1988 PLP 330 (MLD)

D.W. 2, is Raees Ahmed (Ex. 10). According to him, he was sitting in the Van with driver Roshan Ali and at the relevant time the Van was being driven at a speed of 40 to 45 K.M. per hour and the lights of the van were dim. According to Races, when the Van reached the centre of the North Nazimabad Bridge, the car driven by the deceased came from the opposite direction and all of a sudden struck the Van and then hit the foot‑path in front of the Van. He denied the suggestion that the Van was driven rashly and negligently. D. W. 3 is Saeedul Hassan, Foreman in Pakistan Steel Mills, who had been informed by Roshan and Races about the accident. Saeedul Hassan Roshan and Raees to hospital and then he went alone to the scene of accident and prepared the sketch (Ex. 11 /2). According to him when he had reached the scene of accident at about 1.30 a.m. only one policeman was there and the two vehicles involved in the accident were still there and the policeman had not prepared any sketch. According to this witness, Liaquat Ali Shaikh, Deputy Manager of Pakistan Steel Mills, reached the scene of accident after 2.30 a.m. and the sketch (Ex. 11/2) had already been prepared by Saeedul Hassan before the arrival of Liaquat Ali Shaikh, and thereafter the Police also prepared the sketch after 2.30 a.m. D.W. 4 is Muhammad Rasheed, another driver of Pakistan Steel Mills, who had taken. the break‑down truck. According to him he had reached the scene of the accident at about 2.45 or 3.00 a.m. and the police was at that time preparing the sketch. According to him, the Van was standing on its left‑hand side while the car of the deceased was on the wrong side. In his cross‑examination he stated that Liaquat Ali Shaikh was not there at the scene of the accident when the witness had gone to salvage the van. D.W. 6, Liaquat Ali Shaikh is the Deputy Manager of Pakistan Steel Mills. According to him, at about 2.00 a.m. he had received information about the accident. He immediately reached his office and after verifying this fact he went to the scene of the accident. According to him, Saeedul Hasan was already present at the scene of the accident and the police and Saeedul Hasan had prepared separate sketches of the scene of the accident and he had verified the sketch prepared by Saeedul Hasan. Ex. 14/1 is a copy of one sketch alleged to have been prepared by the police. According to him the police was still preparing the sketch when he reached the scene of the accident. He denied the suggestion that he had got the police sketch prepared in collusion with the police officer. The main issue is whether the accident had taken place on account of negligent driving of deceased Manzar Alain or due to negligent driving the defendant No.

2. From the evidence of the two brothers of the deceased, namely, .P. W. 2 Muhammad Zubair Alam and P.W. Shoib Alam, it follows that the Van was being driven by defendant No. 2 at a reckless speed with full lights on and by coming to the wrong side it dashed against the vehicle in which the deceased and the two witnesses were travelling. But evidence has also been led, as discussed earlier, on behalf of defendants Nos. 1 and 2 and the witnesses on behalf of the defendants have stated that defendant No. 2 was driving the van at a very low speed and the deceased was coming from the other direction and he suddenly came to their side and hit the van. However, there are certain material contradictions in the evidence adduced on behalf of defendant Nos. 1 and

2. One very important discrepancy in the evidence adduced on behalf of the defendant Nos. 1 and 2 is that according to defendant No. 2, Roshan Ali Qadri (Ex. 9), the accident had taken place not in the central part of the North Nazimabad Bridge but at a place on the side of New Karachi. The relevant part of the deposition of Roshan Ali Qadri is as follows:‑‑ "When that car came near the middle of the bridge my Wagon was being driven at the speed of 30‑35 Kilometres per hour and was in third gear. I was still on the ascending side of the bridge. The car of the deceased was descending from the bridge:" The two maps on which reliance has been placed on behalf of defendants Nos. 1 and 2 are Exh. 11/2 and Exh. 14/1. Exh. 11/2 was produced by Saeedul Hasan Khan, D. W. 3, Foreman in the Pakistan Steel Mills (Ex. 11). According to this witness, he had gone to the scene of the accident and prepared a sketch and the sketch was produced as Exh. 11/2. From the perusal of Exh. 11/2 it would appear that the accident had taken place on the beginning of the central portion of the North Nazimabad Bridge on the Nazimabad side. If this sketch is to be believed it would show that the accident had taken place at a time when the car of the deceased was still on the ascending side coming from Nazimabad and going towards North Karachi and the Van being driven by defendant No. 2 had more or less covered the central portion of the North Nazimabad Bridge. There is a direct contradiction, therefore, between the testimony given by defendant No. 2 and the sketch produced by Saeedul Hasan as Exh. 11 /2. Exhibit 14/1 is a sketch alleged to have been prepared by the police at the place of the accident after police had reached there. This sketch does not show as to who had prepared the sketch. It is also not clear as to who has signed the sketch. P. W. 6 Liaquat Ali Shaikh, Deputy Manager in Transport' Department of Pakistan Steel Mills produced this sketch. At the time it was produced_ an objection was taken on behalf of the plaintiffs that the sketch was not a certified copy and Exh. 14/1 was taken on record and exhibited subject to the objection. In my view, Exh. 14/1 was not admissible in evidence. Firstly, it should have been produced by a police officer who had prepared the sketch. Secondly, if the original was not available, a certified copy should have been produced. Thirdly, no explanation has been given as to how Exh. 14/1 came into possession of Pakistan Steel Mills. In the cross‑examination, P.W. 6 Liaquat Ali Shaikh (Ex. 14) stated as follows in this regard:‑‑ "The police was still preparing the sketch, the police had taken away the sketch which they had prepared. The police had not given that sketch to us but I had only seen it. I do not remember if Steel Mills had written any letter to supply this sketch. Our department must have asked for the sketch from the police otherwise it would not have been here today. I do not know if any forwarding letter was received with this sketch from police." In the circumstances, Exh. 14/1 was not an admissible document and is not being considered. Then according to Saeedul Hasan Khan (D. W. 3) he had reached the scene of offence at 1.30 or 2.00 a.m. and after preparing the sketch he returned and the police did not prepare any sketch at that time. He has also stated that the sketch was already prepared before the arrival of Liaquat Ali Shaikh after 2.30 a.m. and in the presence of Liaquat Ali Shaikh and Sacedul Hasan, after 2.30 a.m. the police also prepared the sketch. According to Liaquat Ali Shaikh, when he reached there the police were still preparing the sketch and Saeedul Hasan had either already prepared the sketch or was preparing the sketch. But according to D. W. 4, Muhammad Rasheed (Ex. 12) another driver in Pakistan Steel Mills who was on break‑down duty at the time of the accident, the police was preparing the sketch when he reached the scene of the accident at about 2.45 or 3.00 a.m. with his break‑down truck and in reply to a question in cross‑examination he stated that he knew Liaquat Ali Shaikh but he was not present at the scene of the incident when witness Muhammad Rasheed had gone to salvage the wagon. This contradiction between the witnesses of the Pakistan Steel Mills throws a doubt about the preparation of the sketches by Saeedul Hasan and the police and this in turn reacts against the version set up on behalf of the defendants Nos. 1 and 2 as regards the point on the bridge where the accident had taken place. There is another witness Jaffar (Ex. 13) who claimed to be an eye witness. According to him, he was following the Van of the Steel Mills at a distance of about 10 to 12 feet behind the van and after hearing the sound of the collusion, he got down from his car and saw that the car of the deceased coming from the Nazimabad side came in the wrong side and hit the van of Steel Mills. In his cross‑examination he stated that he had not seen the car which was coming from the opposite direction as he was behind the van. The evidence of this witness does not inspire confidence. According to evidence led on behalf of defendants Nos. 1 and 2, there was no traffic on the bridge at that late hour in the night and as according to this witness Jaffer, the accident had taken place on the middle part of the North Nazimabad bridge he could have failed to see the car of the deceased swerving from its left side and coming to the other side of the bridge hitting the van of Pakistan Steel Mills. It would show that either this witness was not there at the time the accident had taken place or in case he was in such close position, he must have seen the way the accident had taken place but wrongly stated that he had not seen the car coming from the opposite direction and has given evidence in favour of Pakistan Steel Mills to oblige them. He has further stated that police did not record his statement and the next morning the police noted his address and had taken his signature when he had gone to return the purse of the driver of the van which had fallen on the road. No reference has been made either by defendant No. 2, Roshan or his colleague Races Ahmed about the presence of witness Jaffer on the scene of the accident of the accident or that the purse of defendant No. 2 had fallen down and it was returned next day by witness Jaffer. In the circumstances no reliance can be placed on the evidence of Jaffer. The evidence adduced on behalf of the plaintiff on the question of negligence i.e. the evidence given by P.W. 2 Muhammad Zubair Alam and P.W. 3 Shoib Alain appears to be convincing and there is no cogent reason why the same should not be accepted. On the other hand discrepancies and contradictions in the evidence adduced on behalf of the defendants Nos. 1 and 2 lead me to the conclusion that the accident had not happened in the manner described by defendants' witnesses. On an assessment of the entire evidence adduced by the parties I am, therefore, of the view that the accident had taken place on account of rash and negligent driving of defendant No. 2 inasmuch as he came on the wrong side of the road with full lights on and caused the accident. It has not been established that the accident had been caused on account of any negligence on the part of deceased Manzar Alam. It has already been noticed that it is an admitted position that defendant No. 2 was driving the Van during the course of his duties as driver of Pakistan Steel Mills and as such defendant Nos. 1 and 2 are liable in damage to the plaintiffs. Issues Nos. 2, 3 and 4 are answered accordingly.

3. Issue No. 5 relates to the extent of damages to which the plaintiffs are entitled. The plaintiffs have claimed a decree for Rs. 6 lacs. The deceased died on 10‑5‑1985. The ages of plaintiffs Nos. 1, 2 and 3 are not disputed. The plaintiff No. 1, Shahnaz Ara, is the widow of deceased Manzar Alain. She gave her age as 29 years when she gave evidence on 16‑9‑1987. At the time of death of her husband, therefore, she would be about 27 years old. Plaintiff No. 2 Zeeshan was born in December, 1979 and plaintiff No. 3 Rehan Alam on 19‑3‑1982. Plaintiff No. 2 was, therefore, about 5 years of age and plaintiff No. 3 about 3 years old when their father died on account of injuries received in the accident. Plaintiff No. 4 is the mother of the deceased. Mother's age is given as 50 years in the plaint. However, in the evidence there is no mention about the age of the plaintiff No.

4. There was some controversy about the age of the deceased at the time of his death. Plaintiff No. 1 Shahnaz 1sAra (Ex. 5) in her evidence has given the age of her husband at the time of his death as 32 years. Mr. SA. Shamsi, learned counsel for the defendants Nos. 1 and 2 had submitted that the plaintiffs were not able to establish the age of the deceased at the time of his death. He had submitted that neither any extract from the Births and Deaths Register had been produced nor the National Identity Card of the deceased. No doubt National Identity Card of the deceased, had not been produced, but in this case there is the evidence of the widow of the deceased and the death certificate (Ex. 5/3) also giving the approximate age of the deceased at the time of his death as 32 years. The medical certificate (Ex. 5/4) gives the age of the deceased as 30‑35 years. Then the ages of the two children of the deceased 'are given as 5 and 3 years at the time of the death of the deceased. The age of plaintiff No. 1, Shahnaz Ara as 29 years when she gave evidence in 1987 has not been challenged. All this evidence support he statement. of plaintiff No. 1, the widow, in her deposition that the age of the deceased was 32 years at the time of his death in the accident and this is accepted by the Court. If he had not died in the unfortunate accident he would have been expected to live to an age of 60 years and this is what the plaintiff No. 1 has stated in her evidence. She has stated that her husband would have lived upto the age of 60 years, if he had not died in the accident. The deceased was, therefore, expected to live for another 28 years if he had not died in the accident. According to the plaintiff No. 1, the widown, the deceased used to earn Rs. 3,000 to Rs. 4,000 per month and used to give Rs. 1,500 to 1,600 per month to her for kitcher expenses and Rs. 250 per month for education of his two children and he used to give Rs. 100 per month to plaintiff No. 4, mother of the deceased. It had been argued by Mr. S.A. Shamsi, learned Counsel‑for defendants Nos. 1 and 2, that the statement of the widow of the deceased cannot, be relied upon as it is not supported by any documents. Learned counsel is correct in his submission that no document has been produced in evidence showing the actual monthly or yearly income of the deceased but it is established that deceased was running a medical store in Behar Colony, Karachi and Exh. 5/8 is a copy of the assessment order of Income‑tax Officer Circle W‑14 (West), Karachi. This copy had been produced during the Examination‑in‑Chief of P.W. 1, Shahnaz Ara widow of the deceased and no objection was raised about its admissibility. This document shows that the net income of the Medical Store for the assessment year 1984‑85 was Rs. 48,102 and the order also shows that there were four partners in this business with equal shares and deceased Manzar Alam owned 25% share in this Medical Store and his share of the net income came to Rs. 11,393 for the year. The widow's statement that he deceased used to earn Rs. 3,000 to Rs. 4,000 F per~month.is not supported by the assessment order produced by her as Exh. 5/8. From the assessment order on which reliance has been placed by the plaintiffs as it was produced by plaintiff No. 1 in her Examination‑in‑Chief, it follows that perhaps the net income of deceased from the Medical Store was about Rs. 1,000 per month. With a wife and two children, it can reasonably be expected that out of Rs. 1,000, his net income, the deceased would have been giving about Rs. 700 per month for maintenance of his wife and the two children. On the question of calculation of damages in fatal accident cases, Mr. Muhammad Anis, learned counsel for the plaintiffs had referred to the following reported judgments:‑‑ (a) Punjab Road Transport Board v. Abdul Wahid Usmani, P L D 1980 Lahore 584. (b) Muhammad Younus Khan v. K.R.T.C. 1984 C L C 2830. (c) Kudsia Kashwar v. Hakim & Co., 1985 C L C 2119. (d) Asma Ibrahim v. S.R.T.C., P L D 1982 Karachi,

236. Mr. SA. Shamsi, learned counsel for the defendants No. 1 and 2 relied upon the following judgments‑ for the proposition that. while calculating the damage in fatal accident cases, deceased's. own expenses are to be deducted from his salary in assessing damages awardable to the family:‑‑ (i) Ursulina v. Orient AirwWays P L D 1960 Karachi 712. (ii) Bashir Begum v. Muhammad Ali Premji P L D 1960 Karachi 785. (iii) Government of Pakistan v. Sakina Begum P L D 1962 Peshawar

70. As observed earlier, out of the income of Rs. 1000 per month, Rs. 300 had been deducted on account of personal expenses of the deceased and compensation is being awarded on the basis that on an average the deceased would have been paying Rs. 700 per month to the plaintiffs Nos. 1, 2 and 3 for their maintenance including the education of plaintiffs Nos. 2 and

3. The age of the deceased has been accepted as 32 years at the time of his death in the accident. The widow would have expected financial assistance for a period of 28 years i.e. upto the age of 60 years of the deceased if he had not died in the accident. The two sons would have reasonably expected financial assistance from their father for their maintenance including education upto the ages of 21 to 24 years. Calculated at the rate of Rs. 700 per month, the compensation adds upto Rs. 2,35,200 for a period of 28 years. On issue No. 5 my finding is that plaintiffs Nos. 1, 2 and 3 are entitled to Rs. 2,35,200 as compensation. No relief is being granted to plaintiff No. 4 as it has not been established that she suffered any financial loss on account of the death of the deceased.

4. Issues Nos. 6 and 7 are regarding the relief and decree. As observed earlier, plaintiffs Nos. 1, 2 and 3 are entitled to compensation of Rs. 2,35,

200. It may be pointed out here that Mr. Sibghatullah Qadri, learned counsel for defendant No. 3, the National Insurance Corporation, had admitted that the vehicle of Pakistan Steel Mills was comprehensively insured by defendant No. 3 and the liability of defendant No. 3 under the Insurance Policy was unlimited in as much as the involved van of Pakistan Steel Mills was insured by defendant No. 3 as a private vehicle. This suit is accordingly decreed in favour of plaintiffs Nos. 1, 2 and 3 as against the defendants, jointly and severally, in the sum of Rs. 2,35,200 with costs. In case the decretal amount is paid by the defendnats or deposited in Court by 31‑7‑1988, no interest will be payable on this amount. In case of non‑payment by that date, interest will also be payable on the decretal amount by the defendants at the rate of 14% per annum w.e.f.: 1‑8‑1988. The share of the three plaintiffs in the decretal amount are apportioned as follows:‑‑ Plaintiff No. 1, Mst. Shahnaz Ara Rs. 1,25,200 Plaintiff No. 2, Zeeshan Rs. 50,000 Plaintiff No. 3, Rehan. Alam Rs. 60,000 Total Rs. 2,35,300 In case the decretal amount or any part thereof is recovered from defendant No. 1 and/or 2, they will be entitled to recover the same from defendant No.

3. No decree is passed in favour of the plaintiff No. 4 and the suit in so far of plaintiff No. 4 is concerned is dismissed. AA./S‑235/K Suit decreed.