2003 PLP 3099 (YLR)

The plaintiff filed affidavit‑in -evidence and stated that deceased Muhammad Imran died in an accident on 8‑3‑1991 on footpath of Tin Hatti Bridge due to rash and negligent driving by the driver of the minibus route No. W‑11, bearing Registration No.864- 650 and bus plying on route No.5‑C, bearing Registration No.JA‑1149, being driven by defendants Nos. 2 and 4 and owned by defendants Nos. 1 and 3 respectively. The witness further stated that these buses were racing in high speed and were trying to get lead and overtake each other and in doing so they collided near Tin Hatti Bridge and minibus ran up on the footpath and hit pedestrians including the son of the plaintiff and rubbed them against the iron railing of Tin Hatti Bridge for some distance, as a result of which all of them died instantaneously. The witness was cross‑examined the learned Advocate for defendants Nos. 3 and 4, plaintiff denied the suggestion of the Advocate of the defendants that the defendant is not the owner of Bus No.JA‑1149 and that the plaintiffs filed suit falsely and maliciously against defendants Nos.3 and 4 who were not involved in the alleged accident. The defendants did not contradict the allegation of the plaintiffs witness that the incident did not take place due to rash and negligent driving of the two buses and during such rash and negligent driving the two buses were collided causing the minibus to overrun the footpath and hit the deceased alongwith other pedestrians. On behalf of the plaintiffs, one Abdul Rehman also appeared as a witness and stated that on 8‑3‑1991 he alongwith his mother Abida Khatoon and wife Shagufta Begum boarded bus of Route No.5‑C, bearing Registration No.JA‑1149. He stated that the driver of the said bus and minibus of Route No. W‑11, bearing Registration No.864‑650 were being driven rashly and negligently at a high speed by them and they were trying to overtake each other. The said witness stated that near Tin Hatti Bridge the said two buses were collided with each other and the minibus overran the footpath and all the pedestrians on footpath were crushed to death, including the mother of the witness. He produced his statement recorded by the police as Exh.8/2. From the said statement before the police witness categorically stated that both the buses were collided resulting the minibus overran the footpath. Due to the accident, the third Bus NOJA‑1316 also overran the passengers, who were coming out of bus of Route No.5‑C bearing Registration No.JA‑1149. The said witness was not cross examined by the learned counsel for the defendants. The defendant No.3 filed his affidavit‑in‑evidence and did not deny that the Minibus No.864‑650 and his Bus No.JA 1149 collided and the minibus overran the footpath causing death of deceased and others. In the affidavit‑in‑evidence, the said defendant only stated that the son of the plaintiff was hit by the driver of the minibus while he was walking at Tin Hatti Bridge and that the defendant No.3 has no concern with the minibus. The defendants Nos. 1, 2 and 4 have not led any evidence and as such this issue is answered in affirmative. These issues are taken together as they are inter‑connected. The defendants Nos. 3 and 4 denied their liability on the ground that it was the Minibus No.846‑650 which overran the deceased and not the bus owned by the defendant No. 3 and as such the plaintiff is not entitled for any compensation from the defendant No.3. On the other hand, the plaintiffs and their witness categorically stated that two buses were running together rashly and negligently and collided near Tin Haiti Bridge and due to their collision the minibus overran the footpath resulting in the death of the deceased. When negligence of two or more persons results in some damage, the same is said to be "composite negligence" and the persons responsible for causing such negligence are known as "composite tort leasors". The liability of the composite tort feasors is jointly and severally. In the case of Andhra Marine Exports (P) Ltd. v. P. Radhakrishan and others AIR 1984 Mad. 358, the Madras High Court held as under:‑‑ "When the accident occurs and the resultant injuries and damages flow without any negligence on the part of the claimant, but as a result of the negligence on the part of two or more persons, it is a case normally styled in legal parlance as 'Composite Negligence'. The principles of 'Composite negligence' are that the person wronged has a choice of proceeding against all or anyone or more than one of the wrong doers. Every wrong doer is liable for the whole damage if it is otherwise made out. " It is useful to reproduce passage from the book "Seth's Law Relating to Traffic Offences and Accidents Claim" Second Edition, which reads as under:‑‑ "When the accident occurs and the resultant injuries and damages flow, without any negligence on the part of the claimant, but as a result of the negligence on the part of two or more persons, it is a case normally styled in legal parlance as "Composite Negligence" and in the language of Pollock on Tort on 15th Edition: Whether negligent acts of two or more independent persons have between them caused to a third, the sufferer is not driven to apply any such analysis to find out whom he can sue. He is entitled, of course, within the limits set out by the general rules as to remoteness of damages to sue all or anyone of the negligent persons. It, is no concern of his whether there is any duty of contribution or indemnity as between these persons though in, any case he cannot recover the whole more than this whole damage. The principles of composite negligence are where more than one person are responsible in the commission of the wrong, than the person wronged has a choice of proceeding against all or anyone or more than one of the wrong doers. Every wrong‑doer is liable for the whole damage if it is otherwise made out and it does not lie in the mouth of one wrong doer to say 'Though I am also responsible, yet, the other man was also equally responsible for the wrong' and on this basis he cannot avoid the liability on to the person wronged." For the foregoing reasons and keeping in view the doctrine of res ipsa loquitur and principle laid down by the Honourable Supreme Court in the case of Pakistan Steel Mills Corpn. v. Malik Abdul Habib 1993 SCMR 848, whereby the Honourable Supreme Court approved the explanation of said maxim in the case of Qazi Arifuddin and another v. Government of and others PLD 1991 Karachi 291, in my humble opinion the defendants Nos. to 4 are jointly and severally liable. The plaintiffs Nos. 3 to 7 are not entitled to any relief for compensation as suit for compensation can be filed only for the benefit of the wife, husband, father, mother and child, which includes son and grandson granddaughter and step‑daughter, whereas plaintiffs Nos.3 to 7 are brothers and sisters of the deceased. The plaintiffs Nos. 1 and 2 are entitled for the compensation and I calculated the damages of compensation as under: ‑‑ (i) The deceased was aged 12 years and was expected to earn by the age of 18 years. (ii) At the age of 18 years he could have started earning a sum of Rs.3,000 per month, which is the minimum earning capacity of an unskilled worker in Pakistan and can be considered for the purpose of assessment of damages even in absence of proof/evidence regarding earning capacity of the deceased. (iii) Annual income per year comes to Rs.3,000 x 12 at the age of 18 years = Rs.36,000. (iv) Since the mother was stated to be aged 38 years and father was aged 46 years as transpired from the record of the case and the evidence. But while claiming the loss of pecuniary benefits, the age of mother i.e. 38 years being lesser would be considered and as such (70‑‑38) will be the years for determining the compensa tion. 70‑‑38 = 32 years. (v) Since the deceased was aged 12 years and was expected to earn at the age of 18 years, six years will be deducted, from 32 years to find the period of expected support and loss of pecuniary benefits by the parents, 32‑‑6=26 years. (vi) Thus 26x12x3000 will give an amount of gross loss of pecuniary benefits; Rs.9,36,000. (vii) Increment at the rate of 20% per annum will also be added to comprehend the advancement in the lift: [936,000‑‑55=Rs.187,200 (sic). (viii) Gross loss of pecuniary benefits total (vi+vii) [936,000+187,200]= 1,123,200. (ix) Deduction: Less: (a) A sum of 1/3rd will be deducted from the above amount on account of personal expenses as the same is being deducted when the deceased is unmarried. (b) A sum of Rs.6,000 per year i.e. Rs.500 per month for six years on account of upkeep of the deceased till he starts earning will also be deducted. (Rs.6,000 x 6) = Rs.36,000. (x) Net loss of pecuniary benefits will be obtained by deducting both deduction of personal expenses and his upkeep from the gross loss of pecuniary benefits shown at Serial No.viii. So, it comes to [Rs.1,123,200 -(374,400+36,000] = Rs.712,

800. The suit is, therefore, decreed in the sum of Rs.712,800 against the defendants jointly and severally with mark‑up at the rate of 1001, from the date of decree till realization. M.B.A./S‑316/K Suit decreed.