1986 PLP 1888 (MLD)

The plaintiffs have filed this suit for recovery of Rupees six lacs as compensation for the death of one Abdul Ghani Suleman. The plaintiff No.1 is the widow and plaintiffs Nos.2 to 7 are children of the deceased. The deceased was a driver by profession. On 14‑2‑1982 he was proceeding to Urdu Bazar in a Suzuki Van No.842‑981 carrying books to the University Book Shop. Besides him one Nasim Ahmad the owner of the Book Shop who had hired the Suzuki Van was also sitting in the Suzuki. At about 1900 hrs. when he reached near Purani Numaish roundabout, the deceased noticed that one of the tyres of the Suzuki Van has not properly inflated. He stopped the Suzuki Van by the road side putting on the emergency light and got down from the driver side and started checking the tyres. When he was checking the left side rear wheel, the defendant No.1 who was driving Taxi No.816‑433 rashly hit the deceased and dashed him many yards away on the main road. He became unconscious and was taken to the Civil Hospital, where he succumbed to his injuries in the same unconscious state. Police was accordingly informed and a criminal case was instituted against the defendant No.1. It is alleged in the plaint that the defendant No.1 was driving the taxi at a high speed rashly and negligently on busy M . A . Jinnah Road, and although the emergency lights were on, he dashed the deceased to death. It is alleged that the defendant No.1 is the employee of defendant No.2 and the taxi was insured with the defendant No.3. At the time of his death, the deceased was aged about 50 years, with good health and was expected 'to live another fifteen years. The plaintiff have thus claimed compensation on the basis of the deceased income of Rs.100 per day at Rs.5,40,000 and Rs.60,000 for general damages as mental agony, shock and disruption of children's education. The defendants Nos.l and 2 did not appear and remained ex parte. The defendant No.3 filed 'his written statement admitting that the taxi was insured of which one Manzoor Hussain is the recorded owner. It was stated that the defendant No.2 was not insured against third, party risk, nor the taxi was being driven by Manzoor, nor by his paid driver. It was, however, pleaded that the plaintiffs are not entitled to claim general damages and further, that the suit is liable to be dismissed:‑ The following issues were framed:‑ (1) Whether the accident took place due to the negligence of defendant No. l? (2) Whether the plaintiffs are entitled to damages? If so to what extent and against which of the defendants? (2‑A) Whether defendant No.3 is not liable under its certificate of insurance ('E' to plaint)? (3) What should the decree be (4) General? ISSUE N0.1: Muhammad Nasim Exh.8 is an eye‑witness of the incident. He had hired the Suzuki Van driven by Abdul Ghani Suleman, the deceased. He stated that the deceased stopped the Suzuki Van as it had developed some trouble. The van was parked in front of Bundu's Hotel, on the left side of the road by the side of footpath. He was sitting with the deceased next to the driver seat. In cross‑examination he stated that the Suzuki Van was stopped for check up by the side of small green left in the centre of the road dividing it in two parts. He was sitting in the van when he noticed that the'‑taxi dashed the deceased who was checking the Van. He requested the persons who had gathered to take the deceased to the hospital, but he stayed back in the Suzuki Van to take care of the books. He then rang to his nephew and when he came, leaving him there, he went to Civil Hospital, where upon enquiry he was told that Abdul Ghani Suleman has died. He went and saw his dead body which was lying there. At the time of the accident, when the people had gathered, the driver had given his name as Khan Amanullah son of Badshah. No other eye‑witness has been examined. This witness has stated in the cross‑examination of the defendant No.3 that he has not seen the actual knocking down, but when he got down from the Suzuki van, he found Abdul Ghani Suleman lying at a distance of 10‑12' from his Suzuki van, and the defendant No.1 told him that he was knocked down by the taxi. From his evidence the facts are clearly established that the defendant No.1 was driving the taxi which knocked down the deceased who was checking his van having parked it on one side of the road. The witness has said that traffic light was about 1? furlongs from the place of accident and the traffic had halted there, and there was no traffic behind him. This inter alia proves that the defendant No.1 was driving the taxi at a high speed as there was no traffic and caused the death of the deceased. ISSUE No.2: As the deceased died due to rash and negligent driving of the defendant No.1 and the plaintiff No.1 being the widow and the plaintiffs Nos. 2 to 7 being the sons and daughters of the deceased they are entitled to compensation. The plaintiffs have claimed Rs.5,40,000 towards compensation and Rs.60,000 as general damages to the family for mental shock, agony and disruption in education of the children. At the outset it may be mentioned that the plaintiffs are not entitled to any genera damages for mental shock agony. So far the assistance of the deceased in maintenance of the family and the disruption of education are concerned these factors are to be taken into consideration while assessing the quantum of damage. The plaintiff No.1 is the widow, plaintiffs Nos.5. and 7 are minors: Abdul Razzaque the son of the deceased has stated that his father was 50 years age and was earning Rs.100 per day as driver. He has three brothers and four sisters out of which one sister was married before the death of the deceased while the other was married after the death. Nothing has been stated about the age of the other minors, nor it has been stated that which of the two daughters namely Zarina Bano and Zaibunnisa was married after the death of the deceased, nor the date of the marriage of the plaintiff who was married after the death of the deceased has been mentioned. The evidence in regard of such facts is completely blank and insufficient. The plaintiffs Nos.2 and 4 are major daughters and are married. One of them was married soon after .the death. They would be maintained by their husbands and, therefore, cannot claim compensation unless they establish that they would have been maintained by the deceased even after their marriage. The daughter married after the death could have claimed compensation for the period till she was not married, but in the absence of any evidence which daughter was married afterwards no compensation can be granted to her. Therefore, plaintiffs Nos.l, 3, 5, 6 and 7 will be entitled to compensation. P.W. Abdul Razzak Exh.7 has stated that his father was earning Rs.100 per day as he was driving the Suzuki Van. There is no evidence to show that the Suzuki Van was owned by the deceased. As it is not owned by him he would have either taken it on hire, or would have been employed for plying it. In the facts and circumstances of the case, I would determine his earning at the rate of Rs.50 per day with an average of Rs.1,500 p.m. which perhaps would be the normal average income of a driver who plies Suzuki Van on commercial basis. Out of this income, he would have spent 1/3rd on himself. So the income which he would have spent on his family would come to Rs.1,000 p.m. Not a single word has been stated about the expectancy of life, therefore, I will take it as 60 years. On this basis he would have maintained his family for another 10 years. The amount of compensation will thus come to Rs.1,20,000 which the plaintiffs are entitled to recover. ISSUE No.2‑A: The learned counsel for the defendant No.3 has contended that the defendant No.2 was not the owner, and, therefore, the defendant is not liable. However, he has frankly conceded that in view of P L D 1984 Kar. 38, the Insurance Company will be liable because, it had insured the vehicle for third party risk. The learned counsel for the plaintiffs has contended that as it is a common practice as stated by P.W. Sajjad Mushir (Exh.6) Inspector Excise a Taxation Department that the taxis change hands without intimation to the Excise & Taxation Department on hire‑purchase basis the defendant No.2 should be treated as owner. This vague statement cannot prove that Suzuki Van was sold to defendant No.2 on hire?-purchase basis by the owner. Both the learned counsel agree that the liability of the defendant No.3 is limited to Rupees twenty thousand only. My finding is that the defendant No.3 is liable to the extent of Rs.20,

000. ISSUE No.3: The suit is decreed for Rs.1,20,000 jointly and severally against the defendants N.os.l and 3, but the liability of the defendant No.3 will be restricted to the extent of Rs.20,000 only. Suit against defendant No.2 is dismissed. The amount of compensation be appropriated in the following manner:‑ Plaintiff No. 1.? = Rs.20,000, Plaintiff No. 2.? = Rs.20,000, Plaintiff No.5.?? = Rs.20,000, Plaintiff No.6.?? = Rs.30,000, Plaintiff No.7.?? = Rs.30,

000. The amount of Rs.20,000 deposited by the defendant No.3 or realised from defendant No.3 shall be paid to the defendant No.1. A. A.??? Suit dismissed.