' This is a suit for recovery of Rs,8,,00010 as damages filed under the Fatal Accidents Act, 1855 (hereinafter referred to as the Act, 1855). The plaintiff is the real mother of deceased Mubarak Hussain son of Ghulam Hyder who died on 25-4-1987 at about 7.00 p.m. In Civil Hospital, Karachi as a result of accident near S.S. Motor Cycle Works, Ruby Cinema Road, Baldia Town, Karachi. The accident as alleged in the plaint occurred due to the crashing of truck bearing No, GS-2354 belonging to defendant No, 1, into the garage as mentioned above causing multiple injuries to the deceased who succumbed to such injuries and died in the hospital.
2. On 5-3-1989 defendant No, 1 was declared ex parte by this Court. Defendant No,2 filed his written statement where the fact of alleged accident has not been denied but it was claimed that the deceased died due to his own negligence. It was also admitted that defendant No, 1, namely, K.M.C.
Was the lawful owner of vehicle which was being driven by defendant No,
2. It was also denied that the said truck was being rashly and negligently driven by the defendant No,2. The reason given for such accident by defendant No, 2 was that the deceased was coming from the side of Gulshan-e- Ghazi on Katcha Road in fast speed on his motor-cycle bearing registration No, KAC-4332 and was not able to control the same as a result of which he hit the truck on its back wheel. It is further claimed in the written statement that the instant suit was filed on the instigation of one Muhammad Iqbal Butt and that the defendant No,2 had paid a sum of Rs, 15,000 as compensation on the intervention of the area people. In consequence of above pleadings, on 28-5-1989, following issues were framed:--
(i) Whether the deceased was driving Motorcycle in a fast speed and hit the truck on its back wheel and received injuries causing his death?
(ii) Whether the defendant No, 1 is the owner of the truck bearing No, GS-3254?
(iii) Whether the deceased died due to negligence and rash driving of the vehicle by defendant No, 2 ?
(iv) What should the decree be ?
3. In support of her case, the plaintiff has examined herself as Exth. 4, P.W. 2 Tariq Mehmood Qamar as Exh.5. P.W.3 Muhammad Younus as Exh. 6, Muhammad Tabassum Farooq as Exh. 7 and Muhammad lqbal Butt as Exh.
8. On 16-11-1995 plaintiff closed her side whereafter defendants were required to produce their evidence. But they failed to produce witnesses till 18-3-1996 when their side of evidence was closed. I have heard Mr. Abdul Sattar Mughal for the plaintiff and with his assistance, I have also perused the entire evidence. After 16-11-1995 Mr. Gul Zaman Khan has not appeared neither he sought discharge of his Vakalatnama. This Court is left with no option but to proceed with the case.
My findings on the above issues are as follows:- ISSUE NO. 1:
4. The burden to prove this issue lies on defendant No,2 as it was he who has alleged in his written statement that the deceased died as result of accident which occurred due to his negligence while driving his motorcycle in high speed and by hitting the truck from its back side. On the other hand, plaintiffs three witnesses who claimed themselves to be present on the spot when the said accident occurred have denied the version of the defendant No,2. PW.3 namely, Muhammad Younas stated that he was present at the garage and was: getting his motorcycle repaired when one vehicle belonging to K.M.C. Carrying garbage while coming from the side of Saeedabad, went out of control and dashed into the garage as a result of which deceased Mubarak was crushed under its front wheels. In cross-examination which was conducted by the counsel for defendant No,2, no suggestion was put to this witness that the deceased was driving a motorcycle and had hit the truck on its back side. The other witness P.W.4 Muhammad Tabassum Farooq stated that he was driving a cycle on the main road of Nai Abadi, Saeedabad near Ruby Cinema, Baldia Town, Karachi; and that the said truck after hitting him rammed into the garage as a result of which deceased was crushed by the front wheels of the said truck. Again, no suggestion was put to this witness suggesting that the accident took place in a manner as stated in the written statement of defendant No,
2. The evidence of PW. 5 Iqbal Butt is also to the same extent. This witness is owner of the said workshop where deceased Mubarak used to work. PW.5 has also disclosed the same fact as of earlier witnesses that the truck bearing No, GS-3254 dashed into his garage as a result of which deceased was crushed by the front wheels. No effective cross examination was conducted by the defendants in order to shake the evidence of these three witnesses. In my considered view defendants have failed to discharge this burden Accordingly, I hold that deceased Mubarak Ali son of Ghulam Hyder died at the time when he was repairing a motorcycle at the garage, namely, S.S. Motor Cycle Works situated at Ruby Cinema Road, Nai Abadi, Baldia Town, Karachi.
ISSUE NO.2:
5. Since defendant No, 1 was declared ex parte, no evidence was led on this point. However, defendant No,2 in para 2 of his written statement admitted that K.M.C. Is the lawful owner of the vehicle bearing registration No, GS-3254. Accordingly, this issue is answered in affirmative.
ISSUE NO. 3:
6. It is not denied that deceased Mubarak Ali died an unnatural death. The case of defendant No,2 was that he died as a result of negligence on his own part inasmuch as while riding a motorcycle bearing No, KAC-4332, the deceased crashed into the truck from back side and died as a result of such accident. The plaintiff has produced convincing and reliable evidence to the extent that the defendant No,2 while driving the said truck ran into the garage which is situated on road side and which resulted in an accident. The burden to prove that it is a case of contributory negligence, the defendants were required to show that upto what extent deceased has contributed in commission of alleged negligence. Since the defendants have failed to lead any evidence, I am satisfied from the evidence of the plaintiff that the deceased died due to negligent and wrongful acts of the defendants. Accordingly, Issue No,3 is also answered in affirmative:-- ISSUE NO.4: ' It has come in the evidence that at the time of death deceased was of the age of 20 years and was earning approximately Rs, 1500 per month in addition to Rs, 10 to 15.Per day as 'Karachi'. All the five witnesses of the plaintiff have supported this version. The defendant No, 2 has denied income of the deceased and has made several suggestions to these witnesses that the deceased was not earning the said amount. No other witness was produced by the defendants in rebuttal to the evidence of all these five witnesses who were consistent on the point that the earning of plaintiff was around Rs, 1500 per month in the year c 1987. I do not see any other compelling reason not to accept this fact of earning of deceased. Accordingly, it is held that the deceased was earning Rs, 2000 per month. It is not denied that the only person entitled to the pecuniary compensation is the plaintiff who at the time of filing of suit was of 50 years of age. Taking maximum age limit it could be expected that she may live upto the age of 70 years. Therefore, she is entitled to compensation for a period of 20 years. The plaintiff would also be entitled to 20% on the aggregate income of these 20 years as increase in his income as well as inflationary charges. Likewise, 1/3 is to be deducted from the total earnings of the deceased as his personal expenses (as he died unmarried) under the following calculations: ' Expected earning of deceased per annum. Rs,24,000/- ' His earning for 20 years. Rs,4, 80,000 ' 20% expected use in his income. Rs, 96,000 ' Deduction of 1/3 amount. Rs,5,76,000 Rs,1,92,000 Rs, 3, 84, 000 ' The plaintiff is thus entitled to a sum of Rs, 3,84,000.
8. Accordingly, suit stands decreed in the above terms with cost and 12% interest on the decrial amount from the date of suit till realization.