1982 PLP 1703 (CLC)

"That at Karachi on 12‑10‑1977, the deceased was seriously and fatally injured due to the accident caused by Motor Car No. GA‑100 which at the time was driven by the defendant No. 1, very rashly, negligently and carelessly, without caring for the proper safety of other persons. As a result of the aforesaid accident the deceased was seriously and fatally injured and died due to the said injuries received in the accident." In reply defendant No. 1 has pleaded in para. 3 of the written state ment in the following manner :‑ "That para. 2'of the plaint is not admitted as it stands. It is submitted that on the fateful date the car, it is I true, was being driven by defendant No. I. At the time of accident defendant No. 1 was driving the said car with great care and was in full control of the said car and he was driving the said car in normal speed and it is therefore vehemently denied that defendant No. 1 was driving the said car rashly, negligently and carelessly without caring for the proper safety of the other person as alleged and the plaintiffs are put to strict proof of the same. It can be however said that the data occurred by an act of God and for which defendant No. 1 is not liable or any one else can be blamed. The deceased Francis Chiragh was instrumental for the said accident as he crossed the road negligently knowing it fully well that it was not Zebra Crossing and the road was very busy one." Strikingly enough the allegations made in para. 2 of the plaint have not been denied but it is only stated that "it is not admitted as it stands". It has been denied that the car was driven carelessly, rashly or negligently but it is not denied specifically any where that the deceased was hit by the car which was being driven by defendant No.

1. The only plea taken is that the death occurred due to an act of God and also as the deceased was instrumental for the said incident as he crossed the road negligently knowing it fully well that it was not a Zebra Crossing and the road was very busy. From these pleadings it is clear that there is no denial of the accident having been caused by car which was being driven by defendant No. 1., The only plea taken is that defendant No. 1 was not driving rashly and negligently and the accident was caused due to an act of God and also as the deceased negligently crossed the road at a place where there was busy traffic without any Zebra Crossing. In other words defen dant No. 1 has tried to plead contributory ,negligence of the deceased. No facts have been stated in the pleadings from which one may understand what was that act of God which caused the incident thereby absolving defendant No. I from all liabilities. From the pleading it seems that the defence is that the. accident was caused due to the negligence of the deceased and was unavoidable. Coming to the evidence the plaintiffs have produced Muhammad Haji P. W. 2 who is an eye witness as he was sitting on the foot‑path near the ‑ate of State Bank of Pakistan Building at I.

1. Chundrigar Road, selling guavas. It seems that he is a regular fruit seller sitting on that foot‑path. He has described the incident by stating that one green Toyota Car was coming from 'Tower side and proceeding towards G.P.O. on I. I. Chundrigar Road. It overtook two cars and hit a pedestrian who bad stepped down from the foot‑path where he was sitting. He has further stated that green Toyota Car was coming on the wrong side of the road and hit the deceased who was injured. In his cross‑examination he has stated that it is incorrect that the traffic near the gate of State Bank of Pakistan is two‑way. According to him it is one way traffic coming from Tower. The learned counsel for defendant No. 2 has challenged the correct ness of the statement of P.W. 2 mainly on the ground that he has incorr ectly stated that at the place of incident there was one way traffic coming from Tower to G. P. O. This discrepancy is not sufficient to entirely disbelieve his testimony. His presence was natural as he sits on the foot path selling fruits. The learned counsel for the defendant has contended that as the traffic on

1. I. Chundrigar Road is a two way traffic and the traffic coming at the place of accident flows from G. P. C. to Tower side and as the witnesses has stated that the car was coming from Tower side and going towards G. P. O. it was not possible at the peak hour that the defendant's car could have gone on extreme wrong side and hit the dece ased. There is very little evidence on this point. The learned counsel for the plaintiffs has pointed out that for a temporary period the traffic on I. I. Chundrigar Road was converted into one way traffc from Tower till its crossing upto Dr. Ziauddin Ahmed Road. However as there is no evidence on this point no opinion can be expressed on this aspect of the case. This controversy however should not detain because defendant No. 1 in his statement has described the incident in the following manner :‑ "On 11‑10‑1977 1 was driving a Car on McLoed Road and was going towards Tower. When I crossed the State Bank of Pakistan, I felt that some person had hit on the back side of my Car. My Car was at that time going at a normal speed and I immediately stopped it and came out to find that the deceased has dashed against the left side of my car. I picked up the‑deceased and took him to the Civil hospital. Before taking the deceased to .the hospital I called the traffic police and informed about the incident." He further stated that he was driving the car in the middle of the road. By this statement defendant No. I has attempted to prove that be did not hit the deceased and in fact the deceased dashed against the car. He there fore admits that whatever the circumstances may have been the deceased had dashed with his car. There can be only three possibilities for such an accident. (1) that defendant No. I hit the deceased or (2) the deceased himself dashed against the defendant's car or (3) that some other car dashed the deceased in such a way that he fell on defendant's car. In support of his plea there is only statement of defendant No.

1. No other indepen dent witness has been produced by him. Admittedly; the incident had occurred date 4‑30p.m. which is a peak hour and many witnesses would have been available who could have been produced to show that defendant No. 1 did not dash the deceased from his car. The circumstances stated in the written statement and the evidence produced by him cast burden upon defendant No. 1 to established that the deceased was not dashed by car, in the fact and circumstances of this case and in view of the evidence produced by the plaintiff it is sufficiently established that the deceased was hit by the defendant's car which was driven rashly and negligently otherwise the impact would not have been so severe causing injury which resulted in the death of the deceased. . The learned counsel for the plaintiffs has relied upon the proceedings and judgment of the Criminal Court where defendant No. 1 had pleaded guilty. In his evidence in the present suit defendant No. 1 has explained that he had pleaded guilty because at that time he was to go abroad for studies. The plaintiffs had filed revision against the order of conviction and the case has been remanded to the trial Court. Any admission made before a criminal Court is not conclusive proof of the matter admitted. It only constitutes rebuttable evidence against its maker. Defendant No. 1 has explained the circumstances under which he had pleaded guilty. The statement for pleading guilty by itself is not sufficient to conclusively prove that the deceased was hit by defendant No.

1. This however corroborates the evidence on record. My finding is therefore in the affirmative. Issue No. 2.‑It is an admitted position that at the material time the car was being driven by the defendant No.

1. The rest of the issue relating to defendant 2 being the owner of the car has not been pressed. Issue No. 3.‑‑The defendants have not disputed that plaintiff No. I to 6 are the legal heirs of the deceased. The only question now in this issue is what should be the quantum of damages. The deceased was 37 years old and no evidence of his expectancy of life has been produced. P.W. 1 has stated that he was enjoying a good health. Mr. Moinuddin Ahmed the learned counsel for the plaintiffs has contended that there are several authorities in which the expectancy of life has been fixed upto 65 years and .therefore for assessing the damages the expectancy of life of the deceased should be fixed at 65 years. Unless some material is brought on record to show that the deceased would have lived upto the age of 65 years I will not be inclined to grant the maximum limit of expectancy of life as fixed by various authorities of this Court. In the circumstances I will fix it only at 60 years. The plaintiffs have proved that the deceased was employed. with M/s Dumez Travaux Publics, Mutrah, Oman and was earning Rs. 4,067.14 per month. The learned counsel for the plaintiffs has assessed the damages on the basis of the increment he would have received. Reliance has been placed upon Exh. 5/5, a letter from the employer of the deceased which merely states that normally 8 /a to 10% increase per annum is granted. The deceased was a Helper Mechanic and was promoted to Skilled Mechanic. The learned counsel for the defendant has pointed out that the employ ment was only for a particular project and was not a permanent employ ment and therefore, it would not be proper to assess the damage on the basis of salary paid to him. It is correct that the 1 ‑ployment was for a particular project which amounts to a temporary employment and unless some evidence is produced that the deceased would have obtained a permanent employment with the same salary it should not be presumed that for the whole life the deceased would have continued to earn the same salary with increments. It is well known that the workers at present are going to Middle East countries on higher wages and salary which in fact cannot be earned in Pakistan. Therefore, the employment and earning of a person abroad unless it is proved to be of a permanent nature can hardly justify a conclusion that such high salary or wages can be earned throughout his life. The possibility of the deceased getting unemployed after the project would have been completed cannot be ruled out. The fact remains that a balance has to be struck between the two extreme points. One where an exherbitant wage is being paid abroad and secondly normal and low wages being paid on the same post in our country. The plaintiffs have claimed that the deceased would have continued to earn an increment of 10% upto the time of his death but this is not correct. Even if he would have been employed in the same company permanently he would have certainly retired at a sufficiently early age as he was doing manual work there. Considering all these facts and circumstances and the present wage conditions prevailing in Pakistan it would be fair to assess as average earning upto the age of 60 years. The deceased may have been able to earn an average of Rs. 1,500 per month. The plaintiffs have stated that the deceased was sending only 50% of his salary to the plaintiffs However if the earning would have been less he would spent more than 50% on his family and therefore according to the authorities of our Court the deceased would have spent on himself atleast 1/3rd of his salary and spent the rest on the family members. Mr. Maqsood, the learned counsel for the defendant has stated that as two sons are of the age of 10 and 12 years they would have been maintained by the deceased upto the age of 18 years. Likewise he states that 3 daughters would have been supported upto the age of 18 years or till the time of their marriage. Therefore, they would not have been suppor ted by the plaintiffs beyond 18 years. The proposition is hypothetical and does not. take into consideration the realities of life and the present condition under which people are living here. Hardly any one can claim that on attaining 18 years of age the sons. start earning and the parents refuse to support their children. Besides that plaintiffs Nos. 4, 5 and 6 are daughters who were 7,4 and 2 years old respectively at the time of the death of their father. Taking into consideration that usually nowadays the girls do not marry at an early age and like to study and then to settle down in life, it will take them to the age between 20 and 25 years before they get settled. However taking into consideration the age of the children at the time of accident it cannot be denied that the plaintiffs Nos. 5 and 6 being the daughters would have been maintained for at least 20 years. The plaintiffs have been deprived of earning of the deceased and maintained for 20 years However the plaintiffs' ages shall be relevant while apportioning the shares of each party. The plaintiffs would therefore be entitled to compensation to the extent of Rs. 2,40,

000. Issue No. 4.‑The plaintiffs have not pressed their claim against defendant No.

2. In view of the discussion under the preceding issues defen dant No. 1 is liable to pay compensation to the plaintiffs. Issue No. 5.‑‑Not pressed. Issue No. 6.‑The suit is decreed against defendant No. 1 for Rs. 2,40,000 with no order as to costs. The decretal amount shall be depo sited in Court and it shall be apportioned amongst the plaintiffs and Chiragh Masih the father of the deceased in the following manner ; (1) Nimmi Francis Rs. 30,000 (2) Jamil Rs.40,000 (3) Jamal Rs 40,000 (4) , Qaiser Rs.40.000 (5) Farida Rs.40,000 (6) Asia Rs.40,000 (7) Chiragh Masih. Rs.10,000 K. M. A. Suit decreed.