2006 PLP 71 (MLD)

MAQBOOL BAQAR, J.

The present suit for compensation and recovery under the Fatal Accidents Act has been filed by the widow of Muhammad Bakhsh for herself and on behalf of the other statutory beneficiaries being the mother, son and daughters of the deceased Muhammad Bakhsh, who died in a road accident at the age of 28 years, on 8-3-1992, within the area of Ibrahim Haidery Police Station, Karachi leaving behind the plaintiff and the following statutory beneficiaries:-- 1.???????? Nasim Akhtar?????????????? Widow???????????????????????? 25 years 2.???????? Hasina Begum????????????? Mother???????????????????????? 45 years 3.???????? Saira Bano?????????????????? Daughter????????????????????? 3 years 4.???????? Farah Bano????????????????? Daughter????????????????????? 1 year?? 5.???????? Baba Ali Muhammad??? Son????????????????????????????? 10 days (Born after death) It is alleged that on 8-3-1992, the defendant No.2 while driving Bus bearing No.JA-0744, owned by defendant No. 1, on Route No. 17-B on the main Korangi Road, in a rash, negligent and careless manner, when at about 1115,hours, reached near Eastern Corner of Malir Nadi Bridge at Bhittai Colony lost control of the bus which came over to the wrong side of the road and dashed into Taxi bearing No.JL-4043. The impact of the collusion was so severe that the taxi was smashed into pieces causing multiple injuries to Muhammad Bukhsh, who was driving the taxi and also to the passengers of the taxi, namely, Syed Aftab Hussain, Mustijab Hussain and Syed Abdul Saeed. F.I.R. No.98 of 1992 was registered against the defendant No.2 for rash, careless and negligent driving at P.S. Ibrahim Haidary and the Bus was impounded by the Police. All the injured including Muhammad Bukhsh were removed to Jinnah Post Graduate Medical Centre where Muhammad Bukhsh was pronounced dead. It is alleged that at the time of his death, the deceased was 28 years of age, with sound health and simple habits. It is further alleged that the deceased was earning Rs.200 to 300 per day by driving his taxi on lucrative routes. The plaintiff has claimed a sum of Rs.45,00,000 as damages/compensation for herself and on behalf of the other legal heirs/statutory beneficiaries of the deceased, which amount, in addition to the amount claimed towards, the loss of pecuniary benefits, also includes an amount of Rs.2,00,000 towards compensation for the plaintiff for her loss of consortium with the deceased, and a sum of Rs.6,00,000 towards the loss of paternal care, grooming and support suffered by two daughters and one son of the deceased on account of his death and an amount of Rs.5000 towards the funeral expenses. The defendant No. 1, Corporation, who owned the aforesaid bus at the time of accident, although admitted the ownership of the bus and the fact that the defendant No.2, the Driver of the bus was their employee but denied the allegation that the death of Muhammad Buksh was caused by the said bus and also refuted the allegation of rash and negligent driving of the bus by defendant No.2. It was submitted that no cause of action had accrued to the plaintiff for the present suit. The defendant No.2, however, despite service did not file any written statement. During the pendency of the above suit, the defendant No.1 Corporation suspended its operation and the Government of Sindh, the defendant No.3, in terms of an agreement dated 13-3-1997, took over the liabilities of the defendant-Corporation, consequently, in pursuance of order dated 4-5-1998, the plaintiff impleaded the Province of Sindh through Secretary, Ministry of Transport as defendant No.3 and filed the amended title of the plaint accordingly. The defendant No.3, upon being served adopted the written statement filed on behalf of the defendant No.

1. On 9-3-1994, this Court framed the following issues. (1) Whether the accident which had taken place on 8-3-1992 was caused by Bus No.JA-0744 resulting into death of Muhammad Buksh due to rash and negligent driving by defendant No.3. If so, its effect? (2) Whether Bus No.JA-0744 was owned by defendant No. 1? (3) Whether the defendants are liable jointly or severally to pay the compensation/damages to the plaintiff and other legal heirs, if so, to what extent? (4) What should the decree be? Subsequent to the impleadment of defendant No.3, two additional issues proposed by the plaintiff were adopted as under:-- (5) Whether the death of deceased Muhammad Buksh was caused on account of rash and negligent driving of defendant No.2 during the course of employment of defendant No.1 while driving the Bus bearing No.JA-0744 on 8-3-1992 on main Korangi Road, if so, its effect? (6) Whether the defendants are liable to pay the compensation/damages to the plaintiff and other legal heirs jointly and severally, if so, to what extent? In support of her case, the plaintiff filed her affidavit-in-evidence reiterating the facts as mentioned in the plaint. She produced the following documents:-- Affidavit-in-evidence???????????????????????????????????????????????????? Exh. P/ 1 Agreement dated 13-3-1993 between????????????????????????? Exh. P/2 defendants Nos. 1 and

3. F.I.R. No.,98 of 1992 dated 8-5-1992 Ibrahim??????????? Exh. P/3 Hyderi Police Station. Death Certificate from JPMC??????????????????????????????????????? Exh.P/4 Death Certificate from Cantonment Board???????????????????? Exh. P/5 Licence of the deceased??????????????????????????????????????????????? Exh. P/6 Form 'B' showing the names and ages of the????????????????? Exh. P/7 legal heirs Nikahnama?????????????????????????????????????????????????????????????????? Exh. P/8 Birth Certificate of Ali Mehmood????????????????????????????????? Exh.P/9 Birth Certificate of Saira Bano?????????????????????????? Exh.P/10 Birth Certificate of Farah Naz?????????????????????????????????????? Exh. P/11 NIC of the deceased??????????????????????????????????????????????????? Exh. P/12 NIC of the mother of the deceased?????????????????????????????? Exh. P/13 NIC of the plaintiff??????????????????????????????????????????????????????? Exh.P/14 Photograph of the deceased????????????????????????????????????????? Exh.P/15 In addition to her affidavit-in-evidence, the plaintiff also filed affidavit-in-evidence of Syed Abdul Saeed, an eye-witness of the accident and examined the Investigation Officer of the case Abdul Ghafoor, Additional S.H.O. Police Station Korangi, who at the time of accident was posted at Police Station, Ibrahim Haidry, who produced the following documents:-- Original copy of Roznamcha dated 8-5-1992??????????????? Exh.P/16 Original copy application for post-mortem???????????????????? Exh. P/17 Original copy Morgue Report?????????????????????????????????????? Exh. P/18 Original copy death report??????????????????????????????????????????? Exh. P/19 Original copy of Medical report for Police???????????????????? Exh. P/20 purpose. Photocopy of site map of the incident??????????????????????????? Exh. P/21 Photocopy of the memo. of the site?????????????????????????????? Exh.P/22 Carbon copy of the memo. of dead body of the Exh. P/23 deceased. Photocopy of driving licence???????????????????????????????????????? Exh. P/24 B Carbon copy of F.I.R. No.98 of 1992?????????????????????? Exh.P24-A Original copy of statements under section 161,? Exh.P/25, 26, Cr. P. C .???????????????????????????????????????????????????????????????????? 27 Original Motor vehicle Report?????????????????????????? Exh.P/28 After hearing the counsel for the plaintiff and Chaudhry M. Rafiq Rajorvi, the learned Additional Advocate-General, and upon perusal of the record of the case, my findings on the issues framed/adopted in the case are: P.W. Syed Abdul Saeed, who was one of the passengers traveling in the taxi owned and driven by the deceased, when the accident occurred, deposed that on 8-5-1992 he along with his son-in-law and nephew hired the said taxi from Bus Stop of Landhi No.4 for Saddar and while they were proceeding in the taxi on the main Korangi Road at a normal speed and reached near the Eastern Corner, Bank of the Malir Nadi Bund at Bhitai Colony, he saw that a Bus bearing No.JA-0744, Rout 17-B, owned by KTC was coming from the Saddar Side in a very rash, negligent and careless manner, and while attempting to overtake other vehicles, came over to their side and dashed into the taxi. The taxi, with the impact of the collusion took summersaults and was badly damaged causing severe injuries to himself, his son-in-law and nephew and to Muhammad Baksh who was driving the taxi. He further deposed that the driver of the bus escaped from the scene, and the witness and Muhammad Baksh and other injured passengers were removed to Jinnah Post Graduate Medical Centre where Muhammad Baksh was pronounced dead. In the meanwhile Police Officers from Police Station Ibrahim Haidry recorded the statement of the witness regarding the accident. The witness Abdul Ghafoor who was at the relevant time posted at Police Station Ibrahim Haidry deposed that on 8-5-1992 at about 12-00 noon while he was on duty. MLO Jinnah Post Graduate Medical Centre reported that a KTC Bus bearing Registration No.JA-0744 has collided with the Taxi bearing Registration No.JL-4043 in New Bhitai Colony, near Malir Naddi Bund, whereupon he reached Jinnah Post Graduate Medical Centre and found that Muhammad Buksh, the driver of the taxi had expired, whereas, Syed Aftab Hussain, Syed Mustijab Hussain and Syed Abdul Ghafoor were injured in the accident, he then carried out inquiry under section 174, Cr.P.C. and recorded statements of the injured eye-witnesses and after complying with the necessary formalities went to the KTC Depot where he was informed that the KTC bus involved in the accident was being driven by defendant No.2. He also recorded statements and other eye-witnesses and thereafter lodged the F.I.R. against the defendant No.3. He subsequently obtained the NIC and Driving Licence of defendant No.3. During his cross-examination, the plaintiff denied the suggestion that that the accident took place due to negligence of the deceased and not on account of the bus driver. He also denied the suggestion that the deceased was not driving the taxi on regular basis. During his cross-examination, the eye-witness of the accident, Syed Abdul Saeed reiterated the date, time and place of the accident. He denied the suggestion that the taxi of the deceased was moving at high speed and got out of control at the time of accident. In his cross-examination, the witness Abdul Ghafoor denied the suggestion that he has acted under the instructions of the plaintiff and that he did not conduct the inquiry properly. He also denied that the document he produced, were fabricated and concocted documents. Although the counsel for the defendants cross-examined the plaintiff and his witnesses at length however, he failed to create any dent IC in the plaintiff's case. On the other hand, the defendants examined only one witness namely, Gul Muhammad, Manager (Legal) of the defunct Corporation. In his affidavit-in-evidence, the said witness deposed that on the date of the accident, one Islam Ahmed Khan was the District Manager, Korangi Depot, who got the inquiry of the alleged accident conducted through Inquiry Officer Abdul Razzak Panhwar, who was an Assistant, Traffic Manager of the defunct Corporation. He produced the purported inquiry report as Exh.D/2 which contains the comments of the Inquiry Officer in the following words:-- "The said bus in question was going to 100 Quarters from Tower. When it reached at Nadi near Korangi crossing on Taxi overtaking going to Saddar was in collusion with our bus resulting the driver of taxi died on the spot. In my opinion, Taxi Driver was at fault". Neither any proceedings of the purported inquiry were produced nor was it mentioned in the report as to whether any witnesses were examined during the inquiry. The witness, during his cross-examination admitted that neither any statement of any witness was recorded during the inquiry nor the report is based on any such evidence. Although it is now well laid down principles of law that where the factum of accident is admitted, the onus to prove absence of negligence on the part of the defendants lies on the defendants, however neither have the defendants examined the driver or, the conductor of the Bus nor any passenger. The defendant's sole witness, during his cross-examination, has admitted that he was not an eye-witness. It has been admitted by him that during the inquiry no witness was examined, even otherwise no material substantiating the findings of the purported inquiry report has been placed on record. Even in the purported report itself, it is not mentioned as to how the inquiry officer purportedly formed the opinion that it was on account of negligence of the deceased that the accident accrued. Further more, although the defendants' witness has admitted that the conductor of the bus involved in the accident was present in the bus at, the time of accident, however even that conductor has not been examined by the defendants. From the foregoing, it is clearly established that the death of Muhammad Bakhsh was caused due to rash and negligent driving of the bus (owned by defendant No. 1) by the defendant No.2 and as such, the plaintiff and the other statutory beneficiaries of the deceased, being his, legal heirs as mentioned above, are entitled to be compensated. The deceased, at the time of his death, was 28 years of the age and was plying a taxi and was earning Rs.200 to Rs.300 per day. The plaintiff in the facts and circumstances of the case are entitled to be compensated as follows:-- (i)???????? Average life span in view of?????????????????????????????????????????? 70 years preponderance of authorities (ia)?????? Loss of pecuniary benefits for??????????????????????????????????????? 42 years (70-28 years) (ii)??????? Monthly income of the deceased Rs.200 to Rs.300 per day i.e. Rs.6000 per month (iii)?????? Loss of pecuniary benefits for 42?????????????????????????????????? Rs.30,24,000 years [6000x12x42] ADD: (iv)?????? 20% increase in the income?????????????????????????????????????????? Rs.6,04,800 (v)??????? Gross loss of pecuniary benefits??????????????????????????????????? Rs.36,28,800 [30,24,000 + 604,800] LESS (vi)?????? Personal expenses at the rate of??????????????????????????????????? Rs.6,04,800 1/6th as per 1997 CLC 955 [36,28,800-6] (vii)????? Net loss of pecuniary benefits??????????????????????????????????????? Rs.30,24,000 [36,28,000-6,04,800] FURTHER ADD: (a)??????? Damages for loss of association???????????????????????? Rs.200,000 consortium (b)??????? Funeral expenses.???????????????????????????????????????????????????????? Rs. 5000 (c)??????? Damages for loss of better future prospects for the three children???????????????????????? Rs.600,000 @ Rs.200,000 each Rs.805,000 Total pecuniary loss????????????????????????????????????????????????????? Rs.38,29,000 [30,24,000 + 805,000] The plaintiff's suit is, therefore, decreed against the defendants jointly and severally in the sum of Rs.38,29,000 with mark-up/profit at the prevailing bank rate from the date of decree till realization of the decretal amount. The decretal amount shall be paid by defendants to the plaintiff within a period of three months. H.B.T./N-77/K??????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.