1988 MLD 928 (PLP)

Date of hearing: 30th March, 1988. This is a suit for recovery of Rs. 2,70,000 under Fatal Accidents Act.

2. Case of the plaintiff is that deceased Nizamnddin was son of plaintiffs Nos. 1 and 2 and brother of plaintiffs Noa3 to

6. He was aged about 15 years when on 4-7-1985 at about 10.00 a.m. he was crushed to death by defendant No.2 who was driving bus No.801-062 of route No. 6 at Mansfield Street Saddar, Karachi rashly and negligently. The deceased was riding on a bicycle. Defendant No. 1 was the owner of the said bus and the employer of defendant No.2. The accident .was caused during the course of employment of defendant No. 1 and therefore the defendant was vicariously liable for the same. Daily income of the deceased Nizamuddin was about Rs.

15. He used to support his parents, younger brothers and sisters. His expectancy of life was upto the age of 60 years. Hence a prayer for a decree for a sum of Rs. 2,70,000 is made. Defendants Nos. 1 and 3 have filed written statements in which they have denied that deceased Nizamuddin was crushed to death under the wheels of disputed bus. They have also denied that the defendant No.1 was the owner of the said bus and defendant No.2 was its driver. It was stated that the bus in question originally belonged to late Habibur Rahman, father of defendants Nos.1 and

3. After his death the said bus was exclusively in use and occupation of defendant No.3. Defendant No.1 had no concern whatsoever with the same. It was denied that Nizamuddin was 15 years of age and he was earning Rs. 15 per day. Defendant No.2 was debarred from filing the written statement. On the pleadings of the parties the following issues were framed:- (1) Whether the deceased Nizamuddin aged about 15 years was crushed to death under the wheels of bus No. 801-002 of route No.6 on 4-7-1985 at 10.30 a.m. being driven by defendant No.2 rashly and negligently at Mansfield Street Saddar, Karachi while he was riding a cycle with his brother Mohammad Ibrahim? (2) Whether the late father of the defendants Nos.1 and 3 was the registered owner of the aforesaid bus and the same was in possession and power of, defendant No.3 only enjoying all its profits at time of the aforesaid incident? (3) What was the monthly income of the deceased Nizamuddin and how much he was paying to his family/plaintiffs at the time of his death? (4) To what compensation and damages the plaintiffs are entitled? (5) What should the order be? (6) Whether the plaintiffs are the legal heirs of the deceased?

4. My findings on these issues with reasons are as follows: ISSUES NOSH to

6. Since all these issues are inter connected I have taken all of them together. The plaintiff No.1 has examined himself alone. His evidence is short and is reproduced as under:- "Nizamuddin, deceased was my son. At the time of his death, his age was 14 or 15 years. He was working as turner in Nazimabad, Karachi, at the time of his death. He used to get Rs. 15 per day. He used to give us his full earnings. He was unmarried. My wife is also alive. My wife is aged about 30 or 31 years. He was my second eldest child. On 4-7-1985 at about 10.00 or 10.30 a.m. he met with an accident. At 2.00 or 2.30 p.m. police came to my house and told me that my son had met with an accident. I went to Civil Hospital. I found my son lying dead in the hospital. Muhammad Tariq was driver of the bus, which caused accident. I do not know, who is owner of the bus. I have filed this plaint."

5. Defendant was absent and therefore has not cross‑examined the witness. The plaintiff did not examine any other witness. The defendants also did not examine themselves nor any witness. The plaintiff has not stated in his deposition, produced above as to what was the number of the bus. He has also not given any other marks of identification of the said bus., He has stated that Mohammad Tariq (defendant No.2) is the driver of the bus but he has not stated that Mohammad Tariq was driving the bus rashly and negligently. It may be pointed out that defendant No.2 is ex parte. He was debarred from filing the written statement. As such even the allegation made in the plaint, which is verified on solemn affirmation, can be treated as piece of evidence against him. In the plaint it is clearly stated that defendant No.2 was rashly and negligently driving the bus and thereby caused death of the deceased. Apart from that in a recent decision in the case of Kamina v. A1 Amin Goods Transport Agency reported in 1988 C L C 894 I have held that the burden to prove in such circumstances as to whether the defendant was not rash and negligent lies on the defendant himself. I have; referred to the rule of res ipsa loquitur and relied upon the case Ursulina Lima v. Orient Airwasy Limited reported in P L D 1960 Karachi

712. Waheeduddin, J while discussing the above rule observed that the accident speaks for itself and it is sufficient for the plaintiff to prove the accident and nothing more. It is then for the defendants to persuade the Court that the accident arose not through their negligence. The relevant para reads as under: "Thus, it is obvious that there is no direct evidence about the cause of the crash. In fact there could be none as none of the persons travelling in the aircraft survived. The best evidence which could throw light on this point was the report of the official enquiry held to find out the cause of the accident. It is true that the general rule is for the plaintiff to prove negligence and not for the defendant to disprove it, but in those case where the true cause of the accident lies solely within the knowledge of the defendants this hardship is avoided by invoking the rule of res ipsa loquitur. Under it in those cases where the accident speaks for itself it is sufficient for the plaintiff to prove the accident and nothing more. It is then for the defendants to persuade the Court that the accident arose not through their negligence. This principle was recognised by their Lordships of the Privy Council in Aspro Limited ...Commissioner of Taxes and in Grant...v. Australian Knitting Mills Limited and others. This maxim was also applied by Goodard, J. in Fosbroke Hobbes v. Airwork Ltd. and British Amercan Air Services Ltd. in a case of aircraft crash."

6. I am therefore, satisfied that defendant No.2 was driving the bus rashly and negligently and he thereby caused the death of Nizamuddin who was aged about 15 years at that time. I am also satisfied that Nizamuddin was earning about Rs. 15 per day which comes to Rs. 450 per month. After deducting his personal expenses he could have contributed about its. 300 per month to his parents. The age of plaintiff No.1, who is father of the deceased, and plaintiffs No.2, who is mother of the deceased is shown as 40 years and 30 years respectively in the deposition. The expectancy of life of the father and mother would be 20 and 30 years. The deceased would have supported them at least upto that age. Plaintiffs Nos.3 to 6 are brothers and sister of the teased. They are being maintained by their parents and they are not ,heirs of the deceased in the presence of their parents. Even the support the deceased would have given to them would have come through the parents. At the rate of Rs. 300 per month the compensation of 30 years comes to Rs. 1,08,

000. The plaintiffs Nos.1 and 2 are therefore, entitled to recover a compensation of Rs. 1,08,000 from the defendant No.2.

7. So far as defendants Nos.1 and 3 are concerned, they have denied that they were the owners of bus No. 801‑

062. They have also denied that the said bus was being driven by defendant No.2 or that defendant No.2 was their driver. They have also denied that the said bus had caused the accident. All that they have admitted is that defendant No.3 was owner of the said bus. In his evidence the plaintiff has not given the number of the bus. He has also not stated that defendant No. 2 Mohammad Tariq was driving bus No.801

062. He has clearly admitted that he did not know who was the owner of the bus which caused the accident. Under these circumstances and on the basis of the evidence led by the plaintiff defendants Nos.l and 3 cannot be held vicariously liable for the act of defendant No.2.

8. Under these circumstances I dismiss the suit against defendants Nos.1 and 3 with no order as to costs. Simultaneously I decree the suit against defendant No.2 for a sum of Rs. 1,08,000 and direct that since both the plaintiffs Nos.1 and 2 are living jointly, therefore, no separate apportionment of the decretal amount is necessary. The costs of the suit shall be borne by defendant. No.2. I do not propose to award any interest. The surety Zakir, who had furnished security for the purpose, is discharged. A.A./S‑233/K. Suit decreed.