1985 ML D 255 (PLP)

This suit has been filed by the widow and children of deceased Nazeer Ahmad for the recovery of Rs.4,91,272.00 as damages under the Fatal Accident Act, 1855. Defendant No. 1 is Pakistan, defendant No. 2 is Chief of Staff, Pakistan Navy and defendant No. 3 is Lai Shereen. The case of the Plaintiffs in the plaint is that the deceased Nazeer Ahmad was working as Manager Administration in Trading Corporation of Pakistan at the time of his death on 14-1-1979 and the plaintiffs were entirely dependent on the income of the deceased. According to para. No. 2 of the plaint, on 14-1-1979 at about 8-00 a.m. the deceased was going to his office as usual and while crossing Muhammad Bin Qasim Road and Strachen Road, a Bus No. 1839 PN belonging to defendants Nos. 1 and 2 driven by their employee, defendant No. 3, negligently, rashly and carelessly and in utter disregard of traffic signals, first hit a rickshaw bearing No. KAW 3179 thereby injuring two persons namely Mahmood and Saleem who were travelling in the rickshaw and then hit the deceased who died at the spot due to multiple injuries caused by rash and negligent driving of defendant No.

3. The defendants filed a joint written statement in which it was pleaded that suit was not maintainable against defendant No. 2 as defendant No. 3 was in the service of defendant No. 1 and not of defendant No. 1., Para. 2 of the plaint, referred to earlier, was relied through para. 4 of the joint written statement of the defendants and it is reproduced here:- "That with reference to para. 2 of the Plaint, it is denied that the said bus No. 1839 PN was being driven by defendant No. 3 negligently, rashly and carelessly and in disregard of the traffic signal. It is denied that injuries were caused to the said deceased Nazeer Ahmed by the rash and negligent driving of defendant No.

3. It is submitted that on the contrary, the deceased Nazeer Ahmad suddenly came on to the road when actually he should not have tried to cross the road when vehicular traffic was passing according to the traffic signal. The deceased was himself responsible for the unfortunate accident and defendant No. 3 was not in no way -liable for the same." On the pleadings of the parties the following issues, suggested by consent of the learned counsel for the parties were adopted by this Court on 23-8-1981. (1) Whether defendant No. 1 can be liable in tort as alleged? (2) Whether suit against defendant No. 2 is maintainable? (3) Whether the bus in question was driven by defendant No. 3 negligently and rashly in disregard of the traffic signs and signals as alleged? (4) Whether the death of plaintiff Nazeer Ahmad was caused due to negligent and rash driving by defendant No. 3? (5) Whether the deceased Nazeer Ahmad suddenly came on the road obstructing the traffic as alleged? (6) Whether the Plaintiffs are entitled to the damages as claimed?

2. Issue No. 1 was not pressed and as such it is not necessary to decide this issue. No argument was made that the suit was not maintainable against defendant No.

1. As regard issue No. 2, Mr. Shaikh Abdul Aziz, learned counsel fur the plaintiffs, in view of the plea taken in the written statement, did not press this suit as against defendant No.

2. Suit as against defendant No. 2 is dismissed.

3. Issue No. 3 relates to the negligence of defendant No. 3 while he was driving the bus in question at the relevant time. Plaintiff No. 1, the widow of the deceased, in her evidence had stated that the cause of death of the deceased was on account of negligent driving of the vehicle by defendant No.

3. Although she was not cross-examined, she is not an eye-witness to the accident. P.W. 2 in (Exh. 6) is a Head Constable Muhammad Waris who was performing his duties as a Traffic Head Constable at Fresco Chowk on 14-1-1979. He was informed at about 8.00 a. m. that some traffic accident had taken place on the crossing of Strachen Road and Muhammad Bin Qasim Road and as this area was within his reach, he immediately proceeded and reached the spot where the accident had taken place. He found the motor rickshaw, which was involved in the accident, lying there. He also saw two passengers who were travelling in the rickshaw lying near the rickshaw and he also saw a third person lying on the footpath and he had also been injured in the accident. According to this witness the Bus No. 1839 PN which was involved in the accident was also parked near the footpath. The witness took the injured persons to Civil Hospital but one of the injured persons namely, deceased Nazeer Ahmad was pronounced dead by the Medical Officer at the Civil Hospital. He stated in his cross-examination that the driver of the bus was prosecuted and was. then acquitted by the criminal Court. P.W.4 (Exh. 8) is S.I. Qazi Ahmad Din. He produced a copy of the site plan of the place of the accident as Exh. 8/1. He also produced a-certified copy of the F.I.R. lodged against defendant No. 3 as Exh. 8/2. iii cross-examination he stated that he was not connected in the investigation in this case at any stage. P. W.6 (Exh. 10) is Din Muhammad, who used to carry out the work of repairing cycles sitting on the footpath near D.J. Science College lie had seen the bus parked on the road near the footpath and a dead body was lying there and he had also seen a rickshaw in damaged condition there. He produced as Exh. 10/1 a certified copy of his statement recorded in the criminal case against defendant No.

3. Then there is the evidence of defendant No. 3 (Exh. 11). According to the statement of defendant No. 3, while he was driving the bus in question he had reached near S.M. College, one rickshaw, which was coming from High Court side', after hitting one pedestrian, came towards the side of the bus and banged against the bus. He further stated that when the rickshaw banged against his bus he immediately stopped the bus and came out of the bus. According to him the person who was hit by the rickshaw had been injured but he was not injured by his bus nor was he involved in the accident with the bus. He had ,further stated that at the time the accident had taken place he was driving the bus at about 20 kilometres per hour. In his cross-examination he admitted his signatures on the Written Statement. He also stated that he had given instructions to the Advocate before the Written Statement was filed and that whatever was stated in the Written Statement was correct. He denied the suggestion made to him that he had first dashed his bus against the rickshaw and that then both the bus and rickshaw came on the footpath and then the bus which was being driven with a great speed came on the road again and hit the deceased. Para. 2 of the plaint which refers to the averments of the plaintiffs about the way where the accident had taken place has already been referred to. In para. 4 of the Written Statement, which is in reply para, 2 of the plaint, has already been reproduced. It may be repeated here that according to para. 2 of the plaint the bus in question first hit a ricksnaw injuring two persons travelling in the rickshaw and then the bus hit the deceased. The fact that the bus had hit the, rickshaw first and then it hit the deceased has not been denied in para 4 of the Written Statement. What has been denied in para. 4 of the Written Statement is that the bus was being driven negligently and rashly by defendant No. and it has been averred in para. 4 of the Written Statement that the deceased suddenly came on the road and, therefore. the deceased was himself responsible for the accident and Defendant No. 3 was no way liable for the same. From the Written Statement of the defendants, therefore, it was an admitted position that the bus had hit the deceased but according to the Written Statement the deceased had suddenly came on the road and as such it was his own negligence which was the cause of the accident. Defendant No. 3, however, in his deposition before the Court has taken an absolutely contradictory position. As stated earlier, according to the statement of defendant No. 3 before this Court the bus driven by defendant No. 31, was not involved in the accident with the deceased and that only one person was injured and he was a pedestrian and he was hit and injured by the rickshaw and not by the bus driven by defendant No.3. In his cross-examination, defendant No.3 stated that he had given instructions to his Advocate before his Written Statement was filed. He has also stated that whatever is stated in his Written Statement is correct. The deposition of defendant No. 3 before this Court did not inspire confidence. If the version that defendant No.3 has given was correct, he must have narrated these facts to the Advocate before the Written Statement was drafted and the version given by him in this Court would have definitely found mention in the Written Statement. From the l Written Statement filed by the defendants, it appears that according to the defendants the bus in question being driven by defendant No.3 was involved in the accident but it was the case of the defendants that the accident was caused on account of the negligence of the deceased and not on account of the negligence of defendent No.3. Defendant No. 3 has clearly tried to improve his defence greatly by stating before this Court that the bus did not even touch the deceased. As observed earlier, the averments in the plaint that the bus hit the rickshaw first and then it hit the deceased have not been denied in the Written Statement. These averments in the plaint are, therefore, deemed to have been admitted by the defendants. After the bus hit the rickshaw first and then it hit the deceased, the defence taken by the defendant No. 3 in his evidence before the Court that he was no involved in the accident cannot be accepted. Then defendant No.3 has stated that he was going at a very slow speed at about 20 kilometre's per hour which would be about 12 miles per hour. He has stated twice in his evidence that he was going at 20 kilometre's per hour; once in the examination-in-chief and then in the cross-examination. This version of defendant No.3 together with the defence taken in the Written Statement would make out the case of the defendants that the defendant No. 3 was going at 20 kilometre's per hour in his bus when the deceased came in front of the bus and was injured. If this is the case of the defendants, even then, defendant l who was going at a very slow speed of 12 miles per hour, as stated by him, had the last opportunity to avoid the accident. If some one is going in a vehicle at about 12 miles per hour and a pedestrian tries to cross the road, in the normal course of things, the driver, if he is not negligent, can avoid the accident by applying brakes. The vehicle would stop immediately on account of the low speed.

4. On the basis of the admission in the Written Statement referred to earlier, the contradiction between the plea taken in the Written Statement and the deposition of defendant No. 3 before this Court and on assessment of the evidence on record, in my view, it has been established that the death of the deceased Nazeer Ahmad was caused due to negligent and rash driving by defendant No.

3. Issue No. 4 is, decided accordingly.

5. Issue No. 5 is whether deceased Nazeer Ahmad suddenly came on the road obstructing the traffic. This was the plea taken in the Written Statement by defendants. However, no evidence was led by the defendants on this point and as such this issue has not been proved. Issue No. 5 is decided in the negative.

6. The next issue is about damages to which the plaintiffs are entitled. The plaintiffs has claimed Rs.4,91,

272. The basis of calculation of these damages is given in para. 9 of the plaint. The deceased died at the age of 50 years. According to Mr. Shaikh Abdul Aziz, his expected span of life should be taken as 65 years. There is no evidence on record indicating ages up to which the parents and other elders of deceased lived. But according to the learned counsel for the plaintiffs, as the deceased has been found to be a man of good health without any bad habits the expected age should be taken as 65 years. On the facts of this case, I will take expected age to which the deceased would have lived as 60 years in case he had not died in the unfortunate accident. Even otherwise the deceased would have retired from service at the age of 60 years. When he died, the deceased was earning Rs. 2,682 per month. According to para. 9 of the plaint, keeping in view the future increments and future prospect a fair average of future monthly income should be taken as Rs.3,600 per month. In my view, in the facts and circumstances of the present case, it would be reasonable to expect that on an average, the deceased would have given about Rs.1,500 per month to the plaintiffs for a period of 10 years. At this rate the total financial loss to the plaintiffs comes to Rs.1,80,000, for which amount the plaintiffs are entitled to a decree.

7. Suit No. 101 of 1980 is decreed in favour of the plaintiffs and as against defendants Nos. 1 and 3 jointly and severally in the sum of Rs.1,80,

000. In case this amount is not paid within six months from the date of this judgment, defendants Nos. 1 and 3 will also be liable to pay interest at the rate of 14$ per annum on the decretal amount F with effect from the date of this judgment till realization. The plaintiffs shall also be entitled to costs as against defendants Nos. 1 and

3. The shares of the plaintiffs in the decretal amount shall be as follows: (A) Plaintiff No. 1 Mst. Qaisar Jehan, widow. Rs. 80, 000 (B) Plaintiff No. 2 Miss Yasim Ahmad,daughter Rs. 20,000 (C) Plaintiff No. 3 Miss Nasreen Ahmad,daughter. Rs. 30,000 (D) Plaintiff No. 4 Pervez Ahmad,son. Rs. 50,000 Total: Rs.1,80,000 A.A. Suit decreed.