1. This is a suit for recovery of Rs.13,00,000 filed by the plaintiffs who are the legal heirs of deceased Sakhi Muhammad, under the provisions of Fatal Accidents Act, 1855.
2. The facts giving rise to this suit are that on 6-1-1990 at about 9-30 hours the defendant No.2 while driving the Bus bearing No.841-083 in a rash and negligent manner on Mari Abbasi Hotel dashed the cycle on its back side from behind with excessively high speed and consequently, the cyclist Sakhi Muhammad got fatal injuries and died on the spot and cycle also got damaged completely.
3. It was also averred that the case was lodged against the said defendant at S.I.T.E. Police Station.
4. The case of the plaintiff further is that defendant No.1 is the owner of the said bus and defendant No.2 was the driver of the bus in question and as such was servant/employee of defendant No.1 at the time of accident. For making out the case of quantum of damages it was pleaded by the plaintiffs that in view of ages of the plaintiffs the deceased expected and present earning capacity of the deceased, the plaintiffs have been deprived of present and expected pecuniary benefits to an extent of Rs.30,00,000 as the deceased was a skilled worker of Loom Factory but owing to the closure of the factory where he was working and drawing a salary of Rs.4,000 per month, the deceased engaged himself for the sake of livelihood as Watchman in nearby factory on a monthly salary of Rs.1,200 per month and he was also doing overtime and was supplementing his income to the extent of Rs.600 to Rs.800 per month in addition to the above salary. He also used to do on holidays and in part time the repairing work including its oiling and overhauling on looms in nearby textile units and was earning more or less Rs.2,800 to Rs.3,000 per month.
5. During the pendency of the suit the defendant No.1 has suspended its operation and entered into an agreement with the Government of Sindh on 13-3-1997 and Memorandum of Agreement spelled out that to carry out and implement the terms of agreement would be liability and responsibility of Government of Sindh including the cases pending in the Courts of law not relating to claim of K.T.C. employees.
6. The defendants were served and only defendant No.1 filed his written statement, wherein he did not deny the averments of the plaint and rather did not put forward any defence at all. The defendant No.1 generally denied the allegations of the plaintiff. The defendant No.2 did not file the written statement while newly added defendant No.3 (Government of Sindh) was allowed opportunity to file written statement but failed to do the needful and being debarred and declared ex parte vide order, dated 21-12-1998.
7. On the basis of above pleadings the following issues were-framed:-- (i)Whether the death of the deceased Sakhi Muhammad was caused on account of rash, negligent and careless driving of defendant No.2 driver/employee of defendant No.1 during their course of employment on 6-1-1990 while driving the Bus bearing No.841-083 of the defendant No.1?
8. (ii)Whether the defendants are liable jointly and severally to pay the compensation/damages as claimed by the plaintiffs?
9. (iii)Whether the plaintiffs are entitled to the extent of compensation as claimed in the suit?
10. (iv)Whether the plaintiffs are entitled to cost and interest as claimed?
11. (v)Any other relief or reliefs this Honourable Court may deem fit?
12. (vi)What should the decree be?
13. After impleading of Government of Sindh as defendant No.3 in the suit the following additional issue was framed by the Court besides the above issues:-- "Whether the defendant No.3 has taken over the liabilities of defendant No.1 and is liable to pay the compensation to the plaintiffs and other statutory beneficiaries, by virtue of clause 4(k) of the Memorandum of Agreement, dated 13-3-1997 entered into inter alia between the defendant No.1 and defendant No.3? If so, to what extent?"
14. In support of their case the plaintiffs examined four witnesses, namely, Muhammad Azeem Bhatti, Excise and Taxation Officer who produced certificate regarding the ownership of the bus in question, Muhammad Yousuf, Inspector of S.I.T.E. Police Station who produced F.I.R., site sketch, memo. of site inspection, Motor Vehicle Inspection. Superdaginama of the bus and death certificate. Sharnsul Hassan (plaintiff No.1), who produced domicile certificate F.I.R., death certificate issued by Abbasi Shaheed Hospital, death certificate issued by K.M.C. and Salim Khan (eyewitness). P.W.1 and P.W.2 were examined in Court while the rest witnesses were examined by the Commissioner before whom the affidavit-in-evidence of the witnesses were filed. The defendants examined only their Manager Legal who produced authority letter, dated 16-8-1990 and agreement between defendant No.1 and defendant No.3. My issuewise findings are as follows:- - Issues Nos.1 and 2 These issues pertain to the aspect of negligence and liability of the defendants as such can be dealt with together.
15. In para.3 of the plaint the plaintiffs have disclosed the factum of incident to which the defendants have not denied the same but stated that plaintiffs be put to strict proof of each and every allegation. Under Order VIII, Rule 3, C.P.C. the denial is to be specific. It provides that it shall not be sufficient for a defendant 'in written statement to deny generally the grounds alleged by the plaintiff but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages. According to Order VIII, Rule 4, C.P.C. where a defendant denies an allegation of fact in the plaint he must not do so evasively but answer the point of substance.
16. The witnesses appeared in the case Were cross-examined by the defendants but the evidence of the said witnesses on material aspect pertaining to rash and negligent driving of the bus by defendant No.2 and consequent death of the deceased owning to such carelessness was not questioned/challenged and as such this omission to cross-examine the witnesses on material point would lend support to the case of the plaintiff. It is a cardinal principle of evidence that omission to cross-examine a witness on a material part of his evidence gives rise to inference that truth of his statement has been accepted. Such unchallenged statement of witness should be given full credit and usually accepted as true unless displaced by reliable, -cogent and clear evidence. Accordingly, I answer these issues in affirmative.
17. Issues Nos.3 to 6 These issues pertain to the assessme nt of compensation arising out of the accident. As discussed in the foregoing para. about the quantum of income of deceased which was about Rs.3,000 per month as the same is minimum monthly earning of unskilled worker in Pakistan. Taking annual income as Rs.36,000 in view of said monthly income the legal heirs have suffered loss of earning for 25 years keeping in view the 70 years as average life span in Pakistan. Thus, the net loss of pecuniary benefit can be calculated as under:--
(a) Loss of earning for 25 years. Rs. 9,00,000 (b)Add 20% in the above income to include chances of increment.Rs. 1,80,000
(c) Less 1/6 on account of personal expenses. Rs. 10,80,00 minus Rs.
18. 1,80,000.Rs. 9,00,000 Accordingly I decree the suit of the plaintiff in the sum of Rs.9,00,000 against the defendants jointly and severally alongwith mark-up at the rate of I F 14% per annum from the date of filing the suit till realization.