1999 PLP 3321 (MLD)

ISSUE NO. 1:

4. The burden to prove this issue lies on defendant No. 2 as it was he who has alleged in his written statement that the deceased died as result of accident which occurred due to his negligence while driving his motorcycle in high speed and by hitting the truck from its back side. On the other hand, plaintiff's three witnesses who claimed themselves to be present on the spot when the said accident occurred have denied the version of the defendant No.

2. P. W.3, namely, Muhammad Younas stated that he was present at the garage and was getting his motorcycle repaired when one vehicle belonging to K. M. C. carrying garbage while coming from the side of Saeedabad, went out of control and dashed into the garage as a result of which deceased Mubarak was crushed under its front wheels. In cross-examination which was conducted by the counsel for defendant No. 2, no suggestion was put to this witness that the deceased was driving a motorcycle and had hit the truck on its back side. The other witness P. W.4 Muhammad Tabassum Farooq stated that he was driving a cycle on the main road of Nai Abadi, Saeedabad near Ruby Cinema, Baldia Town, Karachi; and that the said truck after hitting him rammed into the garage as a result of which deceased was crushed by the front wheels of the said truck. Again, no suggestion was put to this witness suggesting that the accident took place in a manner as stated in the written statement of defendant No.

2. The evidence of PW. 5 Iqbal Butt is also to the same extent. This witness is owner of the said workshop where deceased Mubarak used to work. PW.5 has also disclosed the same fact as of earlier witnesses that the truck bearing No. GS-3254 dashed into his garage as a result of which deceased was crushed by the front wheels. No effective cross examination was conducted by the defendants in order to shake the evidence of these three witnesses. In my considered view defendants have failed to discharge this burden Accordingly, hold-that deceased Mubarak Ali son of Ghulam Hyder died at the time when he was repairing a motorcycle at the garage, namely, S.S. Motor Cycle Works situated at Ruby Cinema Road, Nai Abadi, Baldia Town, Karachi. ISSUE N0.2:

5. Since defendant No. 1 was declared ex parte, no evidence was led on this point. However, defendant No. 2 in para 2 of his written statement admitted that K. M. C. is the lawful owner of the vehicle bearing registration No. G S 3254. Accordingly, this issue is answered in affirmative. ISSUE NO. 3

6. It is not denied that deceased Mubarak Ali died an unnatural death. The case of defendant No. 2 was that he died as a result of negligence on his own part inasmuch as while riding a motorcycle bearing No., KAC-4332, the deceased crashed into the truck from back side and died as a result of such accident. The plaintiff has produced convincing and reliable evidence to the extent that the defendant No 2 while driving the said truck ran into the garage which is situated on road side and which resulted in an accident. The burden to prove that it is a case of contributory negligence, the defendants were required to show that upto what extent deceased has contributed in commission of alleged negligence. Since the defendants have failed to lead any evidence, I am satisfied from the evidence of the plaintiff that the deceased died due to negligent and wrongful acts of the defendants. Accordingly, Issue No. 3 is also answered in affirmative:-- ISSUE NO 4:

7. It has come in the evidence that at the time of death deceased was of the age of 20 years and was earning approximately Rs. 1500 per month in addition to Rs. 10 to 15 per day as 'Kharchi'. All the five witnesses of the plaintiff have supported this version. The defendant No. 2 has denied income of the deceased and has made several suggestions to these witnesses that the deceased was not earning the said amount. No other witness was produced by the defendants in rebuttal to the evidence of all these five witnesses who were consistent on the point that the earning of plaintiff was around Rs. 1500 per month in the yew. 1987. I do not see any other compelling reason not to accept this fact of earning of deceased. Accordingly, it is held that the deceased was earning Rs. 2000 per month. It is not denied that the only person entitled to the pecuniary compensation is the plaintiff who at the time of filing of suit was of 50 years of age. Taking maximum age limit it could be expected that she may live upto the age of 70 years. Therefore, she is entitled to compensation for a period of 20 years. The plaintiff would also be entitled to 20 % on the aggregate income of these 20 years as increase in his income as well as inflationary charges. Likewise, 1/3 is to be deducted from the total earnings of the deceased as his personal expenses (as he died unmarried) under the following calculations: Expected earning of deceased per annum. Rs. 24,000/- His earning for 20 years. Rs. 4, 80,000 20% expected use in his income. Rs. 96,000 Deduction of 1/3 amount. Rs. 5,76,000 Rs. 1,92 000 Rs. 3, 84 000 The plaintiff is thus entitled to a sum of Rs. 3.84.000

8. Accordingly, suit stands decreed in the above terms with cost and 12 interest on the decretal amount from the date of suit till realization. Q.M.H./M.A.K./K/54/K Suit decreed.