2000 PLP 1104 (MLD)

(vii) What other relief or reliefs the plaintiff and other dependant legal heirs are entitled to? (viii) Whether the plaintiff are entitled to the damages as claimed by them from the defendants jointly and severally. (ix) Whether the plaintiffs are entitled to cost and interest?

5. The plaintiff examined herself as Exh.4 and another witness who was driving the said Rickshaw, namely, Mirza Khan as Exh.5. Both the defendants were also examined as Exhs.6 and 7 respectively. I have head Mr. Nasir Maqsood, Advocate for the plaintiff. This matter is being fixed for arguments since 6‑2‑1991. Repeatedly Court Motion notices were issued to the defendants and their counsel but despite that they have not put up their representation: Now, this Court has not option but to proceed with the case. I have scrutinised the pleadings and evidence of the parties with the assistance of Mr. Nasir Maqsood. My finding on the above issues are as follows:‑‑

6. Since both ‑these issues touches the questions to the maintainability of the suit, I intend to dispose off them jointly. Defendants have not specifically pleaded as to show this suit is not legally maintainable in their joint written statement. One objection was raised that a necessary party who was a rickshaw driver who was involved in the accident was not impleaded and, therefore, the suit is bad. The other objection raised by the defendants is that the other legal heirs of the deceased were not impleaded. It will be seen that in para. 1 of the plaint it is claimed by the plaintiff who is wife of the deceased that she has filed the suit claiming monetary compensation on her behalf as well as for the benefit‑ of four other persons who are parents and children of the deceased. Section 1 of the Act, 1855 envisages filing of a suit by any of the legal representatives of a deceased died as a result of fatal accident by either himself as well as on behalf of other legal heirs or beneficiary who may be entitled to maintain such claim. I am fortified in any view by the case of Nazir Hussain Shah v. Pakistan Steel Mills 1989 MLD

514. The burden to proof that the suit is bad for non joinder of necessary and proper parties heavily lies on the defendants. In so far as non impleading e of rickshaw driver is concerned, the defendants were not able to show that how he was a necessary party. According to the plaintiff version the acts of rash 'and negligence are attributed to this defendant No.2 while defendants have not led any evidence on this point despite the fact that the said rickshaw driver was examined by the plaintiff as their witness (Exh.5). Moreover, the defendants have also failed to produce any witness to show that the rickshaw driver was driving the said rickshaw negligently. It was contended by Mr. Nasir Maqsood that in view of the principle of "composite negligence" the aggrieved person has a choice to proceed against any of the wrong doer in case where two or more vehicles are involved. Reliance was placed by Mr. Nadir Maqsood on the cases Anthra Marin Export (Pvt.) Ltd. v. Ladha Krishna AIR 1984 Mad. 358 and on the commentary from the book "Law Relating to Traffic Offence and Accident .Claim" (IInd Edition 1989, Law Publisher Limited, Allahabad, India. It is well‑established that in case of joint and several liabilities it is always open to a plaintiff to sue any person so liable without making other tort‑feasor a party to such suit. (See United India Fair and General Insurance Ltd. v. U.E. Parsad AIR 1985 Kant. 160 and Jyoti Parshad Dixit v. Smt. Bitan Davi AIR 1985 All.

32. In view of these legal position, I am of the considered view that the suit is not barred for non joining of necessary parties. Issues Nos.2, 4 and 5

7. I intend to deal with these issues jointly as question of negligence of two drivers in causing the accident in question is involved. It is not denied that due to the accident on 23rd December, 1987 deceased Aziz Muhammad died as a result of an accident between a rickshaw and a truck. It is a case of the defendant that the said deceased died due to rash and negligent acts of the rickshaw driver, namely Mirza Khan (P.W.2) while the case of the plaintiff are that decease died due to rash and negligent acts of the defendant No.2. In order to ascertain these issues, it is necessary to scrutinise the evidence brought on record in this case by both the parties.

8. In the plaint it is alleged that the defendant No.2, namely, Fateh Muhammad while driving truck No.LS‑9626, in a rash and negligent manner, crashed into the four seater Rickshaw No.2873 near the round about at Labour Square, S.I.T.E., which resulted in turning the rickshaw upside down/topsy‑turvy. This facts was supported by P.W.2 Mirza Khan, who was driving that rickshaw at the relevant time. It was stated by him that as a result of `the impact of the collusion of the truck with rickshaw the later turned turtle and deceased Aziz Muhammad who was riding in that rickshaw, suffered serious injuries. It was suggested during the cross‑examination that it was the rickshaw which hit the truck from the front side. Defendant No.2 who was the driver of truck was examined as Exh.6. He has denied the version of plaintiff about the accident and has stated that when the truck. ' reached the crossing of Tabani Garden, it was the rickshaw which dashed from the front side and hit the truck at the right side. It is to be noted that both the defendants have filed their joint. written statement. In para.3 of the said written statement it is claimed that the rikshaw which was being driven by deceased Aziz Muhammad dashed with the front window screen on the right side of the truck which resulted in turning up side down of the rikshaw. However, during the evidence it is alleged by the defendant No.2 that the said rikshaw dashed from the front side which is a conflicting version. The defendants were not able to shake evident of P.W.2 who has claimed that he was driving the said rikshaw at the time of the incident and is an eye‑witness of the incident. Nothing could be brought out from his lengthy cross‑examination in order to show that the evidence of P.W.2 does not inspire confidence. As against the second version of the accident produced by the other side, I am convinced by the plaintiff's story.

9. In the cases arising out of accidents falling within the scope of Fatal Accidents Act, 1855, it is settled principle that once a factum of accident is proved resulting in death, the burden of the plaintiff is discharged and presumption of negligence arises and the burden shifts upon the defendants to show that the accident was not caused due to rash and negligent act of the defendant. It is the doctrine of res ipsa loquiter which is attracted in the circumstances as the instant case. This principle was followed by .this Court in the case of Qazi Arifuddin and another v. Government of Sindh PLD 1991 Karachi 291 which was subsequently approved by a Full Bench of Supreme Court in the case of Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR

848. I am further fortified in my view by a decision of this Court in Mst. Sakina and 3 others v. Messrs. National Logistic Cell, and 2 others 1995 MLD 633. ‑

10. The above discussion leads me to hold that the accident which is subject matter of this suit was due to rash and negligence act of defendant No.2 who at the relevant time was driving the said truck and that driver of the rikshaw in no manner could be held responsible for any rash and negligent act, which resulted in death of Aziz Muhammad.

11. It is the admitted position that defendant No. l is the owners of the truck in question and that the same was being driven by the defendant No.2 as servant of the defendant No.

1. This fact was stated in para. 2 of the plaint E which was not denied in the joint written statement. Defendant No. l in his affidavit in evidence has admitted that he is the owner of the said truck. In para. 5 of his affidavit in evidence it has been further admitted that the defendant No.2 was driver of the said truck for last several years. In the aforesaid circumstances I am inclined to hold that both the defendants are jointly and severally liable to pay the monetary compensation/damages as a result of death of Aziz Muhammad due to wrongful and negligent acts of the defendant No.2. Issues Nos.7, 8 and 9

12. All these issues pertain to the entitlement of reliefs as claimed by the plaintiffs and the beneficiaries as mentioned in para. l of the plaint.

13. It is claimed by the plaintiff that the deceased was of 35 years of age and at that time he was earning Rs.8,

000. It is stated by P.W.1 Chand Feroz, widow of the deceased in her evidence that the deceased was working as Labour in 7.Up company and was giving her Rs.900 per month as salaries therefrom. It is further claimed by her that he was doing part time work in a tailoring shop and was earning Rs.1,000 to 1,500 per month as additional income. In cross‑examination, this portion of her evidence was not shaken. Therefore, I am inclined to hold that the deceased was earning Rs.3,500 per month. He died at the age 35 which was not disputed by the defendants. Therefore, he could have earned and maintained his family for 25 years. In the aforesaid circumstances, his income is estimated as follows:‑‑ (a) Annual income at the rate of3,500 per month. Rs.00,42,000.00 (b) Total income for expected life span of 25 years. Rs.10,50,000.00 (c) 20% increase on the aggregate income and other earnings Rs.02,10,000.00 . (d) Gross‑income for 25 years. Rs.12,60,000.00 (e) less 1/5th of gross income on account of expenses. Rs.02,52,000.00 (f) Net pecuniary loss for 25 years. Rs.10,08,000.00

14. In the aforesaid circumstances, suit is decreed for Rs.10,08,000 with costs. Q.M.H./M.A.K/C‑2/K Suit decreed.