' This is a suit filed by the widow of deceased Hasan Ali for recovery of Rs,10,00,000 under the Fatal Accidents Act, 1855, for herself as well as on behalf of deceased's two daughters and one son.
2 . Brief facts as stated in the plaint are that deceased Hasan Ali aged 40 years died on 11-2-1988 as a result of traffic accident near Suleman Plaza, Rashid Minhas Road, Karachi, East; that at the relevant time deceased Hasan Ali was driving a motorcycle bearing No,KAA-6095 while defendant No,2, namely, Sardar, was driving Bus No,844-036 which belongs to defendant No,1; that the deceased at the time of his death was healthy having simple habits and was earning Rs,3,500 to Rs,4,500 per month; that it was expected that the income of the deceased may have increased as he was doing some additional work as well; that the deceased died due to actionable wrong, negligence, default and the wrongful acts of defendants Nos.1 and 2 for which they are liable to pay the compensation to the plaintiff as well as to the dependents/legal heirs of the deceased as mentioned in para. 1 of the plaint. In these circumstances, plaintiff has prayed for the following reliefs: "(a) A decree in the sum of Rs,10,00,000 against the defendants who are liable jointly and severally to pay the said sum to the plaintiff on account of damages/compensation.
(b) Interest at the rate of 15% per annum on the amount claimed in clause (a) above from the date of the filing of the suit till realisation of the decretal amount be awarded.
(c) Cost of the suit may be awarded to the plaintiff.
(d) Any other relief or reliefs that this Honourable Court may deem just and proper under the circumstances of the case be granted."
3. Defendants Nos.1 and 2 have filed joint written statement through which fact of accident was admitted but the allegation that the said accident was result of any negligence or wrongful acts of the defendants 1 and 2 were vehemently denied. It was further denied that the defendant No,2 was driving the said bus rashly and negligently and due to such negligence, the deceased, as named above, was crushed under the back wheels of the said bus. The earning capacity and the nature of health of the deceased were also denied. Defendant No,3, namely, National Insurance Corporation, also filed its written statement denying every averment of the plaint. However, without prejudice to its contents, the defendant No,3 admitted its liability upto the extent of Rs,20,000.
4. As a result of the above pleadings, on 14-5-1998 following issues were adopted by consent of the parties (Exh.5).
"(1) Whether the suit is bad for non-joinder/misjoinder of parties?
(2) Whether the accident was caused due to negligence, default or wrongful act of defendant No,2.?
(3) What was the earning capacity and expectancy of age of the deceased?
(4) Whether due to death of the deceased the plaintiff and the surviving dependents have been deprived of any pecuniary benefit. If so, to what extent?
(5) Whether the plaintiff and other claimants are entitled to the amount claimed. If so, to what extent with interest and cost?
(6) What should the decree be and against whom?"
5. In support of her case, plaintiff has examined herself as P.W.2 (Exh.7) and other witnesses, namely. P.W.1, Muhammad Javed (Exh.6), P.W.3, Rajab All (Exh.8), P.W.4, Hakim Khan (Exh.9) and P.W.5, Ashiq Ali (Exh.10). Defendants Nos.1 and 2 have examined defendant No,2, Sardar Ahmed as D.W.1, Muhammad Sharif as D.W.2 and Shaikh Ahmed as D.W.3. I have heard Mr. Nasir Maqsood, Advocate for the plaintiff and Mr. Akhlaq Ahmed Siddiqi, Advocate for defendants Nos.1 and 2. I have also perused the written arguments filed by both the learned counsel. My findings on the above issues are as follows. Issue No,1:
6. To prove this issue the burden lies on the defendants. Nowhere in the joint written statement, filed, by the defendants 1 and 2, it is claimed that in addition to the defendants already arrayed by the plaintiff there, were any other necessary or proper parties which were not impleaded in the suit.
Even in the written statement filed by the defendant No,3 no such claim was raised. I have also gone through the cross examination of the plaintiff as well as affidavits in evidence filed on behalf of the defendants which are silent on this aspect. None of the parties have argued on the point what is the effect of non-joinder of the necessary parties and its consequences as provided under Order 1, Rule 9, C.P.O. As a result, I hold that the defendants have failed to discharge their burden,
7. The fact of the accident is admitted by all the parties, The case of the plaintiff, is that the deceased died due to wrongful and negligent acts of the defendants 1 and 2 while the case of defendants 1 and 2 is that the deceased came from left side of the street in high speed and while crossing the speed breaker lost control and slipped down under the rear wheels of the bus which resulted in his death. None of the witnesses examined by the parties have seen the accident by their own eyes. The driver, D.W.2, has stated in his affidavit in evidence that after dropping some of the staff members near Suleman Plaza he proceeded towards his next destination when he heard some people on the road who shouted to stop the bus which was done accordingly by him; that after getting down from the bus he saw a motorcychst under the rear wheels of the bus. The same fact was narrated by D.W.2, Muhammad Sharif, who on the relevant day was travelling in the said bus. P.W.4 Hakim and P.W.S. Ashiq Ali belong to traffic police and have visited the place of accident after receiving information about the accident. P.W.1, Muhammad Javed, who at the relevant time was in Shahra-e-Faisal Police Station has produced copies of F.I.R. As Exh.6/1, Site- Sketch Plan as Exh.6/2, Motor Vehicle Accident Report as Exh.6/3 and some other documents. The defendants have not challenged contents of these documents, namely, Exhs.6/2, and 6/3. According to Exh.6/3 which is a motor vehicle accident report prepared by the Motor Vehicle Inspector shows that the mechanical condition of the bus was found unfit. This was the condition prior to accident while after accident it was found that the major part of the bus was burnt out, probably as a result of agitation. However, in the said report it was shown that the front bumper of the bus was also found dented. There is no explanation from the defendants' side as to how this dent occurred on the front bumper. No damage was found on either side of the bus or in its rear portion.
8. According to Exh.6/2, which is a site sketch plan of the accident and the contents of which have not been denied by the defendants, shows that the accident occurred after the bus had taken a turn from main Rashid Minhas Road towards left. According to this map, accident occurred before the crossing and the deceased and his motorcycle were dragged by the bus for more than 15-20 paces and even after turning the bus. The place of accident as pointed out in this sketch does not show that there was any possibility that the deceased may have come in high speed from some side lane. No side road or any lane has been shown in the sketch. Any presumption which could be drawn from this sketch and D.W.2's evidence is that the bus may have crushed the deceased while taking a sudden turn on the left without giving any prior indication. It was strenuously argued by Mr. Akhlaq Ahmed Siddiqi that since the plaintiff has failed to prove wrongful act, carelessness and negligence of the defendant No,2 the suit is liable to be dismissed. It was further contended on behalf of the defendants that the doctrine of res "ipsa lqultur" is not attracted,
9. It was argued by M. Nasir Maqsood that once the factum of accident Is admitted, the presumption of negligence arises and moreso when the defendant gives his, own version of the said accident, thus, making himself liable to prove the manner of accident pleaded by him. He has strenuously pleaded that the doctrine of "res ipsa lquitur" is fully attracted in the circumstances of this case. He has placed reliance on the cases Qazi Arifuddin and another v. Government of Sindh and others PLD 1991 Kar. 291, Messrs Hayat Services (Pakistan) Limited v. Kandan 1989 CLC 2153 and Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Hasib and another 1993 SCM R
848. In the case of Qazi Arifuddin (supra) the principle of the doctrine res ipsa loquitur was defined in detail and that it is sufficient for the plaintiff to prove accident whereafter a presumption of negligence arises and the onus then is shifted on the defendants to show that the accident could not be avoided at any cost. This view was approved by a Full Bench of Honourable Supreme Court in the case of Malik Abdul Hasib (supra). This doctrine was also followed by a Division Bench of this Court in the case Messrs Hayat Services (Pakistan) Limited (supra) where it was held that maxim res ipsa loquitur is a rule of evidence which is applied where although the offending act is proved the cause of the negligence cannot be established by the plaintiff due to non-accessibility to such evidence or because such evidence is exclusively within the knowledge of the defendant.
Reference was made to the cases Bhurmal and Mitra Motor Association v. Raghunath Bansilal Kasat AIR 1963 Bom. 144, Halsbury's Laws of England and Parkway v. South Wales Transport Company Limited (1950) 1 ALL ER 292.
10. In the case of Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1997 Kar. 253 a similar plea as of the instant case was raised that the deceased of the reported case who was driving motorcycle hit the bus of K.T.C. From behind. After examining the motor vehicle inspector's report, it was held that the deceased was on the left side of the bus when the accident occurred. In those circumstances, it was held that since the defendant No,2 was driving a heavy vehicle, that is a bus, he should have adopted all care and caution as between a driver of light vehicle and a driver of a heavy vehicle as of bus, the latter's responsibility is greater (if any further reference is needed see General Manager, Banglore Transport. Services V.N. Narasima Halah and others AIR 1977 Karnatka 6, Mst. Qaiser Jehan and 3 others v. Pakistan 1985 M LD 255, Ehsan Ali v. K.R.T.C. PLD 1968 Kar.
460. In the circumstances of this case and as a result of the above discussion it is held that the deceased Hasan Ali died due to negligence, default and wrongful acts of the defendant No,2 Issue No,3:
11. To prove this issue, plaintiff has examined herself and P.W.3, Rajab Ali, who is younger brother of deceased Hasan Ali. According to plaintiff, the deceased was selling ring, ({{URDU TEXT}}), chips, ({{URDU TEXT}}), Paper ({{URDU TEXT}}), Achar ({{URDU TEXT}} ) and beetle-nuts ( in the area of Boulton Market, Karachi and used to earn between Rs,5,000 to Rs,6,000 per month. She has further claimed that as a result of accident, the motorcycle belonging to her deceased husband was damaged and she has incurred a loss of Rs,15,000 and that she has spent a sum of Rs,3,500 as funeral expenses. In cross-examination she has reiterated the same facts as of her examination in chief and clarified that before the death of her husband, their daughters Rozina and Robina and their only son Karim were going to school but after death of Hasan Ali, they are not going to school.
According to evidence of Rajab Ali, his 'elder brother deceased Hasan Ali was earning approximately Rs,6,000 per month and at the time of his death he was living in Karimabad Colony, Karachi. Nothing else was brought out from his cross-examination. In para. 6 of the plaint, it was claimed by the plaintiff that at the time of death of her husband he was earning approximately Rs,3,500 to Rs,4,500 per month but this amount was enhanced to Rs,5,000 to Rs,6,000 per month at the stage of evidence. No explanation was offered by the plaintiff to such deviation from the pleadings. Since the defendants were not able to challenge the monthly income of the deceased as claimed in the plaint it is held that the deceased was earning Rs,4,500 per month and that his annual income was around Rs,54,000.
12. In so far as the age of the deceased is concerned it is claimed in para. 1 of the plaint that deceased was of 40 years of age which was not denied by any of the defendants in their respective written statements. Likewise, plaintiff in her evidence had also stated that her husband was of 40 years old. No question was put to the plaintiff during her cross-examination suggesting that it is not correct. In view of this admitted position. I am inclined to hold that the deceased was about 40 years of age at the time of the said accident.
Issues Nos.3 and 4:
13. I intend to deal with these issues jointly as these involve question of pecuniary loss suffered by the plaintiff and other legal representatives of the deceased and their entitlement. It has come on record that other than the plaintiff and the other legal representatives as mentioned in the plaint there is no other representative of the deceased and that the deceased was earning around Rs,4,500 per month. As a result of death of Hasan Ali, all the four persons have suffered pecuniary loss and are entitled to be compensited by the defendants 1 and 2. As far as reasonable expectancy of life of the deceased is concerned, previously it was taken at the age of 65 years see Mrs. Asima Ibrahim v. Sindh Road Transport Corporation PLD 1962 Kar: 236 and the case of .Arifuddin (supra). However, in the case of Syed Afzal Hussain (supra) it was held by me that the age was determined as 70 years. Keeping in view different views, I hold that the expectancy of deceased's life to be upto 65 years. Thus, he should have lived for next 25 years. Thus , the plaintiff and other claimants were deprived of the deceased's earning for a period of 25 years approximately which comes to Rs,13,50,000. After deducting 1/3rd as expenses to be incurred by the deceased on his person Rs,4,50,000 the remaining amount for which the plaintiff and other claimants are entitled comes to Rs,9,00,000. Following the rule laid down in the case of Syed Afzal Hussain (supra) and S. Iqbal Hussain Jafferi v. K.E.S.C. 1994 CLC 1903 20% increase is granted over and above of the above amount in order to meet the inflationary trends and expected increase in the earning of deceased which comes to Rs,2,76,000. Thus, the plaintiff and the other legal representatives of the deceased Hasan Ali are entitled to a total sum of Rs,11,76,000 with interest thereon at the rate of 12% per annum from the date of suit till realization as well as with cost.
Issue No,6.
14. In view of the above discussion, the decree is passed against the defendants Nos.1 and 2 jointly for the above amount and for Rs,20,000 against defendant No,3.