P L D 2004 Karachi 93 (PLP)

3. On the basis of the Parties' pleadings the following issues were framed by this Court which had been proposed by the plaintiff: (1) Whether the defendant No.1 caused death of Muhammad Iqbal son of Allah Rakha on 27-10-1994, by driving Mini Bus No.PE 1717 rashly and negligently? (2) Whether the defendant No.2 ceased to be the owner of the Mini Bus No.PE 1717 under the alleged Sale Agreement with the defendant No.3? (3) Who was the employer of the defendant No. 1 as driver of the Mini Bus? (4) What amount of compensation is payable to the plaintiffs by the defendant? (5) What should the decree be?

4. In support of the case Mst. Halima plaintiff No.1 examined herself and deposed that deceased Muhammad Iqbal was her husband and he died due to the rash and negligent driving of defendant No.1 Habib Khan on 27-10-1994. She has produced a certified copy of F.I.R. No 570/1994 of Police Station New Karachi dated 23-10-1994 as Exh.1 in order to verify this fact. She has further deposed that the deceased was a Matriculate and at the time of his death he was 37 years old and was earning Rs.6,000 per month from the Garment business. She has produced his Death Certificate Exh. 3 and Matriculation Certificate Exh.4. She has also deposed that the deceased left behind him his old and sick parents viz. plaintiffs Allah Rakha and Mst. Fatima besides herself and their six children. In support of this fact she has produced form

as Exh.

5. She has also deposed that the deceased did not leave behind any property of other sourse of income and similarly her father in-law is an aged and sick person who also cannot contribute to the upkeep of the family. Finally she has deposed that the defendants Nos.2 and 3 as well as defendant No.5 are the joint owners of the Mini Bus in question. She was not cross-examined as none was present on behalf of the defendants.

5. The next witness to be examined was plaintiff Allah Rakha who is the father of the deceased and who has supported P. W.1 as regards the factum of death of the deceased which was caused by the negligent and rash driving of the defendant No.

1. He has further deposed that the defendants Nos.2, 3 and 5 are the co-owners of the Mini Bus in question whereas defendant No.4 had insured it. He has reiterated that the plaintiffs are the legal heirs of the deceased. That he and his wife are old and sick persons and cannot work and that the eldest son of the deceased is working as a peon at salary of Rs.1,600 per month. This witness was also not cross-examined due to the absence of the defendant.

6. The last witness to be examined by the plaintiffs was P.W.3 Muhammad Ibrahim who was the neighbour of the deceased. He has also deposed regarding the unfortunate incident which claimed the life of the deceased who was at that time aged about 35-36 years and was of sound health. This witness has also deposed that at the time of his death the deceased was earning Rs.6,000 per month from his garment business and that the plaintiffs who are the legal heirs of the deceased have been left witness any support due to his death. This witness was also not cross examined due to absence of the defendants.

7. After examination of the foregoing witness plaintiffs closed their side. None of the defendants led any evidence as they failed to appear before the learned Commissioner who was appointed by this Court for recording the evidence. Consequently the matter was listed in due course for arguments.

8. Mr. K. B. Bhutto, learned counsel for the plaintiffs has firstly submitted that per the evidence on record. It is quite clear that defendant No.1 was the driver of the Mini Bus No. PE-1717 which crushed to death deceased Muhammad Iqbal on 27-10-1994 per F.I.R. No.570 of 1994 of Police Station New Karachi registered on the next day. He has also referred to the Registration Certificate of the vehicle in question a copy of which has been filed with the plaint which would denote that the defendant No.2 alongwith defendant No.5 HBL are the recorded owners of the Mini Bus in question. And finally per learned counsel per the Insurance Policy defendant No.4 had insured the vehicle in question. Hence per learned counsel whereas the defendant No.1 is primarily responsible for having caused the wrongful death of the deceased the defendants -2 and 5 are equally responsible on the basis of vicarious liability being the joint owners of the vehicle in question for which proposition he has cited Muhammad Jaleel Siddiqui v. KTC (1994 CLC 1510). Learned counsel has also submitted that defendant No.4.being the Insurer is also equally liable to compensate the plaintiffs for the wrongful death of the deceased. In support of which he has cited Nisar Ahmed v. Uroos Fatima (1996 MLD 1913). Finally learned counsel has submitted that the factum of the accident in question and the death of the deceased due to the same has gone unrebutted and hence the suit is to be decreed per Muhammad Jaleel Siddiqui v. KTC (supra). As to the quantum of damages learned counsel has submitted that as per the law laid down by the Hon'ble Supreme Court in Pakistan Steel Mills Corporation v. Malik Abdul Habib (1993 SCMR 848) the average life expectancy in Pakistan is 70 years. Accordingly as the deceased was of 36 years of age when he died (per his NIC on record) hence he would have lived for another 34 years which means that he would have earned a total sum of Rs.24,48,000 viz. 6,000 x 12 x

34. To this amount 20% is to. be added as increment viz. Rs.4,89,600 thus the grand total of compensation would be Rs.29,37,

600. From this 1/6th is to be subtracted as personal expenses viz. Rs.4,89,600 thus making a gross balance amount of Rs.24.48.000 for which amount he has prayed for a decree to be passed jointly as well as severally against defendants Nos. 1, 2, 4 and

5. In support of these submissions learned counsel also has relied upon Mst. Sabiha Rifat Naz v. KTC (1997 CLC 631) and Gul Khan v. KTC (1997 CLC 955):

9. In reply Mr. Badar: Alam appearing for Habib Bank Ltd. defendant No.5 has firstly submitted that the vehicle in question was purchased by the defendant No.2 from the bank under a Hire Purchase: Agreement according to the Prime Minister's Scheme. In this respect learned counsel has referred to the Registration Certificate of the Vehicle which is filed alongwith the Plaint and according to which the owner has been clearly shown to be defendant No.2 whereas the banker has been shown to be defendant No.5 and it is clearly mentioned thereon that the vehicle has been purchased under a Hire Purchase Scheme Agreement as part of the Prime Minister's Scheme. Hence per learned counsel vicarious liability of the bank is not involved at all since it is only the Financer and not the joint owner of the vehicle. Secondly learned counsel has. referred to Black's Law Dictionary, page 1566 , which expounds the principle of vicarious liability vis-a-vis a Master and Servant relationship which would establish that this would only arise in an employer/employee situation which was not the case insofar as defendants Nos.2 and 5 are concerned. Hence learned counsel has prayed that the suit be dismissed against defendant No.5.

10. I have heard both the learned counsel and my conclusion are as follows.

11. I would firstly like to consider Issue No. 1 viz. whether the defendant No. 1 caused the death of Muhammad Iqbal the deceased on 27-10-1991 by driving Mini Bus No.PE-1717 rashly and negligently. In order to prove this issue the plaintiff No.1 has firstly examined herself and has produced the F.I.R. in question alongwith the charge-sheet which has been submitted in the criminal Court against the defendant No. 1 Next plaintiff No. 3 Allah Rakha has also examined himself and supported the plaintiff No.

1. Finally P. W. Muhammad Ibrahim vas also examined who has fully supported the plaintiffs. There is nothing in rebuttal as none of these witnesses were cross-examined. I have gone through the F.I.R which clearly nominates defendant No. 1 as the driver of the vehicle in question which caused the accident resulting in the death of the deceased. Hence in my view Issue No. 1 stands proved and thus answered ' the positive. 12. sue No.2 is regarding the ownership of the vehicle in question as between defendants Nos.2 and 3. a related issue is whether the defendant No.5 is a joint owner of the vehicle in question In this regard per the Written-Statement filed by defendant No.3 he has dented that he is the owner of the vehicle. However, according to the Written-Statement filed by the defendant No.2 he had handed over the vehicle to defendant No.3 after entering into an Agreement of Sale with the latter. However, none of these defendants led any evidence to prove their respective pleas in the absence of which the only document on the record which would be of any value' is the Registration Certificate of the vehicle. According to this document it has been clearly mentioned that the defendant No.2 is the owner A further question arises in this respect viz. whether the defendant No.1 can also be held to be the joint owner of the vehicle. In this respect it would be seen that the defendant No.5 per the Registration Certificate on the record has only' been mentioned as a Banker and so also it has been clearly stated that the vehicle has been A purchased under a Hire Purchase. Agreement with the Bank. Hence it cannot he said that the defendant No.5 is the joint owner of the vehicle in question: Accordingly I have no difficulty in holding that only the defendant No.2 is the owner of the vehicle. Issue No.2 is therefore answered in the negative.

13. Issue No.3 is "who was the employer of defendant No.1 as driver of the Mini Bus". In this regard as I have already come to the conclusion that defendant No-.2 was the owner of the vehicle in question and on the fateful date, defendant No. 1 was driving it therefore I have no hesitation in holding that defendant No.2 was the employer of defendant No.2 Issue Ne.3 is answered accordingly.

14. Issue No.4 relates to the amount of compensation payable to the plaintiffs by the defendants and Issue No.5 is regarding the decree. As both these issues are inter-related I propose to deal with them together I have already come to the conclusion that defendant No.1 whilst driving the vehicle in question rashly and negligent crushed to death the deceased on the day of incident. So also I have held that only defendant No.2 was the owner of the vehicle and not defendants Nos.3 and 5.Hence in my opinion defendant No.1 is liable to compensate the plaintiffs and so also defendant No.2 being vicariously liable for the acts of defendant No.

1. As far as the liability of defendant No.4 is concerned. it would be seen that per the Isurance Policy on the record section II, para. 1 clearly stipulates subject to the limits of liability, the company (vie. defendant N .4) will indemnity the insured against all sums including claimants costs and expenses which the insured shall become legally liable to y in respect of death of or bodily injury to any person caused by or rising out of the use of the motor vehicle. `Similarly para. 3 stipulates that the company will indemnify any driver who is driving the odor vehicle on of the Insured order or with his permission. Per section 94 of the Motor Vehicles Act, 1939 (which has' been saved by section 12 of the Motor Vehicles Act, 1965) all motor vehicles are to any third party insurance cover and per section 95(2)(b) of the said A insofar third parties are concerned, the Insurance Policy to cover liability arising out of death or disability up to a maximum of Rs.20,

000. Again proviso (b) to section II, para. 1 lays down that the Company's liability would only be up to the extent which meets the requirements of section 95 of the Motor Vehicles Act, 1939. In view the foregoing provisions of law I would hold that' defendant No.4 s liability would not exceed an amount of Rs.20,000 insofar as the pla' tiffs are concerned.

15. As regards the quantum of damages it would be seen that per the formulation of the Hon'ble Supreme Court in Pakistan Steel Mills Corporation v. Malik Abdul Habib 1993 SCMR 848 the average life expectancy is 70 years. Accordingly as the deceased was of 36 years of age when he died, hence he would have lived for another 34 years which: means that he would have earned a total sum of Rs.24,48,000 vie. 6000 x 12 x

34. To this amount 20% is to be added as increment vie. Rs.4.89.600 thus the grand total of compensation would be Rs.29,37.600. From this 1/6th is to be subtracted as personal expenses v. Rs.4,89,600 thus making a gross balance amount of Rs.24:48,

000. Hence the suit is decreed jointly and severally against defendants Nos.1 and 2 in the amount of Rs.24,48,000 alongwith mark-up at 6% per annum from the date of filing of the suit till payment which amount shall be distributed amongst the- plaintiffs per Islamic Law. The suit is also, decreed in the sum of Rs.20,000 from the date of filing of the suit till payment as against defendant No.4 only alongwith mark-up as above. Order accordingly. M.H./H-117/K Suit decreed.