1. ' The plaintiff filed suit for recovery of Rs,5,930,000 under the Fatal Accidents Act, 1855.
2. ' Brief facts of the case are that deceased, namely, Sajjad Ahmed, aged 31 years, died on 1-3-1990 on account of collision of railway engine and car at Jumma Goth.
3. ' The plaintiff alleged that on 1-3-1990 at about 7-45 p.m. a car, in which deceased was travelling with others, reached the Jumma Goth level crossing. The driver of the car found the gate/bars open on both sides of the railway crossing with green lights on and watched other vehicles moving ahead of him and safely passing/crossing the lines. So, he entered the gate and continued driving, but when his car reached the main railway line, it was hit by the engine at full speed without horn and on whistle while overshooting in a rash and negligent manner and carried/dragged said car to more than one furlong and consequently deceased died after eight days in hospital: ' The defendants Nos.1 and 2 filed joint written statement and denied that the alleged accident occurred due to any fault of any of the employees of the Pakistan Railways, defendant No,2 and it was the deceased who is responsible for the alleged accident being contributors to the alleged accident. The defendants denied incident took place due to any negligence on the part of the driver of the engine or the gateman posted at the marred level crossing in question.
4. ' By order, dated 18-8-2000, the following consolidated issues were adopted:--
(1) Whether the accident in question resulting in the death of the deceased Syed Mohiuddin Ahmad, Sajjad Ahmad Khiljee and Muhammad Aslam was caused on account of negligence, default and breach of duties of the Railway Authorities i,e, defendants, if so, its effect?
(2) Whether the defendants are liable to pay the compensation/damages to the plaintiffs and other legal heirs of the deceased persons jointly and severally, if so, to what extent?
5. ' On behalf of the plaintiffs, plaintiff appeared as witness, who produced F.I.R. No,8 of 1990 as Exh.P.6/1, death certificate as Exh.P.6/2, clippings of newspaper as Exhs.P.6/3A to P.6/3C, identity card of witness as Exh.P.6/4, identity card of deceased as Exh.P.6/5, identity card of Mst. Zohra as Exh.P.6/6, Nikahnama as Exh.P.6/7 alongwith one Ali Akbar. On behalf of the defendants, Tariq Jawed, engine driver and Khuda Bux, gateman of Gaddar Railway Crossing appeared as witnesses.
6. ' I have heard Mr. Nasir Maqsood, learned counsel for the plaintiffs and Mr. Akhlaq Ahmed Siddiqui learned counsel for the defendants. Both the learned counsel also filed written arguments.
7. ' After hearing the learned counsel, taking into consideration written arguments and evidence on record, my findings on the issues are as under:-- Issue No,1: ' The learned counsel for the plaintiff stated that defendants failed, to take all reasonable precautions to ensure the safety of persons lawfully using the level crossing.
8. ' Plaintiff in his evidence stated that on 1-3-1990 at 17-45 hours, when deceased, who was travelling with others in car, reached the Jumma Goth level crossing, the gates/bars were open on both sides with green lights on and saw other vehicles ahead of him safely passing/crossing the lines entered the gate and when his car reached the main railway line, it was hit by the engine of defendants Nos.1 to 3, running at full speed without horn or whistle while overshooting in a rash and negligent manner and carried/dragged the said car to more than one furlong, while simultaneously hitting two other cars, two persons died on the spot and deceased died later in hospital owing to the fatal injuries caused to him in the said accident. The witness further stated that on 1-3-1990, defendants Nos.1 to 3 failed to keep the gates/bars closed at the level crossing closed when the approach of the engine made it dangerous for the public. The statement of the plaintiff on oath about the negligence of defendants was not challenged in the cross-examination. Another witness of the plaintiff Ali Akbar, an eye-witness of the accident, stated that gates/bars at the level crossing were open on both sides with green lights, and railway engine came while overshooting in a rash and negligent manner at full speed without giving any horn, whistle or signal of its approaching and knocked down witness's car and two other cars. In the cross-examination the said witness denied the suggestion that railway signal for vehicular traffic was red. The witness further stated that gateman was inside his cabin.
9. ' The witness of the defendants Tariq Jawed, who was posted as fireman on the engine involved in the accident, stated that since signal was yellow, engine passed the outer signal and when the locomotive approached the level crossing gate, witness saw vehicular traffic approaching and trying to cross the level crossing, the driver of the shunting engine applied emergency brakes but dashed the vehicles on the railway line.
10. ' In cross-examination the said witness stated that he did not know whether the accident took place due to the negligence of the railway as he was in the engine and could not see the incident.
11. The other witness of the defendants, who was gateman at Jumma Goth on the date of the accident, stated that in spite of having received the message of caution for the third locomotive to cross the railway crossing, due to threat of the people the Assistant Station Master pressed the button to open to barrier and the witness also pressed the button for opening the barrier from the cabin as without pressing both the buttons at the same time the barrier could not be opened in emergency. The witness stated that as soon as the barrier was lifted, two or three cars parked, close to the barrier/railway level crossing tried to cross the barrier but unfortunately in the meantime the locomotive, which had crossed the outer signal dashed into the said vehicles and the incident in question occurred. In cross-examination the witness admitted that the witness was suspended from the job after the inquiry and further admitted that the railway locomotive was not visible to him when he pressed the button lifting the barricades. The other witness also admitted that the locomotive engine did not give any horn or whistle to confirm its approaching on level crossing and if the horn or whistle was given by the driver, the witness could not have lifted the barricades for opening the level ' From the above evidence, it is established that the Railway Authorities have been negligent in taking proper care resulting that three persons, namely, Syed Mohiuddin Ahmad, Sajjad Ahmad and Muhammad Aslam were died on account of the accident occurred at the said railway crossing. This issue is answered in affirmative. Issue No,2 ' The plaintiff in his evidence stated that at the time of accident deceased was 31 years of age and earning a sum of Rs,5,000 per month. The plaintiff claimed a sum of Rs,5,930,000 as damages compensation.
12. ' The defendants cross-examined the plaintiffs' witness but did not challenge the income and age of the deceased.
13. ' Keeping in view the nature of the job of the deceased in my humble opinion the deceased earning capacity on moderate and average level for the purpose of quantification can be Rs,4,500 per month. The aggregate loss of 39 years of pecuniary benefits comes to Rs,2,106,000 and after deducting 1/6th on account of the personal expenses the plaintiffs are entitled for a decree in the sum of Rs,1,745,000.
14. ' Consequently the suit is decreed against the defendants in the sum of Rs,1,745,000 with mark-up @ 10% per annum from the date of filing suit till realization with no order as to costs. The decree should be satisfied within 60 days from the date of decree, however, plaintiffs will recover the said decretal amount in the first instance from defendants Nos.2 to 4. accordingly.