1995 PLP 986 (CLC)

On these pleading of the parties, the following issues were settled; (1) Whether death of K.T. Ziauddin Ahmed son of on 18‑12‑1987 at Sharea Faisal near Appole Service Station, Karachi was caused by wrongful act, neglect or default by Defendant No.2 Nazeer in driving Bus No. 852‑996 rashly and negligently and in dashing the Bus against deceased K.T. Ziauddin Ahmed who was driving Motor Cycle No.KCO‑6153? (2) Whether the Defendant No.1 being owner of Bus No. 852‑996 allowed the same to be driven on 18‑12‑1987 by its employee and driver Nazeer so rashly and negligently as to cause death of K.T. Ziauddin Ahmed by wrongful act, neglect of default? (3) Whether the Defendant No.1 is responsible for act of his Driver and employee Nazeer? (4) Whether deceased K.T. Ziauddin Ahmed was earning Rs.6,000 to Rs.7,500 per month besides getting salary of Rs.2,906 per month? (5) What should the decree be? The Plaintiff examined herself and four witnesses, namely, Abid Hussain, Nizam Ahmed, Ghulam Rubbani and S.I. of P.S. Bahadurabad while the Defendants did not examine any witness. I have heard the arguments of the learned counsel for the parties. My findings on issues are as under; ISSUES NOS.1 AND 2: I will take up these issues jointly as both the issues involve common facts. The Plaintiff has produced the F.I.R. registered with the police station as Exh. 9/3 through the Sub‑Inspector Misal Khan. The said police officer had also produced the technical view certificate by the Motor Vehicle Inspector as Exh. 9/4. Exth.8 is PW Ghulam Rubbani, eye‑witness of the incident. In his deposition he has stated that he saw the Motor Cycle coming from Airport side which took the right turn towards Muhammad Ali Society and at that time the traffic signal for turning was open and in favour of the Scooter. He has further deposed that at that time the Bus coming from Sadar side and going towards Airport approached the signal but did not stop even though the signal was closed for through traffic. The Bus thereafter breaking the signal collided with the Motor Cycle which resulted in the causing of injuries to the deceased. This evidence is further supported by the technical view/report which shows that the Motor Cycle was hit on the left side and its plastic cover was broken. There being no other evidence contrary to this, the plea taken by the Plaintiff that the accident was caused through rash and negligent driving of the Bus stands proved. The Plaintiff has also produced extract from the register of death kept in the office of Cantonment Board of Karachi which shows that cardio resp, failure and head injury were the cause of death of deceased. There being no denial from the defendants, I am of the view that it has also been established by the Plaintiff that the death was caused due to injuries sustained in the accident. Thus, these two issues are answered in affirmative. ISSUE N0.3: It is an admitted position that the said Bus is owned by Defendant No.1 and was being driven by Defendant No.2 who was an employee of Defendant No.1 at the time the incident took place; and that he was driving the Bus in course of his employment. In these circumstances, the Defendant No.1 is vicariously liable for the above act of the Defendant No.2. The issue is answered in affirmative. ISSUE NO.4 On this issue, the Plaintiff has produced the Pay Slip of deceased as Exh. 5/2. This Pay Slip show that the net salary which the deceased was receiving at the time of his death was Rs.2,679.72 as Watch and Ward Inspector in the National Bank of Pakistan, Head Office, Karachi. There is no rebuttal to this. The Plaintiff has further pleaded that the Plaintiff used to do the business of catering meals in marriage ceremonies and other functions and thereby earned Rs.6,000 to Rs.7,000 per month. However, there is evidence produced by the Plaintiffs in this regard but only one cook, namely, Nizam Ahmad is examined by her as Exh.7. This Nizam Ahmed has also made general statement without giving any particulars. Now had the deceased been doing such business, he must have got some documentary evidence such as account books, bills, receipts etc but not a single document has been produced. Accordingly, I am of the view that the Plaintiff has failed to prove the fact that the deceased earned Rs.6,000 to Rs.7,000 from catering business. Accordingly it is held that the earning of Plaintiff per month had been Rs.2,679.72. ISSUE N0.5: It has been established that the age of the deceased at the time of his death was 58 years and not 55 years as disclosed in extract Exh. 5/4. It has been held by this Court in earlier such suits that in normal course a person is expected to reach the age of 70 years if he is leading a healthy life,. There is nothing on the record to suggest that the deceased had suffered from any infirmity or illness. Accordingly I Would hold that the deceased would have ordinarily attained the age of 70 years and thus his heirs would be entitled to compensation proportionate to his earning for the remainder period of 12 years. It may also be observed that out of the earning of the Plaintiff he would spending about 1/3rd on his personal requirements and needs. The deceased was in service and according to rules would have retired on attaining the age of 60 years and thereafter would be entitled to pension. In these circumstances, the heirs of the deceased would be entitled to 2/3rd of his monthly salary for the first two years which comes. to Rs.43,200 while for the remaining 10 years they would be entitled to the pension of the deceased in the same ratio which would be at the rate of Rs.900 per month and the total amount for 10 years would be Rs.1,08,000 thus the total amount that the Plaintiff would be entitled to is Rs.1,51,200 only. The suit is accordingly decreed against. Defendants jointly and severally with the direction that the Defendants will pay the amount of compensation as due for the period 8‑12‑1987 till the date of this decree in lump sum and continue to pay Rs.900 per month from the pension to the Plaintiff till 17‑12‑1999. However, there will be no order as to costs. A.A./S‑1100/K Suit decreed.