S.No. Name Relation Age at the time of accident
1. Mst. Sabira KhatoonWidow 40 years.
2. Parveen Ali Daughter 23 years
3. S. M. Salim Son 17 years
4. S.M. Imran Son 12 yearsJUDGMENT ' Briefly the facts of the case are that the plaintiff Mst.i Sabira Bano filed a suit under the provisions of Fatal Accidents Act. 1855 for recovery of compensation amounting to Rs,13,36,840 against the defendants for wrongful death of her husband Syed Muhammad Amin aged 48 years within the area and territorial jurisdiction of SITE Police Station on 3-9-1986. The plaintiff has filed the suit for her own benefit as well as for the benefit of other statutory beneficiaries at the time of accident.
The deceased left behind the, following statutory beneficiaries entitled for benefits under the provision of Fatal Accidents Act, 1855:
2. The widow Sabira Khatoon and S.M. Imran died during the pendency of the suit and accordingly the plaint was amended.
3. The plaintiff pleaded in the plaint that the defendant No,1 was at all material times in the employment/service of . The defendant No,2. The defendant No,3 were at all material times the insurance of Suzuki Pick-up, Registration No,869-134, owned by the defendant No,2.
4. That it was also made out in the plaint that about 08-15 hours on 3-9-1986 the deceased was riding a Vespa Scooter No,KAA-9075 and had with him Wahid Ali as hs pillion rider. At or about the Chungi or Hub Chowk near Zebta Mils, S.I.T.E., Karachi a Suzuki Pick-up Registration No,869-164, whch was being driven by defendant No,1 in a rash/negligent/reckless manner and at a high speed, hit the said Vespa Scooter being ridden by the Jeceased. As a result the deceased received severe head and other injuries and the pillion rider Mr. Wahid Ali was also injured. Both persons were rushed off to Civil Hospital where they were attended to inter alia, by Dr. Liaquat All who informed the S.I.T.E. Police Station that Wahid Ali, in an injured condition and another unidentified person, in "dead" condition, had been brought to Civil Hospital having met with an accident with Suzuki Pick-up Registration No,869-164 anc had been admitted under ML Number 5453/86 and 5454/86. Sub-Inspector Malik Fateh Muhammad of the S.I.T.E. Police Station left kr Civil Hospital alongwith Head Constable No,1561 to make enquiries. Said S.-I. Malik Fateh Muhammad found injured Wahid Ali was not able to give a statement and learnt from him the whereabouts of the deceased. Proceedings were held under section 174, Cr.P.C. The cause of death having been recorded as due to acute head injury resulting from the accident, the body was handed over to the heirs of the deceased. That the place of incident was inspected by said S.-I. Malik Fateh Muhammad on being pointed out by P.C. Sher Muhammad No,9441 of S.I.T. E. Police Station who witnessed the accident and the sketch of the place of occurrence was prepared. Statement of P.C.
Sher Muhammad No,9441, and other eye-witnesses, being Sheraz son of Umar and Head Constable Salim Khan were taken, which stated that the accident was caused by the negligent/reckless/rash driving of defendant No,
1. As a consequence said Sub-Inspector Malik Fateh Muhammad registered No,292 of 1986 at the S.I.T.E. Police Station against defendant No,1 under sections 279/337/304-A of the Pakistan Penal Code. It was allso pleaded that defendant No,1 had acted negligently/recklessly/rashly while in the service of defendant No,2 and during the course of his duties, causing the death of the deceased. Defendant No,2 being vicariously liable for the reckless/negligent/rash acts of defendant No,1 performed in the course of his service/duties is liable jointly and severally alongwith defendant No,1 for the death of the deceased and the consequential loss and damage suffered by the heirs, defendants and the estate of the deceased.
5. That the deceased at the time of his death was working with Messrs Eastern Services (Pvt.) Ltd., as Store Keeper and was drawing a sum of Rs,2,150 per month and was aged 48 years.
6. That the defendants Nos.1, 2 and 3 filed their separate written statement wherein the following facts were admitted/not denied:-
(i) The factum of the ownership of the vehicle involved in the accident by defendant No,2 was not denied.
(ii) The factum of driving of vehicle by defendant No,1 during the course of employment of defendant No,2 and 3-9-1986 also not disputed.
(iii) The factum of occurrence of accident on 3-9-1986 near Zebta Mills, S.I.T.E. Also admitted.
(iv) The factum of involvement of Suzuki Pick-up in the accident on 3-8-1986.
(v) The factum of death of deceased Syed Muhammad Amin in the traffic accident on 3-9-1986 between Suzuki Pick-up No,869-164 and a Vespa Scooter No,KAA-9075.
(vi) The registration of F.I.R. No,292 of 1986 at the S.I.T.E. Police Station against the defendant No,1 who was booked for the offence of rash and negligent driving resulting into death of deceased S.M.
Amin. The defendant has denied the allegations of negligence on their part and had proceeded to advance their own version of accident and attempted to make out the case that the negligence occurred on account of scooterist. The defendant No,3 also filed the written statement wherein the insurance of the vehicle involved in the accident with the defendant No,3 was admitted but subject to the terms and conditions as incorporated in the insurance policy.
' The following consent issues were framed by the Court on 15-3-1986:--
(i) Whether the death of the deceased was caused by negligence and carelessness of defendant No,1 driving the Suzuki belonging to the defendant No,2?
(ii) Whether the deceased was contributory negligent?
(iii) Whether maximum liability of defendant No,3 is Rs,20,000 under the act and or any other amount?
(iv) Whether the plaintiffs are not entitled to receive the sum of Rs,13, 36,840 jointly or severally from defendants Nos.1, 2 and 3?
(v) What should the decree be?
7. The plaintiff examined the following witnesses who produced the following documents:--
1. P.W.1 Fateh Muhammad (S.-I. Police) who produced:
(a) F.I.R. No,292/1986 Exh.6/1 S.I.T.E. Police Station.
(b) Statement under section 161, Cr.P.C. Of Riaz Constable Sher Muhammad Shezad.
H.C. Muhammad Khan.
H.C. Muhammad Amin.
H.C. Rustam Khan.
Chowkidir Muhammad Nasir.Exhs.6/2 to 6/6.
(ii) P.W.2 Dr. Liaquat Ali Police Surgeon; Civil Hospital, Karachi who produced post-mortem report Exh.8.
(iii) P.W.3 Muhammad Salim (one of the plaintiffs examined through affidavit-in-evidence.
(iv) P.W. 4 Abdul Rasheed Employer (Accountant, Eastern Services (Pvt.) Ltd. who produced:-
(a) Salary CertificateExh.11/1.
(v) P. W 5 Sher Muhammad Police Constable eye-witness.
8. The do. 3 examined:
1. D. W.1. Abdul Hafiz. Assistant Vice- President.
E. F. U.
(Defendant No,3 examined).
9. The defendants Nos.1 and 2 though filed the written statement through the counsel but at the time of the evidence the counsel was allowed to withdraw his power and he showed inability to produce the defendants 1 and 2 without any lawful justification and any witness on their behalf and as such the side of the defendants 1 and 2 was closed.
10. The issues Nos.1 and 2 pertain to aspect of negligence and as such can be dealt together.
11. The relevant para. In the plaint for proper analysis of this issue is paras. 5 and 6 of the plaint, which is necessary to be produced for appropriate appraisal:-- That at about 08-15 hours on 3-9-1986 the deceased was riding a Vespa Scooter No,KAA-9075 and had with him Wahid Ali as his pillion rider. At or about the Chungi of Hub Chowki near Zebata Mills, S.I.T.E., Karachi a Suzuki Pick-up, Registration No,869-164 which was being driven by defendant No,1 in a rash/negligent/reckless manner and at a high speed. Hit the said Vespa Scooter being ridden by the deceased. As a result the deceased received severe head and other injuries and the pillion rider Mr. Wahid Ali was also injured. Both persons were rushed off to Civil Hospital where they were attended to, inter alia, by Dr. Liaquat Ali, who informed the S.I.T.E. Police Station that Wahid Ali, in an injured condition and another unidentified person in "dead" condition, had been brought to Civil Hospital having met with an accident with Suzuki Pick-up Registration No,869-164 and had been admitted under ML Number 5453/86 and 5454/86, Sub-Inspector Malik Fateh Muhammad of the S.I.T.E. Police Station left for Civil Hospital alongwith Head Constable No,1561 to make enquiries. Said S.-I., Malik Fateh Muhammad found injured Wahid Ali able to give a statement and learnt from him the whereabouts of the deceased. Proceedings were held under section 174, Cr.P.C. The cause of death having been recorded as due to acute head injury resulting from the accident, the body was handed over to the heirs of the deceased, copy of the death certificate is annexed herewith and marked 'A'.
"That the place of incident was inspected by said S.-I. Malik Fateh Muhammad on being pointed out by P.C. Sher Muhammad No,9441 of S.I.T.E. Police Station who witnessed the accident and the sketch of the place of occurrence was prepared. Statements of P.C. Sher Muhammad No,9441, and other eye-witnesses being Sheraz son of Muhammad, Ghulam Muhammad son of Umar and Head Constable Salim Khan were taken, which stated that the accident was caused by the negligence/reckless/rash driving of defendant No,
1. As a consequence said Sub-Inspector Malik Fateh Muhammad registered F.I.R. No,292 of 1986 at the S.I.T.E. Police Station under section 279/337/304-A of the Pakistan Penal Code, copy of the F.I.R. And its English translation are annexed herewith, marked as Annexures 'B & B-1."
12. The corresponding reply of the above para. Is found in para. 5 of the written statement of defendants Nos.1 and 2 which is reproduced as under:--- "That save and except that these defendants admit that one Syed Muhammad Amin (the deceased) died in a traffic accident involving the vehicle of the defendant No,2. The rest of the paragraph is vehemently denied. It is denied that the defendant No,1 was driving the vehicle rash/negligent/reckless manner and/or at a high speed. It is also denied that the cause of death having been recorded as due to acute head injury resulting from the accident. The plaintiff is put to strict proof of the contents of this para. It is, however, submitted that the defendant No,1 was driving the said vehicle with due care and within the speed limit. The said vehicle was going on a normal speed when all of a sudden near Zebta Mills, S.I.T.E., Karachi, and a Vespa Scooter bearing No,KAA- 9075 being driven rashly/negligently / recklessly by the deceased and had with him also a pillion rider appeared abruptly from the wrong side dashed with the Suzuki of the defendant No,2. It is further submitted that the brakes of the Scooter were not properly working and also the driver of the Scooter was rashly and negligently driving the scooter at a high speed and when he applied the breaks, the Scooter hit the Suzuki and skidded to the left. The said Scooter having its engine on the left, being driven by a rash and negligent driver with uncontrollable speed lost its control and dashed the vehicle. It is also submitted that the drive.. As well as the pillion passenger were not wearing the helmets as provided under the law to have protection from such alleged in this para. Which injuries are also alleged accident and injuries as alleged in this para. Which injuries are also alleged to be primary cause of the death."
13. The analysis of the defence taken by the defendant do obviously betray that they have neither denied the incident nor the death of deceased Muhammad Amin in the said accident on 3-9-1986 arising out of the accident between Suzuki Pick-up No,869-164 and Scooter No,KAA-9075 but the defendants have proceeded to give their own version of the accident basically highlighting the contributory negligence on the part of the scooters and the version advanced by the defendants is at variance advanced by the plaintiff and thus in view of the nature of the defence, the dispute only revolves around the controversy whether the accident was caused on account of negligence of defendant No,1 who rashly and negligently dashed the scooters or the Scooter himself hit against the Suzuki Pick-up owing to his negligence.
14. In fatal accident case, it is settled principle that once the accident is admitted, the presumption of negligence arises and moreso when the defendants give his own version of accident, which is different from version of plaintiffs the defendant takes upon himself the burden to prove the manner of accident pleaded by him.
15. The defendant in such situation has to show that he had been cautious enough to take care of the deceased/victim of the accident.
16. This proposition was exhaustively answered by the superior Court in the following judgments reported in:--
(i) Mst. Sakina v. NLC (1995 MLD at pages 633, 636, 638 (A&D) and Headnote A).
(ii) Anisur Rehman v. Government of Sindh (1997 CLC 615 and 619 (second last para. At 620).
(iii) Spingul v. Ikramul Haque (1987 MLD 2402 at 2404 and 2405 paras. 4 and 5).
(iv) Hayat Services Ltd. v. Kandan (1989 CLC 2153 and 2156 (A) Division Bench judgment.
(v) Pakistan Steel Mills v. Malik Habib (1993. SCMR 848, 855 (a) and Headnote (a) and at 848 (A)).
(vi) Messrs Nimi Frances v. Muhammad Saeed Qureshi (1982 CLC 1703 at 1705, 1706 and 1707 vide discussion on Issue No,l.
(vii) Muhammad Athar Hussain v. Trustee of Port of Karachi (1998 CLC 633, 636 and 637).
(viii)Mrs. Gul Bano v. Muhammad Ramzan (1982 CLC 1120, 1122 (a) and also Headnote (a).
(ix) Mst. Zaibunnisa v. S.R.T.C. (1982 CLC 1228 at 1230 (A & B) and also Headnote (a).
(x) Roshan Bai v. Pakistan Steel 2000 CLC 111.
(xi) Unreported judgment in Nisar Ahmed v. Hospital Supply Corporation Suit No,890/88, decided on 24-8-1998 (Justice Sabihuddin Ahmed) Relevant pages 11, 12, 13 and 14 vide paras. 16, 17, 18, 19 and now reported as 1999 MLD 13.
17. Thus in view of the particular defence taken by the defendants in the written statement whereby imputing negligence on the part of scooterist/victim of the accident the defendants have taken upon themselves the burden to disprove the negligence and use of care and caution in operating the Suzuki Pick-up No,869-164 .
18. The plaintiffs have discharged their initial burden and made out a prima facie case by supporting the contents of the plaint through the evidence both oral and documentary.
19. The plaintiff examined an independent eye-witness i,e, P.W.5 (Sher Muhammad) who was the police constable present at the time of accident on the spot of accident. His examination-in-chief reads as under:-- "On 3-9-1986 I was posted at Police Station S.I.T.E., I was performing my duty in front of Zebtan Textile Mills. My shift was from 7-00 a.m. To 3-00 p.m. I saw an accident between Vespa Scooter and Suzuki Wagon. The registration number of scooter was KAA-9075. The Suzuki was red in colour and its registration number was 860-164. The Suzuki was coming from Valika Mills in high speed.
The accident took place in front of Zebtan Textile Mills a few yards away from where I was standing.
The Suzuki was coming in high speed and it appeared that either it was being chased by somebody or its driver was incompetent. The scooter was coming from service lane and as soon as it got on the main road it was hit by the Suzuki. The two persons on the scooter were dragged for a while and particularly its driver was badly injured. After the accident some workers from Zebtan Mills also came out at the scene. I stopped another Suzuki passing by and took the deceased S.M.
Amin (whose name I came to know later) to Civil Hospital where he was examined by Dr. Liaquat.
The doctor said that he had died. The doctor telephoned to the police station and S.-I. Fateh Muhammad came to the hospital. After I went back to the police station my statement was recorded."
20. The said witness was subjected to cross-examination but his statement on the material aspect regarding high speed and hitting the scooter and dragging of the scooter and scooterist as in impact of the incident was not questioned at all.
21. The plaintiff had also examined P.W.1 (Fateh Muhammad) who produced the F.I.R. No,292 of 1986 and verified the contents as he was Investigation Officer and supported the contents thereon which also reflect the contents of the plaint and strengthened the case of the plaintiff as far as the aspect of the negligence is concerned (English translation of F.I.R. Is enclosed and already filed with the plaint). The evidence of the witness was also not questioned on the aspect of the negligence.
22. The plaintiff also examined P.W.2 (Dr. Liaquat Ali, Police Surgeon) who conducted the post- mortem report and specified the following injuries after external and internal examination:--- "On external examination of the dead body I found following injuries":---
(i) Bleeding from nose as well as from both the ears.
(ii) Swelling in diameter on left parietal region.
(iii) Abrasion 1 x 1/2" on right arm.
(iv) Abrasion 1 x 1/2" on left shoulder.
(v) Lacerated wound 2 x 1/2" on occipital region.
(vi) Abrasion 1 x 1/2" on left foot.
' On internal examination of the dead body I found following injuries:
(i) On opening skull I found brain matter meninges congested.
(ii) Fracture of the base of skull 3" long. This damage was due to external injuries Nos.1, 2 and 5.
23. That the said witness also could not be shaken in the cross-examination on above material aspect of the evidence.
24. The above position which emerges from the evidence led by the plaintiff is that the evidence of the witness on the material part of negligence and its consequence remained almost unrebutted and uncontroverted. Thus by operation of rule of evidence:-- "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."
25. The above proposition was discussed in the following judgments:--
(i) 1991 SCMR 2300.
(ii) 1997 MLD 2013 (p.2016) A.
(iii) 1988 MLD 1651 (p.1656).
(iv) 1997 CLC 1517 p.1520, 1521, 1522) A, B
26. Besides, the defendants Nos. 1 and 2 failed to lead any evidence to rebut the case put up by the plaintiff and as such in these circumstances the name would be deemed to remain uncontroverted.
27. The reliance for this proposition is placed on the following judgments:--
(i) 1988 CLC 2063 at 2066 (A).
(ii) 1987 CLC 933 at 937 (A).
(iii) 1988 MLD 2447 at 2448 (B).
(iv) 1995 CLC 1714._
28. The defendant also failed to substantiate the contents of their written statement by leading cogent evidence in support therein and as such mere averments in pleading are of no value unless proved by cogent evidence and thus cannot be relied upon.
For this proposition, the reliance is placed on the following judgments:
(i) 1986 MLD 1613 and 1616(a)
(ii) 1988 MLD 1122 and 1125 (a) (D.B. Judgment).
(iii) 1988 MLD 1651.
29. Besides it is also settled principle of law that evidence on oath should be contradicted/controverted only by statement on oath in order to analyse the comparative.
30. This dicta was laid down by Supreme Court in (sic).
31. In addition to that, the non-production of the driver, the defendant No,1 being the best evidence in the circumstances was also not produced and as such this default of withholding the best evidence proceeds to raise adverse inference against the defendants. This aspect was taken care in Division Bench judgment of this Honourable Court reported in: ' PLD 1965 Karachi 127 and 132 paras. 14, 15 and 16 (D.B. Judgment).
32. The upshot of the above discussion is that the preponderance of probability/proof is in favor of the plaintiff as the defendants on account of their specific defence in their written statement took upon themselves the burden to show that the deceased was responsible for the accident and they have taken all care to avoid the accident. But the defendants have failed to lead any evidence or bring any material on record to discharge the burden shifted upon them. In addition to that the defendants did not controvert the case of the plaintiff in any manner whatsoever as all the version of the witnesses of the plaintiff remained unrebutted as they were not subjected to cross- examination and the defendants also did not plead any evidence to rebut the case of the plaintiff and as such in these circumstances the version of the plaintiff is liable to be accepted as true and correct on the point of negligence. In addition to that the defendant No,1 was not examined without any justification and as such withholding of such primary evidence in fatal accident cases is always considered a prime factor in raising adverse inference against the defendants on the issue of negligence.
33. In addition to that, as far as the Issue No,2 is concerned, the plea of contributory negligence raises the question of fact which should be proved by the party alleging the same and as such defendants should establish that the plaintiff had taken the reasonable care for his safety.
34. It is held by the Supreme Court in a reported judgment viz., 1996 SCMR 406, 410-C that 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 wrongdoer. This is a delicate issue but the legal principles that if contributory negligence is established the plaintiff's claim for damages shall not be defended but the damage shall be reduced as the Court may think just and equitable considering the plaintiff's "share in the responsibility for the damage" and circumstances of the case. The petitioners have failed to establish facts necessary to prove contributory negligence".
35. Thus the defendants also failed to prove the contributory negligence on the part of deceased by leading evidence to this effect and as such that plea also fails and in absence of that it can safely be inferred that the defendant No,1 was negligent in driving and causing the fatal accident leading to the death of deceased S.M. Amin.
36. The Issue No,(iii) pertains to the liability of insurance company. The insurance company has filed the insurance policy which appears to have comprehensively insured the defendant No,2 owner of the Pick-up No,869-164. They have argued that they are liable to compensate to the extent of Rs,60,000 only. The counsel for the plaintiff has accepted this statement. The suit against the defendant No,3 is decreed for Rs,60,000 with no order as to costs.
37. The above Issues Nos. (iv) and (v) deal with the quantum of damages and needs the determination of the pecuniary losses owing to death of deceased S.M. Amin. The amount of loss/damage sustained by the plaintiff and other legal heirs of the deceased comes to Rs,3,92,160 on the basis of the following calculations: ' Pecuniary benefits of 19 years: 1.Gross income at the time of death 2150 x 12 x 19Rs.4,90,200 2.Less: 1/3 of personal expenses 490,200+3=Rs.1,63,400 3.Balance: Add: 20%.Rs.3,26,800 Rs.65,360 The plaintiff and the other legal heirs are therefore entitled to the amount of Rs,392,160 plus Rs,60,000 with loss of profit thereon at 14% per annum from the date of filing of the suit till realization.