2001 PLP 821 (YLR)

(6) What was the age of the deceased at the time of his death? (7) Whether the person shown in para. 1 of the plaint are legal heirs of the deceased? (8) Whether the plaintiff has no adverse interest against legal heirs of the deceased? (9) Whether the defendant No.2 was driving the van in a rash and negligent manner? (10) Whether the said accident took place due to the carelessness and negligence of deceased? (11) Whether the defendants are liable to pay the compensation and damages as claimed jointly and severally? (11-A) Whether the Insurance Company is liable? If so what extent? (12) Whether the defendant No.2 has been acquitted in Criminal Case of this accident? If so, what is the effect? (13) Whether a military enquiry was held against defendant No.2 for the offence of rash and negligence wherein he was absolved of the charge? If so, what is the effect? (14) Whether the plaintiff is entitled to cost and interest as claimed? The plaintiff examined Muhammad Younus Exh.4 attorney of the plaintiff who filed his affidavit-in-evidence and produced a photocopy of National Identity Card Exh.4/1 and photocopy of National Identity Card of deceased as Exh.4/2. Salary certificate of deceased Exh.4/3. Letter of Deputy Controller, dated 19th April, 1988 stating there Sarwana Hotel Karachi was registered in the name of Muhammad Arif Baloch Exh.4/4, photocopy of F.I.R. No.75 of 1987 Police Station Shahra-e-Faisal Karachi, dated 5-5-1987 Exh.4/5, certificate of insurance Exh.4/6, special power of attorney in favour of Muhammad Younus Exh.4/7, photocopy of B Form Exh.4/8. Examined Amir Siddique Exh.3 A.S.-I. Police Station Shahra-e-Faisal who produced attested copy of same F.I.R. Examined Muhammad Anwar Exh.6 who produced salary certificate of deceased Muhammad Ishaque and produced certificate that Commanding Officer was in the hospital, therefore, certificate of salary was issued by Assistant Officer Commanding. Examined Ali Akbar Sub-Inspector in Police Karachi East. None of the above witnesses has been cross- examined by the defendants or their counsel. No evidence has been led by the defendants to rebut the evidence of the plaintiff. ISSUES NOS. 1 TO

4. These are all legal issues and nothing has been shown or said by the defendants as to how the suit was not maintainable (ii) how the plaint was not filed by a competent person (iii) how the suit was not maintainable in the present form (iv) how the suit was barred under section 59 of Pakistan Army Act, 1952. The suit is filed under Fatal Accidents Act, 1855 and has been tiled by the widow of deceased for self and for the depending and legal representatives of the deceased. Therefore, the suit would be maintainable and having been filed by the widow of the deceased for self and for the beneficiaries of the deceased who suffered monetary loss because of the death of deceased which took place in view of the fatal accident therefore, suit was filed by competent person under the law. Section 59 of Army Act, 1952 deals with Civil offences and would apply to the persons who would be subject to the said Act and if the said persons commit any civil offence. In the instant case the deceased though a person who would be subject to the Army Act but he committed no Civil Offence but on the contrary the defendants are stated to have killed the deceased by an accident, therefore, the suit would not be barred under section 59 of Army Act, 1952. Above issues are answered accordingly. ISSUE NO.5. The plaintiff's attorney in affidavit-in-evidence has stated that Mst. Shamim Akhtar was wife of deceased. The above testimony has neither been rebutted nor challenged by the defendants. Form B also supports that Mst. Shamim Akhtar is widow of the deceased Muhammad Ishaque. Accordingly, this issue is answered in the affirmative. ISSUE NO.6. The plaintiff's attorney in affidavit-in-evidence has stated that deceased at the time of his death was 33 years old and his testimony on oath has not been challenged as no cross-examination was made to the defendants to the said witness. No evidence has been produced by the defendants to rebut the evidence on the said point by the defendants. Accordingly it is held that deceased was of 33 years old at the time off his death. ISSUE NO.7. The attorney of plaintiff in his affidavit-in-evidence has stated on oath that deceased left behind (1) -Ishtiaque Ahmad (2) Ikhlaque Ahmad (3) Ashia Bibi and (4) Noroz as legal heirs of deceased Muhammad Ishaque. This statement on oath has neither been challenged nor rebutted by the defendants. Accordingly it is held that persons shown in para. 1 of the plaint are legal heirs of deceased Muhammad Ishaque. ISSUE NO.8. The plaintiff being widow of deceased and mother of legal heirs of deceased cannot be said to have any adverse interest against her own sons and daughters. No evidence has been produced to show that the plaintiff has any adverse interest to those of legal heirs of deceased. Accordingly this issue is answered in the negative. ISSUE NO.9. The plaintiff's attorney on oath has deposed that the defendant No.2 being driver employee of defendant No. 1 was driving the van in rash and negligent manner and this statement/testimony of the witness has neither been challenged nor rebutted by the defendants. This statement is also corroborated by F.I.R Exh.4/5. Accordingly it is held that the defendant No.2 an employee and driver of defendant No.l was driving the van in rash and negligent manner. ISSUE NO.

10. The plaintff's attorney in affidavit-in-evidence has stated on oath that the accident took place due to rash and negligent driving of the defendant No.2. There is no evidence to rebut the same. No evidence has been led by the defendants to prove that the accident took place in the manner as stated in the written statement due to carelessness and negligence of the deceased. On the contrary F.I.R. Exh.4/5 corroborate the evidence of attorney of plaintiff that the accident took place because of rash and negligent driving on the part of defendant No.2. The defendants have pleaded in the written statement that it was the deceased who was careless and negligent, therefore, the accident took place hence onus to prove the same was upon the defendants but no evidence has been led to prove that it was the deceased who was careless and negligent, therefore, the accident took place. The evidence of the plaintiff's attorney has also not been challenged by the defendants, therefore, it stood prove that the accident took place because of rash and negligent driving of the defendant No.2, an employee of defendant No.

1. Reference may be made to I (i) Mst. Sakina and 3 others v. Messrs National Logistic Cell (1995 MLD 633) wherein learned Single Judge of this Court held that when the defendants have given a different version of the manner in which accident was said to have taken place the onus would be on defendants to prove their version and (ii) Messrs Hayat Services (Pakistan) Ltd. v. Kandan (1989 CLC 2153, D.B. Karachi). ISSUE NO.11. In view of findings on the above issues, the defendants are liable to pay compensation and damages jointly and severally except that defendant No.3 who would be only liable to Rs.20,

000. So far the claim made by the plaintiffs in the suit, same is exorbitant and speculative, does not appeal to the reason and common sense. The age of expectancy in the case could be taken to 70 years though no evidence has been produced to show till what age the parents of deceased lived. The deceased was 33 years of age at the time of incident and his monthly income is stated to' be Rs.1,120 per month as per Exh.4/3 out of which the deceased personal expenses could be not less than Rs.300 per month. No reliable evidence has been produced by the plaintiff's that the deceased was carpenter and electrician and was working as such after office hours, therefore, this claim with regard to the fact that he would have worked in the Middle East countries arid could have earned Rs.4,000 to Rs.5,000 is also speculative and imaginary, therefore, the plaintiff would not be entitled to the said kind of claim. However, total salary - per month being Rs.1,120 minus Rs.300 as personal expenses of deceased, the plaintiff and legal representatives of deceased suffered to the extent of Rs.820 per month and the plaintiff would have retired at the age of sixty years, therefore, legal heirs would have suffered pecuniary loss of salary of deceased for 27 years hence Rs.820 x 27 (years) x 12 it would come to Rs.2,65,

680. No reliable and satisfactory evidence has been brought on record that the deceased would have been promoted as Subedar and would have received salary of Rs.6,

000. Mere fact that P. W .2 who is Subedar has stated that the deceased would have been promoted as Subedar and his salary would have been risen to Rs.6,000 approximately cannot be considered to be as satisfactory evidence. In fact the plaintiff should have summoned office record to show as to what was the seniority number of deceased so as to be entitled to the future promotion of Subedar and further from the office record it should have been shown as to what was the salary of Subedar at the relevant time but no such evidence has been summoned, therefore, this claim of the plaintiff being far-fetched and imaginary cannot be believed and granted. However, after sixty years deceased could be said to have worked for ten years more and could have earned Rs.3,000 per month and out of same he could have spent at least Rs.1,000 per month on his personal expenses thereby the plaintiff and legal heirs of deceased could be said to have been deprived of Rs.2,000 x 10 x 12 Rs.2,40,000 and thereby the plaintiff and legal heirs of the deceased were deprived of total pecuniary benefit of Rs.5,05,

680. Accordingly, suit is decreed for the sum of Rs.5,05,680 minus Rs.20,000 (to be paid by the defendant No. 3) which would come to Rs.4,85,680 against defendants Nos. l and 2 jointly and severally with marks up at the rate of 14 % per annum from the date of suit till its realization which amount on realization would be distributed according to Shariat Law amongst the plaintiff and other legal heirs of deceased mentioned in the plaint. However, the defendant No.3 would be liable to the extent of Rs.20,000 only as their liability being limited to the said extent. H.B.T./S-130/K Suit decreed accordingly.