Find a Lawyer

Suit No.590.of 1983, decided on 17th February, 1987.

---S.1--Compensation--Deceased a small girl returning from school by travelling in bus--On reaching destination, before she could fully land on ground, driver of bus suddenly and abruptly started bus in an attempt to overtake another bus in rash and negligent manner and as a result deceased fell down from bus and died due to fatal injuries caused to her--Reasonable probability existing that deceased girl on coming of age would have earned by getting employment and working--Assessment of compensation could be made on normal and usual expectation of course of events--High Court awarding compensation to parents of deceased girl by taking age of parents and normal expectation of life into consideration and by fixing monthly earning of deceased after deducting her personal expenses.

Muhammad Nawaz v. Altaf Rasul P L D 1985 Kar. 353 and Manmatha Nath Kuri v. Muhammad Mokhlesur Rahman P L D 1963 Dacca 290 rel.

Muhammad Maqsood for Plaintiff.

Mirza Hussain Haidri for Defendants.

Date of hearing: 17th February, 1987.

This is a suit under Fatal Accidents Art 1855 for recovery of a sum of Rs.1.50,000/-.as compensation against the Karachi Transport Corporation and the driver of the bus involved in the accident. It is the case of the plaintiff that his daughter Mst. Zeenat Bibi aged 8 years was travelling in bus No. KCB 763 on 2-9-1982 while returning from the school. When the bus reached near Gul Ahmed Textile Mill, where she had to get down, the deceased attempted to come down from the bus but before she could fully land on the ground the driver of the bus suddenly and abruptly started the bus in an attempt to overtake another bus in a rash and negligent manner. As a result the deceased fell down from the bus and died due to fatal injuries caused to her. A compensation of Rs.1,50,000 has been claimed on the basis of an expected earning of Rs.1,000/- per month.

2. The suit was contested by the defendant No. l while the summons to defendant No. 2 were not issued as cost was not paid. The defendant No. 1 in its written statement admitted that the deceased was travelling in its bus on the day of the accident. It has, however, been alleged that the deceased had jumped from the running bus when it. reached near her destination instead of waiting for the bus to top and received the fatal injuries. It is denied that the bus was driven rashly and negligently or that the defendant No. 2 had started the bus abruptly and suddenly without waiting for the deceased to get down. The claim of compensation has also been challenged as being exaggerated. Certain other legal pleas have also been taken which are evident from the issues. The following consent issues were framed by the Court:----

(1) Whether the suit is maintainable without an application under Order XXXII, Rule 2, CPC

(2) Whether the suit is time-barred

(3) Whether the suit is barred under Motor Vehicles Ordinance

(4) Whether the plaintiff has causes of action against the defendants

(5) Whether the deceased died due to the rash and negligent driving of the vehicle in question or due to his own negligence

(6) Whether the plaintiffs are entitled to compensation, if so to what extent

3. The plaintiff examined P.W. Asal Khan exhibit 5 and P.W. Nawaz Khan exhibit 6 who had seen deceased getting down from the same bus and falling and receiving injuries on the day of accident and are eye-witnesses The plaintiff Mahmood Shah was also examined as exhibit 7. The defendant No. 1 had examined its District Manager Mr. Jahangir as exhibit 8, Ghulam Hussain the driver as exhibit 9, Maroof the conductor of the bus as exhibit 10.

My findings on the above issues are as follows:-----

(1) Yes.

(2) No.

(3) No.

(4) Yes.

(5) Yes.

(6) Yes. Rs. 72,000/-.

The issues were not pressed at the time of arguments by the advocate of the defendants. Even otherwise the accident having taken place on 2-9-1983 is Vth time. No ground has been urged in support of these legal issues. I therefore hold these issues accordingly.

It is an admitted position that the deceased girl was travelling in the bus of the defendant. It is also admitted that she had died while attempting to get down from the bus at the stop which was her destination. The only dispute is on the point as to whether the accident was caused due to the negligence of the deceased girl herself or to the rash and negligent act of the driver of the bus. The driver and conductor of the bus have been examined by the defendant as shown above. No doubt they are the natural witnesses of the accident but they have not claimed to be the eye-witnesses of the accident. Driver Ghulam Hussain has stated that while he was driving the bus from Dawood Chowrangi to Bilal Colony at some distance from Bilal Colony Bus driver heard a noise of the passengers that a girl had jumped down the bus before the bus could be stopped and was hurt. He does not claim to have seen the girl getting down from the bus. All that he has said is that he heard the noise. A specific question was put to him that there is the stop of Gul Ahmed Textile Mill after Bilal Colony stop and the passengers were shouting and had asked him to stop the bus as the deceased girl wanted to get down but he did not give proper reply to this question and has only stated that the deceased girl has jumped out of the bus while the bus was still in motion and had not reached the bus stop. He has not clearly stated that there was no bus stop at Gul Ahmed Textile Mill after Bilal Colony stop or that the passengers had not asked him to stop the bus at Gul Ahmed Textile Mill stop so that the girl may get down.

4. The next witness, the conductor of the bus Maroof exhibit 10 has admitted in his cross-examination that he did not notice the girl falling out of the bus. He has stated in examination-in-chief that he was in the middle of the bus approaching the ladies enclosure for giving tickets to the ladies. No doubt he has stated that before reaching Bilal Colony Bus Stop the deceased girl jumped out from the bus while it was still in motion but this statement loses its value in view of the above admission of the witness that he could not witness the accident himself. The third and the last witness of the defendant is Muhammad Jehangir, the District Manager. His evidence is absolutely formal in that he has stated to have signed and sworn the written statement and does not claim personal knowledge about the facts in issue.

5. As against this the plaintiff has examined P.W. 1 Asal Khan exhibit 5 who has stated that he had witnessed the accident. He had seen that the deceased falling down while alighting from the bus when a race was going on between two buses. The bus in question was being driven by the driver in a rash and negligent manner. The accident took place due to the fact that after stopping the bus the driver started it again with a sudden jerk without ascertaining that the deceased girl had get down safely or not. Similar evidence has been given by P.W. Nawaz Khan exhibit 6. He too has stated that when the deceased girl was getting down from the bus the driver started the bus suddenly with a jerk to overtake another bus with the result that the deceased fell down and received injuries. The third witness is the plaintiff himself. He has been examined as exhibit 7. He has fully supported his case.

6. The death of the deceased having been caused due to falling down from the defendants bus has not been disputed. From the evidence of plaintiff's witnesses it has been proved to my satisfaction that the death was caused due to rash and negligent driving of the bus driver, who was the employee of defendant No. 1, and had caused the same in the course of his employment as such.

This issue relates to the question whether and what compensation may be awarded in this case.

The defendants' advocate Mr. Mir Raza Hussain Haidri mainly contended that the deceased was a girl aged about 8 years only and that the expectation of pecuniary advantages from her was , here speculation and therefore the plaintiff was not entitled to any compensation as she has suffered no pecuniary loss. As against this the plaintiff's advocate has submitted that there was reasonable probability rather certainty of the pecuniary advantage from the deceased girl by her parents and that therefore they were entitled to reasonable compensation. The deceased girl was a brilliant girl. She would have earned at least Rs.1000/- per month after completing her education and would have been a source of income and an asset to her parents.

7. The question is whether compensation can be awarded in respect of a fatal accident in which a child who is not earning anything dies. The most illustrative and elaborate judgment on this point is the one given by Naimuddin, J. (presently Chief Justice of Sind High Court) in the case of Muhammad Nawaz v. Altaf Rasul reported in PLD 1985 Karachi 353. A boy aged about 8 years sustained serious injuries when he was knocked down by a taxi car which proved fata and he died. Naimuddin, J, (the present Chief Justice) after giving resume of the entire case-law on the point held as follows:---

"Further, it is common experience that in Muslim Society poor parent and other members of the family are normally maintained by their children and parents also maintain their children irrespective of their ages till they (children) start earning. In my opinion, what may be termed in Continental Society under certain conditions a purely speculative possibility may not be so in our society at a given time. Accordingly, where economic conditions in a country and at a given time are such that to obtain an employment is not at all difficult or percentage of unemployed is very low, there again it could not be said that likelihood of child earning in due course was of speculative nature. In my view, in such condition, a child on coming of age working, getting employment and earning would be reasonable probability. Lastly, assessment of compensation has to be made on normal and usual expectation of course of events and not on exceptional events or happenings. However, exception may be made in the case where the child is invalid and because of physical or mental condition it cannot at all work and earn."

Certain other rulings have also been cited by the learned counsel for the plaintiff, one of which is a D.B. case of Muhammad Nath Kuri v. Muhammad Mokhlesur Rahman reported in P L D 1963 Dacca 290. This also relates to the ( ) minor girl aged about 6 years at the accident. The Court confirmed the decree of the Sub-Judge awarding compensation and held as follows:----

"It is not necessary that the victim must be shown to have been earning something. What is necessary is the reasonable expectation of the claimant. If that is not so, an impossible situation will arise in that in case of death of an earning person there will be a liability under the Act and in the case of non-earning person there will be none and the person guilty under the Act will be immune in that case. This is far from the attention of the framer of the Act."

8. I, therefore, hold that the plaintiff is entitled to a reasonable compensation on account of the death of his deceased daughter in this fatal accident from the defendant No.1. The' plaintiff is father of the deceased while Mst. Shehnaz is mother of the deceased and wife of the plaintiff and is living with him. The awarding of compensation to the plaintiff would ensure to her benefit. The accident had taken place on 2-9-1982. Expectation of life was 65 years. I fix per month earning at Rs.400/- which would come to Rs.4,800/- per year and after deducting personal expenses of the deceased the net annual income would be Rs.3,600/- Taking the age of the parents into consideration and normal expectation of life the plaintiff would be entitled to a compensation for a period of 20 years amounting to Rs.72,000/-. Accordingly I pass a decree in favour of the plaintiff for Rs.72,000/- with proportionate costs and 6% interest from the date of the filing of the suit.

M. Y. H . /M-242/ K Suit decreed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.