1994 PLP 613 (CLC)

6. Learned counsel of the parties have been heard. My findings are as follows:‑ ISSUE No.l:

7. P.W. 4 Muhammad Afzal is the only eye witness of the accident. He states that he was going to M/s. Haroon Tarvels to purchase air tickets for going to Islamabad and Lahore and this travel agency had its office in Taj Mahal Hotel, that he was going on foot and was on the other side of Taj Mahal Hotel just ahead of it and was waiting for an opportunity to cross the road near National Construction Building when he saw a motorcyclist coming from Avari Hotel side (the side of the road where he was standing) and a PAF truck was closely following it and, in trying to overtake the motorcyclist, hit it with the result that the motorcycle fell on the left side and was overrun by the truck at his shoulders and face with the result that the brain had come out. According to him, the truck was being driven at such a fast speed that it could. stop only after going some distance. In cross‑examination he said that he did not previously know the deceased or the plaintiff, that he had nevertheless gone with the dead body to the hospital and had stayed there until the relatives of the deceased had come and taken the dead body. He said police had come to the hospital but he was not questioned and his statement was not recorded by police although it had questioned a couple of persons. He also said that in view of the events that followed he neither purchased the tickets on that day nor thereafter nor went to Islamabad and Lahore.

8. Unfortunately, the testimony of this witness does not command confidence and it is difficult to rely upon it. He just springs out of nowhere on 20‑8‑1992 and appears before the Court as a witness but prior to that he was totally non‑existent. He says that he saw the accident happening and there were 2 or 3 policemen available at the Wardat at that time but yet, he says, none of them went with the dead body although 2 or 3 private .persons did go with him. He did not disclose from where the van came in which the dead body was taken and who had arranged for it and paid for it. It was no doubt nice of him to have accompanied the dead body to the hospital but it was certainly not necessary for him to do this. The motorcyclist was already dead and the witness could not possibly render any help to him or be of any assistance to him and he could as well have, after loading the dead body in the van, gone to the travel agency he was going to and purchased his tickets. He said that he became sick and felt like vomitting after seeing the accident ‑but if this were the case his condition could only have aggravated by going with the dead body to the hospital and remaining with it for a considerable time and therefore, the more natural course of action for him to follow, when he became sick and felt like vomitting, was to cross the road and go to the travel agency in the Tai Mahal Hotel, rest for a while, purchase his tickets and go back to his medical store or home. He says that he just abandoned his journey to Islamabad and Lahore and did not go there. This is strange. He must have been going there either on a business trip or on a social occasion like meeting relatives and friends or attending a marriage function or going there as a tourist. He could. have delayed the programme for a day or two but it is unthinkable that he could have totally abandoned the trip. Then, why he was going to M/s, Harrow Travels at the Taj Mahal Hotel to purchase the tickets? He lives at Garden East and there were travel agencies located much nearer his home than M/s. Harrone Travels. He says he was going on foot when he witnessed the accident. The question is, was he coming on foot from Garden East to Taj Mahal Hotel? How was it that he was too poor to afford even a rickshaw and yet rich enough to travel by air? He was anxious to help the father of the deceased but he did not tell the policeman at the Wardat that he was an eye‑witness and could help the prosecution. In his presence the police came to the hospital and yet he even then did not talk to it and did not come forward as an eye‑witness. Incidentally, he did not name the hospital to which the dead body had been taken. He claims to have taken the dead body to the hospital but says he did not give the details of the accident to the doctors. He had given his name and address to the plaintiff at the hospital but still even the plaintiff did not give his name to the investigating officer for being incorporated in the challan as an eye‑witness. When issues were framed on 28‑5‑1989, parties were directed to file lists of their witnesses within three months. Only the defendants filed their list on 27‑7‑1989. The plaintiff did not file his list at all, not even on the date when the evidence was recorded. It appears that he is a readymade witness who came into existence on the very date when his evidence was recorded. I have given a good deal of time to the evidence of this solitary eye‑witness but find myself unable to give any credence to it.

9. There were some other eye‑witnesses of the accident who must have been shown as such in the challan of the criminal case. Those were the persons who were examined by the police under section 161, Cr.P.C. and their being an eye‑witness is.more probable than this witness who appears out of nothing on 20‑8‑1992, four years after the accident. The fact that they have not been examined by the plaintiff gives rise to the presumption that they would not have supported the case of the plaintiff had they been examined. I therefore exclude the evidence of P.W. 4 Muhammad Afzal from consideration.

10. This leaves the averments of the defendants in the written statement that, when their truck reached near Sadar Police Station, an army jeep stopped it and an army officer travelling therein alleged that the accident had been caused by the said truck and handed over defendant No.3 to the Police constable. This version is repeated by all the three defence witnesses who were travelling in the truck. This is, however, no evidence of the involvement of the truck of the defendants in the accident. If the plaintiff had been vigilant he could have traced the army officer and his driver who must have been the eye‑ witnesses of the accident but he did not examine them, or even one of them, in evidence. He however did not do even this. It is significant to note that eye witness P.W. 4 Muhammad Afzal did not say a word as to whether the truck of the defendants had stopped at .the place of accident or not and whether its driver defendant No.3 was arrested at the spot or not which would further show the unreliable nature of his evidence because if he had been an eye witness he could not have failed to take note of this fact and would not have failed to say about it in his evidence. Mere fact that defendant No.3 was arrested and prosecuted on the criminal side is not 'sufficient to discharge the onus of this issue. In fact, even the conviction of defendant No3 for rash and negligent driving and thereby causing the death of deceased Muhammad Ali would not have been sufficient, by itself, to discharge the onus of this issue. However, here the position is that defendant No.3 has been acquitted for want of evidence.

11. Two of the witnesses of the defendants have stated in their evidence that a cyclist was crossing the road from right to left and shortly after crossing their truck he came in front of the motorcycle of the deceased, which had just overtaken the truck from its left side, whereupon the deceased applied brakes, skidded and fell on the pavement and thus received the fatal injuries. This story was not given in the written statement and was therefore beyond the pleadings of the defendants and learned counsel of the plaintiff very rightly pointed out that no evidence could be led or looked into in support of a plea that had not been taken in the pleadings. I have gone through the judgments in the cases of (1) Government of West Pakistan v. Haji Muhammad (PLD 1976 SC 469), (2) T. Motandas v. Anis Ahmed (PLD 1987 Karachi 159), (3) National Bank v. Mahboob Oil Mills (1984 CLC 1853), (4) Syed Shahid Ali Tanveer Ahmed Farooqi 1988 MLD 2639) and (5) Mst. Akhtari Begum v. Muhammad Qasim (1987 CLC 157) which were cited by learned counsel of the plaintiff on the point and they fully support this view. I would therefore discard the defence version that a cycle was crossing the traffic and abruptly came in front of the deceased who applied brakes in panic, lost control, skidded, fell upon the pavement and received the fatal injuries. This, however, does not help the plaintiff. The case of the plaintiff must stand or fall on its own merits and not on the weakness of the case of the defendants.

12. Learned counsel of the plaintiff referred to the F.I.R. Exh. 2/1 wherein defendant No.3 is shown as accused and the driver of the PAF truck No. M.R. 0901. So he was. However, this proves nothing. This is in fact the very case of the defendants. Since Muhammad Riaz at whose instance the FIR was recorded and ASI Afsar Khan who had recorded it have not been examined in the Court, the FIR itself is of no evidentiary value. 3 For the aforenoted reasons hold that the plaintiff has failed to discharge the onus of the issue and the same is decided against the plaintiff and in the negative. ISSUE No. 2:

14. In view of my findings on issue No.1, this issue is also decided in the negative and against the plaintiff. ISSUE No. 3:

15. It is now an established law that an owner of a vehicle is responsible for the negligence and rashness of its driver and is answerable to the victim of rashness or negligence of his driver by way of damages. It therefore, goes without saying that defendants 1 and 2 are responsible for act (Rather, for the acts) of their driver and employee Muhammad Arif and were it proved that the truck of defendants 1 and 2 was involved in the accident and the accident was the result of rash and negligent driving to their driver Muhammad Arif, defendants 1 and 2 would have been liable to pay damages under the Fatal Accidents Act. However, no such liability arises in the present case because issues Nos.l and 2 have been decided in the negative.

16. Unfortunately, no issue was framed as to the quantum of the damages to which the plaintiff would have been entitled had issues Nos.l and 2 been decided in the positive and in favour of the plaintiff but since enough evidence has come on record in this regard I would discuss this aspect in the following lines.

17. As per plaintiff the age of the deceased was 24 years. In support of this claim the plaintiff has produced copy of the identity card of the deceased as Exh3/1 which gives his date of birth as 6‑7‑1964. This gives the age of the F deceased as 24 years at the time of his death in 1988. There is no rebuttal from the side of the defendants. I would therefore accept the claim of the plaintiff that the age of the deceased was 24 years when he died.

18. The next point for determination is the income of the deceased at the time of his death. P.W.1 Fazal Muhammad is the owner of M/s. Kashif Centre and employer of the deceased. He stated that the deceased was working in his firm as an accountant at a monthly salary of Rs5,

000. He produced his certificate as Exh.l/1. He also produced debit voucher of the last pay drawn by the deceased for the month of July 1988 as Exh.l/2. He also stated that the deceased also helped him, at an average of once a month, in selling a car and was paid for this extra work, 20 per cent of the earnings on the sale, the earnings being at 2 per cent of the sale‑price and this extra income came to about Rs.600 per month. The cross‑examination of this witness shows that the defendants even contested the fact that the deceased was employed by this witness but could bring on record no positive evidence to show where the deceased was employed, the presumption being that he was an earning member of society. Deceased's father P.W. 3 Haji Abdul Razak claimed that his extra‑income was between Rs.2,000 and Rs. 3,

000. The claim of the father does not appear to be correct. It appears to be a mere wild guess. I am inclined to rely on the evidence of P.W.1 Fazal Muhammad and assess the monthly income of the deceased at Rs.5,600 per month at the time of his death. Personal expenses of the deceased may be taken at Rs.200 per month. So the net income to the family was Rs.5,400 per month.

19. The next thing to be determined in the life‑expectancy of the deceased. There is no dearth of reported judgments in this regard but the most comprehensive appears to be the one authored by my brother Mr. Justice Wajihuddin Ahmed in the case of Nafeesa Begum v. Muhammad Ismail reported as 1989 CLC 2218. After taking into account a plethora of reported cases both in Pakistan and in the Indian jurisdiction, where the trend was in favour of ages between 70 and 75 years, and after observing that the level of economic prosperity and advancement in life styles, which has direct bearing upon life expectancy in Pakistan compared favourably with that prevailing in India and that people in Pakistan belonged to a more sturdy breed, and that advanced medical facilities were available in this country now as compared to the past, came to the conclusion that the life expectancy of the deceased of that case would be 70 years. Judicial notice may also be taken of the fact that with the availability of better health facilities with the passage of time we, today, can expect, longer life‑expectancy than our immediate ancestors. Hence the trend in the reported judgments to progressively hold longer life‑expectancy. I would, therefore, follow the judgment in the case of Nafeesa Begum v. Muhammad Ismail (1989 CLC 2218) and assume the life‑expectancy of deceased Muhammad Ali to be 70 years.

20. It may however be noted that a man does not keep earning till the day of death and his earning capacity comes to an end, at least dwindles down, on reaching a certain age and in Government service and semi‑Government Organisations, and in most of the private organisations as well, the age of retirement is 60 years. I would therefore determine the "earning age" of the deceased to be 65 years.

21. The deceased was earning Rs.5,600 at the time of his death and after deducting his personal expenses of Rs.200, net benefit to the family was Rs.5,400 per month. He was a Commerce Graduate as proved by the copy of B. Com. degree Exh. 3/6. He could, therefore, expect higher wages and income with the passage of time and consequent gain in experience. I would therefore assess his increment in income at the rate of 10 percent after every five years. This would give the income of the deceased up to the year 2004 as follows:

1. Up to 1993 at the same rate (Rs.5,600 per month (65 months) 3,64,000, 2. 1993 to 1998 at Rs.6,160 per month (60 months) 3,69,000 3 1999 to 2004 at Rs.6,776 4.06.560

Rs.11,39,560 Personal expenses @ 5% Rs.79,337 Net income by end of 2004 Rs.10,60,223 22. 1 have not calculated the income beyond 2004 because the plaintiff (father), born in 1933 vide age given on copy of identity card Exh.3/2, would attain the life, expectancy of 70 years and could not benefit from the further income of the deceased.

23. The plaintiff has also claimed funeral expenses of the deceased amounting to Rs.5,

000. The amount claimed is reasonable and, in view of the judgment in the case of Punjab Road Transport Board v. M. Muhammad Sadiq and another (1987 CLC 933), funeral expenses can be claimed by the father of the deceased and are therefore allowed.

24. The plaintiff would therefore be entitled to the following damages in case issues Nos.l and 2 are decided in his favour:

1. Loss of income and support to the dependants. Rs.10,60,223

2. Funeral expenses Rs.00,05,000

Total Rs.10,65,223 ISSUE No.4.

25. In view of my findings on issues Nos.l and 2 the suit is dismissed. The parties are, however, left to bear their own costs. AA./A‑1416/K . Suit dismissed.