P L D 1964 (W (PLP)

(2) Whether at the time of the alleged incident the bus was being driven fast and on the wrong side? (3) Whether the bus dashed into the deceased on account of the negligence of the bus driver? (4) What was the earning capacity of the deceased? (5) Whether the plaintiff and the persons on whose behalf the suit has been filed are related to the deceased in the manner stated in paragraph 2 of the amended application for suing in forma pauperis? (6) Whether the defendants are liable to pay damages; If so in what amount? (7) Has the plaintiff any cause of action against the defen dants ? (8) To what relief, if any, is the plaintiff entitled? (9) Did the defendant No. 1 inform the defendant No. 2 as per condition No. 1 of the insurance policy ? If not, what is its effect? (10) Whether the defendant No. 1 was not insured against third party risk with defendant No. 2? If not, what is its effect ? Counsel for the parties agreed that issues Nos. 2, 3, 7, 8 and 9 were redundant or useless and counsel for the defendants did not press issue No.

5. Issues Nos. 1, 4, 6 and 10 only remain to be decided.

5. The plaintiff has examined Dr. Anwarul Hassan, Police Surgeon, Karachi, who held the post mortem examination of the deceased (P. W. 1), C. Almeida, Motor Vehicles inspector (P. W. 2), Feroz Khan, Sub‑Inspector of Police, C. I. D., Karachi who prepared the mashirnama of the site of the incident and a sketch of the place of incident (P. W. 3), Ghulam Muhammad, father of Abdullah (examined twice as P. W. 4 and P. W. 7), Karim Nabi Khan, a retired contractor who knew Abdullah and his business (P. W. 5), and Mst. Kulsoom, the plaintiff; as her own witness (P.W.6). Defendant No. 1 was examined as the only defence witness.

6. The circumstances under which the incident took place are stated in paragraph 2 of the plaint, as follows On the 20th May, 1955, at about 8‑30 p.m. when the 4eceased Was walking on Bub River Road pushing his hand-cart the Bus No. KAP 5361 being driven very fast on the wrong side and suddenly and without warning, dashed into him and his handcart, causing him fatal injuries and breaking his handcart. Its brakes were defective. Due to the injuries caused by the said Bus the deceased died in the Civil Hospital, Karachi on the night of the 21st May, 1955. No eye‑witness of the accident has been examined, nor is there any evidence that there was such a witness besides the driver and Abdullah himself. Dr. Anwarul Hassan (P.W.1) has stated that Abdullah had died as a result of the rupture of his intestines which injury could have been caused by the alleged accident. C. Alemida (P. W. 2) has stated that the hand‑brake of the bus was not "working fully", but he could not tell that the deficiency developed before or after the accident. Feroz Khan, Sub‑Inspector of Police (P. W. 3) has proved the mashirnama of the site of the accident (Exh. 11), the First Information Report (Exh. 12) and the sketch of the site (Exh. 13). According to the sketch, Abdullah was pushing his handcart along the right side of the Hub River Road and was coming from the North. He was not on the road. The bus was going on the road from the South to the North and was on the right, and not on the left side, of the road. They would have passed each other if they had followed their own directions in the straight lines but the bus left the road and travelling further to its right direction struck the handcart and stopped at a distance of about 30 feet. This sketch was, however pre pared on the 23rd of May 1955 ; that is to say, on the third day of the accident. The mashirnama was also prepared on the same date but according to it, there were signs to indicate the spot of the accident because broken spokes of the wheels of the handcart and crushed dates were lying there. As there is no eye‑witness, there is no evidence to substantiate the allega tions contained in the above quoted paragraph of the plaint that the bus was travelling at a high speed or had dashed into the handcart suddenly or without warning. Counsel for the defendants further argued that the sketch and the mashirnama are not reliable, firstly, because they were prepared after three days of the accident, obviously owing to the death of Abdullah which took place on the second day of the accident, and, secondly, because the witnesses have not stated the facts contained in these two documents so that they could become substantial evidence in this case. They have conceded that the accident took place and that Abdullah died as a result of it, but have contended that unless negligence of the driver is proved, the liability of the defendants is not established.

7. I have heard counsel for the parties at length and was in doubt about the proof of the liability of the defendants, not because I was in agreement with counsel for the defendants that the contents of the mashirnama and the sketch were not substan tive evidence in a civil suit after they were proved by their writer, but because they were prepared very late. I thought that their liability could, therefore, be judged by applying the prin ciple of res ipsa loquitur ; that is to say, by examining whether the accident itself, indicates the negligence of the driver or not. The principle has been explained by Salmond in his work on Torts at page 451 (Edn. XIII) as follows : The rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases one of considerable hardship to the plaintiff, because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the principle of res ipsa loquitur. There are many cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to the jury, and it is for the defendant, if he can persuade the jury that the accident arose through no negligence of his. The maxim res ipsa loquitur applies whenever it is so improb able that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused." Clark and Lindsell have explained the doctrine in their book on Torts (Edn. XI), at page 399 as follows : If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. The doctrine applies (1) when the occurrence suggests, as a matter of reasonable inference, that it was the result of the negli gence of the defendant or of someone for whose acts or omissions he is responsible, (2) the cause of the occurrence is unknown, and (3) the presumption of negligence raised by the occurrence is not rebutted by any explanation based on additional facts proved.

8. Mr. Riazul Hassan, counsel for defendant No. 2, con tended that the doctrine did not apply to this case because, firstly, the facts of the accident were known to the plaintiff who has given its detailed description in paragraph 2 of the plaint; secondly, inadequacy of proof does not attract the principle, and thirdly, those facts of the accident which can be said to have been properly proved are not such as may be said to speak for themselves of the negligence of the driver. He conceded that there are reported cases in which the negligence of the driver was presumed when the vehicle driven by him hit a pedestrian on the foot path, but stated that even this much has not been satisfactorily proved in this case.

9. Counsel's first contention can be disposed of briefly because the plaintiff did not see the accident and the plaint was obviously drafted without thinking of the above mentioned doctrine merely with the help of the contents of First Information Report (Exh. 12) and the sketch (Exh. 13). The only known eye‑witness is the driver who was a servant of defendant No. 1 and for whose act the defendants are held by the plaintiff to be liable to pay compensation. The plaintiff could not in fairness be expected to produce him as her witness, even if she were presumed to be aware of his whereabouts and to let the defendants cross‑examine him ; therefore, the absence of hi" evidence creates the impression that important evidence has been suppressed by the defence itself. This attracts the doctrine as explained by Salmond. This aspect of the case constitutes the answer to the second contention of counsel also. As to the third contention, the probabilities are that the driver was negli gent particularly because he has been convicted of a traffic offence and, as explained by Clark and Lindsell, because the probabilities have not been rebutted by the defendants.

10. The decision of issue No. 1 accordingly is that the circumstances set out in paragraph 2 of the plaint are not proved, but the negligence of the bus driver can be assumed.

11. Issues Nos. 4, 6 and 10 can be conveniently disposed of together. The defendants had no means of rebutting the evidence of the plaintiff about the earning capacity of the deceased and their counsel did not seriously question the statement of the plaintiff as P. W. 6 that the deceased used to pay to her Rs. 12 to Rs. 15 daily ; but as her statement represented his approxi mate income, counsel for the parties considered it fair that his net income, which he spared for his family, may be taken to be Rs. 300 per month. His age at the time of his death, accord ing to his father, P. W. 7, was 40 years, but according to the evidence of the doctor, P. W. 1, it was 45 years. Counsel for the parties, therefore, considered it fair that his age may be taken to be 43 years at the time of his death. He is stated to have been in good health; therefore, the expectancy of life can be judged by the ordinary standards. There is no evidence on record about the normal expectancy of life ; therefore, reliance was placed by counsel for the parties on the observa tions which are contained in judicial precedents. References were, therefore, made to Mrs. Wells v. Governor‑General (A I R 1946 Lah. 50), Iftikhar Hussain v. Karachi Electric Supply Corporation Ltd. (P L D 1959 Kar. 550), Ursulina v. Orient Airways (P L D 1960 Kar. 712) and Bashir Begum v. Muhammad Ali Premji (P L D 1960 Kar. 785). Counsel for defendant No. 2 pointed out that, according to the judgment of the Lahore High Court, the normal age of a person is 46 years, but according to the judgments of this Court delivered at Karachi, its range is 53 to 65 years. Counsel for defendant No. 2 argued that the profession of the deceased was such as could develop a strong physique, but it involved the risk of disabling accidents and even death as Abdullah has indeed met his death by an accident in this case. As far as his contention with regard to death by accident is concerned it did not impress me unless it could be said that it was expected to occur owing to his own negligence; for otherwise those who were benefiting from his income could always be compensated for his death by a suit under the Fatal Accidents Act. So far as the contention that he was exposed to the risk of sustaining injuries and thus becoming wholly or partially incapacitated for earning his livelihood is concerned. I do not think that on the whole a hawker who pushes a hand cart is in greater danger of it than the driver of a car. Perhaps more injuries can be sustained on the road by car drivers than by hawkers because hawkers can leave their carts alone more quickly. I would have more clearly considered the effect on his earning capacity of pushing a handcart with a load of merchan dise on it if it was not on the record that the deceased employed servants to carry on the trade for him. I have held in a case before and am inclined to think now also that the ordinary expectancy of life can be taken to be 65 years in our country now. I am supported in this view by the fact that the age of Government servants to remain in service has recently been B increased from 55 years to 60 years, which limit does not normally indicate the end of life but carries with it the expec tancy of earning pension after it. On this basis, the deceased could be expected to live for twenty‑two years more. If he earned Rs 300 a month, then his earning capacity per year was Rs. 3,600, and for twenty‑two years it would come to Rs. 79,

200. The plaintiff has, however, claimed Rs. 54,200 only and should not get a decree in this suit for a bigger amount. Counsel for the parties realised this and conceded that in this case the maximum expectancy of life and the period of time in which the deceased could actually earn the usual amount of money were not of much significance. They, therefore, thought that the amount of Rs. 54,000 as compensation for his death would not be unreasonable.

12. Counsel for defendant No. 2 next argued that he bus which was involved in the accident was insured but it was misdeclared to the Insurance Company to be the property of Messrs Smaja Transport Company, and not of defendant No. 1 ; therefore, the Company was not liable to indemnify the loss for which defendant No. 1 may be liable. Defendant No. 1 has stated that he carried on this business in that name but was its sole proprietor and that the bus belonged to him personally. The contention of the Insurance Company weak as it was, was of little value because counsel conceded that no inquiries were made by the Company from defendant No. 1 as to whether the name of the proprietor represented his real name or the name of his business, or that of a firm or of a Limited Company. Defendant No. 1 gave the assumed name in which he was carry ing on his business and the Company insured the bus without minding it. I may add that in Karachi individuals often carry on business in assumed names without any intention of fraud. There is nothing on record to throw any doubt that defen dant No. 1 was not the proprietor of the bus. In these circumstances there is no question of misrepresentation of facts to the Company or of any doubt about the proprietorship of the bus.

13. Counsel for defendant No. 2 further and rightly pointed out that under section 95 (2)(b), (Motor Vehicles Act IV of 1939):IC the liability of the Insurance Company is limited to Rs. 20,000, therefore, the Company is not liable to pay more than the amount. The burden of the balance, namely, Rs. 34,000 should,, therefore, fall on defendant No. 1.

14. Counsel for the defendants argued that the mother of the deceased having died during the pendency of the suit and the plaintiff having married again, although her second husband is now dead, the claim of the plaintiff should be reduced to the extent of their shares in the compensation. This argument is not sound because the amount found to be payable as com pensation for death is calculated on the basis of the expectancy of the life of the deceased and his earning capacity. If the number of the beneficiaries is reduced, the compensation is distributable amongst the survivors or the persons entitled to, it. It cannot be withheld by those who are liable to pay it.

15. There is one more aspect to be considered. It is that the beneficiaries would have received Rs. 300 per month if Abdullah had lived, but they stand to get a big sum at one time by virtue of his death, therefore, the question arises whether the amount of compensation should be reduced or not. In this respect I should mention that the defendants have retained and enjoyed the benefits of the amount of compensation for about seven and a half years and the beneficiaries have suffered by deprivation in that period. If the benefits of the defendants by the detention of the money at the cost of the beneficiaries, is calculated at the rate of six per cent per annum, then the defendants earned over Rs. 24,000 and the beneficiaries have lost an equal amount. I should, therefore, not reduce the amount of compensation.

16. The last question for consideration is as to in what proportion the amount of compensation is to be distributed amongst the beneficiaries and whether the plaintiff should get any share out of it or not. Counsel for defendant No. 2 was right in pointing out that the plaintiff ceased to be entitled to receive anything from the estate of the deceased since she married again. There is authority in support of the proposition that a wife who remarries ceased to be the liability of the husband and cannot expect to get any benefit from his estate whether he be alive or dead. There is nevertheless a delicate aspect of this problem which should not escape notice. It is that the pro ceedings were commenced by the wife in March 1956, and she has maintained herself and her children and perhaps her father -in‑law also from that year to this day which is a period of 71 years. The defendants have resisted her claim and withheld the compensation to which she was entitled, thus driving her by their obduracy to the necessity of resorting to any means which could provide sustenance. Her father‑in‑law has stated S. P. W. 4 that he could not bear her expenses and had there fore arranged for her remarriage and had himself gone to live in the house of her new husband. He would not have arranged her second marriage if Abdullah was alive or if compensation had been F‑lid when it became due. Will it be proper in these circumstances that the remarriage which was the consequence of her deprivation should now become the cause of further