1. ' The brief facts of the case, as narrated in the plaint, are, that on 17-2-1991, the defendant No.2 while driving a Bus bearing No. 855-444, in a rash, negligent and careless manner, on M.A. Jinnah Road, when reached in front of office of Nawa-e-Waqt applied the breaks of the bus in such an abrupt and violent manner that deceased Mohammad Sharif Abbasi who was travelling on the said bus, fell down from the bus, with the impact thereof, and died because of fatal injuries thus suffered by him. F.I.R. In respect of the accident was recorded against the defendant No.2 (driver of the bus owned by defendant No.1 Corporation). It was contended that since the death of the deceased was caused by actionable, wrong, negligence, and wrongful act of defendant No.2 being an employee of defendant No.1 both the defendants are liable to pay compensation. It was averred that the deceased was 38 years of age and was the sole bread winner of the family consisting of eight members. That the plaintiffs, the mother and the widow of the deceased, have been deprived of their present and future pecuniary benefits. It was claimed that the deceased, who was working as a Peon in Sindh Social Security Departmerit, 'was drawing a monthly salary of Rs.1,800. He was also earning Rs.800 p.m by way of overtime each month and with the passage of time, his salary would have increased to Rs.4,500 per month. In addition to his income from his regular employment, the deceased also used to earn a daily wage of Rs.70- by working as a waiter during the evening hours, in Gulistan Hotel, at Ancholi and used to give Rs.4,000 to Rs.4,500 to his widow. It was further claimed that the deceased intended to get retirement after some time and set up a small hotel which could have fetched him an income of Rs.10,000/, to Rs.15,000/- per month. It was contended that since, the plaintiffs have been deprived of paternal training, care, monitory support, proper nourishment and grooming, on account of the death of the deceased and have thus been deprived of better prospects in life, each of them is, therefore, entitled to a compensation of Rs.2,00,000 on this account also. An amount of Rs.2,00,000 was also claimed as compensation for the widow of deceased for loss of association of her husband. An amount of Rs.10,000was claimed, towards funeral expenses.
2. ' The defendants Nos. 1 and 2 were duly served with the summonses of the suit. However, defendant No.2 failed to appear and written statement was filed on behalf of the defendant No.1 only. The defendant No.2 was thus proceeded ex parte. The defendant No.1 in their written statement admitted the ownership of the bus involved in the accident and also that the defendant No.2 was their employee. They however, traversed the allegations pertaining to the cause of accident, as contained in paras Nos.2 and 3 of the plaint, merely by stating that contents of the said paras are not admitted and that the reading of the plaint itself shows that the deceased himself was at fault.
3. ' On the pleadings of the parties, the following issues wereframed:
(1) Whether the death of the deceased Sharif Abbasi was caused on account of rash, negligent and careless driving of the defendantNo.2, driver/employee of defendant No.1 during the course of employment, on 17-2-1992 while driving the Bus bearing No.855-444 of defendant No.1?
(2) Whether the defendants are jointly and severally liable to pay the compensation/damage, as claimed, by the plaintiffs?
(3) Whether the plaintiffs are entitled to cost and interest , as claimed ?
(4) Any other relief or reliefs this Hon'ble Court may deem fit?
(5) What should the decree be?
4. ' During the pendency of the suit, the defendant No.1 Corporation suspended its operation and the defendant No.3 took over the liabilities of defendant No.1, arising out of or likely to arise out of pending cases and thus by a consent order dated 8-9-1998 the defendant No.3 was impleaded in the suit as such, who adopted the written statement filed by defendant No.1.
5. ' After the impleadment of defendant No.3, an additional issue was adopted as follows: ' Whether the defendant No.3 has taken over the liabilities of the 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 Agreement dated 13-3-1997 entered into, inter alia, between defendant No.1 and defendantNo.3, if so, to what extent?
6. ' In support of their case, the plaintiffs examined their uncle/next friend, Mohammad Zaman through his affidavit-in-evidence, who produced the death certificate and medical certificate of the deceased and photo-copies of national identity cards of the deceased, his widow and of plaintiffs Nos. 1 and 2.
7. ' The other witnesses examined by the plaintiffs were, ASI Muhammad Sarwar of Police Station Soldier Bazar and Muhammad Iqbal, an eye-witness of the accident. While the contesting defendants examined Gul Mohammed Soomro, who was at the relevant time, the Manager of the defendant No.1 Corporation.
8. ' Upon consideration of the evidence and hearing the arguments of learned counsel for the plaintiffs and learned Assistant Advocate-General, who appeared on behalf of defendant No.3, my findings on the issues are: ' Issue No.1:The plaintiffs' case was that the fatal accident occurred because of rash and negligent driving of the bus by defendant No.2 (the employee of defendant No.1 Corporation). The defendant No.1 in their written statement, admitted the ownership of the bus involved and also that the defendant No.2 was their employee. They however, traversed the allegations/detailed account, pertaining to the accident, as contained in paragraphs 2 and 3 of the plaint, merely by stating, that the contents of the said paras. Are not admitted. Since the allegations have not been denied specifically, in law the same are deemed to be admitted. In this regard Mr. Nasir Maqsood the learned counsel for the plaintiff has relied on the judgments discussed herein below.
9. ' In the case of Inam Naqshabandi v. Haji Shaikh Ijaz Ahmed, PLD 1995 SC 314, it was held by a Full Bench of the Hon'ble Supreme Court, that where the allegations of the facts in the plaint are not denied specifically, or by necessary implication, or are stated to be not admitted in the pleadings of the defendants the same shall be taken to be admitted against them, except against the person under disability.
10. ' In the case of Khursheeda v. Haji Qudruttllah, 1988 CLC 1062, where allegation of rash and negligent driving of the driver was not denied specifically, the same was deemed to have been admitted.
11. ' As observed above, although the defendants have not denied the allegation of rashness and negligence, specifically, it .Was, however, contended that the reading of the plaint, itself shows that deceased himself was at fault. The plaintiffs in order to prove their case examined their uncle Mohammad Zaman, who in his affidavit-in-evidence, reiterated the details of the accident, as narrated in the plaint. The eyewitness P.W. Mohammad Iqbal, who was travelling on the same bus when the accident occurred, fully corroborated the plaintiffs version of the accident. The witness in his affidavit-in-evidence narrated the detailed account of the accident, thereby attributing the cause of accidentcopy of the relevant F.I.R. Msolely to the negligent and rackless driving of defendant No.2. A.S.-I., Muhammad Sarwar, who also r was examined by the plaintiffs, producedof arrest of defendant No.2 and theMedico-legal Report of the deceased. The witnesses were examined by the defence counsel. However, the material statement of fact as narrated by them was not controverted. The witnesses have successfully with stood the touchstone of cross- examination. In his evidence Gul Mohammad Soomro, the only witness examined on behalf of the contesting defendants, who at the time of the incident was Manager Legal of defendant Corporation, did not say a word which could possibly impute any negligence on the part of the deceased. This witness did not state anything regarding the incident itself. All that he stated was that the ease of defendant No.2 was not referred to him, as defendant No.2 was not held guilty during the departmental inquiry, held at Depot level. However, he could not disclose the name of the Inquiry Officer or the source of his information regarding the alleged inquiry and admitted that he had not seen the purported inquiry report. The witness also failed to produce a single document pertaining to the alleged inquiry, although, he admitted that the cases of fatal accidents were sent to him for opinion by the Depot Managers and that the inquiry report and reference used to contain site report, statement of driver and conductor of the bus involved and the site plan prepared by the Inquiry Officer. The defendants' side also ' failed to produce the driver of the bus and in fact, as admitted by witness Gul Mohammad Soomro, no efforts were made by them to call the driver as a witness. The position that emerges from the foregoing is that the details pertaining to the incident of the accident and the allegation that the accident occurred as a direct consequence of rash, negligent driving by the defendant No.2 have been admitted by the contesting defendants as there is no specific denial of the same in their written statement. The plaintiffs have also proved their case through an eyewitness of the incident, whose evidence remained uncontroverted in the material details. The versions of the plaintiffs' witnesses could not be shaken by the defence counsel during the cross-examination. The sole witness examined on behalf of contesting defendant did not utter a single word as to how and in what manner the accident occurred. He even failed to produce a single document pertaining to the purported departmental inquiry, which allegedly absolved the defendant of the responsibility of the accident.
12. The contesting defendant failed to produce defendant No.2, the driver of the bus. The defendants thus having withheld the best possible evidence, available to them have themselves given rise to adverse presumption against them. The learned counsel for the plaintiffs has relied on the judgment discussed hereunder.
13. In the cases of Mst. Zaibun Nisa v. Muhammad and others PLD 1965 (W.P.) Kar.127 and Chaman Baig v. ' Karachi Transport Corporation 1995 CLC 1714, it was held that where in a fatal accident case the defendants failed to produce the driver of the bus involved, adverse presumption shall be drawn against the defendant. It is nowwell-settled principle of law that once the factum of fatal accident is proved the burden of plaintiff is discharged and presumption of negligence arises and it is for the defendant to prove the absence of negligence and rashness on their part. This rule of evidence has been derived from the doctrine of `res ipsa loquitor' which means, thing speaks for itself. The doctrine was followed by this Court in the case Qazi Arifuddin and another v. Government of Sindh PLD 1991 Karachi 291 and was subsequently approved by a Full Bench of Hon'ble Supreme Court in the case of Pakistan Steel Mill Corporation v. Malik Abdul Hameed and another 1973 SCMR 848, wherein, it was held as follows: "This doctrine applies firstly, when the thing that inflicted damage was under the sole management and control of the defendant and, secondly, that occurrence is such that it would not have happened without negligence, and thirdly, that there must be no evidence as to why or how the occurrence took place. In such circumstances, defendants have to persuade the Court that accident did not occur on account of their negligence."
14. ' The above rule of evidence was also applied in the case Kandan v. Al Hayat Service (Pvt.) Ltd. 1988 CLC 525, and upheld by a Division Bench in-an appeal of Al Hayat Service (Pvt.) Ltd. v. Kandan 1989 CLC 2153. The Division Bench in its above judgment, while relying on Bhurmal and Mitra Motor Association v. Raghunath Bansilal Kassat, AIR 1963 Bombay 144, Barkway v. South Wales Transport Co. Ltd. 1950 1 All E.R. 392 and Halsbury's Law of England observed as follows: "This maxim means that in all the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained with the result that the natural and reasonable inference from the fact has to be drawn. But it must be made clear that such inference from the fact has to be drawn. But it must be made clear that such inference should not be based on conjecture and surmises. The burden is on the plaintiff to prove the actual cause of accident but in case where it is not possible for him, as such facts are within the exclusive knowledge of the defendant, then in those circumstances, if the incident is provided, the defendant is called upon to explain its conduct to bring about the correct and true facts. Due to non-accessibility to vital part of the evidence the plaintiff is put to great disadvantage, therefore, this maxim is applied to avoid the rigors created by procedural difficulties."
15. ' The rule of res ispa loquitur has been applied in numerous otherreported cases including the cases, reported as, Mst. Shamim Akhtar v. Javedan Cement 1997 CLC 955, and Mst. Sakina and three others, 1995 CLC 633.
16. In the instant case all that was required by the plaintiff was to establish that the death of the deceased was caused by an accident involving the bus owned by defendant No.1 and driven by defendant No.2, the employee of the former. Upon proving such unfortunate occurrence by the plaintiffs, the defendants were to prove that the accident has not occurred as a result of negligence and rashness on the part of defendants. However, as observed earlier, the plaintiffs have not only proved the occurrence of the fatal accident but have fully established through their witnesses that the same has occurred on account of rash and negligent driving by defendant No.2, whereas absolutely nothing was brought on record by the defendants, so as to establish that accident was not caused due to rashness and negligence on the part of the defendant No.2. With regard to the contention of the contesting defendants, as raised in their written statement, that the reading of the plaint itself shows that the deceased himself was at fault. It may be noted that there is nothing in the plaint which could possibly impute negligence on the part of the deceased. Nor has it, even otherwise, been explained as to how and in what manner any contributory negligence could possibly be attributed to the deceased. However during his cross-examination, the plaintiffs' witness Mohammad Zaman, has stated that the deceased was standing at the front door of the bus, but such fact also would not absolve the defendants of their liability as the defendant No.2, being in control of the bus could have easily avoided the accident, just by driving the same with ordinary care and caution and was by no means prevented by the deceased in doing so. The defendant No.2, however, despite having overloaded the bus, in violation of Traffic Rule, drove the same in such a negligent manner, that resulted in the accident, causing death of the deceased. In the case of Syed Afzal Hussain v. Karachi Transport Corporation and another PLD 1997 Kar. '253, this Court, relying on a judgment of a Division Bench of Karnataka High Court, in the general Manager Bunglore Transport Service v. Narasima Haiah and others AIR1977 Karnataka 6, wherein it was held that in case it is found that the negligent act or omission of a deceased driver was the appropriate causeof the accident, it will not be a valid defence to show that the person injured. Was also negligent unless it is established that the person injured had made 4t extremely difficult for the other to avoid the accident, rejected the plea of contributory negligent.
17. ' In the case of Qudsia Begum v. Younis Khan PLD 1973 Kar. 636 wherein a bus, while overtaking a tram-car in a rash and negligent manner, hit the foot board of the tram-car where the deceased was standing, causing fatal injuries to the deceased and it was argued that the deceased, had no business to stand on the foot board of the to in fact, but for his so standing there would have been no ace held therefore, if it was to assume that the deceased was standing on the foot board the last opportunity for avoiding was with the bus driver and the defence of contributory n therefore not available to the defendant. My conclusion there issue is, that the rash and negligent act of the bus driver re death of the deceased and that the deceased had not contra or otherwise to the occurrence of that unfortunate learned A-A.-G. Appearing for the contesting defendants, that the defendants are not liable as the defendant No.2, the acquitted, though challenged. The alleged acquittal has no the present case and is of no avail to the defendants as the criminal case are no conclusive proof of absence of newly criminal case it is the duty of the prosecution to prove car, and end. It was negligent in e accident gligence is ore on this led in the ted chiefly event. The has argued river, was evince to endings in a fence. In a he offencebeyond reasonable doubt whereas in the instant suit the onus to prove absence of the negligence was upon the defendants. Moreover, no document has been placed before this Court so as to know the ground which led to the alleged acquittal.
18. ' In this regard Mr. Nasir Maqsood has relied on the judgments in Nisar Ahmed v. Messrs Hospital Supply Corporation 1999 MLD 13, Chaman Baig v. Karachi Transport Corporation 1995 CLC 1714, Nimi Francee and others v. Mohammad Saeed Qureshi 1982 CLC 1703 and Mst. Qudsia Begum v. Younis Khan and four others PLD 1973 Kar.636.
19. In view of the above discussion, I hold that the death of the deceased has been caused on account of rash and negligent driving by defendant No.2, the driver/employee of the defendant No.1 while driving the bus owned by the former. Admittedly the defendant No.3, has assumed the liabilities of the defendant Corporation, the defendants are thus liable to, compensate the plaintiff's. Issues Nos. 2, 3, 4 and the additional issue: ' I propose to deal these issues jointly as these involve question of liability of the defendants towards the legal heirs of the deceased.
20. ' The plaintiffs, who are sons and daughter of the deceased have claimed compensation of Rs.35,50,000 against the defendants. It was claimed that the deceased was 38 years of age, with simple habits and was the sole bread winner of the family consisting of twelve members. He was drawing a monthly salary of Rs.1,800 from Sindh Social Security Department where he was working as a Peon and was earning an additional amount of Rs.800 p.m. By way of overtime. It is claimed that, in addition to his regular job, he used to work as waiter, in the evening hours, in Gulistan Hotel at Ancholi, earning a wage of Rs.70 perday and as such he used to give to the widow Rs.4,000 to 4,500 each month. It was further claimed that the salary of the deceased would have increased to Rs.4,500 per month. It was also claimed that he was planning to establish his own small hotel after seeking retirement from his job after some time. In addition to the above, it was contended that since on account of the death of deceased the plaintiffs have been deprived of paternal training, monitory support and proper nourishment and other facilities, and have thus been deprived of better prospect in life, each of them is therefore, entitled to a compensation of Rs.2,00,000 on this account also and an amount of Rs.2,00,000 was also claimed as compensation for the widow of deceased for loss of association of her husband whereas Rs.10,000 were claimed towards funeral expenses.
21. ' In his affidavit-in-evidence, the plaintiffs' witness Mohammad Zaman reiterated the contents of the plaint. He however, stated that the monthly salary of the deceased was Rs.2000 whereas in plaint cvas averred that monthly salary of the defendant was Rs.1800.
22. ' As can be seen from the photo-copy of the National Identity Card of the deceased, produced by plaintiffs witness Mohammad Zaman, the deceased was born in the year 1953. Undisputedly, the deceased has died at the age of 38 years. Neither the claim of the plaintiffs, as put forward by them through their witness has been controverted nor the defendants denied the same in their evidence.
23. ' Since admittedly the defendant No.3, has assumed the liabilities of the defendant No.1 the defendants Nos.2 and 3 are therefore liable to compensate the legal heirs of the deceased. The average life in Pakistan is assumed to be 70 years. The quantum of compensation payable may thus be calculated as follows: 1.Average income of the deceased for 32 years.Rs. 58,800 X 32 = 18,81,600/--- 2.Add 20% expected increase in the income.Rs.22,57,980.00 3.Less 1/6th towards presumed personal expensesRs. 18,81,600.00 4.Funeral Expenses.
24. Net amount payableRs. 10.000.00 Rs.18,91,600.00 In view of the above, the suit is decreed for Rs.18,91,600.00 against the defendants jointly and severally with interest/mark-up at the rate of 14% per annum, from the date of the suit till final payment. The plaintiffs shall also be entitled to the cost of the suit. The decretal amount shall be paid within two months.