1997CLC615 (PLP)

(1) Mst. Sakina and 3 others v. M/s. National Logistic Cell, through Commander and 2 others (1995 MLD 633), (2) M/s. Hayat Services (Pakistan) Limited v. Kandan (1989 CLC 2153), and (3) Spin Gul and 2 others v. Ikram‑ul‑Haq and another (1987 MLD 2402). In the case of Mst. Sakina it was observed that "the defendant has given a different version of the manner in which the accident is said to have happened then the burden would lie on the defendants to prove their version. Now the defendant has not proved his case as given in written statement but has taken a totally different stand. In these circumstances, the version of the plaintiffs would be accepted as the true version". In the case of M/s. Hayat Services (Pakistan) Limited, it was observed that "No doubt the initial burden is upon the person alleging the accident and death to prove it and once he discharges this burden it shifts to the other side. But where death or the accident is not denied but different version of the incident causing death is stated then if such allegations constitute facts which are exclusively within the knowledge and possession of the defendant then even if the version alleged by the plaintiff is found to be weak or incorrect, the defendant is bound to prove his version". In the case of Spin Gul and others it was observed that "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 mini bus. 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 mini bus". In view of the above evidence and judgments, Issue No. is decided in the affirmative. Since Issues Nos.2, 3, 4 and 5 are inter‑related as to the quantum compensation and the liability of the defendants, the same are dealt with together. The plaintiff has examined P.W.2, P.W.3, and P.W.4, who are father, friend and mother of the deceased Nadeemur Rehman respectively. All three of them have deposed that the deceased was about 21 years old and in good health. They have also deposed that the deceased was running a cloth factory known as ' Huma Silk Industry' and he was also holding an import licence for the import of yarn which he was selling in the market. They have produced import licence as well as certificates in the name of Huma Silk Industry. They have also produced an assessment order showing the deceased Nadeemur Rehman as the proprietor of Huma Silk Industry. All the three witnesses have deposed that the deceased was earning somewhere between 10,000 to 20,000 rupees per month. On my query the counsel for the plaintiff stated that there are three looms in the said factory which apparently do not show that he could earn an income of Rs.10,000 to Rs.20,000 per month with these three looms. Since the declared income of the deceased in the Income Tax Department is already available on record, which shows that he had an annual income of Rs.41,400, the same will be taken as the established income of the deceased. Since issue No. l has already been decided in the affirmative, I hold that the defendants Nos.2 and 3, jointly and severally, are liable to pay compensation/damages to the plaintiff and his wife who are the statutory legal heirs of the deceased under the provisions of Fatal Accidents Act, 1855. Before I part with this case, I would like to comment that though this suit was filed by the plaintiff as a representative suit but none of the ingredients necessary under the law were present nor the procedural requirements were complied with. Order I, rule 8, C.P.C. clearly stated that "where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expenses, notice of the institution of the suit to all such persons either by personal service or, wherefrom the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct". No permission was obtained from the Court which is mandatory as a consequence to which this suit cannot be regarded as a representative suit. Apart from the present plaintiff, there was only one person i.e. the mother, who could have been joined as a party. Anyhow since the mother is entitled to receive compensation under the law, the same is being allowed to her only to the extent and the period she shares with the plaintiff. As regards to what relief and how much amount the plaintiff and his wife are entitled to, the evidence shows that at the time of the accident the father of the deceased was 46 years old and the mother Qaiser Bano was 37 years old. If the normal age expectancy is taken as 65 years then the period for which the pecuniary benefit could have been accrued to the two together will be as under: ‑‑ Anisur Rehman (Father) Average Age: ????????????????????????????????????????????????????????????????????????????????????????????????? 65 years Age at the time of accident: ????????????????????????????????????????????????????????????????????????????? 46 years ??????????? ????????????????????? ? ????? Period of loss of pecuniary benefit; ?????????????????????????????????????????????????????????????????? 19 years Established annual income of the deceased ?????????????????????????????????????????????????????? Rs.41,400‑00 Total income for 19 years of the deceased ??????????????????????????????????????????????????????? 19 x 41, 400 ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? =Rs.786,600‑00 Less 1/3rd of the total amount being personal expenses of the deceased:???????????????????????????????????????????????????????????????????????????????????????????????????????? (‑‑)??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Rs.262,200‑00 ???????????????????????????????????????????????????????????????????????????????????????????????????????????????? =‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Rs.524,400‑00 The deceased has left behind the factory, an earning unit for the LRs which will be generating income or if sold:????????????????????????????????????????????????????????????????????????????????????????????? (‑‑)??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Rs.100,000‑00 ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑? Parents jointly entitled to?????????????????????????????????????????????????????????????????????????????????? =??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Rs.424,400‑00 ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ Issues Nos. 2, 3, 4 and 5 replied accordingly. The suit of the plaintiff is decreed against the defendants Nos.2 and 3, jointly and severally, for Rs.424,400 with simple interest at 10% from the date of the decree till payment. There will, however, be no order as to costs. A.A./‑A‑64/K????????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.