1. This is a suit for recovery of Rs.5,04,000 on account of death of deceased Muhammad Asif aged about 16 years who sustained fatal injuries on 2-10-1986 as a result of rash and negligent driving of Bus No.868-804 driven by defendant No.2 during the course of employment with defendant No. 1.
2. It is the case of the plaintiffs, who are the father and mother of the deceased respectively that Muhammad Asif a student of Class IX was travelling in the KTC bus referred to above and was returning from his School when defendant No.2 applied sudden brakes with the result that the deceased fell down on account of jerks, came under the rear wheel of the bus and suffered severe injuries on his person. He was admitted in Surgical Ward No. II of Dow Medical College and Civil Hospital, Karachi where he succumbed to the fatal injuries on 17-10-1986. It is urged that the death of the deceased was caused by the actionable wrong, neglect, default and wrongful act of the defendant No.2 during the course of his service with defendant No.1 who are legally liable to pay the compensation to the plaintiffs. Besides schooling Muhammad Asif used to sell newspapers and magazines in the afternoon and earned Rs.300 per month. Plaintiffs have claimed a sum of Rs.5,04,000 by way of damages as according to them the deceased was expected to become a Diploma Engineer in the next 5 years and at the age of 21 years he could have started earning at least Rs.3,000 to Rs.4,000 per month and by passage of time his income would have progressively increased to Rs.8,000 per month and he would have given to the plaintiff at least Rs.2,000 per month. The plaintiffs have claimed to have spent Rs.35,000 on funeral of the deceased which has been included in the suit amount.
3. Defendant No. l has contested the suit and filed a written statement. They have denied their liability for commission of an act of rashness -and negligence, as false and without any basis. It is their case that the deceased while joking with his colleagues lost his balance and fell from the bus as he could not keep his balance. All other allegations were denied.
4. Defendant No.2 after service of the summons engaged an Advocate who was granted sufficient time to file a written statement but none was filed. Accordingly he was debarred from filing the same and he did not contest the suit.
5. On the pleadings of the parties following issues were settled:
(1) Whether deceased died unnatural death due to rash and negligent driving of defendant No.2, driver of the defendant No.1 or deceased himself was responsible?
(2) What was the income of deceased per month?
(3) Whether defendants are liable to pay compensation/damages to plaintiffs jointly and severally, if so, to what extent?
(4) Whether plaintiffs are entitled to cost and interest as claimed by them?
(5) To what relief or reliefs plaintiffs are entitled?
(6) What should the decree be?
6. I have heard learned counsel appearing for the parties and gone through the material on record.
7. My findings are as under for the following reasons.
8. REASONS ISSUE N0.1: Apart from the oral and interested word of P.W. Muhammad Aijaz claiming to be a co-student with the deceased in the same School expressly denied and disputed by defendants witnesses, there is hardly any evidence to conclude that the deceased died unnatural death due to rash and negligent driving by defendant No.2. Defendant No. l have already denied the cause of death of the deceased on account of rash and negligent driving. No doubt D.W. Manzoor Hussain has admitted to be the driver of Bus No.868-804 and in employment of KTC at the relevant time, he has denied that he had caused any accident on 2-10-1986. Obviously P.W. Gul Hassan is not an eye-witness and his evidence as regards the incident ultimately resulting in the death of the deceased is hearsay in nature. He has not stated as to who had informed him about the occurrence. He claimed that his brother Muhammad Anwar had reported the matter to police but neither Muhammad Anwar was examined in Court nor has any F.I.R. Been produced to prove that Muhammad Asif died unnatural death on account of being run over by KTC bus on the material day. Needless to point out the deceased though allegedly treated and/operated upon in Surgical Ward-II of Civil Hospital, Karachi, no cause of death has been proved as no medical certificate regarding death of the deceased was produced in evidence. Photocopy of a bill purportedly signed by Dr. Tufail Ahmed Siddiqui of Dow Medical College and Civil Hospital, Karachi Exh.4/2 produced by P.W. Gul Hassan and strongly objected to by the counsel for the K.T.C. Does not prove the factum of death as a result of rash and negligent act on the part of defendant No.2.
9. Plaintiffs have relied upon the evidence of P.W.2 Muhammad Aijaz who claimed to be a co-student of Class IX-B with the deceased in Government City Boys School, Boulton Market, Karachi who stated that he alongwith the deceased was travelling in the fateful bus, after the classes were over, when the accident took place near Nagina Bus Stop. He added that the bus driver did not stop the bus at the bus stop although asked by the passengers with the result that the deceased fell down from the bus. He was of the view that the accident took place because of negligence on the part of the driver. This version has however been seriously disputed in the cross-examination as well as in the evidence of D.W. Manzoor Hussain driver of the bus. The latter has stated that he was driving the bus and when he reached Boulton Market some of the boys seeming to be students boarded the bus and illegally and unauthorisedly came in the ladies compartment and stood on the foot board of the ladies compartment. He specifically stated that he had not caused any accident on 2-10-1986.
10. As against the statement of P.W. Muhammad Aijaz to the effect that accident took place because of negligence on the part of driver or as a result of jerks the deceased fell down near Nagina Bus Stop and rear wheel crushed over the body of the deceased. D.W. Manzoor Hussain stated on oath that he was just stopping at Nagina Bus Stop when one boy who was standing and joking with his colleagues could not keep his balance or either himself tried to make hurry fell down. He stated that the boy was injured and his colleagues immediately took him to the Hospital without saying anything otherwise that was busiest stop and many passengers were in the bus and many persons had gathered at the bus stop but as there was their own fault they had taken away the boy to the Hospital. The above evidence tends to show that the deceased had fallen down from the bus but it is difficult to conclude that he fell down owing to his negligence or a wrongful act on the part of the driver of the bus. The background of the incident is so uncertain and indefinite that it is difficult to hold that the defendant No.2 drove the bus rashly and negligently resulting in fatal injuries to the deceased or culminating into his death.
11. Since the accident took place on 2-10-1986 when deceased Muhammad Asif was said to be studying in Class IX-B, P.W. Gul Hassan produced his School Identity Card Exh. 4/1, production whereof was objected to by the defendants' counsel on the ground that this document had not been disclosed in the list of documents or alongwith the plaint. Photo copy of his School Identity Card was produced by P.W. Muhammad Aijaz under protest by the defendants' counsel for same reason. No explicit reliance can be placed on either of the Identity Cards or for that matter on the evidence of Muhammad Aijaz for the simple reason that the writing on both the cards is in different hand and even the signatures against the column "Class Teacher" are different. One reason for lack of identity of writing and signature could be the academic year in which both the students were admitted. While the Identity Card of deceased Muhammad Asif shows the Session 1986-87, the Identity Card produced by Muhammad Aijaz bears the Session 1987-88. It is for this reason that this witness was constrained to admit that he had obtained the School Identity Card in 1987 which would show that Muhammad Asif and Muhammad Aijaz were not the co-students of the same class. At any rate both the documents neither having been relied upon in the plaint nor mentioned in the list of documents were rightly objected to by the defendants' counsel and for this reason do not advance the case of the plaintiffs. Evidence of P.W. Muhammad Aijaz, therefore, does not inspire confidence and cannot be accepted.
12. ISSUE N0.2: Contrary to the averments in paragraph 6 of the plaint that the deceased used to sell newspapers and magazines in the afternoon, his father P.W. Gul Hassan stated in his examination-in-chief that the deceased used to get up early in the morning at 5-00 a.m. And sell the newspapers from 5-00 a.m. To 7-00 a.m. And was earning Rs.300 per month. During his cross-examination, he admitted that he did not know as to with whom the deceased had made arrangement for selling the newspapers. It was his own affair and he had nothing to do with him, the witness added. He further admitted that the deceased used to earn Rs.300 per month and spend this amount on himself. P.W.
13. Muhammad Aijaz, as expected of him, attempted to support the plaintiffs' case by stating that before going to the School the deceased used to sell newspapers. According to him the latter used to earn Rs.350 per month. During his cross-examination this witness claimed that the deceased had told him that he was earning Rs.350 per month and that he did not have any other proof to establish the monthly income of the deceased. Be that as it may, I am least impressed by this one- sided and self---contradictory evidence which is of no consequence as according to plaintiffs themselves he used to spend the entire income on himself. Needless to point out D.W. Karim Bux, Secretary of defendant No. l in his evidence stated that the deceased was not earning member and that the documents produced by the plaintiffs were forged and fictitious and were not reliable and were inadmissible in evidence. It is pertinent to note that this statement was not questioned or rebutted during the cross-examination of the witness. The issue thus stands not proved.
14. ISSUES NOS.3 to 5: ISSUE N0.6: