by its employee and driver Yousuf Khan so rashly and negligently a to cause death of Adil Bag by wrongful act, neglect and default?
3. Whether the defendant No. 1 is responsible for act of his driver and employee Yousuf Khan?
4. What would have been earning capacity of the deceased had he survived?
5. What should the decree be?
6. From the side of the plaintiff, the plaintiff examined himself, SIP Muhammad Dawood Khan who produced FIR, mashimama of wardat and report of Motor Vehicle in respect of the bus involved in the accident and also Ahmed Bag, eye-witness of the accident.
7. The defendant did not examine any witness.
8. Heard the learned counsel and peruse the record; My findings are as under:- ISSUENOS. 1. 2. 3.
8. Accident has caused by Bus No. 866-836 owned by defendant No.' 1 Resulting death of Adil Baig cannot be denied. Evidence of SI Muhammad Dawood Khan proved that bus No 866-836 was involved in the accident causing death of Adil Baig. He has produced FIR regarding the incident as Ex. 6 memo, of wardat Ex. 7 Ahmad Baig who is eye-witness of the accident, whose shop is in front of the place of accident, has categorically stated that this bus, which was coming with fast speed dashed against Adil Baig and over ran him causing his death. His presence at the wardat has not been questioned in cross-examination. The plaintiff has deposed that when he reached him he was informed that his son Adil Baig received injuries in a road accident. He went to the place of incident, and found his son lying dead in a pool of blood. It may be observed that evidence in a civil case is different from me in a criminal case. In a criminal case evidence is. Of such a nature that the factum of incident/wardat should be proved beyond any reasonable doubt. But in a civil matter .Mere preponderance of probability is sufficient. The circumstances of each case must determine whether a prudent man ought to act upon the supposition that the facts exist, from.
Which a liability is to be inferred. What circumstances will constitute proof can never be the subject of a general definition. In ordinary civil cases, a Judge of they fact must find for the party in whose favour there is a preponderance of probability although the evidence be not entirely free from doubt. Reliance in this regard can be placed on Zakaullah Khan Vs. Muhammad Aslam (1991 SCM R 2126). In present case evidence of Ahmed Bag categorically proves that bus was being driven at a very high speed. It has- also been admitted by defendant No. 1 in Para 4 of the written statement that death of boy was due to contributory negligence which amounts to admitting the fact that defendant is also liable for negligence. Defendant has not examined any witness and not even the driver who was driving the bus at that time. He was natural eye-witness of the incident and he could have rebutted the plaintiff's evidence. Furthermore, officer of defendant No. 1 who was singed and sworn the written statement has not been examined. Plea of contributory negligence as averred by the defendant in his written statement has not been proved.
9. Mr. Nasir Maqsood, learned counsel for the plaintiff has relied on case of Oadri Brothers Foundry & Workshop Vs. Safia (1988 CLC 2063) in which it has been held that mere averments made in pleadings would not constitute evidence, unless they were proved by evidence. Where the defendant did not choose to adduce evidence to rebut the case put up by plaintiff same would stand uncontroverted. In coming to that conclusion that learned Judge of this Court had relied on case Bashir Ahmed Vs. Abdul Hameed & another (1983 SCM R 302). Reliance has also been placed by the learned counsel on case of Muhammad Noor Alam Vs. Zair Hussain & 3 others (1988 M LD 1122). In that case a Division Bench of this Court held that averments made in written statement by parties has to be proved through cogent evidence; failure, to produce any evidence to support contents of written statements specially in absence of any admission on part of the plaintiff, averments contained in such a written statement could not be relied on. In the present case for the plea of contributory negligence, the burden to prove was on the defendant, and such burden has not been properly discharged. Apart from this, driver of the bus was the natural witness. He was person who had the knowledge of the cause of the accident and his was the best possible evidence available to the defendant and for failure to examine him, adverse inference could be drawn against the defendant.
10. In a suit for damages in road accident initially plaintiff has to prove negligence on part of the defendant which he did discharge. Onus therefore, would shift to the defendant that accident could have been avoided at any cost. This they could have done by examining the driver or another eye-witness. Plaintiff has examined Ahmed Baig, he has categorically stated that bus was being driven at high speed and dashed against the deceased. Burden of proof had shifted to the defendants, who failed to discharge the same as to witness was examined by them. However, in present case there is absolutely no evidence on the record that bus was being driven by defendant No. 2 as the only eye-witness Ahmad Baig does not implicate him, but it is admittedly the bus of defendant No. 1 who caused the accident resulting death of Adil Baig as such defendant No. 1 is liable for damages.
11. The plaintiff is not bound to prove whether the bus in-question was being driven by defendant No. 2 with permission of defendant No. 1. It is only matter between defendant Nos. 1 and 2 whether the bus was being driven with the permission or without. Whether it was being driven by defendant No. 2 or anybody else, as the bus belongs to defendant No. 1 they are responsible for any damages in case of death or otherwise. In Haji Abdur Razaque Vs. Pakistan (1994 CLC 613), it is held that it is established law that owner of vehicle is responsible for rashness and negligence of its driver, and is answerable to the victim of rashness of his driver by way damages. Whether it was defendant No. 2 or other driver, owner of the bus, defendant No. 1, is liable for damages.
ISSUE NOS. 4 & 5.
12. Age of deceased Adil Baig at the time of his death was only five years. He would have been able to earn his livelihood on attaining age of majority that is 28 years, 13 years after the incident. He is survived by his father, plaintiff 40 years of age, and his mother who is 32 years old. Deceased Adil Baig would have taken 13 years more to earn his livelihood and by that time his father, plaintiff, would be 53 years and mother 45 years. Average age in Pakistan being 70 years for male and 65 years for female. The deceased would have supported for 17 years to his father and for 20 years to his mother. Deceased survived by father and mother, his monthly expected income would be divided between both of them in equal shares. It is very difficult 'to estimate monthly income that the deceased would be earning after 13 years from the date of accident but it will be proper to estimate his earnings to be equivalent to least wages" of workman. These may be Rs. 15,00/- per month, as held in Saira Vs. Zonal Municipal Corporation (1995 M.L.O. 113). Out of this earning at least 1/3 he would be spending on his personal requirements. So the net income would amount to Rs.
1,000/- per month. In this way each surviving heir would have got Rs. 500/- per month. The share of the plaintiff which he could have earned/got from the minor as support would be 6,000/- per annum and for 17 years it amount to Rs. 1,02,000/- and that of mother @ Rs. 6,000/- for 20 years come to Rs. 1,2d,000/-. This is approximate least amount with which the deceased boy could have supported his parents. Accordingly, I hold that the plaintiff is entitled for compensation of Rs.
2,22,000/- against the defendant No. 1. The plaintiff is also entitled for 14% interest over decretal amount from the date of decree to the date of actual payment.
In the result suit is decreed in above terms.