' This is a suit for recovery of Rs,850 000, filed under the Fatal Accidents Act, 1855 by father of deceased Syed Takmeel Afzal, who died in a traffic accident on 28th April, 1988 at about 23-15 hours, near the crossing of Habib Ibrahim Rehmatullah Road and Tipu Sultan Road, Karachi.
2. The case of the plaintiff is that he is father of the deceased and has filed this suit for availing monetary compensation for himself and his wife, Mst. Narjis Shaheen, mother of the deceased; that on 28th April, 1988 at about 23-15 hours another son of plaintiff namely Syed Shakeel Ahmed was driving a motorcycle bearing No,KEG 5428 and Syed Takmeel Afzal since deceased was riding on the back seat of said motorcycle; that they were going from Stadium Road to Shahra-e-Faisal when at the crossing of Tipu Sultan Road while they were turning to their right side road suddenly a bus bearing No,879-563 hit them from the back and as a result of accident Syed Takmeel Afzal died on the spot while Syed Shakeel Ahmed, who is also a witness in the case, suffered injuries; that the deceased was of 18 years old; that he was earning Rs,2,000 per month and as a result of his death he and his wife has suffered monetary loss due to negligence and wrongful act of the defendants. With this background, the plaintiff has prayed for the following relief:--
(a) A decree in the sum of Rs,850,000 against the defendants who are liable jointly and severally to pay the said sum to the plaintiff on account of damages/compensation.
(b) Interest at the rate of 15% per annum on the amount claimed in clause (a) above from the date of the filing of the suit till realisation of the decretal amount be awarded.
(c) Cost of the suit may be awarded to the plaintiff.
3. The defendant No,2 was declared Ex parte by this Court on 1st October, 1989. Defendant No,1 has filed its written statement denying each and every allegation of the plaint including death of Syed Takmeel Afzal; involvement of their bus and also that the defendant No,2 was their employed driver at any time. They have also alleged mala fides on the part of the plaintiff by stating that there is a group of persons who used to file such frivolous cases against the defendant No,1 and have made such practice their profession. Several suit numbers were cited in the written statement. The entire written statement of the defendant No,1 is based on evasive denial of the facts alleged in the plaint and no specific plea in rebuttal to the contents of the plaint was raised by the defendant No,1.
4. Out of the pleadings, following consent issues were framed by the Court on 1st March, 1992 which were brought on record as Exhibit 4:
(i) Whether the suit is mala fide as detailed in the preliminary objection ?
(ii) Whether the plaintiffs are the depending legal heirs of the deceased ?
(iii) Whether any accident was caused by Bus No,879-563?
(iv) Whether the defendant No, 1 was the owner of the Bus No,879-563 and the defendant No,2 was the driver employee of defendant No,1 at the relevant time of accident ?
(v) Whether deceased died due to the accident as alleged and defendants are liable to pay compensation damages to the plaintiffs and other dependent legal heirs as claimed jointly and severally ?
(vi) What relief or reliefs plaintiffs are entitled ?
(vii) Whether the plaintiff is entitled to cost and interest ?
(viii) What should the decree be ?
5. In support of his case, plaintiff has examined himself as Exhibit 6; P.W.2 Syed Shakeel Ahmed, who was driving the motorcycle involved in the accident, was examined as Exhibit 7; P.W.3 A.S.-I.
Muhammad Aslam of Bahadurabad Police Station, who had produced copy of FIR, motorcycle accident report and sketch of incident as Exhibit 8; P.W.4 Muhammad Shahid Nadeem, Police Inspector as Exhibit 9 and P.W.5 Riaz Muhammad, who was also a retired police officer as Exhibit 10.
The defendant No,2 has produced his affidavit-in-evidence which was brought on record as Exhibit 11 and was cross-examined by the counsel for the plaintiff, I have heard Mr. Nasir Maqsood, for the plaintiff, Mr. Shafaat Hussain, for defendant No,1 and have perused oral as well as documentary evidence brought on record. My findings on the above issues are as follows:--
6. ISSUES NOS.1 AND 2: ' These issues were not pressed by the defendant No, 1 .
7. ISSUES NOS.3 AND 4: ' In view of admissions made by defendant No,2 in his affidavit-inevidence, it is proyed that the accident was caused by the Bus No,879-563 which belongs to the defendant No,1 and was being driven by defendant No,2 namely Rasheedullah Khan son of Waheedullah at the relevant time. This fact the defendant No,2 has specifically admitted in paragraphs 1 and 2 of his affidavitin-evidence, Exhibit 11. Accordingly, both these issues are answered in affirmative.
8. ISSUE NO.5: ' It is vehemently argued by Mr. Shafaat Hussain, learned counsel for the defendant No,1 that the accident was not caused due to wrongful act, default or negligence of defendants and that the plaintiff has failed to discharge his burden to prove this issue. He has cited certain portions of the evidence of P.W.2 namely Shakeel Ahmed who at the relevant time was driving the said motorcycle, in order to show that the deceased and P.W.2 deliberately came in front of the bus which resulted in the accident. It is pertinent to note that whatever Mr. Shafaat Hussain has virtually argued, it was never pleaded in the written statement of defendant No, 1 . The written statement of defendant No,1 is purely based on evasive denials. The accident dated 28th April, 1988 was denied and even the fact that the bus belongs to KTC was also denied. Mr. Nasir Maqsood has rightly argued that a party is not permitted to travel beyond its pleadings. In a recent case of Inam Naqshband v. Haji Shaikh Ijaz Ahmed (PLD 1995 SC 314 it was held by a Full Bench of Hon'ble Supreme Court that where the allegations of fact in plaint are not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendants shall be taken to be admitted except as against the person under disability. Mr. Nasir Maqsood has also referred to another recent case of Supreme Court Binyamin and others v. Chaudhry Hakim and another (1996 SCM R 336 at 340) where it was held by the Hon'ble Supreme Court that a party to a suit is not permitted to change plea of oral agreement to a written agreement. It was further held that it is well settled principle that no evidence can be led or looked into respect of pleas which have not been taken in the pleadings.
9. It was deposed by the P.W.2 that while he was turning right from Habib Rehmatullah Road to Tipu Sultan Road his motorcycle was hit' from behind, which fact is proved by Exhibit 8/3 which is a site plan (memo. Of place of incident) pertaining to Vardat as well as Exhibit 8/2 which is a report of Motor Vehicle Inspector. This Exhibit 8/2 clearly shows that the rear wheel of the motorcycle was bended and that the left mudguard of the KTC bus was damaged. This indicates that deceased and P.W.2 were on the left side of the bus when the incident occurred. According to Exhibit 8/1, which is F.I.R., the defendant No,2, who was driving the bus, ran away after the incident. Contention of Mr. Shaffaat Hussain that the defendant No,2 should have adopted all care and caution is not tenable as between a driver of a light vehicle and a driver of a heavy vehicle as of bus, the latter's responsibility is greater. I would like to refer to a judgment of Division Bench of Karnataka High Court in the General Manager, Banglore Transport Service v; N. Narasima Haiah and others (AIR 1977 Karnataka 6) where it was held that in case if it is found that the negligent act or omission of a deceased driver was the approximate cause of an accident, it will not be a valid defence to show that the person injured was also negligent unless it is established that the person injured had made it extremely difficult for the other to avoid the accident. For further reference see Mst. Qaisar Jahan and 3 others v. Pakistan (1985 M LD 255 at 259) and the case of Ehsan Ali v. KRTC and othes (PLD 1968 Kar. 464 at 470). In the instant case neither this defence was pleaded nor any evidence was led to prove this fact.
10. As a result of above discussion, I am inclined to hold that deceased Syed Takmeel Afzal died due to negligence, wrongful act and default of the defendants and that they are liable to pay compensation damages to the parents of the said deceased.
11. ISSUES NOS. 6 TO 8: ' In the plaint it is claimed that deceased was earning Rs,2,000 per month as he was working as an Assistant in Samad Commercial Complex and Development Corporation, Karachi. It is also claimed that deceased used to earn Rs,500 as overtime. It is further claimed in the plaint that the deceased was intending to join his father's business of real estate and could have earned a sum of Rs,7,000 or more per month. In evidence, the P.W.1, who is father of the deceased has claimed that the deceased was earning Rs,2,000 per month and used to set-up stall of garments in Juma Bazar and also used to help him in the work of estate agency and, therefore, speculation was made that the deceased could have earned Rs,6,000 to Rs,7,000 per month from his salary and from the profits earned from the business of Juma Bazar. The last piece of evidence is contrary to the pleadings. In cross-examination there is no suggestion on the part of the defendants in respect of such earnings. I am, therefore, inclined to hold that the deceased was earning and could have earned Rs,3,000 per month with future increments as permissible.
12. The expectancy of lives of plaintiff (father) and 'deceased's mother are determined till the age of 70 years. Thus, they were deprived of plaintiff's earning for a future period of 26 years approximately, which comes to Rs,9,76,000. After deducting 1/3rd as expenses to be incurred on the person of deceased (approximately Rs,3,25,000). The remaining amount for which the plaintiff and the deceased mother are entitled comes to Rs,6,51,000. In view of principle laid down in case of S. Iqbal Hussain Jaffery v. KESC (1994 CLC 1903) and in view of unreported case of Roshan Jan and others v. Pakistan and others (Suit No,685 of 1988) I grant 20% over and above the decretal amount keeping in view the inflationary trend and as expected increase in the earning of the deceased which comes to Rs,1,30,000. In the circumstances, the suit of the plaintiff is decreed in sum of Rs,7,81,000 with interest thereon at the rate of 14% per annum from the date of filing of suit till payment as well as costs.