1. The case of plaintiff as mentioned in the plaint for recovery of Rs,8,50,000 under the Fatal Accidents Act, 1855 is that plaintiffs Nos.1 and 2 are the sons of deceased Hameedullah Khan while the plaintiff No,3 is daughter of the said deceased. The suit has been filed through next friend Umer Farooq Khan. It is claimed in the suit that deceased Hameedullah Khan who was then aged 47 years died in a traffic accident on 8-4-1988 within the area of the T.P.X. Police Station, Karachi and according to the plaint he left the following legal heirs:--- Nam e Relation Age Shamsho Mother 95 years Asal Bibi Widow 45 years Jahan Zeb son 28 years Akhtari daughter 26 years It is alleged that on 8-4-1988 defendant No,3 who is the driver of Vehicle No, GP-1781 which belong to defendants Nos.1 and 2 caused death of deceased Hameedullah Khan by driving the vehicle in rash and negligent manner without giving any alarm, dashed the deceased and due to the fatal injuries he died subsequently. Consequently, therefore, compensation was claimed and it was stated that he was drawing a sum of Rs, 1,500 per month as Chowkidar and was further earning Rs,1,000 per month by way of serving water to the truck drivers. It is further alleged that he was intending to go to abroad and in such eventuality had he gone abroad his income would have been nearly Rs,4,000. It is alleged that the expected age is 75 years and since if the deceased would have not died due to rash and negligent act, he would have.lived for another 28 years and consequently, therefore, the relief claimed was Rs,8,50,000 as damages/compensation.
2. All defendants filed separate written statement. The defendant No,1 stated that on hearing the horn one of the person turned and was hit by the fire tender's middle body and was injured. He died subsequently in the hospital at 1225 hours and not on the spot as alleged in the plaint. It is further averred that an F.I.R. No,80 of 1988 was recorded at T.P.X. Police Station and the defendant No,3 was sent up for trial and since the prosecution could not establish its case, therefore, the defendant No,3 was acquitted under section 249-A, Cr.P.C. The defendant No,1 denied liability to pay the compensation/damages as "because the death was not caused due to rashness, negligence, default or wrongful act of defendant No,3. "The defendant No,2 have also taken the same stand.
3. They have also taken the same plea in paragraph No,7 as quoted above. The defendant No,3 also denied that he was driving the vehicle in a rash and negligent manner and that dashed the deceased Hameedulah Khan and subsequently the deceased got fatal injuries and died on the spot. He denied the allegations of rashness and negligence on his part which resulted in the injuries.
4. On pleadings of the parties the Court framed the following issues: (1)Whether the death of the deceased Hameedullah was caused by the rash and negligent driving of water taken Fire/Extinguisher No,GP-1781 driven by the defendant No,3, belonging to the defendants Nos.1 and 2?
5. (2)Whether the plaintiff and other legal heirs are entitled to the compensation/damages as claimed?
6. (3)Whether the defendants are liable to pay the damages jointly and severally to the plaintiff?
7. (4)Whether the plaintiff and other legal heirs are entitled to cost and interest as claimed?
8. (5)What should the decree be?
9. On behalf of the plaintiffs the next friend examined himself as P.W.1 vide Exh.
7. He produced photocopy of the F.I.R., a copy of N.I.C. and Death Certificate. He stated in his affidavit-in-evidence that he has filed the suit in representative capacity and he further stated that the defendant No,3 caused death of deceased Hameedullah Khan, due to rash and negligent driving. According to him he died on the spot. He further deposed that the death of deceased was caused by actionable wrong negligence, default and wrongful act of defendant No,3 who is an employee of defendants Nos.1 and 2 as such the defendants Nos.1 and 2 are legally liable to pay the compensation. He further stated that the deceased was 47 years and very healthy. According to his further deposition he was a Chowkidar and drawing Rs,1,500 per month in Zar Paposh Company Kanch Godam West Wharf Road, Karachi. It has been further depo ,ed that he used to earn another Rs,1,000 per month by way of serving drinking water to the drivers of the trucks and taking delivery of goods from different factories. He further stated that he wanted to go middle East Country and he could have earned Rs,4,000 per month. According to him he could have lived upto the age of 75 years as from the area that he belonged, the people are averagely living upto 75 years. He has claimed a sum of Rs,8,50,000 as damages. In cross-examination he stated that the widow of deceased Asar Bibi has not been impleaded as a plaintiff as she resides in a village. He claims that he met the said widow before filing the said suit and he taken her permission, the permission Was not in writing. He further deposed that he is not an eyewitness of the accident. He further deposed that he took the dead body of Hameedullah Khan from Karachi and buried him at Kohat for which the defendant No,3 paid Rs,10,000 to him. He claims in cross-examination that the mother of deceased is maternal grand-mother and is till alive, however, he pleads ignorance as to when the father of deceased died as according to him he died in his child-hood. stated that the deceased had told him that he wanted to go abroad. According to the understanding of the said witness the general minimum earning in the Middle East country, is Rs,4,000. He further deposed that since he was himself a driver in U.A.E., therefore, he is aware of the prevailing rates. He pleaded ignorance to the question that the defendant No,3 has been acquitted in the criminal case arising out of the said accident. The other witnesses examined by the plaintiff is Muhammad Nasir, who claims to be the eye-witness of the accident which took place on April 8, 1988. According to him he saw that the defendant No,2 had driven the Fire tender bearing No, GP-1781 of the defendant No,1 on his way towards West Wharf from Khawaja Jamat Khana in a very rash, negligent and careless manner without any alarm and when he reached near Dock Labour Board and opposite Kanch Godam he dashed the pedestrian Hameedullah Khan at a excessively high speed from the wrong side and consequently pedestrian Hameedullah Khan got fatal injuries and died immediately. According to him the defendant No,2 could not control the balance of the said vehicle and dashed the same against the pedestrian and dragged him for couple of steps causing him fatal injuries. I notice from his deposition that in paragraph No,2 and repeatedly in paragraph No,4 he has alleged that the defendant No,2 drove the vehicle. (Emphasis supplied) the defendant No,2 according to the plaint is K.P.T. Fire Station.
10. ' The said witness in cross-examination has deposed that at the place of accident traffic was moving and along the pavement some trucks were also parked. According to him the deceased was standing besides one of the trucks and either he was going to fetch or carrying the water as he had a cane in his hand when the fire tender hit him. He was specifically put the following question:-- Q. "You have stated in your affidavit-in-evidence that the defendant No,2 was driving the vehicle 'in a very rash, negligent and careless manner'. What do you mean by your statement that the defendant No,2 was driving the vehicle 'in a very rash, negligent and careless manner'?
11. A. By this I mean that he was driving the vehicle without alarm, without blowing the horn, at a very fast speed and on the right hand side of the road instead of being on the left hand side of the road".
12. The abovequoted question was put to him specifically as to what does he mean that the defendant No,2 was driving the vehicle. Even in reply he did not correct himself that in fact it was the defendant No,3 who was driving the vehicle. He had further deposed as follows: It is correct that the road on which the said accident occurred was then and still is a one-way road i,e, traffic-flow on that road is only in one direction. It is correct that a pavement runs in the middle of the road dividing it into two roads and on the road on one side of the said middle of the road pavement the traffic moves in one direction while on the road on the other side of the said pavement the traffic moves on the opposite direction.
13. The trucks were parked alongside the side middle of the road pavement. When earlier I said that the defendant No,2 was driving the vehicle 'on the right hand side of the road instead of being on the left hand side of the road, 'I meant that he was driving on the right hand side near the middle of the road pavement of the said one-way road and not that he was driving in the wrong direction. It is correct that the said fire-tender was travelling in the correct direction i,e, in the same direction in which movement of traffic is permitted on that one-way road."
14. The defendant No,3 examined himself and stated that he has been acquitted under section 249-A, C.P.C. in relation to the incident/accident resulting in death of deceased Hameedullah Khan. Before cross-examination, however, he produced certified copy of acquittal order and certified copy of the depositions of witnesses as Exhs. No,9/1, 9/2 to 9/5.
15. He was cross-examined at length and specifically denied that he was driving negligently, rashly or at excessive speed. According to him he suddenly heard the sound of something which hit the vehicle in rear and he himself immediately stopped the vehicle and got down when he saw the deceased had dashed on the rear side of the vehicle apparently the deceased was between two parked vehicles and was dashed by one amidst since he dashed on the rear side of his vehicle he could not see as to what exactly happened. According to him that at the relevant time the gate of railway crossing was also closed and, therefore, the traffic had stopped. He denied the suggestion that he had filed false affidavit-in-evidence.
16. That Zafar Ali Khan was examined on behalf of the defendant No,2. He has produced the map of the area where the accident had taken place which is Exh.10/2. The witness of plaintiff Muhammad Nasir has also admitted to be correct by deposing as follows:-- "I am shown a rough sketch of the place of accident and say that it does' correctly show the position of the parked trucks at the place of accident."
17. According to the map the road followed by the vehicle is marked in green, the trucks parked are marked in blue and the place of accident is marked in red.
18. I have gone through the written arguments filed on behalf of the plaintiffs as well as on behalf of the defendant No,3. After having considered the case from all angles and entire deposition on record I have come to the following conclusion on the above issue: ISSUE NO. 1: In order to claim damages/compensation under the Fatal Accidents Act, it must be proved on record that an accident has taken place. As a result of accident the person must sustain injuries which may prove fatal. The injuries must be caused through rash and negligent act by some on whom the responsibilities must be specifically fixed and proved through legal evidence.
19. In this case accident is proved Fatal injuries are proved. The vehicle with which the injuries were sustained is proved. But what has not been proved is rash and negligent act on the part of defendant No,3.
20. In this connection the evidence led by the plaintiff is through next of kin's deposition who is not an eye-witness as such his evidence regarding rash and negligent act is only hearsay a such not sustainable as legal evidence. The second witness of plaintiff who is an eye-witness has fixed the responsibility on defendant No,2 and that too repeatedly in his affidavit-in-evidence and even in cross-examination. When specific question was put as to what he means about rash and negligent act of defendant No,2 he did not fix the responsibility on defendant No,3. I would, therefore, hold that the plaintiffs have failed to discharge their burden and initially did not establish that the rash and negligent act on the part of defendant No,3 caused accident which proved fatal and led to the death of deceased.
21. As against the evidence of the two witnesses of the plaintiffs, the defendant No,3 against whom responsibility was alleged in the plaint, examined himself as witness. He denied any rash or negligent act on his part. His deposition was not shaken in cross-examination. Mr. Nasir Maqsood, Advocate has argued that the details revealed by the defendant No,3 were not the part of his written statement as such he spoke about the facts not mentioned in his written statement. I am afraid I cannot agree with such argument. He has denied' about rash and negligent act in the written statement as he has so stated in his deposition. If Mr. Nasir Maqsood, Advocate for the plaintiffs means about his criminal case acquittal or deposition of witnesses in Criminal Court based upon same incident, which shall be not taken into consideration while deciding the suit then I agree with him. However, while deciding the issue under discussion I have neither referred to the evidence in Criminal case nor I have considered his acquittal by the criminal Court. I have specifically referred to the evidence in this suit only and no other document.
22. Yet there is other evidence which suggests that there can be no rash and negligent act on the part of defendant No,3. It is admitted position on record that the vehicle in question was heading towards West Wharf Road. According to Exh. 10/2 (Sketch of place of accident) which is even admitted by second witness of plaintiffs near the Karachi Dock Labour Board trucks were parked on the left side of the West Wharf Road. The railway crossing ahead of Karachi Dock Labour Board Building on the said road was closed (Deposition of defendant No,3 refers). The road (West Wharf Road) has partition in between two lanes meant for going to West Wharf or coming from West Wharf. The space on the left side for the vehicle to pass through second lane while going to West Wharf become narrower due to parking of trucks on the left side of the road. On such narrow path unless the person driving vehicle is insane he could not drive vehicle recklessly, negligently or rashly.
23. The defendant No,3 has further deposited that the deceased hit the back side of his vehicle. The plaintiffs have failed to prove that vehicle hit the deceased in the front. The doctor certificate only suggests death. The injuries sustained by the deceased are not mentioned nor any document on record has been produced which may disclose the injuries sustained by the deceased. The deposition of defendant No,3 is natural and inspires confidence as against the deposition of the witnesses of plaintiffs. As such I believe his deposition which is corroborated by other circumstances. Consequently, therefore, I hold that the plaintiffs have failed to establish that rash and negligent act on the part of defendant No,3 caused fatal accident, and the defendants have established that there was no rash and negligent act on the part of defendant No,3 which resulted fatal accident as such I decide the issue in negative.
24. ISSUES NOS. 2 to 4: In view of my finding in issue No,1, it is not necessary to decide the above issues.
25. ISSUE NO.5: In view of my findings on issue No,1, the suit is dismissed with no order as to costs.