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Suit No.714 of 1979, decided on 29th October, 1981.

---S.1--Fatal Accident--Suit for recovery of compensation--Defendant while driving minibus rashly and negligently hit deceased who died following day on account of head injuries suffered by him as a result of accident--Evidence produced leading to conclusion that minibus was driven by defendant rashly and negligently which hit deceased- Deceased was a young man working as a casual labourer and was stated to be earning a monthly income of Rs.900--Expectancy of life fixed for sixty-five years and his average income fixed as rupees five hundred and deducting his personal expenses, rupees three hundred were fixed as benefit which heirs of deceased /plaintiffs i.e. his father, mother and widow, were likely to receive--After calculation of expectancy of life and income of deceased during life expectancy, minus deduction of personal expenses of deceased, Court awarded compensation accordingly.

---S.1--Damages--Expectancy of life--Expectancy of life in absence of any evidence, held, could be fixed by taking into consideration age of retirement fixed by Government and general expectancy of life in the country.

---S.1--Damages--Earning capacity of deceased--In, cases where deceased was unemployed, his earning capacity to be fixed by Court- Facts and circumstances of case, could be taken into consideration to fix earning capacity of the deceased.

P L D 1965 Kar. 244 rel.

---S.1--Damages--Earning capacity in case of labourer--For determining earning capacity of a labourer, one could rely upon minimum wages, allowances and benefits which a labourer was compulsorily entitled to receive from his employer.

M. Maqsood for Plaintiffs.

Habibur Rehman for Defendant No. 1.

Date of hearing: 29th October, 1981.

This is a suit for recovery of Rs.1,50,000/- as damages under Fatal Accidents Act. The plaintiff No.1 is the father, plaintiff No.2 is the mother and plaintiff No.3 is the widow of the deceased. It is an admitted position that the defendant No.1 is the owner of the bus while defendant No.2 was driver at the relevant time who has been declared ex parte. It is alleged that on 4-3-1979 while defendant No. 2 was driving the minibus rashly and negligently it hit one Hikmat Jan who died the following -day. The deceased is stated to be earning Rs.900/- per month and used to maintain and support the plaintiffs. The plaintiffs claim to have suffered loss of Rs.1,50,000/-. The defendant No.1 has filed his written statement in which besides preliminary" legal objections on which no issues have been framed, has admitted the ownership of the bus and denied that the bus was being driven negligently or recklessly by defendant No.2 at the time of the accident. It has also been pleaded as follows:-

"The fact of the matter is that at the alleged place of occurrence some high wall oil-tanker bodies were parked making the visibility of the other side impossible and it so happened that the deceased Hikmat Jan suddenly emerged from behind the said high wall bodies and struck himself in the front of the slow moving vehicle and sustained some injuries."

The defendant denied that the deceased was earning Rs.900/- per month and maintained the family as alleged in the plaint. The following issues were framed:----

"(1) Whether the death of the deceased Hikmat Jan, was caused by actionable wrong of the defendant No.2, driving the minibus No.803-399 in rash and negligent manner.

(2) Whether the plaintiffs are entitled to compensation as claimed in the suit or what should be the quantum of damages

(3) Whether the defendant No.1, admittedly the owner is liable to pay damages to the. plaintiff as master of the defendant No.2, the driver declared ex parte for actionable wrong of his servant

(4) Whether the plaintiffs are entitled to interest from the date of the suit at 15% per annum "

2. Issue No.1.--The plaintiffs above examined three witnesses. PW.1 is plaintiff No.1 whereas other two witnesses, namely, Abdul Majeed and Muhammad Amin are stated to be the eye-witnesses of the incident. The incident took place near Moosa Hotel, Sohrab Goth and PW.2 has stated that the deceased was standing on the side of the road when he was hit by the minibus. He further stated that the deceased wanted to cross the road and he only noticed it after the accident. PW.3 has stated that the minibus was driven at fast speed and the boy was standing near Moosa Hotel on the side of the road. The minibus hit the boy and he fell down. Mr. Habibur Rehman, the learned counsel for the defendant has assailed the statement of these witnesses firstly on the ground that they are related to the plaintiffs and do not have any permanent abode near the place of incident and, therefore they are not only chance witnesses but also interested witnesses. Secondly he has contended that so far PW.2 is concerned he has not seen the incident and being related was unconcerned as when the deceased was taken to the hospital he did not accompany them.

3. So far the first contention that the witnesses are related to the deceased it seems that reliance is placed on the statement of plaintiff No.1 who stated that both the witnesses are related to him. There-seems to be some mistake because so far PW.2 is concerned he is a Memon by caste and the plaintiffs are Pathans. Only PW.3 is Pathan and this may be correct in his regard. However, merely because a particular person is related to a party his evidence is not to be discarded and disbelieved unless it is brought on record that he is not a truthful witness. Learned counsel for the defendant has also assailed the statement of PW.3 on the ground that he does not have a permanent abode at the place of incident. But in his evidence he has stated that he owns a Rehri on which he sells cooked rice at that particular place. It seems that he has been selling rice at that place since long and this is his place of business. He is not a chance witness.

4. Now coming to the incident, on the admission of defendant No.1, at the place of incident there were high walled trucks parked on the side of the road and that the deceased came out from behind the trucks and tried to cross the road and dashed himself with the bus. It is, therefore, admitted that an incident of this nature had occurred in which the deceased was involved and either he had struck himself or he was struck by the minibus. Since the incident and the fact that the deceased ran from behind the truck and dashed with the bus has been admitted by the defendants the burden is upon the defendants to prove in what manner the' deceased was hit by the minibus. To prove this incident the defendants have examined DWs.2 and 3 who have stated that at the material time they were travelling in the bus. DW.2 has stated that from behind the truck which was parked, the deceased came out suddenly and dashed against the bus and got injured. In his cross-examination he has stated that he was sitting in the minibus on the left side behind the ladies seat and there were two persons on his side near the window. Therefore, it becomes doubtful that he was in a position to see the incident. In fact it is possible that he might have felt the impact and then come to know about the incident as admitted by DW.3. It may be pointed out that he has denied that the defendant No.1 is known to him but has admitted that on the next day of incident the defendant No.1 came to his house and asked him to state the correct facts. He has admitted that he sells milk in shop in Rizvia Colony, Golimar which he opens at 5 a.m. and closes at 11 a.m. If these are his business hours then how it is possible for him to have come from New Karachi in the morning and taken trip on the minibus. No explanation has been giver, by this witness for his presence at the time of incident. I am not inclined to believe his testimony. Further, he resides in the same mohallah in which the defendant No.1 is residing. In view of this unexplained situation inference can also be drawn that he is an interested witness. So far DW.3 is concerned he has stated that he was present in the bus at the time of incident but in cross-examination he stated that he had not seen that someone ran on the road but he only felt it. This shows that he did not witness the incident. Therefore, the defendant has failed to prove that the incident occurred in the manner pleaded by him. As it is an admitted position that there was an incident of this nature and the boy had suffered head injuries and further in the absence of any evidence to -the effect that the boy himself ran and dashed with the bus the only conclusion that can be drawn is that the minibus dashed the deceased.

5. As regards negligence of the driver it may be noted that the evidence of the defendant is unanimous on the point that there were some trucks parked at the place of incident and there was some oil spilled in that area. It is a dual carriage road. There seem to be some high walled truck bodies lying or high walled trucks parked on the strip of land dividing the dual carriage road. If there were trucks it would have obstructed clear view of any person who may emerge from the side of the trucks. This being the position it was necessary for the driver to be more cautious and should have driven the minibus at a very slow speed in a cautious manner. If the bus would have been driven cautiously and in a slow speed as alleged by the defendant then even if the deceased would have suddenly emerged from the side of the truck the minibus could have been stopped immediately and the deceased would not have suffered head injuries resulting in his death. According to the medical certificate he suffered head injuries and died on 5-3-1979. The learned counsel for the defendant No.1 pointed out that the DW.3 corroborates the evidence of DW.2 and therefore the plea raised by the defendants is acceptable. I have held that the evidence of DW.3 cannot be accepted therefore the question of corroboration does not arise. The learned counsel for the defendant has contended that it was not proved that ordinary skill of a prudent man was not applied by the defendant No.2 and therefore it has not been proved that he was rash or negligent. He has referred to the evidence of PW.1 who has stated that the Motor Vehicle Inspector had examined and found the bus in order. The fact whether the ordinary skill of a prudent man was applied or not can at best be stated only by defendant No.2 who was the employee of the defendant No.1. He has remained absent and the defendant No. l does not seem to have made any effort to examine him as a witness on his behalf. Further none of the DWs. namely D.Ws. 2 and 3 who say that they were travelling on the bus, have stated that at the time of the incident when the deceased was crossing the road the brake was applied by the defendant No.2. If the minibus was being driven at a slow speed then the brake should have been applied and as such the incident could have been averted. In view of this situation I hold that the bus was being driven rashly and negligently which hit the deceased resulting in his death.

6. Issue No. 2.--The plaintiff has claimed Rs.1,50,000/- on the basis of the earning of the deceased at Rs.900/- per month as a labourer. It is alleged that he was paying Rs.650/- to his family. Plaintiff No.1 has stated that at the time of incident he was 52 years old. Plaintiff No.2 was 47 years old and plaintiff No.3 the widow was 19 years old. The learned counsel for the plaintiff has contended that the expectancy of life of the plaintiff should be taken as 65 years and on the basis of the evidence damages should be calculated @ 650 p.m. for 13 years. Mr. Habibur Rehman, the learned counsel for the defendants has contended that the plaintiffs have failed to prove damages as the only evidence led by the plaintiffs is the statement of the plaintiff No.1. It is true that the plaintiffs have led a very scanty evidence on this issue but there are fundamental principles laid down by various authorities in the light of which damages can be determined in the present case. So far the expectancy of life is concerned the plaintiff No.1 has not stated about the expectancy of life of the deceased or the plaintiff's family members. However in the absence of evidence of this nature it can be fixed by taking into consideration the age of retirement fixed by the Government and the general expectancy of life in the country. In this case I would fix the expectancy of life at 60 years. The plaintiffs have stated that the deceased was a labourer and was earning Rs.900/ per month. It seems that he was a casual labourer as no evidence has been produced that he was employed somewhere. In cases where the deceased had been unemployed the Court has fixed the earning capacity of the deceased. Mr. Habibur Rehman, has very frankly referred to PLD 1965, Kar.244, where Rs.100/- per month was fixed as the earning capacity of an unemployed deceased. It therefore follows that the facts and circumstances of the case can be taken into consideration to fix the earning capacity of the deceased. The deceased was a young man working as a labourer and is stated to have an income of Rs.900/- per month. From this evidence at least it is established that he was a labourer but his income has not been proved. For determining the earning capacity of a labourer one can rely upon the minimum wages, allowances and benefits which a labourer is compulsorily entitled to receive from his employer. However, as the deceased 'was merely a casual labourer his earning would be less than a person who has been employed in some factory on regular basis. However, as his expectancy of life would have been upto the age of 60 years it cannot be presumed that he would have beer unemployed or remained casual worker throughout his life. Taking all factors into consideration for purposes of assessing damages the Court has to determine his average income which he would have been expected to earn for his life time. In these circumstances I will fix it at Rs.500 per month. I have already fixed the expectancy of life of the deceased at 60 years. But in the present case this cannot be made basis for determination the quantum of damages. Amongst' the beneficiaries at the time of incident the plaintiff No.1 was 52 years old, plaintiff No. 2 was of 47 years and plaintiff No.3's age was 19 years. Plaintiff No.3 is a young widow and therefore possibility of her remarriage cannot be ruled out. In the circumstances I would fix the period of compensation at 13 years. Now taking Rs. 500 p.m. as the average income of the deceased it has to be determined what damage would be caused to the plaintiffs during the period of 13 years. The deceased would have spent some amount on his personal needs. In the present case the deceased was married and in time to came he would have had his own family and therefore it cannot be presumed that all the income or 2/3rd would have been spent on the plaintiffs. In these circumstances I hold that at an average the plaintiffs would have received from the deceased Rs. 300 per month.

7. Computing the damages on this basis the plaintiffs have suffered damage of Rs. 46,800. While apportioning the amount awarded to the plaintiffs' I would award Rs. 18,400 to plaintiff No.1 and Rs. 18,400 to the plaintiff No.2 and Rs. 10,000 to plaintiff No.3. The suit is, therefore, decreed for Rs. 46,800 with proportionate costs.

8. Issue No.4.--No case for grant of interest @ Rs. 15% annum has been made out. It is, therefore, answered in the negative.

M.Y.H./S-96/K Suit decreed.

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