1. ' On 27-4-1984 one Jahanuddin was travelling in the bus owned by the defendant. The bus was driven by a driver of the defendant. While going to Landhi at Malir Bridge the bus driver attempted to overtake another bus. As the bus was being driven rashly and negligently it collided with a bus of Steel Mill on the bridge and consequently rolling over the bridge it fell in the river bed and several persons died including Jahanuddin aged 25 years. He has left behind the plaintiff a minor son of three years, father aged about 56 years, mother Mst. Qurasha aged 50 years and Tasleem Bibi widow aged about 22 years. It has been alleged that the deceased was employed as fitter with the defendant and was earning Rs.1000/- p.m. In the course of ten years his salary would have increased to Rs.2500/- and he would have become a Foreman. His average income has been claimed at Rs.1600 p.m., and on that basis Rs.6 lacs has been claimed from the defendants. The defendants filed their written statement in which it was stated that the accident was contributory.
2. The bus coming from opposite side dashed the front side of the bus on the driver's door and both the drivers died at the staring. Due to this collision the front tyre of the defendants bus got burst and the bus over turned to its right side and fell into the river bed. It was pleaded that the driver was' not responsible for the accident. The claim for compensation has been denied. On the pleadings the following issues were framed:-
(1) Whether the suit is time-barred?
(2) Whether the plaintiffs have any cause of action against the defendant?
(3) Whether Clic accident was contributory?
(4) Whether the accident took place due to rash and negligent driving of the driver of the bus or the accident happened due to the circumstances beyond the control of the driver of the bus?
(5) Whether the plaintiffs are entitled to compensation, if so, to what extent?
(6) What should the decree be? ISSUE NO.1 The learned counsel for the defendants has contended that the suit is barred by time as the accident occurred on 27-4-1983 while suit was filed on 30-11-1986. According to the learned counsel under Article 21 of the Limitation Act suit should have been filed within one year of the incident. Mr. Magsood the learned counsel for the plaintiff has pointed out that the plaintiff is a minor. He was aged about 3 years at the time of filing the suit and at present he is about 5 1/2 years old. In this regard the learned counsel has referred to Iftikhar Hussain v. K.E.S.C. Ltd., PLD 1957 Kar. 552, where it was held that in cases where one of the plaintiffs is a minor and others are major, in view of the provisions of section 2 of the Fatal Accidents Act benefit of section 6 can be given to all the plaintiffs and suit will not be barred by time. In view of this observation, the suit is within time and my finding is in the negative.
3. ISSUES NOS. 2, 3 and 4 ' These issues can be taken together. There is no dispute between the parties that the bus while coming from city side and proceeding to Landhi side met with accident on the bridge. It is also admitted that the bus of the defendants swayed on its right side and fell in the river bed. It has been contended on behalf of the plaintiff that the bus was driven rashly and negligently, due to which it dashed with the bus of the Steel Mill, went on its right side and fell down in the river bed. In this regard the plaintiff has examined one Hashmat Ali P.W.2 who was a passenger in the bus with his family members. He is an eye-witness. He has stated that the bus was driven rashly and negligently and in spite of warning and persuasions made to the driver, he did not desist and ultimately it dashed with the bus of the Steel Mill, dragged on its right side and fell in the river bed.
4. His son and some family members died and he had filed suit for compensation, in which decree has been granted, but the matter is in appeal. The plea of the defendant is that the bus was being driven on its left side, but Steel Mill bus dashed against it on the right side i.e. Driver's side, and due to this collision the tyre got burst and the bus fell in the river bed. The plea raised by the defendants places entire burden upon them to establish these facts. In support of this plea the defendants have examined two witnesses. D.W.1 is their Works Manager who has admitted that he came to.The site after the incident. However, he has stated that he had visited the place again with the police and prepared a sketch plan but has not produced it. He also admitted that this plan is with the ATM, but this ATM was not examined. The second defence witness is a Security Guard, who has stated that he was travelling in the bus and he has repeated the same story that the bus was dashed by theSteel Mill bus, and tyre got burst due to which bus swerved to its right side and fell down in the river bed. This witness has not produced any document about the incident which had occurred and were prepared by the relevant authorities as stated by the defence witnesses. He also stated that he had made a report to his Depot, but this report has not been produced.
5. According to the defendants their bus was keeping on its left side which was dashed by a bus coming from the opposite direction and due to this impact, the bus went on its right side, and fell in the river bed. Ordinarily if a bus is running at normal speed and any vehicle coming from the opposite direction dashes it on its front right side then either the bus will be pushed on its left or on the back side. Normally it is not possible- that a bus dashed at the front right side will deflect on its right side and with such force that it will fall down after breaking the bridge railings. The statement of P.W.2 seems to be correct which is in consonance with the incidents that have happened. In this view of the matter my finding is that the accident was caused due to rash and negligent driving of the defendants driver who was driving in such a high speed that it swerved on its right side collided with the bus of Pakistan Steel Mill and fell in the river bed. This was entirely due to negligence of the defendant's driver. There was no contributory negligence by the deceased nor can it be held that the accident occurred due to reasons beyond the control of the driver of the defendants.
6. ' ISSUE NO.5 ' The plaintiff has claimed damages of Rs.6 lacs from the defendants. The defendant's driver was driving the bus during the course of his employment and due to his negligent act if anybody suffers any injury the employer is liable to compensate the loss. The deceased was 25 years of age.
7. According to D.W.2 he was a healthy man and was drawing a salary of Rs.1000/- p.m. His expectancy of life can be determined at 65 years. He left behind a father aged about 56 years, the mother aged 50 years and widow aged 18 years and plaintiff aged one year. The expectancy of life of the parents can be fixed at 65 years. So for the income of deceased is concerned it has been admitted by D.W.2 that he was drawing a salary of Rs.1000/- p.m. With the passage of time his salary would have increased, in the normal course. Considering the large span of life he would have covered his average income can safely be assessed Rs.1400/- p.m. He would have spent at least Rs. 400/- for himself and Rs.1000/- on his family members which include his parents, son and widow. The son sit the time of the death of the deceased was one year old. He has lost his father at a very young age and has been deprived of the paternal love, affection, care and maintenance, which he would have received at least upto the age of 25 years. The widow is also very young and would have been maintained life long, but now possibility of remarriage cannot be ruled out. The father of the deceased was 56 years old and the mother 47 years of age. Mr. Mohammad Maqsood states that they are entitled to claim damages upto the age of 85 years. According to him the deceased would have lived upto 85 years and would have maintained his parents. The expectancy of life of the deceased is not relevant for the purposes of determining maintenance granted to the parents. A son can maintain has parents till such time they are alive. Their expectancy of life is fixed at 65 years and they are entitled to compensation upto that age. So far son of the deceased is concerned , he was one year at the time of incident. He would have been maintained upto the age of 25 years. Taking all these factors I will grant compensation of Rs. 2,88,000/- which shall be apportioned amongst the plaintiff, the widow, and the parents in the following manner.
8. Son. 2,00,000.
9. Father.35,000.
10. Mother.23,000.
11. Widow.30,000.
12. ' ISSUE NO.7 The suit is decreed for 2,88,000 with cost and interest 010% p.a. From the date of suit till recovery.
13. The cost and interest shall be paid to the plaintiff. The defendant should deposit the decretal amount in Court. After such deposit is made, the share of the plaintiff shall be invested by the Nazir in Defence Saving Certificates.
14. Suit decreed.