' This is suit for recovery of Rs,8,50,000 filed under the Fatal Accidents Act, 1855 for the benefit of the legal representatives of deceased Muhammad Akbar Khan who died in a traffic accident on 27-6- 1987 within the area of Soldier Bazar Police Station, Karachi East.
2. It is the case of the plaintiffs that their father who was 38 years old, with good health and of simple habits, was working as watchman in Sherazi Plaza, Garden East, Karachi at a salary of Rs,2,000 per month at the time of accident. It is further claimed in the plaint that in addition to the said salary, the deceased was doing extra work for the tenants and shot) owners of Sherazi Plaza, and thus, used to earn a sum of Rs,600 to Rs,800 per month. It is alleged that on 27-6-1987, the deceased father of the plaintiffs namely Muhammad Akbar Khan died as a result of rash and negligent driving by defendant No,3 namely Meeran Khan who was driving a college bus, belonging to defendant No,2, Dow Medical College, Karachi and being jointly owned by the defendant No,1, Government of Sindh. The plaintiffs claimed monetary compensation to the extent of Rs,8,50,000 from the defendants jointly and/or severally as their father died due to actionable wrong, negligence, default and wrongful acts of the defendant No,3 who was servant/employee of defendants Nos.1 and 2.
3. Defendants Nos.1 and 2 have filed their joint statement wherein it is admitted that defendant No,3 was their driver and was in their employment at the time of accident. It was denied that the accident was caused due to rash and negligent acts of defendant No,3. It was denied that the said defendants were in any manner liable to pay any monetary compensation. In their joint statement, they have given a different version of the incident. It is stated that on the relevant date, one side of Nishtar Road was closed and the other side of the same was being used as double carriage. It is alleged that the deceased suddenly came in front of the bus and as a result of collision fell back on the island. In view of such allegation, the act of rashness and negligence has been denied vehemently by defendants Nos.1 and 2. Interestingly, defendant No,3 who was driving the vehicle on the day of incident has put up another story of the accident, in addition to denying the claim of plaintiffs for any monetary compensation and allegations of rash and negligent driving. According to defendant No,3, the deceased, who was trying to cross the road in a negligent manner, was hit by another bus which was passing on the same road and succumbed to the injuries, later in the hospital.
4. As a result of abovementioned pleadings, following four issues were framed by this Court on 28- 5-1989:-- "(1) Whether death of Muhammad Akbar Khan on 27-6-1987 at Nishtar Road Near Pakistan Quarters Bus Stop, within Soldier Bazar Police 'Station, Karachi, was caused by wrongful act, neglect or default by defendant No,3 Meeran Khan in driving Bus No,802-158 rashly and negligently and in dashing the bus against him?
(2) Whether the defendants Nos.1 and 2 being owners of Bus No,802- 158 allowed the same to be driven on 27-6-1987 by its employee driver Meeran Khan so rashly and negligently as to cause death of Muhammad Akbar Khan by wrongful act, neglect or default?
(3) Whether the defendants Nos.1 and 2 are responsible for the acts of their Driver and employee Meeran Khan?
(4) What should the decree be?"
5. In support of their case, plaintiffs have examined P.W.1 Qutbuddin who is a police constable and has produced F.I.R., site sketch/memo. Of incident, motor vehicle accident report, death certificate.
P.W.2 Malik Amanullah Khan son of Noor Muhammad was produced as an eye-witness of the incident and P.W.3 Malik Aman son of Hussain who has filed this suit on behalf of the plaintiffs as their next friend. From the defendants' side, defendant No,3 namely Meeran Khan has examined himself as the only witness of the defendants. Now, I propose to discuss the case issue wise. Issues Nos.1 and 2.
6. Since both the issues are inter-connected, it will be just and convenient to deal with both of them simultaneously. In the pleadings of the defendants, the fact that the accident which occurred on 27-6-1987 on Nishtar Road, near Pakistan Quarters Bus Stop, Karachi, has not been denied.
However, defendants have put up a version different from as alleged in the plaint. It is to be seen that the defendants themselves are not consistent on their respective stories of the alleged incident. It was argued by Mr. Nasir Maqsood that once the accident is admitted by the defendants, the presumption of negligence arises and in the present circumstances where the defendants have set up their own version of accident different from the plaintiff's version, the burden was upon the defendants to prove that the accident took place in a manner as suggested by them. He has placed reliance on the cases Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 others 1995 M LD 633, Anisur Rehman v. Government of Sindh and others 1997 CLC 615, Spin Gul and 2 others v. Ikramul Haq and another 1987 M LD 2402, Khursheeda and 3 others v. Haji Qudrutullah and another 1988 CLC 1062 and Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1987 Kar. 253.
7. Defendants Nos.1 and 2 have not produced any evidence in support of their case. Therefore, their plea that it was deceased who suddenly came before the vehicle in a negligent manner while attempting to cross Nishtar Road cannot be considered as it was not proved. However, defendant No,3 filed his affidavit in evidence and was cross-examined. He narrated another story this time which is even contrary to his own plea taken in his written statement. In his written statement, he has stated that the deceased was hit by another bus while in his affidavit in evidence; he has stated that deceased slipped and fell down on the island. It is further narrated by defendant No,3 that on seeking the deceased, he stopped the bus and helped him to take him to Jinnah Postgraduate Medical Centre where he died as a result of heart failure. He has denied the report of Vehicle Inspector showing dent on the right side of his Vehicle. During his cross-examination, he admitted to have seen the deceased about 10 to 15 steps before the incident when at that time he was driving at a speed of 30 kilometers per hour and admitted that the vehicle was in the third gear. He denied the contents of the written statement of defendants Nos.1 and 2 that at the relevant time he was driving the vehicle in a low speed. He further denied the case of defendants Nos.1 and 2 that the deceased came across the bus while crossing the road. If the evidence of defendant No,3 is seen in the context of the evidence of P.W.2, Malik Amanullah Khan who claims to be an eye-witness of the incident, the story of defendant No,3 pertaining to accident does not appear convincing.
8. The defendants have admitted the fact of accident in their written statements but have advanced different versions. In evidence, defendant No,3, has labelled the version of defendants Nos.1 and 2 as set up in their written statement to be incorrect. This defendant went up to the extent of denying his own case stated in the written statement by claiming that in fact no accident took place and that without any reason, the deceased fell down and subsequently died in hospital as a result of heart failure. No documents were summoned from Jinnah Postgraduate Medical Centre Karachi to substantiate this allegation. In the present circumstances, burden was upon the defendants to prove their version of accident which they have failed to discharge. In the case of Mrs. Gul Bano and 4 others v. Muhammad Ramzan and another 1982 CLC 1120 at 1122 it was held that where the defendant in his pleadings had taken the plea that the deceased was not hit by his car but by another car and was thrown on his car bonnet, the burden was upon such defendant to prove his version of the accident. Same view was reiterated by the same Judge of this Court, Saleem Akhtar, J. (as his lordship then was) in the case Mst. Zebunnisa and others v. Sindh Road Transport Corporation and another 1982 CLC 1228. In the case of Messrs Hayat Services (Pakistan)
Ltd. v. Kandan 1989 CLC 2153 at 2156, it, was held by a Division Bench of this Court, "No doubt the initial burden is upon the person alleging the accident and death to prove it and once he discharged this burden it shifts to the other side. But where death or the incident is not denied but different version of the incident causing death is stated then if such allegations constitute facts which are exclusively within the knowledge and possession of the defendant then even if the version alleged by the plaintiff is found to be weak or incorrect, the defendant is bound to prove his averment".
9. As a result of the above discussion and after scrutinizing in detail the evidence recorded in this case, I am of the considered view that deceased Muhammad Akbar Khan died as a result of wrongful act, negligence and default committed by defendant No,3. It has not been denied by defendants Nos.1 and 2 that defendant No,3 was not in their employment and that he was not performing his official duties on the date of accident.
10. From the pleadings of the defendants, at the most it could be deduced that they have also pleaded contributory negligence on the part of deceased Muhammad Akbar Khan. According to defendants Nos.1 and 2, it was the deceased who in a reckless and negligent manner suddenly came in front of the bus being driven by defendant No,3. Again, the burden was upon the defendants to prove the factum of contributory negligence which they have miserably failed to discharge. I am fortified in my view by the cases Federation of Pakistan and another v. Hafiza Malika Khatoon Begum and others 1996 SCM R 406 and Qazi Arifuddin and another v. Government of Sindh and 2 others PLD 1991 Kar.
291.
Issue No,3.
11. Under Issues Nos.1 and 2, I have already discussed and upheld that the deceased died due to rash and negligent driving by defendant No,3. None of the defendants have denied that Meeran Khan was neither their employee nor that defendants Nos.1 and 2 are not responsible for his acts. In absence of any pleadings in this behalf and for lack of evidence on the part of defendant, I am inclined to answer this issue in affirmative.
Issue No,4.
12. It is not denied that the deceased was 38 years of age. None of the defendants have denied or even suggested that the deceased was not having good and sound health. In such circumstances, I am inclined to hold that the deceased would have lived for 70 years and, therefore, the plaintiffs who are his sons and daughters were deprived for monetary benefits for 32 years. On the point of normal expectancy of life in Pakistan, reference is made to the cases Pakistan Steel Mills Corp. Ltd.
And another v. Malik Abdul Habib and another 1993 SCM R 848, Mst. Bibi Sooraj Jehan v. Mir Azam PLD 1993 Kar. 168, S. Iqbal Hussain v. K.E.S.C. 1994 CLC 1903, Shadman v. K.T.C. 1995 CLC 1714 and Gul Khan v. K.T.C. And another 1997 CLC 932.
13. I, therefore, assess the damages in the following manner:--
(a) Deceased was earning a sum of Rs,2,000 as Chowkidar and Rs,600 as part time worker which comes to Rs,2,600 per month. Therefore, his annual income is assessed atRs,31,200
(b) The income of the deceased for his remaining lifetime i,e, 32 years comes toRs,998,400
(c) 20% increment is granted on the aggregate amount to offset the effect of inflation and to include other benefitsRs,199,680
(d) Total gross income for 32 years Rs,1,198,080
(e) Less 1/6th from the total income on account of personal expenses of the deceasedRs,1,99,680
(f) Balance Rs,9,98,400
14. In this suit, all the plaintiffs are the children of deceased who were aged from 2 years to 13 years at the time of accident. Although, in evidence the plaintiffs have claimed more than the decretal amount but in the prayer clause an amount of Rs,8,50,000 was prayed for alongwith 15% interest from the date of suit till realisation. Since the legal representatives of the deceased were all minors at the time of the said tragic accident, I decree this suit in the sum of Rs,10,00,000 with 14% interest per annum from the date of suit till realisation. The defendants are directed to satisfy the decree within a period of two months hereinafter.