2000 PLP 1669 (YLR)

(f) Passport of dece‑ Exh.2/9 ased Muhammad Naeem Baig. (ii) P.W.2 Ishrat Rana (A. S. I. Bahadurabad Police Station) Who produced the following documents:‑‑ (a) F.I.R. No.143 of Exh.3/1 1988 (b) Memo. of dead Exh.3/2 body (c) Memo. of site Exh.3/3 inspection (d) Site Sketch of the Exh.3/4 accident (e) Motor vehicle Exh.3/5 inspection report (f) Copy of application by defen dant No.2 for the release of vehicle involved In dir accident (g) Letter of defendant No.2 where by defendant, No.4 has surrendered defendant No.3 to the Police. (iii) P.W.3 Sardar Akhtar Butt (Investigating Officer of tic case) who verified the contents of the documents produced by P W.2? being author of these documents (7) The defendant No.2 examined only one witness i.e. D.W.1 Syed Farhat Zaidi. (8) I heard the counsel of parties and the following are my issue‑wise findings: --‑ ISSUES Nos. I, II and III.‑‑‑As observed above, originally the plaintiffs in the plaint disclosed the truck number as GS‑6291 but subsequently, it was allowed to amended as GS‑8291; no written statement controverting this fact hay, been filed by the defendants. This fact was brought on record through the evidence of P.W.1 Muhammad Hashim Baig, the attorney of the plaintiff, but in the cross examination it has not beer, suggested by the defence that accident took place with the vehicle No.GS‑6291 and not with GS‑8291: nor it has been suggested that the truck which was involved into the accident was not owned by defendant No.2 and/or it was not driven by defendant No.3. This witness has stated that it was due to typographical mistake that a wrong number was originally given in the plaint and which was later‑on corrected. Apart of the above P.W.2 Ishrat Rana, A.S.I., Bahadurabad Police Station has produced an application moved by defendant No.2 i.e. Exh.3/6 which shows that the defendant No.2 got custody of the said vehicle from Bahadurabad Police Station in capacity of the owner. The said P.W. also produced a letter of defendant No.2 as Exh.3/7 for the release of defendant No.3 on the ground that he was their driver and was required by the defendant No.2 for carrying out the services. Besides the D.W.1 Syed Farhat Zaidi also admitted in his affidavit‑in -evidence that the defendant No.3 was working with the defendant No.2 as driver and in cross‑examination also it was admitted by him that the defendant No.3 is still employed with the defendant No.2 as driver thus in view of this fact revealed from evidence of the plaintiff and defendants and supported by Exhs.3/6 and 3/7, it has been established that the defendant No.2 owned the truck bearing No.GS‑8291 at the time of the accident and the defendant No.3 was driving the said truck during the course of employment of defendant No.2 on 5‑8‑1986 when he caused a traffic accident on Habib Rehmatullah Road resulting into death of Mirza Muhammad Naeem Baig. The fact of the accident is not disputed by the defendant No.2 as the D.W.1 in his affidavit‑in‑evidence while admitting the accident proceeded to state that the death of the deceased Mirza Naeem Baig was caused because of rash and negligent driving of the deceased who was driving his motor cycle very negligently. On the other hand, the case of the plaintiff is that the deceased Mirza Naeem Baig died due to wrongful and negligent act of the defendant No.3. None of the witnesses examined by the parties have seen the accident by their own eyes. The attorney of the plaintiff, P.W.1. examined himself by filing the affidavit‑in‑evidence wherein it was categorically stated that on 5‑8‑1986 the defendant No.3 while driving the truck No.GS‑8291 in a rash and negligent manner when reached near turning of Tipu Sultan Road and Habib Rehmatullah Road dashed the motor‑cycle bearing No.KAM 3021 on wrong side in an excessively high speed. It was further stated by the said witness that as a consequence of this accident the deceased Mirza Naeem Baig who was driving the motor‑cycle died on the spot and pillion rider Muhammad Zafar Khan died subsequently on account of the fatal injuries in the said accident. The said witness also produced clippins of the daily "Jang" and daily "Dawn" as Exhs.2/3 and 2/4 for establishing the incident in question. The P.W.1 was cross‑examined by the defendant but his statement on the aspect of negligence and rash driving culminating into death of deceased motor‑cyclist was not challenged at all and neither the contents of Exhs.2/3 and 2/4 were questioned in any manner. The plaintiff also examined the P.W.2 Ishrat Rana who, inter alia, produced Exhs.3/1 to 3/5 being F.I.R. No. 143 of 1988 lodged against the defendant No.3 booking him for the offence of rash and negligent driving resulting into death of the deceased motor‑cyclist, memo. of dead body, memo. of site inspection, site sketch of the accident and motor vehicle inspection report respectively. The plaintiff also examined the Investigating Officer, Sardar Akhtar Butt as P.W.3, who was the author of Exhs.3/1 to 3/4 and as such supported and verified the contents of those documents to be true. According to the Exh.3/1 which is First Information Report lodged against the defendant No.3 at Bahadurabad Police Station on 5‑8‑1986 and the contents of which have not been denied by the defendants, it is shown that the case of the plaintiffs as pleaded regarding the rash and negligent driving is supported. According to Exh.3/3 which is the memo. of site inspection carried out by P.W.3, it is shown that motor‑cycle bearing NOXAM‑3021 was lying under the truck No.GS‑8291 in a broken state and marks of dragging/skidding of the motor‑cycle on the road are quite apparent for about 10 steps. The Exh.3/4 which is site sketch of the accident prepared by P. W.3 also supports the contents of Exh.3/3 and depicts that the truck No.G.S. 8291 was proceeding from the National Stadium towards Karsaz via Habib Rehmatullah Road and when the said truck reached near the turning of Tipu Sultan Road it wrongfully knocked down the motor‑cycle bearing NOXAM‑3021 which was also proceedings in the same direction on its right hand being little bit ahead of it and even after dashing the motor‑cycle the said truck owing to rash speed continued to drag the said motor‑cycle alongwith its occupants for few steps. The place of the accident as pointed out in its sketch does not show that there was any possibility that the deceased might have come in high speed from some side lane. No side road or any lane has been shown in the sketch and as such a presumption which could be drawn from this sketch and evidence of D.W.1 is that the truck may have crushed the deceased while taking the sudden turn on the right hand side negligently and without taking any adequate pre‑caution and care required in such circumstances. The Exh.3/2 which is memo. of dead body of the victim Mirza Naeem Baig also suggests that there are marks of dragging on the right shoulder of the deceased and both the legs of the deceased had been broken/fractured from the knee. According to Exh.3/4 which is motor vehicle inspection report, it is found that the road testing of the said truck was not possible due to radiator being pressed in the engine fan as a consequence of accident. It was also found that the front bumper of the said truck was dented; bonnet dented; front show grill dented and pressed and radiator pressed with engine fan. There is no explanation from the defendants side as to how these damages occurred on the front portion of the truck as no damage was found on either side of the truck or in its rear portion which belie the negligence on the part of the motor‑cyclist as alleged by the defendants. The defendants have not challenged the contents of these documents nor the defendants produced any cogent evidence in rebuttal whereby establishing the truthfulness of the contents of Exhs. 3/1 to 3/5 which clearly establish negligence on the part of defendant No.3. The evidence of the defendants merely contains the oral assertion of D.W.1 who himself admits in cross that the entire statement is based on, the information gathered from the defendant No.3 and it is cardinal principle of law that mere oral assertion is not sufficient to rebut the documentary evidence as held in 1988 SCMR 758 (Syed Akhtar Zaidi v. Muhammad Yaquinuddin). It was also argued by counsel for the plaintiff that once the factum of accident is admitted or proved, the presumption of negligence arises and moreso when the defendant gives his own version of the manner in which accident was said to have taken place, the onus would be on the defendants to prove their version even if the version alleged by the plaintiff is found to be Weak or incorrect. The case of (1) Mrs. Gul Bano v. Muhammad Ramzan (1982 CLC 1120), (2) Zebunnisa v. Sindh Road Transport Corporation (1982 CLC 1228), (3j Mrs. Nimi Francis v. Muhammad Saeed Qureshi (1982 CLC 1703), (4) Abdul Haque v. Pakistan Railways Telecommunication Department (1987 MLD 898), (5) Spin Gul v. Ikramul Haq (1987 MLD 2402), (6) Hayat Services (Pakistan) Ltd. v. Kandan (1989 CLC 2153), (7) Kazi Arifuddin v. Government of Sindh (PLD 1991 Karachi 291), (8) Pakistan Steel Mills. Corporation v. Malik Abdul Habib (1993 SCMR 848), (9) Mst. Sakina v. National Logistic Cell (1995 MLD 633) and (10) Anisur Rehman v. Government of Sindh (1997 CLC 615) are referred at bar on behalf of the plaintiff in support of this proposition. Mr. Nasir Maqsood has strenuously pleaded that the doctrine of res ipsa loquitur is fully attracted in the circumstances of this case. He has placed reliance on the cases Qazi Arifuddin and others v. Government of Sindh and others (PLD 1991 Kar. 291), M/s. Hayat Services (Pakistan) Limited v. Kandan (1989 CLC 2153) and Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Hasib and another (1993 SCMR 848). In the case of Qazi Arifuddain (supra) the principle of the doctrine res ipsa loquitur was defined in detail and that it is sufficient for the plaintiff to prove accident where after a presumption of negligence arises and the onus then is shifted on the defendants to show that the accident could not be avoided at any cost. This view was approved by a Full Bench of Honourable Supreme Court in the case of Malik Abdul Habib (supra). This doctrine was also followed by a Division Bench of this Court in the case M/s. Hayat Services (Pakistan) Limited (supra) where it was held that maxim res ipsa loquitur is a rule of evidence which is applied where although the offending act is proved the cause of the negligence cannot be established by the plaintiff due to non‑accessibility to such evidence or because such evidence is exclusively within the knowledge of the defendant or such evidence is not forthcoming or subsisting at all. In the instant case, the plaintiff has discharged the initial burden by proving the accident and death with the help of documentary as well as oral evidence and once he discharges this burden it shifted to the defendant. The allegations regarding the negligence constitute the facts which were exclusively within the knowledge and possession of defendants who failed to dislodge the presumption of negligence raised against them by adducing cogent evidence. No independent evidence has been produced by the defendants to rebut the evidence of the plaintiff and as such there is nothing on, record to disprove that the defendant No.3 was not rash and negligent in driving the truck on the relevant day when he caused the accidental death of the deceased Mirza Naeem Baig. In the case of Syed Afzal Hussain v. Karachi Transport Corporation and another (PLD 1997 Kar. 253) a similar plea as that of the instant case was raised and to those circumstances, it was held that since the defendant No .2 was driving a heavy vehicle, that is a bus, he should have adopted all care and caution as between a driver of light vehicle and a driver of a heavy vehicle as of bus, the latter's responsibility is greater because the duty to use care increases proportionately with danger involved in dealing with a particular type of a vehicle. The cases of (1) Syed Afzal Hussain v. K. T. C. (PLD 1997 Karachi 253), (2) Ehsan Ali v. K.R.T.C. and others (PLD 1968 Karachi 464), (3) Unreported Judgment in Suit No.697 of 1988 (Roshan Bai v. Pakistan Steel Mills and others), (4) Muhammad Bux v. Emperor (AIR 1935 Nagpur 200), (5) Provincial Automobiles Co. v. Narayan Krishnarao. Deshpande (AIR 1943 Nagpur 252), (6) Indian Trade and General Insurance Co. Ltd., v. Madhukar Govind Rao Bhagade (AIR 1967 MP 110), (7) The General Manager, Banglore Transport Services v. N. Narasima Haiah and others (AIR 1977 Karnatka 7), and (8) Delhi Transport Corporation v. Sint. Harban Kuwar and others (AIR 1983 Delhi 265) may also be referred in support of this proposition. The counsel for the defendant during the arguments has vehemently urged that in fact there were three vehicles i.e. (1) truck No.GS.8291, (2) Car No.205‑545 and (3) the motor‑cycle No.KAM 3021 were involved into the accident; but the police let of the vehicle No.205‑545 and its owner without any action; it is possible that the said car would have caused the injuries to the deceased and not the truck; the .truck driver against whom a criminal case was also lodged have been acquitted under section 249‑A, Cr.P.C. by the Criminal Court which shows that the allegations of the plaintiff in this suit are false. It may be noted that all these contentions have not been pleaded nor supported by any evidence of defendants. Neither the same was brought on record through the plaintiff's witnesses during the cross‑examination; in fact no material question has been suggested by the defendants to establish their above contentions. It has also been asserted on behalf of the defendant that no eye‑witness of the incident has been examined, and therefore, there is no substantial evidence to prove the case of the plaintiff. As observed the incident has not been denied by the defendant and therefore, it was the responsibility/duty of the defendant to show that the accident a took place due to the fault of the deceased or that the deceased was negligent in driving the motor‑cycle. In this case the defendant No.3 neither appeared himself nor was produced by the defendant No.2 as their witness to prove that in fact it was due to the fault of the deceased that the accident took place. The evidence of P.W.2 and P.W.3 i.e. the Police Officers from Bahadurabad Police Station is sufficient to prove that it was due to the negligence of the defendant No.3 which caused the accident. There had been hardly any. cross‑examination of these two witnesses on behalf of the defendants. The P.W.2 was not cross‑examined at all whereas P.W.3 was suggested only two questions as to about the knowledge of the result of the challan submitted by him against defendant No.3 and secondly he was suggested that the defendant No.3 was not an employee of defendant No.2 which suggestion was denied by him. In support of the case of the plaintiff the cases of Kulsoom v. Jalil Ahmad (PLD 1964 Karachi 72), Jalil Ahmad Khan v. Kulsoom (1968 SCMR 448), Unreported Judgment in Civil Appeal No.K‑44 of 1969, Mrs. Gul Bano v. Muhammad Ramzan (1982 CLC 1120), Mst. Rabeya Begum v. Abdul Latif (1987 CLC 412), Farrukh Hamid Rizvi v. The Managing Director (1989 MLD 3533), Mst. Nafisa 'Begum v. Muhammad Ismail (1989 CLC 2218), Nisar Ahmad v. Uroos Fatima (1996 MLD 1913), Nisar v. Hospital Supply Corporation (1998 MLD 13), Unreported Judgment in Suit No.697 of 1998, Roshan Bai v. Pakistan Steel Mills are referred where the plaintiffs were confronted with a situation where there was either no ocular evidence forthcoming or at that time no ocular evidence subsisted at all but even then defendants were saddled with liability for their negligence on the basis of material on record. The defendant No.2 has relied upon the cases of Abdul Haque v. The State and others (PLD 1996, SC Page 1) Badar Zaman v. Sultan (1996 CLC 202), Dost Muhammad v. Pakistan Steel Mills and another (1996 CLC 530). With great respect those cases are not applicable to the present case. As a result of the above discussion and after scrutinising in detail the evidence recorded in this case, I am of the considered view that deceased Mirza Naeem Baig died as a result of wrongful act, negligence and default committed by the defendant N0.3. Ityhas. not been denied by the defendant No.2 that the defendant No.3 was not in their employment and that he was not performing his official duties on the date of accident. ISSUES Nos. IV and V.‑‑‑Mr. Munir‑ur‑Rehman appeared for the defendant No. 1 and at the out set submitted that the defendant No.2 is an autonomous body and it can sue are can be sued in its own name and it is responsible for its own assets and liabilities and the defendant No. 1, therefore, cannot be held liable for any action of the defendant No.2. This proposition had not, been denied by the counsel for the plaintiff and the counsel for the defendant No.2 and therefore, the defendant No. I cannot be held liable for any loss or damage caused to the plaintiffs. In view of the discussion on the issues Nos. I, II and III it is clearly established that the truck No.GS‑8291 which caused fatal injuries to the deceased Mirza Naeem Baig was owned by the defendant No.2 and that the defendant No.3 was driving the said truck during the course of employment of the defendant No.2 on 5‑8‑1986 in a rash and negligent manner when he caused a fatal accident resulting into death of motor‑cyclist Mirza Muhammad Naeem Baig. It is, therefore, held that the defendants Nos.2 and 3 are jointly and severally liable to pay compensation to the plaintiffs for the loss of Mirza Muhammad Naeem Baig. In paras. 7 and 8 of the affidavit‑in evidence the attorney for the plaintiffs had categorically given the details of the amount which have been claimed by the plaintiffs. The total sum of the claim is Rs. 800,

000. It may be pertinent to note that no material question controvert the assertions made in the affidavit of evidence of the attorney of the plaintiffs has been asked by any of the defendants and as such the said assertions remained unrebutted and there is no reason to deny the claim of the plaintiffs. It was proved by the evidence of the attorney of the plaintiff that the plaintiff No. 1 was aged 58 years and plaintiff No.2 was aged 49 years at the time of accident as reflected from their respective identity cards produced as Exhs.2/1 and 2/2. On the basis of preponderance of authority the average life span in Pakistan is taken as 70 years and the loss of pecuniary benefits to the plaintiffs will be taken as 21 years by subtracting the lesser of ages of the beneficiaries i.e. 49 years from the average life span of 70 years. Accordingly in view of the extraordinary qualification of the deceased Mirza Naeem Baig as depicted by Exhs. 2/6 and 2/7, an average monthly earning of Rs. 4,000 can safely be expected to be earned by him. Thus, taking Rs. 4,000 as monthly income, the aggregate loss for 21 years comes to Rs.10,08,

000. In order to comprehend future chances of increment in earning with the progress in life in ensuing years, 20% of the aggregate income is added in the aggregate loss over all years for computing the gross loss of pecuniary benefits and as such with the addition of 20% i.e. Rs.2,01,600 in the aggregate loss, the gross loss of pecuniary benefits is assessed to be Rs.12,09,

600. The deduction for persona/ expenses of the deceased to the extent of 1/3rd of the gross loss of pecuniary benefits i.e. Rs.4,03,200 will bring the net loss of pecuniary benefit to the tune of Rs.8,06,

400. But since the amount claimed by the plaintiff is only Rs.800,000, the suit is, therefore, decreed in the sum of Rs.800,000 against the defendants Nos.2 and 3 jointly and severally alongwith cost and interest at the rate of 14 % per annum from the date of filing of suit till realisation. The decretal amount will be apportioned equally between the plaintiffs. H.B.T./M‑81/K Suit decreed.