1. The plaintiff being widow of deceased Muhammad Shafiq has filed the above suit for recovery of Rs.35,20,000 under Fatal Accidents Act, 1855.
2. Briefly the case of the plaintiff is that on 7-8-1990 at about 10-35 a.m. the deceased was going on his motorcycle bearing No.KAL-3516 Honda 70-CD with one of his colleague, namely, Hakim Mohiuddin Abdul Sami Siddiqi and while he was on the bridge near Habib Public School, Moulvi Tamizuddin Khan Road, Karachi was dashed and crushed to death by Trailor No.9145-9146. and both of them died instantly on the spot. It is alleged by the plaintiff that the said trailor was being driven rashly and negligently by defendant No.4 who was the employee of defendants Nos.1 to 3. It is further alleged in the plaint that defendant No.4 while driving the trailor in rash, careless and negligent manner crushed both the motorcyclists and a case was also lodged under section 304- A, P.P.C. with TPX Police Station against defendant No.4. Deceased Muhammad Shafiq was employed in Hamdard Laboratories and was working in the capacity of Deputy Director and was keeping sound and good health.
3. The defendants were served and filed their joint written statement. They denied the allegations of the plaintiff and contended that defendant No.4 was a qualified driver and both the deceased were died owing to collision with the trailor of Pakistan Navy. They further contended that the motorcycle was being driven rashly and negligently with high speed which resulted the accident.
4. On the above pleadings the following consent issues were settled by the Court on 12-4-1992:
(1) Whether the Government of Pakistan is a necessary party to the suit?
(2) Whether the plaintiff has impleaded all the legal heirs of deceased Muhammad Shafiq? If otherwise to what effect?
(3) Whether the accident in question occurred due to any mistake of at respondent No.4 or any other defendant?
(4) Whether the plaintiff is entitled to any of the reliefs claimed against the defendants?
(5) What should the decree be?
5. The plaintiff examined herself by filing affidavit-in-evidence, Muhammad Akram Abro, S.H.O. Clifton Police Station, Muhammad Ramzan, Traffic Constable and eye-witnesses who produced photo copy of identity card of deceased, Nikahnama, birth certificate of deceased, copy of F.I.R. Medico- legal report of deceased issued from J.P.M.C. post-mortem report, death certificate and income certificate of deceased. Defendants examined Muhammad Rahim, Muhammad Irshad, driver, Muhammad Ashiq, Muhammad Ibrahim and Mujeebur Rahman and closed their side. All the abvoenamed witnesses were cross-examined by their respective Advocates. My issuewise findings are as follows: Issue No.1 This issue becomes redundant in view of the order, dated 12-8-1998 passed by this Court whereby description of defendant NoA was corrected by adding Federation of Pakistan.
6. Issue No.2 Since this issue neither pertains to negligence nor quantum of damages but questions the maintainability of the suit and as such can be separately dealt with. The burden of this issue lies on the defendants but they have failed to advance any evidence nor put forward any arguments in support of this issue. However, this question is settled by this Court in number of cases and it was held that section 1 of the Fatal Accidents Act, 1855 permits filing of the suit by any one of the legal heirs by showing other legal heirs as beneficiaries and A even if all the legal heirs are not impleaded as plaintiffs, the suit will still be competent by virtue of section 1 of Fatal Accidents Act, 1855. The issue is answered accordingly.
7. Issue No.3 This issue is crux of the case which involves negligence. Since I have already held in Suit No.632 of 1991 in which matter another the motorcyclist was died in the same accident by the same trailor.
8. The defendants have failed to prove their case satisfactorily about their version of accident. In fatal accident cases it is settled principle of law that once the accident is admitted the presumption of negligence arises and moreso when the defendants give their own version of accident different from the version given'by the plaintiff then the burden shifts upon the defendants to prove the same. Admittedly the defendants have failed to discharge their burden of proving the same. In fatal accident cases the evidence of defendants witness which was beyond the pleading is liable to be ignored as party cannot be allowed to prove which he has not alleged. It is well-settled law in fatal accident cases that as between cyclist and a driver of the bus, the latter's responsibility to use care and diligence is greater. The duty to use care increases proportionately with the danger involved in dealing with the particular type of vehicle. It is also repeatedly held in fatal accident cases that evidence of driver is of no consequences being an interested witness unless supported by independent evidence to corroborate the same. Accordingly I answer the issue in affirmative.
9. Issues Nos.4 and 5 It is an admitted position that deceased was aged about 40 years and was having sound health and was employed at Hamdard Laboratories in the capacity as Deputy Director and was earning Rs.7,300. Accordingly, I decree the suit of the plaintiff in the following manner:- Present and expected earning of the deceased per annumRs. 87,600 His earning for 30 year Rs. 26,28,000 20% expected increase in his income. Rs. 5,25,600 Deduction of 1/6 as personal expenses Rs. 5,25,600 Total Rs. 26,28,000 As a result of the above discussion the suit of the plaintiff is decreed for Rs.26,28,000 with cost and 12% interest from the date of filing of suit and till realisation. The defendants are directed to pay the decretal amount within two months with the Nazir of this Court.