' This is a suit under the Fatal Accidents Act for the recovery of a sum of Rs, MOO claimed as compensation filed by the widow, two sons and a daughter of late Zakaria Noorwala, who, it is claimed, died as a result of multiple fractures and severe injuries received by him on account of knocking out by the bus driven by defendant No, 1 and owned by defendant No,
2. The Insurance Company with which the bus was insured has also been joined as a party to the suit as defendant No, 3.
2. It is the case of the plaintiffs that on 1st November, 1968, at about 9 a. m. Zakaria Noorwala was coming to his shop from Frere Road to Katchery Road on foot. When he reached the Nallah near Government Women College at Frere Road the bus bearing No, K. A. P. 1682 of route No, 22-A driven by defendant No, 1 came from Saddar side at a very fast speed, went out of control of defendant No, 1 and ran over the foot-path, knocking down Zakaria Noorwala who was going on the foot-path, throwing him in the Nallah after dashing against the railing of Nallah and breaking the same, and causing his instantaneous death. It is further claimed that at the time of his death the deceased was about 39 years of age, well built, possessing sound health and was safely expected to live for another 20 years. It is also claimed that the deceased was earning from his business of chemists carried on in a shop a sum of about Rs, 500 per month and his income was assessed by Income- tax Officer, K-2 Division, Karachi, at Rs, 6,005 per )ear. The deceased was spending Rs, 400 per month out of his income on his wife and children i,e, the plaintiffs 1 to 4. On this basis a sum of Rs, 75,000 has been claimed by way of compensation on account of loss of estate due to rash and negligent act of defendant No, 1.
3. Defendant No, 1 did not file any defense and chose to remain absent at the trial of the suit.
However, it appears that defendant No, 1 was put up for trial for rash and negligent driving and was convicted as is evident from the judgment in Cr. Case No, 268/73 (Exh. 6/13). However, defendant No, 2, who is the owner of the bus filed his written-statement and merely denied the material allegations made in the plaint by saying that the same did not concern him. Defendant No, 3, the insurer of the bus . Filed its written-statement mainly pleading that it did not receive any intimation of the alleged accident from defendant No, 2 as required by Condition No, 1 of the policy of insurance.
4. That on the pleadings of the parties, the following issues were framed :- ISSUES
(1) Whether Zakaria Noorwala died in the circumstances mentioned in para 2. Of plaint ?
(2) Whether the death of deceased was caused by negligent and reckless driving of the bus by defendant No, 1 ?
(3) What was the earning capacity of the deceased ?
(4) Did the defendant No, 2 inform the defendant No, 3 as per condition No, 1 of the Insurance Policy ? If not what is its effect ?
(5) Whether the defendants are liable to pay damages ; if so in what amounts ?
(6) To what relief, if any, is the plaintiff entitled ?
5. In support of the claim, plaintiff No, 1, Momin Bai, examined herself, one barbar by the name of Abdul Latif who had at the relevant time a barbar shop on the foot-path on the Frere Road opposite Women College and was an eye-witness of the accident, and Ashiq Nawaz, who was posted as an S. H.
0. Preyed P. S. On the material date. The defendants did not lead any evidence whatsoever, in rebuttal.
' Issues Nos. 1 and 2.-There is ample evidence on the record to prove that Zakaria Noorwala died on 1st November, 1968 while he was walking on the foot-path near the Nallah at Frere Road, Karachi, after having been knocked down by the bus driven by defendant No, 1 at a fast speed, which went out of his control and went over the foot-path after hitting the deceased and dashed against the parapet wall of the Nallah and threw him in the Nallah. The accident was witnessed by Abdul Latif (Exh. 7), who stated as follows "The deceased was going on the foot-path. The bus in question came from Sadder side at such a fast speed, that it went over the foot-path and dashed against the parapet wall of the Nallah hitting the deceased also. The Nallah wall and the deceased fell inside the Nallah."
Nothing adverse to the case of the plaintiffs was brought out in the cross-examination of this witness. Apart from the above evidence the fact that the bus went over the foot-path, hit the deceased while he was walking on the foot-path and dashed against the parapet wall of the Nallah and breaking it establishes that the bus was driven by defendant No, 1 rashly and negligently. The doctrine of res ipsa lacquitur fully applies to the situation. Therefore, I decide both these issues in favour of the plaintiff.
' Issues No, 3.-In support of this issue Mst. Momin Bai, plaintiff No, 1, examined herself (Bah. 6) and produced true copy of the Assessm ent ord (Exh. 6/8) issued by the Income-tax Officer, K-2 Division, Karachi, for th year 1969-70 showing that the total income of the deceased was assessed a Rs, 6,005 as claimed by the plaintiffs. Therefore, I hold that the deceased' was earning about Rs, 500 per month at the time of the accident.
' Issue No, 4.-Mr. Riazul Hassan fairly conceded that the question whether defendant No, 2 informed defendant No, 3 of the accident as required according to the claim of defendant No, 3, under condition No, 1 of the Insurance Policy is not material to the decision of the case as this defense is not available to defendant No, 3 under the provisions of section 96 of the Motor Vehicles Act, 1938 read with the provisions of the West Pakistan Motor Vehicles Ordinance, 1969.
' Issues Nos. 5 & 6.-Since the death of the deceased was caused by defendant 1, due to the rash and negligent driving and defendant No, 2 is the owner of the bus, both are liable to pay compensation to the plaintiffs. The liability of defendant 3 is statutory and is to the extent of Rs, 20,000 ard costs of the suit only.
' The deceased at the time of death was about 39 years of age and was well built and possessed sound health. Therefore, he could be easily expected to live for another 20 years as claimed by the plaintiffs. In Qudsfa Begum v. Younus Khan and 4 others (1) and again in Miss Shamsun Nissan and another v. Karachi Road Transport Corporation and 3 others (2) FakhruddinG. Ebrahim,1. Held the normal expectancy of life to be 60 years and following the same, I hold that the plaintiffs are entitled to compensation on the aforesaid basis. The deceased was spending Rs, 100 on himself and the rest on his family, the plaintiffs would have been entitled to a sum of Rs, 400 per month foi 20 years amounting to Rs, 96,000. However, they have claimed only Rs, 75,000. Therefore, they are entitled to this amount only. I may mention that it has not come in evidence as to what was the value of the stock of medicine left by the deceased. However, the value of stock of medicine if any would be set-off by the consideration that the deceased was not so old and would have earned more in future.
' I, therefore, decree the suit in favour of the plaintiffs against defendants 1 and 2 for Rs, 75,000 with costs of the suit. Out of this amount the liability of the defendant No, 3 shall be for Rs, 20,000 and the costs of the suit. with costs.
(1) PLD 1973 Kar. 636 (2) PLD 1975 Kar. 914