2002 PLP 539 (MLD)

MUHAMMAD SAEED AKHTAR, J.‑‑‑This is an appeal against the judgment/decree, dated 23‑11‑1987 passed by the learned Senior Civil Judge, Islamabad, dismissing the suit, of the plaintiffs/appellants for recovery of damages for a sum of Rs.3,36,000.

2. The facts culminating into filing of this appeal are that the plaintiffs/appellants filed a suit on 25‑10‑1983, for recovery of Rs.3,36,000 as damages under the Fatal Accidents Act, 1855, averring that Raja Muhammad Yaqoob, deceased (the husband of plaintiffs 1 and 2, father of plaintiffs 3 to 7 and son of plaintiffs No.8) was a pillion rider on a motorcycle driven by Naib‑Subedar Muhammad Shakoor. When Muhammad Shakoor, Naib‑Subedar, took the right turn at "U" turn, the defendant No.3, who was driving Bus No.PRE‑2340, rashly and negligently hit the motorcycle from behind killing Raja Muhammad Yaqoob instantaneously. It was alleged that deceased was 42 years of age with robust health. His income was at least Rs.1,000 per month. The future expected life span of the deceased was stated to be 28 years. The defendants 1 and 2/respondents were alleged to be vicariously liable for the rash and negligent act of defendant No.3. The total amount of damages claimed for 28 years at the rate of Rs.1,000 per month, were Rs.3,36,

000. The suit was contested by the respondents denying the liability putting the blame on the driver (Naib‑Subedar Muhammad Shakoor) of the .motorcycle for his rash and negligent act. Out of the pleadings of the parties the following issues were framed:‑‑ (1) Whether the suit is bad for non‑joinder and misjoinder of necessary parties? OPD. (2) Whether the suit is not maintainable in view of P/O No.7? OPD. (3) Whether the plaintiffs are estopped by their own words and conduct to file this suit? OPD. (4) Whether the accident .took place due to rash and negligent driving of the defendant No.3, which resulted the death of the predecessor‑in‑interest of the plaintiffs? OPP. (5) Whether the plaintiffs are entitled to recover Rs.3.36,000 as damages from the defendants under Fatal Accidents Act? OPP. (6) Relief. The learned trial Court vide its judgment, dated 23‑11‑1987 dismissed the suit.

3. The parties were heard and record was perused.

4. To maintain an action under Fatal Accidents Act, 1855, there must be proved:‑ (i) that the deceased person was injured by the wrongful act, neglect or default of the defendant; (ii) that he died in consequence of such injury; (iii) that at the time he died he had a right to recover damages; and (iv) that the beneficiaries have suffered pecuniary loss from his death. All the things must be proved, and failure in any one of them is fatal to the cause of action. In the instant case P.W.2, Muhammad Shakoor, the driver of the motorcycle testified that when he reached `U' turn, the Bus No.PRE‑2340, hit them from rear. He further testified that at the `U' turn, there was a traffic signal warning the driver to reduce the speed but the driver of the bus had not slowed down the speed and consequently he caused the accident owing to his rash and negligent driving. Haji Khan, defendant No. 3, appeared as D. W.1 and admitted that the legal heirs of deceased Raja Muhammad Yaqoob had forgiven him in the name of God in the criminal case. He admitted that he had paid Rs.5,000 to Muhammad Shakoor, as compensation. However, he stated that the accident took place due to the sudden swerve to the right taken by scooter driver without giving any indicator by him. The statement of the only D.W. is not trustworthy and ex‑facie liable to be rejected. Had the motorcycle driver suddenly swerve to the right, the bus would have hit the motorcycle running over both the riders. We have not a scintilla of doubt that the motorcyclist had‑already taken the `U' turn and the bus hit them from behind. Under the Highway Code, the driver of a vehicle is supposed to keep a reasonable distance from the vehicle a going in front. It is apparent that by not keeping the reasonable distance from the motorcyclist, the bus driver could not control the bus and hit the motorcyclist running over the pillion rider. We have no manner of doubt that the bus was being driven in a rash and negligent manner. The degree of care for the safety of other which the law requires human beings to observe in the conduct of their affairs varies according to the circumstances. There is no absolute standard but it may be said generally that the degree of care required varies directly with the risk involved. The degree of care required in the instant case has not been met.

5. The principle of "res ipsa loquitur" would be applicable to the present case The maxim would apply where real cause of death was solely within the knowledge of the defendant and was not known to the plaintiff. (Muhammad Yaseen v. Medicare Clinic Ltd., 1988 CLC 139 and Punjab Road Transport Corporation Lahore v. 1: V. Gardner and 2 others 1998 CLC

199. The 'res' speaks because the facts stand unexplained, and, therefore, the natural and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of defendant; that is, some want of reasonable care under the circumstances. In the instant case, the facts remained unexplained by the driver of the bus particularly when the motorcyclists were at the 'U' turn and there was a traffic signal warning the driver to slow down the speed.

6. The learned trial Court has not appreciated the evidence on the record and has completely misdirected itself to the law as well as the evidence while relying upon a statement made before the Magistrate in the criminal case. It is well‑established that judgment rendered in criminal case was not admissible for determining the liability in civil case. The Honourable Supreme Court in case the Deputy Inspector‑General of Police, Lahore v. Anis‑ur‑Rehman Khan; PLD 1985 SC 134, relied upon the following excerpt from M. Monir's Commentary on the Evidence Act:‑‑ "A judgment of acquittal in a criminal case only decides that the accused had been charged and to this extent only and no more, it is to be taken, as correct and conclusive in a subsequent civil suit between the parties, the opinion and conclusions expressed in the judgment being otherwise irrelevant and inadmissible in such proceedings." As far as assessment of damages is concerned, P.W.4 (Makhari Khan) has stated that the deceased would have lived up to 30/40 years and this fact remains unrebutted on the record. However, in para. No.3 of the plaint expected life span of the deceased was shown to be 28 years. Taking. a safe course, we accept the average age to be 70 years which was more in line with the cases consistently adopted by the superior Courts. The income of the deceased was stated to be Rs.1,000 per month and this also goes unrebutted on the record. The annual increment on each year's income has not been claimed by the plaintiffs/appellants. After deducting his personal expenses, we grant the damages at the rate of Rs.700 per month for 28 years, the claimed expected life span.

7. The upshot of the above discussion is that we allow this appeal, set aside the judgment of the trial Court dated 23‑11‑1987 and decree the suit of the plaintiff to the extent stated above with mark‑up at the prevalent rate at the time of filing of suit till the payment of decretal amount. Q.M.H./M.A.K./R-78/L Order accordingly.