RASHEED AHMED RAZVI,. J.--- This is a suit under Section 1 of the Fatal Accidents Act, 1855 for the recovery of Rs.8,00,000 by the plaintiff, who is the mother of the deceased Abdul Shakeel, who died as a result of a traffic accident on 7th June, 1987.
2. Initially this suit was field by Abdul Majeed, father of the deceased, on his own behalf as well as on behalf of his wife and mother of the deceased (now the plaintiff). But subsequently, the original plaintiff, Abdul Majeed, died and the mother of the deceased was brought on record as the only plaintift.
3. The case of the plaintiff is that their son, Abdul Shakeel, who at the relevant time, was 19 years old, died, on 7th June, 1987 while travelling on Bus No 834-822. It is further the case of the plaintiff that another Bus No 865-891, which was being driven by defendant No 2 and which belonged to defendant No 3 crashed into the bus in which the deceased was travelling and the *impact of such crash was so high that the deceased, who was travelling on the foot board of the first mentioned bus, lost control and fell down and sustained injuries. Subsequently, he succumbed to his injuries.
The plaintiff has claimed that the death of the deceased was caused by the actionable wrong, negligence default and wrongful act of the defendant No 2 who is employee of defendant No 1 and therefore both are liable to pay monetary compensation/damages to the plaintiff as they have been deprived of the benefits from the life of their son. During the pendency of the suit, the defendant No 1 went into liquidation and subsequently, through, an agreement executed between the defendant No. 1 and defendant No 3, namely, the Government of Sindh, the former was taken into control and management by the Latter: In such circumstances, defendant No 3, vide order, dated .24th April, 1998, was impleaded as defendant No. 3,
4. As a result of the pleadings of the parties the following issues were framed:-
(1) Whether the suit is male fide as detailed in the Preliminary Objectlon?
(2) Whether the suit is maintainable?
(3) Whether the plaintiffs are the dependants/legal heirs of the deceased?
(4) Whether any accident was caused by Bus No. 865-891 or deceased himself was responsible for his death?
(5) Whether the defendant No. 1 was the owner of the Bus No. 865-891 and the defendant No. 2 was the driver/employee of defendant No. 1 at the relevant time of accident and was negligent?
(6) Whether deceased died due to the accident as alleged and defendants are liable to pay compensation/damages to the plaintiff's claim, jointly and severally?
(7) Whether the defendant No. 3 has taken over the liabilities of defendant No. 1 and is liable to pay the compensation to the plaintiff and other statutory beneficiaries by virtue of Clause '4(K) of the Memorandum of the 'Agreement, dated 13.3.1997 entered into, inter al I a, between defendant No. 1 and defendant No. 3, if so, to what extent?
(8) What relief or reliefs plaintiffs are entitled to?
(9) Whether the plaintiff is entitled to cost as claimed?
(10) What should the decree be?
It may be pointed out that issue No. 7 was subsequently settled as an additional issue on 8th December, 1999.
Issue Nos."1 and 2:
5. The defendants having not pressed the above two issues, there is no need for discussing the same.
Issue No. 3:
6. In the plaint as well as in the evidence, it was pleaded on behalf of the plaintiff that Mr. Abdul Majeed and M.St. Hasina Bano, were the survivors of the deceased being father and mother of the deceased respectively. However, the defendants did not lead any evidence on this issue but have simply denied the relationship between the plaintiff and the decreed on the ground that the same was not within their knowledge. In the aforesaid circumstances, it is proved that the deceased was survived by the plaintiffs as his parents.
Issue No. 4:
7. In support of this issue, the plaintiff has examined P.W.1, namely, Muhammad Zarin, who is Assistant -Sub-Inspector of -Korangi Police Station, who has field copy of F.I.R. As Exh.5/1, copy of Motor Vehicle Inspector Report as Exh.5/2, memo. Of Incident as Exh.5/3, Medical/death certificate of the deceased as Exh.5/4 and Memo. Of Site Inspection as Exh.5/5. The other witness examined on behalf of the plaintiff was Abdul Waheed, who is the real brother of the deceased. He has deposed that on the day of the incident, he was travelling with his deceased brother. He has narrated th9 alleged incident. P.W.3 is !Kramul Haq, who is the Motor Vehicle Inspect Of and he has stated at the examination of both the vehicles, namely, Bus No 834-822 and Bus No. 865-891, these were found damaged. In his opinion, both these vehicles had collided with each other. The plaintiff has also examined herself as Exh.8,
8. As against the above evidence, no witness was produced by the defendants in support of their case that since the deceased was standing at the gate of the bus, he received injuries. However.
This suggestion was denied by the plaintiff's witness
9. In the aforesaid circumstances, there is riot enough evidence on record to answer this issue in the affirmative. I am, therefore, of the considered view that the above two business have collided with each other which has caused unnatural death of Abdul Shakeel, Issue No. 5;
10. In para. 2 of the plaint, it is claimed that the defendant No. 2 namely, Syed Khatib Shah, was driver of the bus involved in the accident and he was a servant of the defendant No. 1 at the relevant time. In reply to this assertion, it was' not denied by the 'defendant No. 1 in his written statement. Subsequently also the plaintiff and her witnesses have claimed this fact which was never denied in the cross-examination. Accordingly; this issue is also answered in the affirmative.
Issue No. 6:
11. The case of the plaintiff is that the deceased died due to negligence and wrongful act of the defendants Nos. 1 and 2 as a result of the accident. On the other hand, the case of the defendants Nos. 1 and 2 is that the deceased was hanging on the gate of the bus, in spite of warning. The Bus (834-822) hit the stationary/standing Bus No. 865-891 of Route No. 17-C. As such the deceased, after receiving head injuries, died due to his own negligence. Keeping in vie this plea in the written statement it could be said that the defendants have pleaded contributor negligence.
Mr. Nasir Maqsood has invited my attention to the case of Federation of Pakistan v. Hafiza Malika Khatoon Begom (.1996 SCM R 406), wherein it was held as under:- "The plea of contributory negligence raises question of fact which should be proved by the party alleging it. It should be established that the plaintiff had failed to take reasonable care for his safety. The defence of contributory negligence arises where damage is caused partly, by the negligence of the person who suffers and partly by the fault of the alleged wrong doer. This is a delicate issue but the legal principles that if contributory negligence is established The plaintiff's claim for damages shall .Not be defeated but the damage shall be reduced as the Court may think just and equitable considering the plaintiff's ;share in the responsibility for thedamage' and circumstances of the case."
12. In the aforesaid circumstances, I am inclined to hold that the defendants, jointly and severally, are liable to pay monetary compensation to the legal representatives of the deceased who has died as a result of the above accident.
Issue No. 7:
13. It is admitted fact that the defendant No. 3, namely, Government of Sindh, through Memorandum of Agreement, dated 13th March, 1997 took over the liabilities and assets of the defendant No. 1. This agreement was filed by the plaintiff alongwith application under Order I, Rule 10, C.P.C. One of the conditions of the agreement, as reflected in Clause 4(K) reads as under:- "(K) To carry out and implement the term of this agreement would be the liability and responsibility of. Government of Sindh including the cases pending in Courts of Law not relating to claim of K.T.C.
Employees."
14. In view of the aforesaid actual position, the learned Assistant Advocate General, appearing for defendant No. 3, concedes to their liability and accordingly this issue is answered in affirmative.
Issues Nos. 8. 9 and 10.
15. It has come in the evidence that at the time of his death, the deceased was earning approximately Rs.800 per month by working in a cloth shop at Bolton Market. At the same time it is claimed by the plaintiff that the deceased was also undergoing training as Air- conditioning and Refrigeration mechanic, hereafter he could have earned Rs.4,000 to Rs.5,000 per month after a few years. This plea was also raised in the pleadings by the plaintiff. It has gone unrebutted. Under the circumstances I am inclined to hold that the deceased could have earned Rs.12,000 per annum during the period from June, 1987 to till 1992 hereafter he could have earned Rs.3,000' per month (Rs. 3.6,000 per annum). In so far as the age of the plaintiff is concerned, she is claimed to be 47 years old at the time of the death of her son. This claim has also gone unrebutted.
Therefore, she is entitled to' benefits upto 27 years.
16. In the above circumstances, the following relief is granted ,to the plaintiff:- Annual Income at Rs.12,000 per annum for 1987-1992 five years = (12000 x 5)60,000 For remaining 18 years at Rs.36,000 per annum (36,000 x 18)6,48,000 Aggregate loss for 23 years 7,08,000 Add 20% increment for over all years on account of promotion chances1,41,600 Gross loss of pecuniary benefits; (708,000 +141,600)849,600 Less 1/3rd on account of Personal Expenses: (849,600 x 3/100)283,200 Net Pecuniary Loss: 566,400
17. In view 'of the above, the suit is decreed in the sum of Rs.5,66,400 with costs. The plaintiff shall also be entitled to 12% interest till realisation. The matter is also reported for the orders of the Provincial Government as provided in Section 82, C.P.C.