1988 PLP 1408 (CLC)

This first appeal under section 96, C.P.C. is filed by Mst. Fehmeeda widow of Wali Ahmed Khumbati, against the judgment and decree passed by the learned Senior Civil Judge, Thatha, dated 28‑10‑1981 dismissing the appellant's suit for recovery of compensation under Fatal Accidents Act. The appellants instituted Suit No.7/80 against the respondents claiming compensations of Rs.2,60,000 on account of death of her son Mushtaq Ahmed who. died as a result of an accident while plying rickshaw No. KAT 4439 at Thatha and Ghulamullah Road on 1‑10‑1978, as a result of collision of said rickshaw with truck No. HU 3966 driven by respondent No.l belonging to respondent No.3. It was alleged in the plaint that at the time of accident the truck was driven rashly and negligently by respondent No.l and it hit the rickshaw at the katcha track after coming over to wrong side. The suit was resisted by the respondents on the ground that the accident had taken place as a result of rash and negligent driving of the rickshaw by the deceased Mushtaq Ahmed who was responsible for the accident and, therefore, they are not liable to pay any compensation. It was also alleged before the trial Court that in any case the amount of compensation claimed in the suit was highly exaggerated. The learned trial Court framed the following issues on the basis of the controversy between the parties: "(1) Whether the suit is maintainable in law? (2) Whether the death of Mushtaq Ahmed was caused due to accident caused by the collision with Truck No. H U‑3966 driven by the defendant No .l with the Rickshaw No. KAT 4439? (3) Whether the defendant No.l was rash and negligent in driving the truck? (4) Whether the defendants Nos.2 and 3 are liable for damages? (5) Whether the amount claimed by the plaintiff on account of death of Mushtaq Ahmed was justified or not? (6) Whether the deceased was a licensed driver and the Rickshaw was with proper documents and the Rickshaw was fit and in proper condition at the time of accident? (7) Who are the legal representatives of the deceased Mushtaque Ahmed? (8) Whether the plaint is properly stamped? (9) What should the decree be?" The appellant examined her son and attorney Qadir Bux, another son Noor Mohammad and an independent witness Eidu in support of her case while respondent No.l examined himself in defence. No evidence was led by the respondents Nos.2 and 3 in the case. Learned trial Judge found issue No.l in favour of the petitioner. Issue No.2 was answered in the affirmative. On issues Nos.3 and 5 it was held that they were not proved and as a result of findings on issues Nos.3 and 5 the suit was dismissed. Learned counsel for the appellant contends that the order of trial Court dismissing the suit of plaintiff as a whole is not sustainable in law as the judgment of trial Court is wholly based on the acquittal order passed in the criminal case in favour of respondent No.l. It is also contended by the learned counsel for the appellant that the learned trial Court wrongly relied on certain alleged contradictory statements made by the witnesses ' before the criminal Court on the basis of certified copies of such statements produced before him without confronting the alleged contradictory statements of the witnesses in cross‑examination. It is lastly contended by the learned counsel for the appellant that on the basis of the evidence on record the appellant had not only succeeded in establishing the death of her son in the accident but it was also sufficiently proved on record that the death was caused as a result of rash and negligent driving by respondent No.l who dashed his truck against the rickshaw of deceased after coming over to wrong side on Katcha track. Learned counsel for the respondents on the other hand contended that there was enough material on record before the trial Court to reach the conclusion that at the time the accident took place the rickshaw was driven by the deceased without lights and. therefore, the Court rightly reached the conclusion that the plaintiff /appellant failed to establish rash and negligent act on the part of respondent No.l. After hearing the learned counsel for the appellant I am of the view that the preponderance of the evidence on record supported the contention of the plaintiff /appellant in the suit that the death of the deceased Mushtaq Ahmed who was driving rickshaw was caused as a result of rash and negligent driving by the respondent No.l. The trial Court mainly relied on the judgment of criminal Court in the case against respondent No.l, under section 304‑A, P.P.C. while dismissing the claim of appellant in the suit. It is true that respondent No.l was acquitted of the charges under section 304‑A, P.P.C. by the criminal Court concerning the same incident but this fact was not enough to defeat the civil liability of the defendants arising from the accident. It is needless to mention here that the judgment in criminal trial acquitting respondent No.l of the charges under section 304‑A, P.P.C was not relevant for the purposes of determining the civil liability under the Fatal Accidents Act. The principles governing conviction of any accused in a criminal case are substantially different from those applicable for determining the liability of a person in civil action for compensation on account of death under the Fatal Accidents Act. While, in the criminal trial it is incumbent on the prosecution to establish the case against an accused beyond all reasonable doubt no such principle will be applicable in a case where civil liability of such an accused is in question. In the latter case, the civil Court while determining the civil liability of the accused for compensation will be guided by the preponderance of the evidence, Apart from it the learned trial Judge while dismissing the suit of appellant mostly referred to the statements made by the witnesses Noor Mohammad and Eidu before the Criminal Court during the trial of respondent No.l on the basis of certified copies of their statements and found that their statements made in the suit before him were inconsistent with their earlier statements and as such the same cannot be relied upon. This procedure adopted by the learned trial Judge was against the provisions of section 145 of the Evidence Act as the attention of these witnesses was never drawn to the alleged earlier contradictory statements before the criminal Court, nor such contradictions were put to these witnesses specifically in cross‑examination. In these circumstances the learned trial Court was not entitled to consider the alleged contradictions and inconsistencies noticed by him in the statements of these witnesses made before the criminal Court on the basis of certified copies of their statements which were never confronted to them in cross‑examination. The evidence led by the plaintiff appellant before the trial Court on the issue of rash and negligent driving by respondent No.l is sufficiently proved by the witnesses Noor Ahmed and Eidu who clearly stated that at the time of accident, the rickshaw had the lights on and was hit by the truck driven by respondent No.l while it was on its side at a katcha track. The statement of these witnesses could not be shaken in cross examination and as such the learned trial Court could not dismiss the suit of the appellant as a whole. However, the learned counsel for the respondent rightly urged that the amount of compensation claimed at Rs.2,60,000 could not be established bar the appellant in evidence. It is quite clear from the written statement of respondents in the case and cross examination of the witnesses of appellant that the statement made by P.W.1 claiming that the deceased was earning a sum of Rs.600 per month at the time of his death was seriously challenged and the appellant failed to lead any convincing evidence to establish the same. Nevertheless. the respondents in their written statements themselves suggested that the earning of the deceased at the time of his death was about Rs.5 per day and it would be Rs.8 at the time of filing of written statement. The same stand was taken by the respondents in the cross‑examination of the witness of appellant. In these circumstances, it will be quite reasonable to fix the monthly income of the deceased at Rs.300 keeping in view the fact that the deceased at the time of his death was a young man of 25 years of age and his earning capacity would have increased gradually. It has come in evidence that the plaintiff is a widow and her husband died earlier to the death of .deceased and that the deceased was the only earning member of the family who was supporting the widow and his minor brothers and sisters. It has also come in the evidence that the deceased was giving his entire income to the widow. Keeping in view the total income of the deceased at Rs.300 per month, I allow 1/3rd of the income towards personal expenses of the deceased and hold that the deceased if lived would have contributed a sum of Rs.200 per month for the maintenance of her widow mother and minor brothers and sisters at least for a period of 5 years. As the deceased was only 25 years of age and would have normally married after some time I further hold that after 5 years and after getting married the deceased would have not allowed more than Rs.100 out of his total income for supporting the plaintiff. The Plaintiff was 40 years of age at the time of death of deceased and keeping in view normal expectancy of life as 65 years I hold that the deceased if lived would have supported her widowed mother for about 25 years. Out of this period D of 25 years the deceased would have extended monetary support to Plaintiff at the rate of Rs.200 per month for the first five years and for the remaining 20 years he would have provided Rs.100 per month. On the basis of above calculation the Appellant is entitled to compensation in the sum of Rs.32,

000. The truck was driven by respondent No.l at the time of accident in the normal course of his employment with other respondents and as such all the respondents are jointly and severally liable for the decree in the suit. I accordingly decree the suit of the plaintiff /appellant in the sum of Rs.32,000 but there will be no order as to costs in the circumstances of the case. H.B.T./F‑40/K Order accordingly.