1991 PLP 415 (MLD)

Date of hearing: 23rd September, 1990. The plaintiff Mst. Qaiser Jehan widow of Azizur Rebman Khan has filed this suit for recovery of Rupees six lacs under Fatal Accidents Act, 1855. Her husband aged 45 years died in a traffic accident on 11-7-1983 leaving behind her age 35 years, Humera Jabeen daughter age 14 years and Rehmat Begum, mother, age 70 years. The plaintiff has filed this suit in the representative capacity for the benefit of all the dependents of the deceased.

2. It is averred that the defendant No.l namely Karachi Road Transport Corporation was the owner of Bus No.835-174 and the defendant No.2 its driver at the time of accident is alleged that on 11--7-1983 the defendant No.2 while driving the said Bus in a rash and negligent manner dashed against the deceased on Korangi Road near bus stop No.2-I /2.

3. It is stated that death of the said deceased has deprived the dependents of expected pecuniary benefits to the tune of Rs.6,00,000 as the deceased was working as operator/extruder in Multipack Ltd. under Fauji Foundation and was drawing a salary of Rs.2,700 per month besides bonus and other benefits i.e. overtimes etc. The deceased was a competent technician and was expected to get income increment and better status and in six moths would have earned Rs.4,500 per month. The deceased hardly used to spend Rs.300 and 400 per month on his own person and rest of the money he used to give to the plaintiff for the maintenance and comforts of the family members. Written statement has been filed by defendant No.l whereas the defendant No.2 has been debarred from filing written statement. In their written statement, the defendant No.l have not denied the accident on the said date but according to them the deceased himself was responsible for the alleged accident which was caused due to his default, mistake, negligence and carelessness in driving the scooter of which he had no licence. It is stated that while the bus was standing at 2-1/2 Korangi bus stops the said scooter driver came at a high speed and dashed at the back of the bus and fell down on the ground as a result whereof he got injuries. On his request, the conductor of the bus took him to the hospital where he died. It is also denied that the plaintiff and other heirs are legal heirs of the deceased. The said defendant No.l has also raised preliminary objection that the suit is time-barred. On the pleadings of the parties the following consent issues were framed by the Court: (1) Whether the death of deceased was caused due to negligence of the driver or the deceased himself? (2) What was his income? (3) Whether the plaintiffs are entitled to any compensation, if so, to what extent? (4)Whether the suit is time-barred? (5)Whether the plaintiff is entitled to cost and interest as prayed? In support of their case, the plaintiff has produced herself P.W.1, Bilal Ahmed Khan P.W.2 Assistant Administrator Multipack Fauji Foundation Karachi and D.W.3 Noor Muhammad whereas the defendant No.l have produced D.W.1 Jehangir Abdullah an employee of defendant No.l and P.W.2 Ahmad Khan Bus Conductor of defendant No.l. ISSUE NO .1--The plaintiff and defendant No.1 have come out with different versions as to the cause of the death of the deceased. According to Noor Muhammad P.W.3, an eye-witness, who was coming from Saddar to Korangi by Minibus, two buses including the bus in question were coming from opposite direction overtaking one another when a person riding on a motorcycle was hit with the result that he fell down on the road. The said Minibus stopped. He came out and found the deceased who was his neighbour lying on the road. He was taken to hospital by the bus which had hit him. In cross-examination he admits that he did not actually see bus hitting the motorcycle but he heard the noise when the bus struck the motorcycle. It is denied by him that in his 'statement before Magistrate he had stated that he was standing at 2-1/2 number bus stop at the time of the accident or that the defendant had hit the motorcycle to the parked bus on the road. According to the D.W.1 Jehangir Abdullah an employee of defendant No.l who had also signed and verified the written statement on behalf of the defendant No.l the scooter driver came at a high speed and dashed at the back of the bus and fell down on the ground and got injuries which resulted in his death. According to D.W.2 Ahmed, who was conductor of the bus, the bus was stopped by the driver when the passengers travelling therein started shouting after the accident. He heard sound of the impact between the bus and scooter. It is denied by him that the accident took place on account of rash driving by the driver. However, he has admitted that he was busy in issuing tickets at the relevant time and had not seen the accident actually taking place. It was contended by Muhammad Maqsood that heavy burden lies on shoulders of the defendant No.l to prove their allegation as to the negligence of the deceased. In support of his case learned counsel for the plaintiff had placed reliance on Mrs. Gul Bano and four others v. Muhammad Ramzan 1982 CLC 1120 wherein it was held by a learned Single Judge of this Court that where the defendant has pleaded that the deceased having not been hit by his car but by another car and thrown on his car bonnet, the defendant has taken upon himself burden to prove such facts. However, if the deceased has not examined any witness to prove his allegation, the inference under the circumstances would be that the deceased was hit by the defendant's car. In Zaibun Nisa v. Muhammad and another P L D 1965 West Pakistan Karachi 127 it was held by a Division Bench that if the defendant fails to produce best evidence as to the allegation of negligence of the deceased adverse inference can be drawn against the defendant. The relevant portion is reproduced as under: -- "The respondents in support of their case that the accident was a vis?-major examined no evidence. Neither did they examine the bus driver nor any other eye-witness. In these circumstances the contesting respondents failed to produce the best evidence available and an adverse presumption should have been raised that the allegation made, by the appellant was correct and the accident in question was the result of rash and negligent driving of the bus by respondent No.2 the driver of the bus in question." Learned counsel for defendant No.l Mr. Naraindas in order to rebut the contention of the plaintiff's counsel had placed reliance on Qaisar Ali and two others v. Karachi Road Transport Corporation, PLD 1986 Kar. 489 in which it was held that the onus of proof lies on a person who asserts a claim in his favour and wanted the Court to believe it. Other case relied upon by the learned counsel was of Syed Akber v. the State of Karnatak AIR 1979 SC 1848 in which it was held that the burden of proving negligence as cause of accident lies on the party who alleges but the party can take advantage of presumption which maybe available to him to lighten that burden viz. presumption of fact, presumption of law and irrebutable presumption of law. It was observed that if the defendant gives no rebutting evidence but a reasonable explanation equally concerning with the persons as well as with the absence of negligence, the presumptions or inferences based on res ipsa loquitor can no longer be sustained. The burden of proving affirmative, that the defendant was negligent and the accident occurred by his negligence, still remains with the plaintiff. A perusal of the evidence adduced by the parties will establish beyond doubt that the version as given by the defendant No.1 that the bus was parked at 2-1/2 number bus stop and the deceased struck at the back side of the bus was not correct. D.W.2 Ahmad Khan in his cross-examination has categorically stated that "the bus was stopped by the driver when the passengers travelling therein started shouting after the accident." D.W.1 Jehangir Abdullah in his deposition has admitted that he did not see the accident but signed and verified the written statement on the basis of report prepared by the legal department of defendant No.1. Admittedly there were large number of passengers travelling in the bus and the accident took place near 2-1/2 number bus stop, during day time. The defendant No.1 have failed to produce the driver of the bus or adduce any evidence from amongst the passengers or other eye-witnesses to support their version. Deposition of P.W.3 namely Noor Muhammad has also not been shaken. In reply to the contention raised by the defendant's counsel that no credibility can be attached to the evidence of Mr. Noor Muhammad P.W.3, who is a neighbour of the plaintiff, learned counsel for the plaintiff again referred to the said case of Zaibun Nisa in which it was held that where an eye-witness is a relative of the deceased it is not a ground for discarding his evidence. In Shaukat Ali and another v. Karachi Transport Corporation and another 1988 CLC Kar. 48 it was held that where the defendant has not claimed any enmity or attributed any motive against a natural witness to the accident, his version of the accident as to rash and negligent driving would stand proved. In the present case also the mini?bus in which the witness was travelling was coming towards the residential area where the witness and the deceased/plaintiff were living and therefore the deposition of the former must be believed in as he was a natural witness to the accident. The mere fact that the witness was neighbour of the plaintiff is no ground for discarding his evidence, if otherwise the same stands unrebutted and unshaken. With regard to the contention raised by the defendant that the deceased did not hold a licence for driving the motorcycle it was contended by Mr. Muhammad Maqsood, learned counsel for the plaintiff that even if it was so, it would not absolve the defendant No.1 of their negligence. In support, learned counsel placed reliance on S. M. Vyas and another v. Sint. Sudhaben Sukethu Suturia and others AIR 1980 Gujrat 46 wherein it was held that a scooter driver could not be held guilty of contributory negligence merely because scooter carried four persons though permissible limit was two persons including driver. However, in the present case the plaintiff had produced the original driving licence of the deceased rebutting the said allegation of defendant No.l. In any case, once negligence of the bus driver stands established, it is immaterial whether the deceased was holding a driving licence or not. In view of the above discussion, I hold that the death of the deceased was caused due to the negligence of the driver of the bus. ISSUE N0.2.--This issue relates to the income of the deceased. Here reference may be made to the deposition of the plaintiff, the wife of the deceased namely Mst. Qaiser Jehan P.W.1. She has produced salary certificate Exh.6/5 showing monthly salary of Rs.2,139 per month of the deceased. She, however, has stated C that she could not ascertain deceased's income from over time as she has no proof thereof. It is stated by her that the deceased used to give her Rs.2,200 every month for household expenses. P.W. 2 Ahmed Khan who is Assistant Administrator in the Company where deceased was employed has also produced Exh.6/5 showing that the salary of deceased was Rs.2,139 per month. It is further deposed by him that the deceased used to draw between Rs.400 and Rs.500 per month from overtime work. The defendant No.l have not adduced any evidence in rebuttal and the evidence of the plaintiff has remained unimpeachable on this issue. I, accordingly hold that income of the deceased was Rs.2,500 per month. Issue answered accordingly. ISSUE N0.4

It was pointed out by Mr. Muhammad Maqsood, learned counsel for the plaintiff that the cause of action arose to the plaintiff on 11-7-1983. However, the last date of filing the suit fell during the Court vacations, 'as such, the suit was filed on the opening day of the Court viz.5-8-1984. Hence the suit is not time-barred. After this explanation, Mr. Narian Das C. Motiani, counsel for defendant No.l did not press this issue. Accordingly, it is held that the suit is not time barred. ISSUES NOS.3 & 5.--The plaintiff leas produced satisfactory evidence that the deceased used to give her Rs.2,200 every month for household expenses. I have already held that the deceased was earning Rs,2,500 per month. P.W.2 Ahmed Khan has deposed that the deceased was a good worker and would have risen to higher position with better salary upto Rs,4,000 per month. His statement has gone unchallenged and supports fully the averment made by the plaintiff and is, therefore, accepted. The deceased's family consisted of four members including himself. The said Rs.2,200 would have been equally spent on each member of the family, leaving a sum of Rs.1,650 per month for the maintenance of the plaintiff, deceased's mother and daughter. The deceased admittedly was 45 years old on the date of his demise and would have lived upto 65 years being the average expected age of a person in Pakistan. Keeping in view the expected increase in deceased's salary coupled with his increased personal and other expenses, an average a sum of Rs.2,500 per month would have been available to his dependants during a period of twenty years totalling Rs.6,00,000 which the plaintiff has also claimed in the suit. Accordingly, I pass a decree for Rs,6,00,000 against the defendants jointly and/or severally together with cost and interest at the rate of 14% per annum from the date of the suit till the date of payment. The deceased has not left any son. As other male relations of the deceased such as brothers do not fall under the category of beneficaries under section 1 of the Fatal Accidents Act, 1855, I direct that the plaintiff as wife and sharer under Muslim Law shall be entitled to 1/8th share in the decretal amount, the mother of the deceased to 1/6th share in the decretal amount and the daughter of the deceased namely Humera Jabeen to the residue decretal amount. A.A./Q-47/K?????????????????? ???????????????????????????????????????????????????????????Suit decreed???????????????????????????????