1980 PLP 1909 (CLC)

My findings on the above issues are as follows:- 4. (a) Issue No. L-In support of the respective contentions the plaintiff has examined four witnesses P. Ws. 1 to 4 and whereas the defendants have examined D. Ws. I to

3. P. W. I Exh. 4 is the plaintiff, the widow of the deceased who has deposed that her husband left the house at 6 a.m. for his Office and that he was accompanied by his friend Abdul Qayum Beg on his motor cycle. She has further deposed that her husband was driving the motor cycle and that she received. intimation at 9/9-30 a.m. about .the death of her husband because of the accident, and that the dead body of her husband was brought to the house in the State Bank's transport by the State Bank's employees. P. W. 2 Exh. 5 Abdul Qayum Beg is the person who was accompany ing the deceased on tile motor cycle and was involved in the accident. He has deposed that he was accompanying the deceased on the motor cycle at the time of the accident which had taken place near the gate of the State Bank of' Pakistan when they were entering into the gate of the State Bank. He has further deposed that the motor cycle was on the extreme left very close to the footpath, and that the vehicle mentioned in the plaint was coming with a very high speed from the side of the Railway Station, towards the State Bank, and that it hit the motor cycle from the back side, and that he was thrown on the road. Consequently, he became unconscious. He has also deposed that he was taken to the Civil Hospital where he regained his senses after about 5 to 6 hours of the accident, when he discovered that Mr. Muhammad Taqi Rizvi by then had expired. P. W. 3 Exh. 6 Gul Muhammad, a. Security Guard in the State Bank, has deposed that on the day of the accident he was on duty in the old State Bank of India Building where the Foreign Exchange Department existed, as one of the Security Guards and was standing at the main gate of the State Bank Building at the time of the accident. He has further deposed that it was about 6-30 a.m. when the accident had taken place about 5 yards from the main building of the State Bank; and that the car was coming from the direction of the Police Head Office towards Keamari, and car had hit one person near the roundabout of Wood Street and 1.

1. Chundrigar Road. He has further deposed that, after the accident, the car speeded and was driven in zigzag, and that the car hit the motor cycle of the deceased from behind at 4 yards from the main gate and that the speed of the car was about 70 miles per hour. He has further deposed that the deceased and Qayum Beg were thrown on the road and that the driver of the car had tried to disengage the motor cycle by turning to the right side which resulted into puncturing of right side wheel of the car, and the car driver was attempting to run away and, therefore, he was trying to disengage the motor-cycle. P. W. 4, Exh. 7 is another eye-witness Abdul Hussain a driver in the State Bank of Pakistan. He has deposed that he resides in a quarter situated behind the State Bank Building inside the compound of the State Bank and that on the day of the accident his little daughter of 31 years of age .vas insisting that he should purchase brea6 and as there was public hartal, he came to the gate of the State Bank with his little daughter to see whether there was arty traffic on the road or not. He has also stated that he was standing at the gate of the State Bank, and that the motor cycle was about 2, 3 yards from the State Bank gate at the time of accident. He has further deposed that there were two persons on the motor cycle, one of them was Qayum Beg and the other was the deceased ; and that the speed of the car was at least 60 miles per hour; and that there was no other traffic on the road because of the hartal; and that the car had , obit the motor-cycle from the ' back side; and the two persons who were on the motor-cycle were thrown on the road; and because of the noise of the accident his little daughter started .crying. He has also deposed that he had transported the dead body of the deceased from the Civil Hospital to his house in the State Bank car. (b) D. W. 1 Mazhar Hussain son of Mansoor Kamal Exh. 8 has deposed that he was driving the car mentioned in the plaint on the day of the accident and that he was proceeding from the National Bank side to the Tower on I. I. Chundrigar Road, and that it was about 8 a.m. He has further deposed that the accident had taken place opposite to the State Bank of India Building; and that the motor cycle was coming from the Dunnoly Road and entering into Chundrigar Road, and that be was on his side, but the motor cycle dashed against the front wheel on the right side of his car, and that because of the impact his right front wheel of the car went flat and the mudguard of the car was damaged. He had also deposed that the motor-cycle lamp and the front side were damaged because of the accident. In the cross-examination he has admitted that he was of 17 years of age at the time of accident, and that he did not have any driving licence, and that he used to drive the car with the permission of his father and not without his permission. He has further admitted that he did not even have a learning licence at the time of the accident, and that on the day of the accident, there was "Paiya Jam strike", and there was no other traffic on Chundrigar Road. He has also deposed that his mother was not well on that day and he was going to Bantwa Memon Hospital in order to fetch a doctor, and that at he was driving the car at the speed of about 70 miles per hour, but wailing it at a speed of about 40-45 miles per hour. He has admitted that the accident had taken place near the gate of the State Bank of Pakistan when the motor-cycle was negotiating for turning. into the side of the gate of the State Bank, and that the accident had taken place in the middle of the road on the left side, but on the right side of his car. He has further admitted that, according to his impression, the motor cycle was at a low speed when he was taking turn. He goes on to say that he did not remember as to whether the font wheel of the motor-cycle was dam aged or not. He has also deposed that because of the import of the accident, the motor-cycle was thrown at a distance of about l yards. P. W. 2; Exh. 9 Mansoor Ali, defendant No. I has deposed that he was also sitting in the car when the accident had taken place, and that they were going to Bantwa Memon Hospital. He has further deposed that the accident had taken place about 3-4 yards from the gate of the India Building towards the gate of the State Bank of Pakistan. He goes on to say that the accident had taken place about 3-4 yards before the gate of the State Bank Building, and that in Gujerati language "Aagay" means back side. He has also deposed that the motor cycle was going on its own side, and there was no possibility of the accident, but near the gate the driver of the motor cycle wanted to take turn and because of that it resulted in the accident; and that the motor cycle dashed against the right front wheel of the car, and because of that two occupants of the motor cycle were- thrown, and also because of the impact of the accident their car was turned on the extreme right side. He has further deposed that at the time of the accident, the car was in the name of one Atta Muhammad and that he had purchased the car through a broker from Messrs Dossani Motors at about 2-3 months before the date of the accident; -and that he had got the car transferred in the name of his wife in 1978. He has further deposed that as be was going to fetch a doctor because of the illness of his wife, he was perturbed and did not drive the car, and asked his son to drive. He goes on to say that he had obtained a learning licence for his son without his knowledge, but at the time of the accident, the said licence had already expired. In the cross-examination he has stated that the speed of the car was between 40 and 45 miles per hour, and that after the collision of the motor cycle with the car it was thrown two occupants of the motor-cycle were also thrown the car. He has admitted that front wheel of the motor-cycle was in proper condition, but the front lamp of the motor-cycle was broken and that the lamp had come out from its place and was hanging. He has denied that the motor-cycle entangled to a car. He has denied that the motor-cycle was very close to the footpath, and that their car dashed from the hack side against the motor-cycle near the gate of the State Bank of Pakistan. ' P. W. 3, Exh. 10 Niaz Muhammad, a traffic constable, has deposed that he was on duty near the State Bank of Pakistan on 20th April 1977 and that he had seen the accident in question. He has further deposed that the car was coming from the direction of the National Bank and was proceeding towards Tower with a high speed and while the motor-cycle was coming from Saleh Muhammad Street side into McLeod Road, the car hit the motor-cycle, and that the accident had taken place little away from the; crossing of Dunnoly It ad and Chundrigar Road towards the State Bank of Pakistan, and that the car had dashed against tree motor-cycle from the back side. He goes on to say that, he does not remember as to whether right side of the mudguard or left side of mudguard of the car bad hit the motor-cycle. He has also deposed that the accident had taken place 5-6 yards froth the crossing of Dunnoly Road and Chundrigar Road. In the cross-examination he had deposed that he was standing ate the middle between the crossing of Dunnoly Road and Chundrigar Road, and that the accident had taken place being the State Bankgate, and not in front of the State Bank gate. When his attention was invited to the portion of his statement made by him before the Court of A. C. M. III where he had deposed that accident had taken lace in front of the State Bank Building, his reply was that his above statement before the A. C. M. was correct. He has also admitted that the car was in speed and that there was Paiya Jam strike on the day of the accident. (d) From the above vocular evidence it is clear that there is no controversy on the question of the accident or about the time or about the car and motor-cycle involved on or about the occupants of the car and of the motor-cycle. Nor there is any dispute on the question that because of the above accident Saved Muhammad Taqi Rizvi had' expired on, the same day in the Civil Hospital. The only controversy is the question of the negligence. According to the plaintiff, the accident had taken place because of the gross negligence on the part of the defendants Nos. 1 and 3; and whereas, according to the defendants the accident had taken place because of the reference on the part of the deceased. The story set up by the defendant is that the motor cycle dashed against the right front side of the car and, therefore, there was negligence on the part of the deceased. In support of the above contention Mr. G. M. Qureshi has invited my attention to D. W. 1's statement at page 1, wherein he has denied that his car dashed against motor cycle from the back side and stated that in fact the motor cycle dashed against his car. He has also relied upon P. W. 4's statement in the cross-examination to the effect that the motor cycle was entangled with the right front wheel of car. On the basis of the above statement it has been urged by Mr. G. M. Qureshi that there was negligence on the part of the deceased; and that in any case there was contributory negligence on the part of the deceased. Whereas Mr. A. K. M. Idriss the learned counsel for the plaintiff, has urged that the evidence on the record has proved beyond doubt that there was criminal negligence on the part of defendants Nos. 1 and

3. In my humble view, the plea set up by the defendant has been demolished by their own evidence, inasmuch as D. W. 2 (defendant No. 1) in his cross-examination has admitted that the front wheel of the motor cycle was in proper condition, and, whereas D. W. 1 (defendant No. 3) was unable to refute the assertion of the learned counsel for the plaintiff in the cross-examination that the front wheel of -the motor-cycle was intact. D. W. 3, Traffic Police Constable has deposed that the car had hit the motor cycle from the back side. If that is so, it must follow that the motor-cycle did not dash against the front side wheel of the motor car, otherwise the front wheel of the motor-cycle would have been totally smashed. Furthermore, not only P. W. 2, P. W. 3 and P. W. 4 have stated that the car was coming with very high speed and dashed against the motor-cycle from the back side, but defendant's own witness D. W. 3, the Traffic Police Constable; has supported the above version as pointed out hereinabove. D. W. I who was driving the car has also admitted the fact that the motor-cycle was driven at a very low speed. From the evidence of P. Ws. 2, 3 and 4 and also from the evidence of D. W. 3, it is evident that the accident had taken place near the gate of the State Bank of Pakistan when the speed of the motor-cycle was very low while it was about to enter into the gate of the State Bank of Pakistan Building. The reliance of Mr, Qureshi on the alleged admission on the part of P. W. 4 that the motor-cycle was entangled with the right front wheel of the car is not supported by the other evidence on the record inasmuch as defendant No. 2 in his statement has stated that the motor-cycle was not entangled with the car. Furthermore, it is clear from the evidence that after the car had hit the motor cycle from the back side the two occupants of the motor-cycle were thrown on the ground about 10 to 12 feet, and, therefore, the motor-cycle could not have been entangled with the car at the time of the accident. However, it is possible that when defendants Nos. I and 3 tried to run away, after the accident, the motor cycle which was admittedly lying on the ground, might have been entangled. I have already pointed out hereinabove that the front wheel of the motor cycle was intact as per admission of D. W. 2 (defendant No. 1) and, therefore, Mr. G. M. Qureshi's above contention is untenable. It has also been urged by Mr. G. M. Qureshi that Mr. Abdul Qayum Beg (P. W. 2) was an interested person -inasmuch as he has been actively participating in the prosecution of the present suit, and, therefore, sole reliance should not be placed on his testimony. The conduct on the part of Mr. Abdul Qayum Beg appears to be normal as he was a colleague of the deceased in the State Bank, naturally he would try to help the widow and the orphans left behind by the deceased. The fact that he has been helping the plaintiff in the prosecuting the above suit would not go to prove that he has incorrectly stated the facts relating to the accident that his testimony cannot be relied upon. Furthermore, there is sufficient corroboration to his statement in the form of the statements of P. Ws. 3 and 4, D. Ws. I and

3. In my view the defendants have not been able to prove any negligence or contributory negligence on the part of the deceased, but there is sufficient evidence to conclude that the negligence was on the part of defendants Nos. I and

3. In this view of the matter my finding on Issue No. I is that the decease Sayed Muhammad Taqi Rizvi was killed due to the rash and negligent driving of defendant No. 3 and that there was also negligence on the part of defendant No. I inasmuch as he permitted defendant No. 3 (who was then a minor without a driving licence) to drive the car in question. My further finding is that tile car was owned by defendant No.

1. It may be observed that D. W. t has clearly stated that the car belonged to his father and whereas, D. W. 2 in his statement has deposed, as pointed out hereinabove, that he had purchased the car through a broker from Messrs Dossani Motors. 5. (a) Issues Nos. 2 to 4 can be taken up together. Mr. A. K. M. Idris, the learned counsel for the plaintiff' has urged that the plaintiff and other legal heirs of the deceased are entitled to Rs. 8,00,9701, according to his calculation on the basis of the Circulars Exhs. 5/1 to 5/2. He has also relied upon the statement of D. W. 2 Abdul Qayum Beg who has deposed that he has calculated the amount which the deceased would have received by the time of retirement at the age of 60 years on the basis of the circulars, and that it comes to Rs. 6,50,

000. It may be observed that the plaintiff has not surmounted any records. from the State Bank in order to show the: salary and other benefits the deceased was getting at the time of his death. The widow P. W. I in her statement has deposed that her husband was drawing Rs. 1,050 per month as his salary at the time of his death and that he used to receive two bondses annually equivalent to two months salary, and that he was also entitled to 15 days recreation leave. She has further deposed that the deceased used to give the entire salary to her but used to take Rs. 2 to 3 from her for his personal expenses, inclusive of petrol for the motor cycle. Mr. A. K. M. Idris has referred ' to Exh. 5/2 at page 33 in order to show that the deceased was entitled to Rs. 50 increment per year as a matter of right without being promoted. He has also referred to Exh. 5/1 in order to indicate that the State Bank employees are allowed Rs. 500 per annum as recreation allowance. However, he was unable to point out any document to show that State Bank employees are entitled to three months bonus annually as a matter of right. He has also submitted on the basis of the evidence of D. W. 2 that, after retirement, the plaintiff would have been entitled to Rs. 25,000 minimum as gratuity and also contribution in the provident Fund. On the basis of the above oral evidence and the documents on the record it has been urged by Mr. A. K. M. Idris that not only the monthly drawings of the deceased should be taken into consideration while assessing the quantum of damages, but also the other items noticed here inabove. (b) In support of, the above contention Mr. Idris has referred to the case of Bashir Begum and others v. Muhammad Ali Premji and another (P L D 1960 Kar. 785) wherein Wahiduddin Ahmad, J. (as His Lordship then was) while considering the question of quantum of damages has observed that the pecuniary benefit to the beneficiaries can be determined by taking into consideration the following facts (a) The net annual income of the deceased and what was his future prospects in respect of earning. (b) Whether the claimants have gained financially in the death. (c) The expected amount of maintenance of the deceased. (d) What was the expected life of the deceased and the present worth of receiving amount lost to the beneficiaries. In the above case, the deceased met with a fatal accident at the junction of Dunnoly Road and 13under Road, and at the time of his death was drawing Rs. 220 per month in the Pakistan Navy. His Lordship' was pleased to assess the amount of damages on the basis of the above salary of Rs. 220 after deducting the other pecuniary benefits which the beneficiaries dependants of the deceased had received because of the death of the deceased. (c) It will suffice to observe that the basis of determining quantum oaf damages in a fatal accident case will vary from case to case. However, in the instant case in my view the monthly drawing given by the, plaintiff namely, Rs. 1,050 which must have included the other monthly allowances which they deceased was entitled to, is the sound basis for the purpose of computing the quantum of damages. It Is true that the deceased would have been entitled to certain additional benefits during the tenure of his service, but in the absence of any definite evidence on the record, it will no be just and proper to add up the other items for the purpose of assess in the quantum of damages, particularly in view of the peculiar facts of the instant case, namely, that it is an admitted position that defendants Nos. 1 and 3 were going to Bantwa Memon Hospital for the purpose of fetching a doctor for attending defendant No. 2 (i. e. the wife of defendant No. I and mother of defendant No. 3) and that defendant No. 1, though knowing driving asked his son to drive the car as he was not in the state of mind to drive the car because of the serious illness of his wife ; and that there was `Paiya Jam Strike' on that day ; admittedly there was no traffic on the road an normally on the day of the strike the people speed up their cars in order to avert attack froth mischiefmongers on the roads. In view of these facts, I am not inclined to saddle defendants Nos. I and 3 with the additional burden by adding up further items. On this view of the matter I take Rs. 1,050 as the monthly salary of the deceased at the time of the accident. The quantum of monthly salary has not 'been challenged by the defendants in the cross- examination of D. W. I nor contrary to it has been urged by Mr. G. M. Qureshi at the Bar. P. W. I has deposed that her husband was enjoying good health at the time of his death and his age was about 39 years. She has also produced the Matriculation Certificate of the deceased (Exh. 4/1) which indicates that the deceased was born on 5th June, 1937 and, therefore, at the time of the accident be was about 40 years of age. Taking into consideration normal span of life, namely 60 years, the plaintiff would have earned for another 20 years. After excluding one third on account of personal expenses, which is normally deducted, and has been made the basis in the various decided cases, the monthly pecuniary loss suffered by the widow and the children comes to Rs. 700 per month. I, therefore, decree the suit against defendants Nos. I and 3 jointly and severally for a sum of Rs. 1, 68,000, that is Rs. 700 x 12 x 10 equivalent to Rs. 1,68,000 with 9;a simple interest thereon from the date of the suit till payment. But there will be no order as to costs. All the legal heirs shall be entitled to the above decretal amount according to their respective shares. M. Y. M. Appeal dismissed.