2002 PLP 1985 (CLC)

(iv) Whether the defendant No. l was the owner of the Bus No.853‑333 and the defendant No.2 was the driver/employee of the defendant No. l at the relevant time of the accident i.e. 28‑3‑1987? (v) Whether the deceased died due to the accident as alleged and defendants are liable to pay compensation/damages to the plaintiffs' legal heirs as claimed jointly and severally? (vi) What should the decree be? After impleading the Government of Sindh, defendant No.3 following additional issue was also adopted: "Whether the defendant No.3 has taken over the liabilities of defendant No. l and is liable to pay the compensation to the plaintiffs and other statutory‑ beneficiaries by virtue of clause 4(k) of the Memorandum of the Agreement, dated 13‑3‑1997 entered into inter alia between defendant No. l and defendant No.3. If so, to what extent?

5. In support of the case the plaintiff examined himself, Irfan, eye witness, Riaz Merchant, Zafar Ali Shah, Salim Hussain Shah, Investigating Officer of the case who produced F.I.R. No.196/87, site plan of the accident, copy of application of release of bus to the defendant, motor vehicle inspection report and post‑mortem report of deceased. The defendants examined only one witness, Secretary of Karachi Transport Corporation who produced photostat copy of Registration Certificate of Bus No.853‑333 and letter, dated 16‑12‑1990 from District Manager, KTC Depot. I have heard the learned counsel for the plaintiff and learned Additional Advocate‑General, Sindh at length and have gone through the entire record available before me. My issue‑wise findings are as follows:‑‑ The burden to prove this issue is on the defendants but the defendants had not led any evidence to substantiate their contention as such they have failed to discharge their burden on the above issue. Accordingly this issue is answered in negative. As regard, this issue, the defendants have not specifically disputed in their pleadings that the plaintiffs are not the legal heirs of the deceased Yaqoob Masih. Admittedly the plaintiffs are father and mother of deceased. The defendants neither in their written statement nor in cross‑examination put any question from the plaintiffs to dispute their position. Thus by operation of rules of pleadings and the evidence it will be deemed to have admitted that the plaintiffs are the statutory beneficiaries entitled for compensation. Thus this issue is answered in affirmative. It is an admitted position that defendant No.l was the owner of the bus bearing No.853‑333 and defendant No.2 was the driver of the said bus. As such the defendant No.2 was servant/employee of defendant No.l at the time of accident. Accordingly these issues are answered in affirmative. It has come in the evidence that at the time of death, the deceased was at the age of 22 years and used to give Rs.3,000 to Rs.3,500 per month to the plaintiffs, his parents, by working in Chandani Hotel. This version was also supported by P.W.3 and no witness was produced by the defendants in rebuttal to the evidence of the plaintiffs on the point of earning and contribution of the deceased towards the plaintiffs. I do not see any compelling reasons not to accept this fact of earning of the deceased. Accordingly, it is held that the deceased was earning Rs.3,000 per month which is also the minimum earning of an unskilled labour in Pakistan. It is not denied that the plaintiffs are not entitled to pecuniary compensation. It is also an admitted position that Government of Sindh, defendant No.3 has taken over the liabilities of defendant No. l by an agreement. It has also come on record that defendant No.2 was driving the bus in rash and negligent manner. It has also come on record that plaintiffs Nos. l and 2 are 52 and 45 years respectively. Taking maximum age limit it could be expected that they may live up to the age of 70 years. Therefore, they are entitled to compensation. The plaintiffs would also be entitled to 20% on the aggregate income of 25 years as increase in his income as well as inflationary charges. Likewise 1/3rd is to be deducted from the total earnings of the deceased as his personal expenses (as the deceased died unmarried) under the following calculations: (1) Expected earning of the deceased per annum Rs.36,000 (2) His earning for 25 years Rs.9,00,000 (3) 20% expected increase in his income Rs.1,80,000 (4) Deduction of 1/3rd amount Rs.3,60,000 Since the plaintiffs have claimed only a sum of Rs.600,000, therefore, I am not inclined to award more than what is claimed by the plaintiffs in suit. Accordingly the suit of the plaintiffs stands decreed against the defendants jointly and severally in the sum of Rs.600,000. with cost and mark‑up at 14% on the decretal amount from the date of the suit till realization. The decretal amount be realized within two months. Q.M.H./M.A.K./S‑219/K Suit decreed.