2005 PLP 1804 (MLD)

On 19-5-1996 Mst. Hafiza Bibi on her behalf and in representative capacity of her 9 minor children being their mother and widow of deceased Ghulam Hussain filed the suit for recovery of Rs.70,99,000 under the provisions of Fatal Accidents Act. 1855 against the defendants.

2. Brief facts are that the defendants Nos. 1 and 2 are the co-owners of a long Vehicle bearing No.829296-830981 and the defendant No.3 was the driver on the said vehicle. The deceased Ghulam Hussain was driver of Truck bearing No.PQA-8849. On 20-5-1995 deceased Ghulam Hussain was driving the said truck and was corning from Ghaghar Phatak towards Quaidabad via National Highway, When the truck reached near Phase-II Gulshan-e-Hadeed Road it developed some mechanical fault. Therefore, the truck was stopped. At that time another deceased Muhammad Hassan (sic). Habibullah and Ghulam Sarwar owners of the truck pushed the truck off the main road and parked it at Kacha shoulder of the metalled road. The driver Ghulam Hussain and his colleague Muhammad Hassan opened the bonnet of the truck to check the engine. While they were engaged therein. In the meantime a long Vehicle 'bearing No.829296-830981 driven by the defendant No.3 came from Ghaghar Phatak side in a rash; negligent, reckless manner and dashed with the rear portion of the parked truck in high speed after leaving the main metalled road. On account of the impact of the collusion, the truck of the deceased pushed ahead, as a result the driver Ghulam Hussain and Muhammad Hassan who were checking the engine, fell down and came under the wheels of the truck and their skulls were crushed. Both the said persons died on the spot. The owner of the truck Ghulam Sarwar and Habibullah took the said persons to Jinnah Post Graduate Medical Centre (JPMC) where the Medical Officer pronounced them dead. The owner of the truck Ghulam Sarwar went to Steel Town Police Station where he lodged the F.I.R. which was registered as Crime No.49 of 1995 under section

320. P.P.C. The defendant No.3 was booked in the said offence. The police arrested the defendant No.3 but the investigation of the case was handed over to the Military Authorities as the truck belonged to National Logistic Cell (NLC). It is alleged that the incident took place due to rash negligent and reckless driving of the defendant No.3. Therefore, the defendants are jointly and severally liable to pay the compensation of the above-mentioned amount to the plaintiff.

3. The defendants were served. They filed written statement in which they admitted that the above-mentioned long vehicle was owned by them on which the defendant No.3 was driver. They also admitted the accident of the said long vehicle with the truck of the deceased. They took the plea that when the defendant No.3 brought the truck near the above-mentioned stationary truck, suddenly the defective and stationary truck started moving and due to faulty clutch it gave a jerk and the persons working on the defective Truck No. PQA-8849 fell down and struck with the rear right side of the NLC truck which was crossing the said truck. They further claimed that the accident did not take place due to negligence of the defendant No.3.

4. Out of the pleadings of the parties, following issues were framed. ISSUES:

1. Whether the death of the deceased Ghulam Hussain was caused by the negligent and rash driving by the defendant No.3, during the course of employment of the defendants Nos.1 and 2 while driving the Trailer bearing No.829296-830981 on 20-5-1995, if so, its effect'?

2. Whether the plaintiffs and other legal heirs are entitled to the compensation from the defendants jointly or severally, if so, to what extent?

5. In support of the case the plaintiff examined herself as Exh.P and produced her affidavit-in-evidence as Exh.-P/1. copy of F.I.R. of Crime No.49 of 1995 as Exh. P/2. Medical Certificate of cause of death of deceased Ghulam Hussain as Exh.P/3, Birth Certificates of the children and the deceased as Exh. P/5 to P/12, copy of Driving Licence of the deceased as Exh. P/13, statement of claim as Exh.P/14, copies of NICs of plaintiff and deceased as Exh.P/15 and P/16. The plaintiff examined the owner of the truck and eye-witness Ghulam Sarwar as Exh.P/2. He produced his affidavit-in-evidence as Exh.P/17 copy of NIC as Exh. P/18. Thereafter the plaintiff closed her side.

6. The defendants did not lead any evidence. They closed their side through their written statement.

7. My findings on the above issues are as under for the following reasons: FINDING ISSUE NO.1 In affirmative ISSUE NO.2 The suit is decreed for Rs.46,01,923.75 jointly and severally against the defendants. REASONS

8. Issue No.1 In order to _prove the issue the plaintiff examined Ghulam Sarwar, the owner of the truck and eye-witness of the incident. His evidence reveals that on 20-5-1995 be was sitting in his Truck bearing No. PQA-8849 along with Muhammad Hassan, Habibullah and Ghulam Hussain who was driving the truck. They were coming from Ghaghar Phatak and were going towards Quaidabad through National Highway. When they reached near Phase-II. Gulshah-e-Hadeed Road crossing, their truck developed some mechanical fault, therefore, it was stopped. Then they pushed the truck and parked it on the Kacha portion of the road on its extreme left side. He saw the driver Ghulam Hussain and his colleague Muhammad Hassan opened the bonnet of the truck to check its engine and while they were doing so in the meantime at 6-30 p.m. a long vehicle of NLC bearing No.829296-830981 driven by NLC driver Muhammad Sadiq, the defendant No.3 came from Ghaghar Phatak side in a very rash, negligent manner and recklessly dashed into the rear of the parked truck. The long vehicle was coming in excessive speed which came from the metalled road to Kacha side of the road and caused the accident. On account of the violent impact of collusion the truck was pushed ahead with the result that his driver Ghulam Hussain and Muhammad Hassan fell down from the bonnet of the truck. They came under the wheels of the truck. Their skulls were crushed. Their bodies received injuries and they both died on the spot because of the said injuries. Then both the bodies were taken to JPMC where the Medical Officer confirmed their death. Then he filed the F.I.R. bearing No.49 of 1995 under section

320. P.P.C. against the defendant No.3 for rash and negligent driving and causing fatal casualties. The police arrested the defendant No.3 but the prosecution was handed over to NLC for further proceedings. He further deposed that the deceased was getting Rs.300 per day along with meals and other refreshments. This witness was cross-examined by the defendants' advocate. In the cross-examination he confirmed the accident and further added that he had no personal interest in the case and that he was owner of the truck. The defendants did not challenge the evidence of this witness in the manner in which the accident took place. They also did not challenge his statement that the defendant No.3 was not driving the long vehicle rashly or negligently in a high speed. Thus on the above aspect, his statement went unchallenged.

9. The statement of Mst. Hafiza Bibi shows that she was wife of the deceased. They, had 9 minor children at the time of the accident and the deceased was earning Rs.300 per day as his salary. She also produced copy of NIC of the deceased issued on 1-6-1974, driving licence showing the year of birth as 1948, as such the deceased was 47 years of age at the time of the incident.

10. From the evidence of the plaintiff's witnesses it is clear that the above-mentioned vehicle was owned by the defendants 1 and 2 which was being driven by the defendant No.3 at the time of the accident. It has also been established that the defendant No.3 was driving the vehicle rashly negligently and in a very high speed with the result that accident took place in which deceased Ghulam Hussain and Muhammad Hassan lost their lives.

11. There is no evidence from the side of the defendants to rebut the evidence of the plaintiff. In the written statement the defendants took the plea that the stationary vehicle suddenly jerked. Therefore, the deceased fell down from the truck and hit with the NLC truck which was crossing the stationary truck at that time. The defendants did not put such defence to the eye-witness Ghulam Sarwar in the cross-examination. They also did not lead any evidence to prove such defence, as such, the defendants have failed to establish their case through any evidence, therefore, they arc liable to pay compensation to the legal heirs of the deceased Ghulam Hussain. The issue are replied in affirmative.

12. Issue No.

2. In view of my finding on issue No. 1 the defendants are jointly and severally liable to pay compensation to the plaintiff ands_ other legal heir of the deceased.

13. As regards the compensation, the deceased has left a widow and 9 minor children at the time of the incident. Therefore, they are entitled to receive the compensation.

14. As regards the income of the deceased, at the time of the incident he was drawing Rs.300 per day, as such, the monthly income of the deceased was Rs.9000. The deceased was 47 years of age at the time of the incident. The average span of life is taken as 70 years, therefore, he would have been in a funding positing for the next 23 years. In aggregate pecuniary benefits for 23 years would be Rs.2484000. During the periods there were chances of increment of income, therefore, over all 20% is awarded on account of chances of increment on the aggregate income for all the years, as such, the plaintiff is entitled for a further amount of Rs.496800. The deceased's personal expenditure would be taken at 1/6 of his total income which comes to Rs.496,

800. The widow is also entitled to compensation for loss of association and loneliness which is granted at Rs.100,

000. The children are also entitled to the damages at the rate of Rs.200,000 per child. Under Islamic Law if a person is died due to intentional, unintentional, unlawful, neglectful act, rash or negligent driving or by mistake, then the legal heirs of the victim are entitled to compensation which is known as Diyat aquivalent to the value of 30.630 grams of silver, which is fixed and declared by the Federal Government by Notification No.S.R.O. 647(I)/1994 dated 1-7-1994 at Rs.2,02,923.75 as Diyat (compensation) amount. Taking the benefit of such notification the legal heirs are also entitled to Rs.2,02,923.75 as compensation for the loss of life of the deceased. The plaintiff is also entitled to funeral expenses of Rs.15,

000. Thus the plaintiff is entitled to the following compensation:- (a) Loss of pecuniary benefits for 23 Rs.2484000 years at the rate of Rs.9000 per month: I (b) 20% because of chances of Rs.496800 increment of aggregate income over all the years: (c) Damages in favour of widow for loss Rs.100,000 of association and loneliness under the head of "consortium": (d) Damages in favour of children due Rs. 18,00,000 to death of their father for the loss of education, comfort and position in society which they would have enjoyed if their father had lived and maintained the income which had died with him at the rate of Rs.200,000 per child: (e) Compensation for loss of life of the Rs.202,923.75 deceased: (f) Funeral expenses: Rs.15,000 Total: Rs. 50,98,723.75 Deduction 1/6 on account of Rs.496,800 personal expenses of the deceased of the gross pecuniary benefits for the 23 years: Net compensation: Rs.46,01,923,75

15. Thus the suit of the plaintiff is decreed against the defendants jointly and severally in the sum of Rs.46,01,923.75 with profit/mark-up at the rate of 15% per annum from the date of judgment till the recovery J of amount with costs. The amount of compensation be distributed among the legal heirs of the deceased as per their shares according to Muhammadan Law. The decree shall be satisfied within a period of 30 days. S.A.K./H-55/K Suit decreed.