By this judgment I intent to dispose of the Suit bearing No.135 of 1991 filed by Muhammad Usman against Muhammad Iqbal and others.
2. The suit was filed for the recovery of Rs.5,23,590 under the provision of Fatal Accidents Act, 1855 , by the plaintiff, father of the deceased Younus who died on 6-8-1990 within the area and jurisdiction of Gulberg Police Station in the road accident.
3. That the deceased Younus was aged 21 years at the time of the accident and left behind the following statutory beneficiaries entitled for compensation under the provisions of Fatal Accidents Act, 1855:-- S.No. Name Relation Age at the time of accident I. Muhammad UsmanFather 49 years II. Khatija Mother (deid during the pendency of suits)40 years
4. The suit was filed by the plaintiff in a representative capacity under section 1 of Fatal Accidents Act for his own as well as for the benefit of his wife Mst. Khatija and the interests of the plaintiff and Mst. Khatija are common. The defendants Nos. 1 and 2 filed their respective written statements.
5. The following facts are admitted: (a)The ownership of Bus No.860-936/934 by the defendant No.1 (b)The driving of the abovementioned bus by the defendant No.2 during the course of employment of defendant No. l on 6-8-1990.
(c)The factum of the accident.
(d)The death of the deceased in the traffic accident (e)The defendants proceeded to give their own version of the accident without specifically denying the case of the plaintiff pertaining to the rash and negligent driving of the defendant No.2 resulting into death of the deceased Younus and stated that the deceased was lying injured after being hit/struck by some unknown vehicle and he was taken by the defendant No. .2 on humanitarian ground to the hospital.
6.On the basis of above pleadings and controversies the following issues were framed by Court on 2-5-1993: '
ISSUES (i)Whether the death of the deceased Muhammad Younus was caused on account of rash and negligent driving of the defendant No.2, while driving the Mazda Bus B.860-936/934 of the defendacit No.1 during his course of employment on 6-8-1990, if so, what is its effect?
(ii)Whether the plaintiff and other legal heirs are entitled to compensation/damages from the defendants outly and severally, if so, to what extent?
7. That by order of the Court Commissioner was appointed for recording the evidence who thereafter submitted his report. The evidence was recorded but the defendants neither filed any affidavit-in-evidence nor cross--examined the plaintiffs' witnesses in spite of repeated notices.
Commissioner's Report was taken on record and matter was fixed for final arguments.
8.The plaintiff examined the following witnesses:-- P.W.1. Muhammad Usman who produced the following documents:-- Exh.P/I. Identity card of Muhammad Usman (father of the deceased).
Exh.P/2. Identity card of Mst. Khatija Bai mother of the deceased.
Exh.P/3. Death certificate.
Exh.P/4. Identity Card of deceased Exh.P/5. Certified copy of charge-sheet.
Exh.P/6. Certified copy of F .I:R. No.358 of 1990 of Gulberg Police Station dated 6-8-1990.
Exh.P/7. Certificate of Insurance P.W.2. Ejaz Ahmad.
9.Heard the counsel for the plaintiff. None appeared for the defendants. The issue wise finding is as under:
10. Issue No. 1.--The case of the plaintiff is that the defendant No. l was the owner of the Mazda bus bearing No.860-936/934 (Route W-11) and the defendant No.2 was the driver of the said Mazda bus and was performing the duties on 6-8-1990 as driver of the defendant No. l during his course of employment. The defendant No.3 was the Insurance Company with whom the said Mazda bus was insured for covering third party risk. The facts as to the ownership, driving by the defendant No.2 and the third party insurance of the Vehicle No.806-936/934 have not been denied by the defendants. The defendants also admitted the accidental death of the deceased but proceeded to say that the deceased was hit by some unknown vehicle and he was taken by defendant No.2 on humanitarian ground to the hospital. By admitting the aforesaid facts the burden is shifted on the defendant to-prove their assertion. The plaintiff has reiterated in his affidavit-in-evidence the allegations of rash and negligent driving by the defendant No.2 which resulted into the death of Muhammad Younus; and also relied upon the F.I.R. bearing No.358 of 1990, charge-sheet and death certificate in support of his case. As observed above the defendants did not cross-examine the plaintiff and so the allegations made by the plaintiff remained unrebutted. Besides the plaintiff, an eye-witness namely Ejaz Ahmed was also examined who inter alia, categorically stated in paras. 2, 3, 4 and 5 of his affidavit-in-evidence that:-- "2. That I say that I was travelling in Mini Bus No.860-936/934 (route W-11) on 6th August, 1990 for going to Federal 'B' Area. Rashid Minhas Road. The Mini Bus was being driven by the driver Islamuddin while a young boy Muhammad Younus aged 20/21 years' was performing the job of a conductor on the said Mini Bus.
3.That I saw that the conductor Muhammad Younus was standing at the front gate while performing his duties and as such when the mini bus was passing through Rashid Minhas Road to the F.B. Area -when reached opposite Edhi Homes, the defendant No.2 (Islamuddin) drove the mini bus in a rash and negligent manner in an excessively high speed and suddenly and abruptly applied the 'frequent brakes with harsh jolt and jerking and I say that as a result of this negligent operation of the' mini bus, the conductor Muhammad Younus fell. down from the front gate on the road. The driver of the mini bus (Islamuddin) defendant No.2 instead of stopping the mini bus after falling of Muhammad Younus accelerated the speed absolutely unmindful of the lying down of Muhammad Younus though the passengers including me shouted and asked. him to stop the mini bus. Consequently, Muhammad Younus was crushed under the rear wheels of the mini bus and owing to rash speed of the mini bus the defendant Ne.2 could manage to control the same after passage of quite a good distance.
4. That in the meantime all the passengers got down and many people gathered around the spot and' found the victim Muhammad Younus in a critical state and compelled the driver Islamuddin to take him to the hospital. Accordingly I alongwith few other passengers accompanied him in the Edhi Ambulance. That the driver Islamuddin instead of taking the victim Muhammad Younus to nearest Abbasi Hospital managed to take the victim in a critical state to the house of defendant No. l (owner of bus) situated at M.A.. Jinnah Road and then after wasting much time took him to Jinnah Hospital but on the way to the hospital the deceased Muhammad Younus succumbed to the fatal injures on account of excessive bleeding caused to him in the said accident and died.
5. That I say that the death of the deceased Muhammad Younus was caused on account of rash and negligent driving on the part of defendant No.2 driver of the mini bus and as well as on the part of the defendant No. l owner of the mini bus. "
11. The evidence of this witness also remained unrebutted and there is no reason as to why he should not be believed. The cases of Mst. Noor Jehan through L.Rs. v. Syed Mujtaba Ali Naqvi 1991 SCMR.2300 Headnote (b), Dr. Aziza and 5 others v. Muhammad Sarwar and others 1997 MLD 2013; Mst. Maryam Mirza v. M.M. Qazi and 2 others 1998 MLD 1656; Syed Akhtar Hussain Zaidi v.
Muhammad Yaqinuddin 1988 SCMR 753 are A referred. The plaintiff has made a statement on oath which has not been contradicted on oath by the defendant, and therefore, the statement of the plaintiff is to be relied upon. The case of Zakaullah Khan v. Muhammad Aslam and others 1991 SCMR 2126 is referred. As observed the defendants have not led any evidence in support of their version in the written statement and it is a cardinal principle of law that the plea raised in the written statement would have no effect in absence of evidence in proof of the same. The averments in the pleadings has to be proved through the evidence otherwise the same cannot be treated as evidence. The cases of Muhammad Noor Alam v. Zair Hussain and 3 others 1998 MLD 1122; Messrs United Bank Ltd. v. Messrs Bombay Frontier Old Tyre Co. 1986- MLD 1613; Maryam Mirza v.
M.M. Kazi -1988 MLD 1651; M/s. United Bank Ltd. v. M/s. Interior Decoration and Design Association 1983 CLC 244, Mst. Khairul Nisa and 6 others v. Malik Muhammad Ishaque and others PLD 1972 SC 25; Muhammad Khan v. Mst. Hajiran Khatoon 1984 CLC 3172; Punjab Road Transport Board v. M.
Muhammad Sadiq 1987 CLC 933,; Qadri Brothers Foundry and Workshop v. Mst. Safia 1988 CLC 2063 and Chaman Baig v. K.T.C. 1995 CLC 1714 are referred.
12. The upshot of the above discussion is that since the witness namely Ejaz Ahmed, an eye-witness of the accident, who was examined by the plaintiff to prove the factum of rash and negligent driving by defendant No.2 leading to the death of the deceased was not cross-examined by the defendant, thus his statement remained unrebutted and stands proved as held in the case-law referred in the preceding paras. Thus, the conclusion which can be derived from the analysis of case-laws in this regard is that the omission to cross-examine on the material aspect of the evidence lead to the conclusion that the defendants have admitted the veracity and truth of the said statement. In such circumstances, the statement of P.W.2 on the material point of rash and negligent driving would be deemed .to have been proved and would be relied upon by the Court.
13. In the instant case, the defendants have not examined the driver; the defendant No.2 who could have been the best evidence in the circumstances Io the case to rebut the allegation of rash and negligent driving. But the defendants did not examine any witness to controvert -the version of the accident advanced by, the plaintiff and as such the case of the plaintiff remained uncontroverted and unrebutted. Thus, in view of the above circumstances the issue of negligence stands proved against the defendant No.2 and saddles the defendant No. 1 with, the vicarious liability for the wrongful act of the defendant No.2 in causing the fatal accident resulting into death of deceased Muhammad Younus, the son of the plaintiff. Since the plaintiff has claimed damages/compensation jointly and severally against the defendants, there is nothing on record to exonerate them from liability, and thus, the defendants are liable jointly and severally for the wrongful death of Muhammad Younus except .the defendant No.3; whose statutory liability is confined to Rs.20,000 only.
14. Issue No.2.--The plaintiff has claimed a sum of Rs.504,000 being the loss of pecuniary benefits for 20 years at the rate of Rs.2,100 per month which is said to be the earning capacity of the deceased Muhammad Younus at the time of the accident. The plaintiff in his affidavit-in-evidence has specifically stated that the deceased was contributing at the rate of Rs.70 per day i.e. Rs.2,100 per month for the maintenance of the legal heirs and on that basis the loss of earning per year was calculated to Rs.25,200. This statement was not challenged and questioned as no cross- examination was done by the defendant. The said loss of earning per month and the amount of compensation claimed at Rs.504,000 on that basis appears to be reasonable and fair. In view of the above the suit is liable to be decreed for a sum of R~.504,000 against the defendants jointly and severally with cost and interest at the rate of 14 % per annum from the date of filing of suit till its realisation except the liability of defendant No.3 which will be limited to Rs.20,000. Since it has been pointed out that the mother of the deceased Mst. Khatija died during the pendency of the suit, the decretal amount will be awarded to sole surviving legal heir i.e. Muhammad Usman the plaintiff and in support thereof the case of Punjab Road Transport Board v. Abdul Wahid Usmani and others PLD 1980 Lahore 584 is referred. The suit is decreed in terms of the above.