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Suit No.718 of 1983, decided on 20th May, 1987.

---S.1--Fatal accident--Compensation--Accident proved by evidence of eye-witnesses who stated that mini bus driven by defendant hit rickshaw and caused death of two persons--Testimony of witnesses against defendant remaining unchallenged--Expected life of deceased persons taken as 65 years and damages awarded to heirs of deceased upto period of expected life of deceased by taking into consideration monthly income excluding, personal expenses.

Muhammad Maqsood for Plaintiffs.

Nemo for Defendant No. 1 (called absent).

Date of hearing: 20th May, 1987.

These two suits have been filed by two widows whose husbands died on 9-7-82 on the crossing of Daud Pota Road near Mehran Hotel while they were travelling in a Rickshaw No. KAU-1807 driven by Saleem, husband of the widow in Suit No. 717/83. The other Suit No. 718/83 has been filed by the widow of one Qasim who was sitting in the rickshaw at the time when the rickshaw was hit by a Mazda Wagon No. 835-954 resulting in the accident. The names of both the widows who are plaintiffs in the two suits are Mst. Shaher Bano. As the evidence in the case is common and cause of action has arisen to both the plaintiffs out of the same accident against the same defendant would dispose of both the suits by this single judgment.

2. Briefly stated the facts are that on 9th July, 1982 at about 1.30 a.m. in the night Saleem and Qasim were going from the city towards Karsaz when they reached the Daud Pota Road near Mehran Hotel Mazda Wagon No. 835-954 driven by Syed Zulfiqar Ali, the defendant No. 1 in both the suits, hit the rickshaw causing fatal injuries to both of them. Qasim died on the spot. At the relevant time the rickshaw was driven by Saleem and Qasim was travelling in this rickshaw as a passenger. Qasim. died on the spot and Saleem was taken to the hospital where he succumbed to injuries.

3. The two widows and the children of Qasim and Saleem have filed these two suits claiming damages a on account of the death of Qasim and Saleem. The amounts claimed in both the suits are same, namely Rs. 3,24,000/- each. The defendant has been served through publication in the Morning News dated 16-10-1985 and serving has been held good. As the defendant failed to appear the office put up the case for ex parte orders. On 16-2-86 ex parte orders were passed against the defendant by the court. By another order dated 28-5-85 the name of the defendant No. 2, National Insurance Company, has been struck off by consent of parties in both the suits. As no written statement was filed no issues were framed touching the interest of the defendant No. 1 but the plaintiffs have, however, examined witnesses and the witnesses are common.

4. Mst. Shaher Bano wife of Qasim has appeared in court in Suit No. 718/83 and made a statement that Qasim was travelling in the rickshaw driven by Saleem and died on account of the rash and negligent driving of the defendant No. 1. She has filed a copy of the FIR, a death certificate Ex. 4/1. She has further stated that at the time of his death the deceased was of 23 years of age and was earning Rs.1,000/- per month as a salesman. Out of this amount he used to give Rs. 500/- per month to this lady for the household expenses. Baby Marium is the daughter of Qasim who was about one year of age when the accident occurred. ,

5. In the other Suit No. 717/83 filed by Mst. Shaher Bano widow of Muhammad Saleem the five minor children (four daughters and one son) have also been joined as parties to the suit. In this suit one Muhammad Anwar son of Muhammad Umer who is the brother of Saleem deceased has been examined on behalf of the plaintiffs and he has stated that at the time of his death age of Saleem was 30 years. He was a rickshaw driver and was driving the rickshaw at the relevant time; that he used- to earn a monthly income of Rs.1,200/- to Rs.1,300/-. He has also said that he knew the other deceased as well who was a salesman in Judia Bazar, and was earning Rs.1,200/ to 1300/- per month. This witness is from the locality of the deceased. Two more witnesses which are common to both the cases have also been examined. Ex. A is the evidence of Ahmed S/o Abdullah aged 29 years. At the time of accident he happened to be on the road and has personally seen that accident. It would be worthwhile to produce few lines from his statement:-

" At the time of accident Saleem was driving the rickshaw and Qasim was sitting in the rickshaw as a passenger. I was following them on a scooter with a friend also sitting on the scooter. We were all going to a Mazar near Karsaz. In front of Mehran Hotel Mazda Wagon arrive by defendant No. 1 hit the rickshaw. The Mazda Wagon was also proceeding in the same direction and hit the rickshaw back. As a result of impact Kassim died on the spot. Saleem suffered injuries and was taken to the Jinnah Hospital. The people collected there and took both the injured to the Jinnah Hospital. I also accompanied with them to the Jinnah Hospital. On reaching the J.H. Saleem also died. Saleem was aged 30 years and Qasim was aged 25 years."

This witness has seen the accident personally and proved the case of both the plaintiffs against the defendant. There has been no cross- examination to this witness and there is no rebuttal to this evidence by the Defendant. In addition to the above evidence I.O. Aslam Noor Khan Lodhi has also been examined and this witness has supported the case of the two plaintiffs on material points. He has also proved through documents that the mini bus No. 835-954 which hit the rickshaw aced caused the death of the two deceased was driven by the defendant who was challaned for negligent driving by the police and prosecuted in court for negligent driving. On the question of ownership of the bus his statement goes as follows:-----

" I tried to trace out the Bus, and its driver who had escaped after causing this accident. I made enquiries from the Registration Office and came to know that this Bus No. 825-954 was registered in the name of Sultan Ali. I contacted Sultan Ali and he stated that he had sold the Bus to a person named Muhammad Athar. When I contacted Muhammad Athar I was told by him that he had transferred it to Liaquat Ali. Liaquat Ali informed that he had sold the Bus to Syed Zulfiqar Ali and also delivered the possession of the Bus to Zulfiqar Ali. I continued search for the bus and on the fourth day I could locate the bus in New Karachi. I seized the bus 'and took it in my possession and also arrested Zulfiqar Ali. According to the witnesses Zulfiqar Ali was driving the Bus at the time of the accident. After completing my investigation, I challaned the case for prosecution of Zulfiqar Ali on account of negligent driving. After arresting the driver I had brought the Bus to the Frere Police Station for its examination by Motor Vehicle Inspector and also as a case properly. I came to know later that the Head Moharrir, who was incharge of the Mal-khana under the supervision of the S.H.O. had returned the Bus to Zulfiqar Ali under orders of the Magistrate on 15-7-1982. I produce the original application which was moved by Zulfiqar Ali for return of the Bus of this application there is an order of the Magistrate for the return of the Bus (Ex.511)."

The statement of Witness would show that who ever may have been the owner of the bus at the time of registration in the Excise and Taxation or police records at the relevant time the bus was in control and possession of the defendant No. 1 who was driving the bus. As the testimony on oath of all these witnesses remains unchallenged and there is no evidence in rebuttal this evidence must be accepted in proof of the allegations made in the plaint and the suit must be decreed.

6. Mr. Maqsood, learned counsel for the plaintiffs, has relied upon a reported case in C L C 1981 Kar. 944 in which practically in similar circumstances a decree was passed in favour of the plaintiff ex parte. Relevant portion from this Judgment is as follows:-----

"Defendants 1 and 2 did not choose to contest the Suit. However, Mr. Riazul Hassan, Advocate for defendants 3 had stated that he did not wish to cross-examine Nek Badin, the attorney of the plaintiff 1. Therefore, the fact that Raisham Gul died due to the accident caused due to rash and negligent driving of Mini Bus No. K. A. Z. 9485 by Abdul Rashid driver, (defendant 1) stands proved and accordingly I decide this issue against defendants."

7. Now the only question that remains to be determined is the quantum of damages to be awarded to each plaintiff in each case. In Suit No. 717/83 Mst. Shaher Bano wife of Saleem and the minor children Sabra Bano, Shah Bano, Abdul Shakoor, Sofia Bano and Shamim Bano have claimed Rs. 3,24,000/- as damages. At the time of his death the age of the plaintiff is stated to be 30 years vide statement of Muhammad Anwar. He was earning a sum of Rs.1,200/ to 1,300/- per month according to this witness although in the plaint the widow has shown his earnings as Rs.1,000/- per month. I would take up this figure of Rs.1,000/- as the basis for calculation. Deducting Rs. 200/- as his personal expenses a sum of Rs. R800/- per month would be a proper compensation to the plaintiff. The plaintiff would have lived upto the age of 65 years. As such the damages should be calculated for 35 years. Rs.9,600/- would be the yearly income at the rate of Rs. 800/- per month. For thirty-five years it would be Rs. 3,36,000/-. But because the plaintiff has herself claimed Rs. 3,24,000/-, therefore, I would pass a decree in the sum of Rs. 3,24,000/- in favour of the plaintiff against the defendant. Suit No. 717/83 is decreed with cost as prayed.' The widow should get 1/6th out of this amount right away. The balance should be deposited by the Nazir in the fixed deposit for the benefit of the family. As and when the necessity is arisen amounts would be disbursed to the family with permission of the Court. After all the children have attained majority the residue, if any, should be distributed among the heirs according to the shares prescribed in the law of Shariat, the male getting the double the share of the female.

8. So far as the claim in Suit No. 718/83 is concerned, it is evidence that the age of the deceased Qasim at the time of his death was 23 years. The normal age being 65 years he would have lived for another 42 years. The plaintiff-widow has stated in her evidence that the deceased was earning Rs.1,000/- per month out of which he was giving her Rs. 500/- per month for house-hold expenses. Thus the loss on account of death of the deceased to this family would be Rs.6,000/- per year. For 42 years it would be Rs.2,52,000/-. The plaintiff and her daughters are entitled to a decree in suit of Rs. 2,52,000/- with cost as prayed. The allocation of share should be as follows: ----

1/8th of the amount be given to the widow right away. The balance to remain in Custodia Legis to be invested by the Nazir in Defence Certificate on their behalf. The plaintiff would be entitled to draw from this amount such amounts as may be required for educational, medical expenses and marriage etc. as approved by the Court. The balance, if any, to be paid to the daughters on her attaining majority.

M. Y. H./S-95/K Suit decreed.

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