1995 PLP 633 (MLD)

The suit was initially filed against defendants Nos.l and 2 who filed their joint written statement. In the written statement the case of the Defendants is that on the said date when the trailer of Defendant No.1, being driven by defendant No.2, was going towards Karachi and reached about 13 kilometres short of Gharo, the car of the deceased came from the opposite direction at a high speed of 100 K.M. and when it reached near the Trailer, due to some mechanical defect the said car suddenly turned to the right and struck the right side bumper of the Trailer with the result that the Trailer went out of control and over ran the car and toppled down on the left side of the road. Thus the plea was taken that the accident had occurred due to over-speeding of the deceased. Subsequently, the defendant No.3 as also joined in the suit under the orders of the Court passed on 29‑1‑1990 but they did not defend the suit nor any written statement was fled on their behalf. On the above pleadings of the parties, the Court settled the following issues:‑‑‑ (1) Whether the suit is bad for non‑joinder of National Insurance Company? (2) Whether Muhammad Suleman had died on 12‑12‑1986 as a result of accident caused due to collusion with a trailer vehicle, which was being driven by defendant No.2 in a rash and negligent manner? (3) Whether the accident had taken place due to mechanical defect in the car of the deceased? (4) Whether the Plaintiffs are entitled to compensation. If so, how much? (5) What should the decree be? The Plaintiffs examined one Muhammad Essa, Plaintiff No.1 and Shoukat Memon through affidavits‑in‑evidence and produced certain documents. The witnesses were cross‑examined. The defendants examined only defendant N0.2 in Court. He was also cross‑examined. The learned counsel for the parties were directed to submit written arguments. However., only Defendant No.1 has submitted his note of arguments alongwith photostat copies of certain documents. I have gone through the pleadings of the parties and the evidence and my findings issue -wise are as under:‑‑‑ ISSUE NO.1: This issue has become redundant as the rational Insurance Corporation has been joined subsequently as defendant No.3 but they have not defended the suit. ISSUES NOS.2 and 3: These are connected issues and, therefore, I take up the same jointly. The fact that the accident did occur on 12‑12‑1986 is not denied. The question that is to be determined is as to whether the accident had taken place on account of rash negligent driving on the part of the defendant No.2 or it was the deceased who is liable for the same. On this point, the plaintiff has examined Muhammad Essa (P.W.1) who has stated that he is the eye‑witness of the accident and has supported the contents of the plaint. This witness has been cross‑examined but the defendants have not been able to shatter his evidence on the fact as to how the accident had occurred. It may be observed that in the written statement the case of the defendants is that the driver, the defendant No.2, had seen this car coming from Karachi side and when the car reached near his vehicle, the same became out of control due to some mechanical fault and collided with the right wheel of the Brouzer, with the result that Brouzer also became out of control and ran over the motor‑car of the deceased and toppled down on the road. The plaintiffs have produced copy of the F.I.R. recorded by the S.H.O. of Police, Station Gharo under section 279/304‑A/427, P.P.C. This F.I.R., shows that the S.H.O. when he was informed of the accident came to the site where he saw that the motor‑car was totally smashed and lying in buts and pieces at the place of accident while the Brouzer/Trailer was lying at the distance of three paces towards the south having been toppled side wards. This fact in the F.I.R. supports the contents of the written statement. However, the defendant No.2 who was examined in Court has given a different version in his evidence wherein he has stated that he had seen this car coming from a distance of 300/400 yards which was coming in a zig‑zag way with the speed of 100 kilometres per hour. This witness further states that seeing the car coming in such a manner, he took to the Katcha track of the road with the left side wheels on Katcha track and right side wheel of Pucca Road and stopped his vehicle/Oil Tanker at the Katcha track and then the car hit a rare wheel of the Brouzer and fell down in a ditch. This version of defendant No.2 is totally in conflict with the plea taken in written statement and the facts given in the F.I.R. Exh.P.W.l/5. Thus the only inference that, can be drawn from the evidence of this witness is that he has not given the true facts. In this case when the Defendant has given a different version of the manner in which the accident is said to have happened, than the burden would lie on the defendants to prove their version. Now the defendant has not proved his case as given in written statement but has taken a totally different stand. In these circumstances, the version of the Plaintiffs would be accepted as the true version. The other aspect is that admittedly the vehicle of the defendant No.2 was being driven at the speed of 30/35 metres; and that he had seen the car coming from a distance of 300/400 yards in zig‑zag manner then why he did not stop his vehicle on one side of the road as a pre cautionary measure but allowed the same to come and hit the Brouzer with the result that the Brouzer over ran the motor‑car and itself toppled to its side as stated in para. 2 of the written statement. It is also admitted by defendant No.2 in his evidence that the said Muhammad Suleman who was driving the motor‑car has died on the spot. In these circumstances, I answer the Issue No.2 in affirmative while Issue No.3 is answered in negative. ISSUE NO.4: In consequence of the findings on Issues Nos. 2 and 3 the plaintiffs would be entitled to compensation under Fatal Accident Act. The Plaintiff No.1 is a widow while the plaintiffs Nos.2 to 4 are the minors sons of the deceased. The Plaintiffs have led evidence through the plaintiff No.1 and P.W. Shoukat Ali Memon to the effect that the deceased was involved in business of fish. He used to take the fish in bulk from the local market of fisherman of Thatta and Gharo and used to supply the same to the Fisheries. The plaintiff No.1 in her evidence has further stated that the deceased used to give her Rs.6,000 every month for the household expenses. From this she has asserted that the monthly saving of the deceased was Rs.6,000 which amount he paid to her for household expenses. Impliedly this amount did not include the expenses incurred by the deceased on running of his business and maintenance of car and also other personal expenditure that he would have been incurring. The defendants have not been able to shatter this evidence of Plaintiff No.1 and Shoukat Ali Memon in cross‑examination. Accordingly, it is established that the deceased used to have a net saving of Rs.6,000 per month and the Plaintiffs who are dependent on him would be entitled to such compensation. The Defendants have not denied the age of deceased being 32 years at the time of his death. Accordingly, the deceased would have earned the amount claimed in the plaint for the remainder of 28 yearn of his age as according to the plaint it is said that his life expectancy would be about 60 years. Since the claim is up to the age of 60 years for the deceased, I would allow the compensation also for the said period. The plaintiff has adjusted 1/5th of the total earning of the plaintiff towards his personal expenditure and there is no evidence to the contrary. In these circumstances, I hold that the plaintiffs will be entitled to a sum of Rs.16,12,800 under section 1 of the Fatal Accident Act, 1855. The plaintiff has also claimed a sum of Rs.2,50,000 towards compensation for loss of Honda Civic car. The Plaintiffs have produced a Certificate from Iqbal Autos, Karachi as Exh. PE 1/4 wherein it has been certified that the said car is now a heep of scrap and a large number of its component parts are missing and is not in repairable condition. There is no evidence to the contrary brought by the Defendants. Accordingly, I conclude that the Plaintiffs would also be entitled to the said amount of Rs.2,50,000 under section 2 of the Fatal Accidents Act as the said car would be one of the assets to be inherited by the Plaintiffs. The issue is answered accordingly. ISSUE NO.5: The defendant No.1 has submitted a note of arguments alongwith photo stat copies of certain documents. In this note of arguments signed by the Advocate for Defendant No.1 it is said that the defendant No.2 has since left the service of the Defendant No.1 on his retirement in the year 1987 after having given an undertaking in writing that he would be responsible for the compensation that he may have to pay in consequence of the said accident. Alongwith this note of arguments such statement of defendant No.2 has been fled as Annexure A. Be that as it may, this contention of defendant No.1 is not acceptable at this stage as this has never been the case of the defendants nor the said statement of the defendant No.2 has been produced in evidence according to Qanun‑e‑Shahadat. It may also be observed that the evidence of defendant No.2 was recorded on 14‑1‑1993 but he did not disclose this fact in his evidence that he has retired from the service of the defendant No.1. It is an admitted position that the vehicle which was being driven by defendant No.2 is owned by defendant No.1 and at the time of accident the defendant No.2 was an employee of the defendant No.1. It is also admitted that at the time of accident the defendant No.2 was performing his duties as such employee of defendant No.1. Consequently the defendant No.1 is vicariously liable in the present case. In view of above discussion I decree the suit of the Plaintiffs against the defendants who shall be liable jointly and severally for the sum of Rs.18,62,

800. The Plaintiffs have not prayed for grant of interest in the suit. In these circumstances, I direct that they are entitled to mark‑up at 14% per annum from the date of decree till payment. Thus the suit stands decreed against the defendants for a sum of Rs.18,62,800 with mark‑up at 14% from the date of decree till the payment. However, there will be no order as to costs. AA./S‑1087/K Suit decreed.