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Suits Nos.768 and 782 of 1985, decided on 4th May, 1987.
---Ss.1 & 2--Deceased crossing road from behind a Bus, hit by an oncoming tanker--Deceased killed by rash and negligent driving- Burden to prove that there was no negligence lies on driver--Plea that deceased abruptly and suddenly appeared from behind the Bus and there was no time to apply brakes--Duty of driver to be cautious while crossing Bus--Driver, held, was liable for rash and negligent driving in circumstances.
Mst.Zaibunnisa v. S.R.T.C. 1982 C L C 1228; Mrs.Francis v. Muhammad Saeed Qureshi 1982 C L C 1703; Gul Banoo v. Muhammad Ramzan 1982 C L C 1120 ref.
Mariambai v. M.M.Ispahani Limited P L D 1965 W.P. Kar.59 distinguished .
---Ss.1 & 2--Death due to rash and negligent driving--Damages- Quantum--Deceased at time of accident 43 years of age and monthly income Rs.1,500--Deducting 1/6 as his personal monthly expenses monthly income reduced to Rs.1,250--Deceased 8t time of accident enjoying good health--Expectancy of life fixed at 65 years--Deceased therefore expected to live for 22 years more--Compensation awarded:
Rs.3,30,000 with interest at 8 from date of suit till payment.
--S.1--Quantum of damages--Deceased a woman aged 60 at time of death and earning Rs.600 p.m.--Period of remaining life span considered to be 5 years more--Rs.30,000 awarded as compensation to her heirs.
Muhammad Maqsood for Plaintiff.
Umer Qureshi for Defendants.
Date of hearing: 4th May, 1987.
Since the death of the two deceased under these two suits had taken place due to a common accident I propose to decide both the suits by this single judgment.
2. Briefly stated the facts giving rise to these suits are that the defendant No.1 i.e. Pakistan Coast Guards is the owner of water tanker No. C.P. 78.and defendant No.2 Asghar Mahmood was the driver of the said water tanker. Defendant No.2 was the employee of defendant No.1. On 28-6-1985 the defendant No.2 while driving the said water tanker in a rash and negligent manner near the crossing of Old Exhibition on M.A.Jinnah Road dashed the same against Tauheed Fatima and her sons Aziz Ahmed and Sharif Ahmed. Consequently Tauheed Fatima and Aziz Ahmed received fatal injuries and expired while Sharif Ahmed survived the injuries. Suit No.768/85 has been filed by Zaibunnisa Begum widow of Aziz Ahmed while suit No.782/85 has been filed by Shamsunnisa Begum a widowed daughter of deceased Tauheed Fatima. In the first suit it was alleged that the deceased Aziz Ahmed was aged about 42 years and was expected to have lived upto the age of 65 years. His earning was shown at Rs.800 per month. Accordingly Rs.6,00,000 have been claimed as damages from both the defendants jointly and severally.
3. In Suit No.782/85 deceased Mst. Tauheed Fatima was shown to be of 60 years of age. Her expectancy of life was shown upto 72 years and her monthly income was claimed to be Rs.1,400 and a sum of Rs.1,05,000 has been claimed as compensation on account of her death. Besides this in both the suits 15 interest has been claimed and as also the costs.
4. Both the defendants filed separate written statements in both these suits. Their defence in short is that no doubt the two deceased had died on account of an accident with their tanker as alleged but the defendant No.2 was not driving the tanker rashly and negligently and that on the contrary the accident had taken place due to the negligence of the deceased persons who had suddenly and abruptly made an attempt to cross the road. Certain other pleas have also been taken regarding the right to claim compensation and the amount thereof which are evident from the issues.
On the pleadings of the parties the following issues were framed in both the suits:----
(1) Whether the cause of death of deceased was due to rash and negligent driving of the vehicle and was an actionable wrong
(2) What could have been the expected life, under the circumstances, of the deceased
(3) Whether the claimants have suffered pecuniary benefits (sic) in the death of deceased
(4) What was net Annual Income of the deceased at the time of his death
(5) Is the suit bad in law for non-compliance of Order 1 and S.32 of CPC
(6) What should the decree be
5. My findings on these issues together with reasons, therefore, are as follows: -
This is the most important issue in this suit. The plaintiff has examined herself in suit No.768/85 as Exh.6 and has produced the Employment Certificate of her husband exhibit 6/1. She 'has examined Sharif Ahmed as exhibit 7 in her support who has produced photocopy of the FIR as exhibit 7/1. As against this the defendant No.2 Asghar Mahmood has been examined in this suit as exhibit 8. Similarly in suit No.782/85 plaintiff Shamsunnisa has examined herself as exhibit 6 and her neighbourer Najma as exhibit 7.
It was ordered by the Court with the consent of the parties that evidence in suit No.768/85 be also treated as evidence in Suit No.782/85.
6. From the above evidence as well as the pleadings of the parties it is quite clear that the death of deceased Aziz Ahmed and Mst'. Tauheed Fatima had taken place due to an accident having been caused by the tanker driven by Defendant No.2 Asghar Mahmood who was the driver and an employee of defendant No.1 and was at that time acting in the course of his employment. This is in fact the admitted position in both the suits. The disputed point, therefore, remains as to whether these deaths have resulted from the rash and negligent driving of the defendant No.2. It is argued by the advocate for the defendants that the plaintiffs have not produced the site plan of the place of accident nor have they produced any certificate of the Motor Vehicles Inspector or any other mechanic to show that the vehicle was not in perfect order at the time of accident. The argument of the defendants' counsel though it would have been acceptable in a criminal case is not tenable in a suit of civil nature for the simple reason that the vehicle was not in possession of the plaintiff and he could not have been expected to get it examined and to prove that it was not in proper working order or that its brakes were defective. The vehicle admittedly was in the possession of the defendants and it was' their duty to have got examined the vehicle and to have produced necessary certificates to show that the same was in perfect working order including its brakes etc. Apart from this it may be pointed out that the two deceased and the injured were crossing the road from behind a bus. Rule of the road is 'that when a driver passes a bus it is his duty to be cautious enough to see that any person coming from behind the bus is not hit all of a sudden. It was therefore the duty of the defendant No.2 to show that while near the bus the defendant No.2 had been cautious enough of the person who would have come from behind that bus.
The learned counsel for the plaintiff has relied upon the following cases:
In the case of Mst.Zaibunnisa v. S.R.T.C. reported in 1982 C L C 1228, Saleem Akhtar, J. held that once the defendants have admitted that accident was caused due to overtaking by defendant No.1the burden of proof shifts on the defendants to establish that while overtaking the defendant No.2 was acting properly according to rules and was not negligent.
Another case reported in 1982 C L C 1703 (Mrs.Francis v. Muhammad Saeed Qureshi) was cited by the plaintiff's advocate which is similar to the present case and it was held by Saleem Akhtar, J, that the plaintiff had proved that the deceased was killed by rash negligent driving of the motor car of defendant.
In another case Gul Bano v. Muhammad Ramzan reported in 1982 C L C 1120 where the defendant pleaded that the deceased was not hit by his car but by another car and thrown on the bonnet of his car it was held that the defendant as such took upon himself the burden to prove such facts. The defendant not examining any witness to prove his allegations it was held by Saleem Akhtar, J. that the deceased in the circumstances was hit by defendant's car.
As against this the defendant cited P L D 1965 W.P. Kar. 59 Mariambai v. M.M.Ispahani Limited where Khamisani, J. was of the view that in a suit for damages filed under the Fatal Accidents Act 1855 on the allegation of negligence on the part of defendant it is for the plaintiff to show whether there was any negligence on the part of the defendant.
I have gone through this ruling. It does not apply to the facts of the present case. In this ruling it was held that some gunny-bag bales fell on the deceased on that day on account of which he died. It was further alleged that these gunny-bag bales fell on the deceased either on account of the negligence of defendant No.1 or defendant No.2.
It is therefore quite clear that this ruling is distinguishable from the present case as its facts are quite different. Saleem Akhtar, J. had also distinguished this ruling in .the case of Zaibunnisa referred to above.
On the contrary the case of the defendant himself is that the two deceased and the injured appeared from behind the bus and came in front of his tanker suddenly and abruptly and therefore he had little time to apply brakes and stop his tanker to save them. It would therefore appear that the defendant No.2 is in the circumstances of the case liable for rash and negligent driving as a result of which the death of two deceased was caused, because he should have been very careful while passing near the bus. Apart from the above circumstances there is evidence of Sharif Ahmed, the injured himself whose presence at the scene of offence is not only proved by injuries on his person having been sustained by the same tanker but is also admitted by the defendants. Sharif Ahmed has stated on oath that the defendant No.2 was driving the tanker rashly and negligently and at a very fast speed and dashed against him, his brother and mother.
7. No doubt the defendant No.2 has also been examined and he has denied the allegation of rash and negligent driving but as I have already pointed out that he has failed to show that he was cautious enough to take care of the persons coming from behind the bus which was on his left hand side. I therefore hold this issue in the affirmative.
8. Deceased Aziz Ahmed was at the time of his death aged about 43 years, his earning has been shown as Rs.800.per month in the plaint. The Employment certificate exhibit 6/1 however shows that his basic pay was Rs.531, award statement was Rs.96 and cost of living allowance was Rs.162.70 and house rent Rs.340 plays Rs.40. This would bring the total of his earning to Rs.1169.70. So far as the conveyance allowance of Rs.103 is concerned the same would not have benefited the family of the deceased because the conveyance allowance would have been spent even if the deceased would have been alive. It was stated from the Bar that the deceased had his own house and therefore the house rent was an additional income. Hence I find that his income at the time of his death would have been about Rs.1000 Rs.1800 has been shown as an exaggerated income. The expected future increase in his income would have been another 50% bringing it to about Rs.1500 per month. Out of this 1/6 be deducted as personal expenses. Rs.1250 would therefore be the net income of the deceased to which his dependents would be entitled. The expectancy of life in such cases has been fixed upto 65 oars and therefore the span during which he would be living would be 22 years. This brings the amount of compensation as Rs:3,30,000. Out of this amount Rs.5,000 has already been paid by the defendants to the plaintiffs.
Defendant's advocate has relied upon the case of Mst.Hamida Begum v. Suleman Jan reported in P L D 1961 W.P. Kar. 529 and submitted that the children of the deceased were not entitled to compensation as they were not the beneficiaries. I have gone through this ruling. It does not say that the children of the deceased are not entitled to compensation. It has been misunderstood by the learned counsel for the defendants. It says that "invalid brother of the deceased and his wife and children" (thereby meaning that the wife and children of the invalid brother of the deceased) were not entitled to compensation as they were not beneficiaries of the deceased. He has also relied upon the case of Gul Banoo referred to above in respect, of his contention that the expectancy of life was 60 years. It may be stated that even in this ruling it was stated that the expectancy of life in decided cases has been fixed from 55 to 65 years and therefore in absence of specific evidence Saleem Akhtar, J. had fixed it at 60 years but in the present case there is specific evidence to show that the deceased was enjoying good health and was expected to live such longer.
9. I therefore decree the plaintiff's suit against both the defendants jointly and severally in the sum of Rs.3,25,000. The amount apportioned as under: ---
| Zaibunnisa | Rs.1,65,750.00 |
| Muhammad Ahmed | Rs.13,000.00 |
| "Keel | Rs.14,000.00 |
| Shabbir Ahmed | Rs.15,000.00 |
| Bashir Ahmed | Rs.16,000.00 |
| Sabir Ahmed | Rs.17,000.00 |
| Farhat Jahan | Rs.18,000.00 |
| Nazir Ahmed | Rs.20,000.00 |
| Zameer Ahmed | Rs.20,000.00 |
| Zaheer Ahmed | Rs.26,000.00 |
| Total | Rs.3,25,000.00 |
10. So far as deceased Mst.Tauheed Fatima is concerned she was aged about 60 years at the time of her death. Her expectancy of life would have been for 5 years more. Her income has been shown as Rs.1200 but this seems to be on the excessive side. I therefore fix it at Rs.600 per month. After deducting her personal expenses it comes to Rs.500 per month. At this rate it would be Rs.30,000 and out of this amount a 'sum of Rs.5,000 has already been paid by the defendant No.1 to the plaintiff. Hence the plaintiff and the dependents legal heirs of the deceased would be entitled to Rs.25,000 as compensation. I therefore decree the plaintiff's suit in the sum of Rs.25,000 which shall be apportioned amongst the dependents legal heirs of the deceased as follows:---
| Shamsunnisa | Rs.12,500.00 |
| Shgbbana | Rs.2,500.00 |
| Karamatullah | Rs.3,000.00 |
| Irfanullah | Rs.3,000.00 |
| Shujjatullah | Rs.4,000.00 |
| Total | Rs.25,000.00 |
11. Besides the above compensation I award interest in each case at the rate of 8% per annum from the date of the filing of the suit till realization of the amount. The costs of the suit shall be borne by the defendants.
K.B.A./Z-22/K Suit decreed.
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