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Suit No. 1078 of 1979, decided on 12th February, 1985.

---S. 1--Rash and negligent driving--Proof of--Only one eye-witness deposed about accident and such evidence having not been shaken in cross-examination, held, established that accident was caused on account of rash and negligent driving.

---S.1--Rash and negligent driving--Damages--Death caused by bus accident--Liability--Driver, as well as owners of bus, at time of accident, held, liable to pay damages.

---S. 1--Rash and negligent driving--Damages--Death caused by accident--Quantum of damages--Formula of calculation--Deceased at time of accident being 49 years of age--Normal age in absence of accident would have been 65 years in view of family history--Personal expenses of deceased to be deducted from his pay--Balance of pay which deceased gave as household expenses and would have given had he not died due to fatal accident, for 16 years i.e. till he attained age of 65 years accepted as formula of calculation.

---S. 1--Rash and negligent driving--Liability--Nature of--Liability of driver, owners and Insurance Company, held, several and joint subject to liability of Insurance Company for amount for which bus in question was insured. Munir-ur-Rahman for Plaintiffs. P.M. Amer (absent) for Defendant No. 11. Date of hearing: 12th February, 1985.

This Suit has been filed by the Plaintiff, widow, children and mother of deceased Sher Afzal, under the Fatal Accidents Act, 1855 for the recovery of Rs.1,70,880 against the defendants. There are 11 defendants in this suit. Defendant No. 1 is Hakim & Company and defendants Nos. 2 to 9 have been impleaded as defendants partners of Hakim and Company. Defendant No. 10 is Muhammad Afzal, driver of the bus in question on which caused the accident, and defendant No.11 is Eastern General Insurance Company Limited, with whom the bus in question was insured at the relevant time. No one except defendant No. 9 filed any written statement. Defendant No. 9 in his written statement did not deny that the deceased Sher Afzal died on account of the accident but it was averred that the accident was caused on account of the rash and negligent driving of his motor-cycle by the deceased and not on account of rash and negligent driving of the driver of the bus. It was admitted that the bus in question was bein driven by defendant No. 10 but it was denied that defendant No a was a partnership firm and defendants Nos. 2 to 9 were the partner1 of this firm. According to the written statement of defendant No 9s the bus in question was owned by defendant No. 8 according to the registration documents. However, defendant No. 9 in his evidence hae admitted that he had purchased the bus on instalments basis from defendant No. 8. The following issues were adopted by the Court on 23-8-1981:--

Whether Sher Afzal died due to the rash and negligent driving and high speeding of Bus No. 969-167

(2) What was the age, earning, health condition and habits of the deceased at the time of the alleged accident

(3) To what relief are the plaintiffs entitled 2. On behalf of the plaintiffs, 6 witnesses were examined. P.W.I (Exhibit 5) is Mst. Qudsia Kishwar widow of the deceased and plaintiff No. 1 in the present suit. She has stated in her evidence that the deceased died in the accident which took place on 30-10-1979 and at the time of his death he was drawing a salary of Rs.1,190 per month from his employer, Ameejee Valleejee and Sons. She also produced a certificate (Exhibit 5/3) issued by the employer firm of the deceased about the emoluments of the deceased. She has further stated in her evidence that he used to pay a sum of Rs.1,000 for household expenses to her and he used to go in the evening to do part-time work with some other concern and out of the earning from the extra job he was doing in the evening he used to pay electricity and other bills of the household and also cover his personal expenses. The widow gave her age as 40 years at the time of giving evidence and she stated that her husband was 9 years older to her. The passport of the deceased has been exhibited as Exhibit 5/2 and it gives his date of birth as 11-3-1931. His National Identity Card (Exhibit 5/1) also gives the same date of birth of the deceased. The evidence accordingly established that at the time of his death, the deceased was about 49 years of age. The evidence about the age and emoluments of the deceased has not been controverted. In fact P.W.2 Qamruddin, Assistant Administrative Officer in the firm of Ameejee Valleejee & Sons gave evidence in which the evidence given by the plaintiff No. 1 has been corroborated and the witness stated that the salary and. remuneration mentioned in the certificate Exhibits 5/3 were correctly recorded. About health of the deceased, plaintiff No. 1, the widow, P.W.2 Qamruddin and P.W. 3 Zarar Din, also, an employee of Ameejee Valleejee and Sons, have given evidence that the deceased enjoyed very good health, and he did not suffer from any serious illness and did not have any bad habits. About the ages in the family, the evidence of plaintiff No. 1 is that the mother of the deceased was still alive at the time the widow gave evidence and the mother was 75 years of age and that the deceased's father died at the age of 8o years. The widow has also given evidence that she has 6 children, three sons and three daughters, and that at the time of death of her husband, none of their children was married or in service or was earning and that at the time of the death of the deceased, the younger child was 10 years old and the eldest was 22 years old. The widow has also stated in her evidence that the deceased was driving the scooter for more than 7 years before he died in the was accident and that he was a very careful driver and apart from the accident which took his life, the deceased was never involved in any accident. 3 About the accident itself, evidence has been given by P.W.5 (Exhibit 9) Muhammad Hashim. The evidence of this witness had also been recorded by a Magistrate in the criminal case against defendant No. 10, driver of the bus. The evidence of Muhammad Hashim shows that the bus in question while taking a turn at the crossing hit the deceased and that the motor-cycle was going in front and the left side of the bus hit the motor-cycle and the wheel of the bus went over the motor-cycle and then motor-cycle got struck the back wheel and the man who was riding the motor-cycle was crushed in the accident and he died at the spot. This witness was cross-examined by the counsel who the was appearing for defendant No.9 but the version about the accident given by the witness was not shaken in the cross-examination. Then there is the evidence of P.W.10. Hameed Gul who was a Traffic Constable and he was on duty on the crossing. He did not see the accident but he heard the sound of some thing being dragged and when he turned his face towards the side from which the noise was coming, he saw a bus which had already stopped with a body lying just behind the rear wheel. According to this witness the person who was involved in the accident died on the spot. He has also deposed that the bus driver wanted to run away but he caught the driver. Defendant No. 10, the driver of the bus neither filed any written statement nor he has appeared to give evidence in this suit. The only eye-witness who has given evidence as P.W. Muhammad Hashim and as observed earlier, his evidence has not been shaken in the cross-examination. According to the evidence on record, in my view, it has been established that the accident was caused on account of rash and negligent driving of the bus in question by defendant No. 10 and this accident caused death of Sher Afzal on the spot. Issue No. 1 is decided accordingly in the affirmative. 4. On issue No. 2, the evidence has established that at the time of the accident, the deceased was 49 years of age and he was earning about Rs.1,200 per month and his health was very good and he did not have any bad habits. Issue No. 2 is decided accordingly. 5. Issue No. 3 relates to relief. Mr. Riazul Hassan who has appeared on behalf of the defendant No. 11, the Insurance Company, has admitted that at the relevant time the bus in question was insured with defendant No.11 but according to him, the accident was caused by a commercial vehicle and as such the liability of defendant No.11 is limited to Rs,20,000. This contention of the learned counsel for defendant No.11 is not denied by the learned counsel for plaintiff. As regards the liability of other defendants, defendant No.10 is liable to pay damages as he was a driver who had caused the accident. Defendants Nos. 8 and 9 are also liable as the record establishes that they were the owners of the bus in question at the time the accident took place. As regards quantum of damages, it may be observed here that the plaintiffs have claimed a decree in the sum of Rs.1,70,880. The formula of calculation of this amount is mentioned in paras 5 and 6 of the Plaint. The plaintiffs averred that the deceased would have lived upto the age of 65 years if he had not died in the unfortunate accident In view of the evidence on record, the age of 65 years is accent. There is also evidence on record that at the time of his death plaintiff was receiving a salary of Rs.1,190 per month from M/s. Arneejee Valleejee & Sons. The plaintiffs, after deducting Rs.300 per month for the personal expenses of the deceased from this figure of Rs.1,190 Per month, have made the resulting figure of Rs.890 per month the basis for the damages claimed in the present suit. According to the plaintiffs, the deceased was expected to give Rs.890 per month to them for a period of about 16 years that is, till the age of 65 years, the deceased being 49 years of age at the time of the accident. On the basis of the aforesaid formula, the claim of the plaintiffs comes to Rs.1,70,88p, in my view, the claim for Rs.1,70,880 is supported by the evidence on record. Plaintiff No. 8 is the mother of the deceased and according to the learned counsel for the plaintiffs, she does not claim any amount and she was joined only as a pro forma plaintiff. The shares of plaintiffs Nos. 1 to 7 in the decretal amount are apportioned as follows:-- Plaintiff No. 1 Mst. Qudsia Kishwar ... Rs.65,880 Plaintiff No.2 Babar Afzal ... Rs.10,000 Plaintiff No.3 Shaista ... Rs.10,000 Plaintiff No.4 Humayoon Afzal ... Rs.20,000 Plaintiff No.5 Afshan ... Rs.20,000 Plaintiff No.6 Farrukh Shahzad ... Rs.20,000 Plaintiff No.7 Saba ... Rs.25,000 ________ Rs. l,70,880 ________ 6. Suit No. 1078 of 1979 is decreed in favour of plaintiffs Nos. 1 to 7 as against the defendants Nos. 8, 9, 10 and 11, jointly and severally, in the sum of Rs.1,70,880 subject to the liability of defendant No. 11 being limited to Rs.20,000. The plaintiffs Nos. 1 to 7 shall also be entitled to costs as against the defendants Nos. 8, 9, 10 and 11. In case the decretal amount is not paid by 31-3-1985, the plaintiffs Nos. 1 to 7 shall also be entitled to interest on the decretal amount at the rate of 14% per annum with effect from 1-4-1985 till realization. No decree is passed in favour of plaintiff No. 8 as the suit has been withdrawn by the learned counsel for the plaintiff No. 8 in so fai as plaintiff No.8 is concerned. Suit as against defendants Nos. 1 to is dismissed with no orders as to costs. A.A. Suit decreed Partly