2001 PLP 234 (CLC)

Issue No.3:

6. In the Plaint as well as in the evidence, it was pleaded on behalf of the plaintiff that Mr. Abdul Majeed and Mst. Hasina Bano, were the survivors of the deceased being father and mother of the deceased respectively. However, the defendants did not lead any evidence on this issue but have simply denied the relationship between the plaintiff and the deceased on the ground that the same was not within their knowledge. In the aforesaid circumstances, it is proved that the deceased was survived by the plaintiffs as his parents. Issue No.4:

7. In support of this issue, the plaintiff has examined P.W.1, namely, Muhammad Zarin, who is Assistant Sub‑Inspector of Korangi Police Station, who has filed copy of F.I.R. as Exh.5/1, copy of Motor Vehicle Inspector Report as Exh.5/2, Memo. of Incident as Exh.5/3, Medical/death certificate of the deceased as Exh.5/4 and Memo. of Site Inspection as Exh.5/5. The other witness examined on behalf of the plaintiff was Abdul Waheed, who is the real brother of the deceased. He has deposed that on the day of the incident, he was travelling with his deceased brother. He has narrated the alleged incident. P.W.3 is Ikramul Haq, who is the Motor Vehicle Inspector and he has stated at the examination of both the vehicles, namely, Bus No.834‑822 and Bus No.865‑891, these were found damaged. In his opinion, both these vehicles had collided with each other. The plaintiff has also examined herself as Exh.8.

8. As against the above evidence, no witness was produced by the defendants in support of their case that since the deceased was standing at the gate of the bus, he received injuries. However, this suggestion was denied by the plaintiff's witness.

9. In the aforesaid circumstances, there is not enough evidence on record to answer this issue in the affirmative. I am, therefore, of the considered view that the above two busses have collided with each other which has caused unnatural death of Abdul Shakeel. Issue No. 5:

10. In para. 2 of the plaint, it is claimed that the defendant No.2 namely, Syed Khatib Shah, was driver of the bus involved in the accident and he was a servant of the defendant No. l at the relevant time. In reply to this assertion, it was not denied by the defendant No. l to his written statement. Subsequently also the plaintiff and her witnesses have claimed this fact which was never denied in the cross‑examination. Accordingly, this issue is also answered in the affirmative. Issue No.6:

11. The case of the plaintiff is that the deceased died due to negligence and wrongful act of the defendants Nos. l and 2 as a result of the accident. On the other hand, the case of the defendants Nos. l and 2 is that the deceased was hanging on the gate of the bus, in spite of warning. The Bus (834‑822) hit the stationary/standing Bus No.865‑891 of Route No. 17‑C. As such the deceased, after receiving head injuries, died due to his own negligence. Keeping in view this plea in the written statement it could be said that the defendants have pleaded contributory negligence. Mr. Nasir Maqsood has invited my attention to the case of Federation of Pakistan v. Hafiza Malika Khatoon Begum 1996 SCMR 406, wherein it was held as under: "The plea of contributory negligence raises question of fact which should be proved by the party alleging it. It should be established that the plaintiff had failed to take reasonable care for his safety. The defence of contributory negligence arises where damage is caused partly by the negligence of the person who suffers and partly by the fault of the alleged wrong doer. This is a delicate issue but the legal principles that if contributory negligence is established the plaintiff's claim for damages shall not be defeated but the damage shall be reduced as the Court may think just and equitable considering the plaintiff's share in the responsibility for the damage' and circumstances of the case." In the instant case, there is no evidence to the allegations as raised in the written statement. It is very regrettable state of affairs that none of the defendants or any of its employee have come forward in the witness‑box to deny the plaintiff's case and to prove their contention. On the contrary, the plaintiff has led sufficient evidence on the point that the deceased died due to rash and negligent act of the defendant No.2 which has gone unrebutted.

12. In the aforesaid circumstances, I am inclined to hold that the defendants, jointly and severally, are liable to pay monetary compensation to the legal representatives of the deceased who has died as a result of the above accident. Issue No.7:

13. It is admitted fact that the defendant No.3, namely, Government of Sindh, through Memorandum of Agreement, dated 13th March, 1997 took over the liabilities and assets of the defendant No.l. This agreement was filed by the plaintiff alongwith application under Order I, Rule 10, C.P.C. One of the conditions of the agreement, as reflected in Clause 4(K) reads as under:‑‑ "(K) To carry out and implement the terms of this agreement would be the liability and responsibility of Government of Sindh including the cases pending in Courts of Law not relating to claim 'of K.T.C. employees. "

14. In view of the aforesaid factual position, the learned Assistant Advocate General, appearing for defendant No.3, concedes to their liability and accordingly this issue is answered in affirmative. Issues Nos.8, 9 and 10:

15. It has come in the evidence that at the time of his death, the deceased was earning approximately Rs.800 per month by working in a cloth shop at Bolton Market. At the same time it is claimed by the plaintiff that the deceased was also undergoing training as Air-conditioning and Refrigeration mechanic, whereafter he could have earned Rs.4,000 to Rs.5,000 per month after a few years. This plea was also raised in the pleadings by the plaintiff. It has gone unrebutted. Under the circumstances, I am inclined to hold that the deceased could have earned Rs.12,000 per annum during the period from June, 1987 to till 1992 whereafter he could have earned Rs.3,000 Per month (Rs.36,000 per annum). In so far as the age of the plaintiff is concerned, she is claimed to be 47 years old at the time of the death of her son. This claim has also gone‑unrebutted. Therefore she is entitled to benefits upto 27 years.

16. In the above circumstances, the following relief is granted to the I plaintiff:‑‑ Annual Income at Rs.12,000 per 60,000 annum for 1987‑1992 five years = (12000 x 5) For remaining 18 years at Rs.36,000 6,48,000 per annum (36,000 x 18) Aggregate loss for 23 years 7,08,000 Add 20% increment for over all years 1,41,600 on account of promotion chances = Gross loss of pecuniary benefits; 849,600 (708,000 + 141,600) Less 1/3rd on account of Personal 283,200 Expenses: (849,600 x 3/100)

Net Pecuniary Loss: 566,400

17. In view of the above, the suit is decreed in the sum of Rs.5,66,400 with costs. The plaintiff shall also be entitled to 12% interest till realisation. The matter .is also reported for the orders of the Provincial Government as provided in section 82, C.P.C. H.B.T./H‑19/K Order accordingly.