2002 PLP 1764 (MLD)

10. Additional issue:‑‑‑‑I propose to consider first the additional issue. The Province of Sindh was impleaded as defendant No.3 in this suit during the pendency of the suit on the application moved by the plaintiff under Order 1, Rule 10, C.P.C. read with section 151, C.P.C. (4367 of 1998) which was granted by the Court on 18‑5‑1998. The defendant No.3 after being impleaded was served with summons and did not file written statement and consequently was ordered by the Court to proceed ex parte on 21‑12‑1998. The D.W. Gul Muhammad Soomro admitted in his cross‑examination that the liability of this case has been taken from K.T.C. by the Government of Sindh by virtue of clause 4(K) of Exh.D‑1/2, the memorandum of agreement dated 13‑3‑1997 executed, between Government of Sindh and Karachi Transport Corporation.

11. In view of such admitted documentary/evidence and categorical admission by D.W. in the cross‑examination to this effect, the additional issue is answered in affirmative.

12. Issues Nos. l, 2, 3 and 4.‑‑‑Mr. Chaudhry Iqbal, learned A.A.‑G. did not dispute that the plaintiffs are the legal heirs of the deceased Nadeem who died in the traffic accident on 9‑3‑1990 by the Bus No.879‑402 belonging to defendant No.1 and driven by defendant No.2 at the relevant time and thus no arguments were addressed on these aspects. The above issues are, therefore, answered in affirmative.

13. Issues Nos. 5, 6 and 7.‑‑‑The above issues are interconnected and be dealt with and disposed of together. The aforesaid issues involved the determination of negligence and quantum of damages.

14. As regards the, issues of negligence, the plaintiffs have examined one eye‑witness namely Tanveer Masih, a brother of the deceased as P.W.2 who has supported the case of plaintiffs. The mother of deceased, Mst. Nasim wife of Yousuf Masih who is plaintiff No.2 also examined herself and supported the case made out in the plaint and also, inter alia, produced the copy of F.I.R. No.86 of 1990 under section 304‑A, P.P.C. lodged at Korangi Industrial Area Police Station and death certificate of deceased Nadeem as Exh.P‑1/2 and P‑1/3 respectively. These witnesses were cross‑examined by the defendants wherein their statements regarding the negligence of the defendant No.2 resulting into death of the e deceased Nadeem remained unshaken and uncontroverted. Besides, the documentary evidence in the shape of F.I.R. and death certificate were also not rebutted. The defendants also failed to bring any material evidence on record to disprove the case of the plaintiffs as spelled out from the plaint as well as evidence.

15. However, the learned A.A.‑G. Ch. Muhammad Iqbal apart from arguing that the accident in question has not occurred in the manner as alleged, had attempted to make out a case of contributory negligence by raising two‑fold contentions. Firstly, according to him, the parents of the deceased are also guilty of negligence who have shown carelessness in allowing the child of such tender age to move out and travel around without any elder; and; secondly, the deceased Nadeem also contributed to his accidental death as he neglected in trying to board the bus which was allegedly overcrowded. He further contended that though the deceased Nadeem Yousuf might have fallen from bus and had received injuries but his death did not occur, by coming under the wheels of the bus as alleged.

16. On the other hand, responding to these contentions, the learned counsel for the plaintiff Mr. Nasir Maqsood at the very outset pointed out that defendants cannot take' these lines of defence, as according to him, no such defence was taken by the defendants in their pleadings nor any evidence was brought on record to support these contentions. He also pointed out that defendants utterly failed to suggest their defence as set out above to either eye‑witnesses or to the plaintiff in their cross- examination. He, argued that the defendants when admitting factum of accident and its consequences now had disputed the manner in which the accident has taken place and made out a case which is contrary to the version advanced by the plaintiff, thus took upon themselves the burden to prove their version and in such case, if they failed to prove their version; the version given by the plaintiff would be accepted as true and reliable as held in‑the case of Mst. Sakina; v. NLC (1995 MLD 633).

17. Meeting, defence of, contributory negligence, Mr. Nasir Maqsood, asserted that the plea of contributory negligence raises a question of fact which should be proved by the party alleging the same and defendants should establish those facts plausible enough and necessary to prove such defence. He argued that the defendants have failed to discharge such burden, in that defendants neither examined their own employees the driver and conductor of bus nor any passenger who could have supported the version of the defendants particularly the negligence of the deceased. He contended that the defence plea based on factual aspects, even howsoever, plausible was of no significance and value without supporting and corroborative evidence and thus was not proved in circumstances.

18. I examined the statement of witnesses and contention of the parties and found that the presence of the eye‑witness Tanveer at the time and place of accident has not been challenged. It is also established that the deceased alongwith his two brothers were standing on the bus stop and waiting for the bus to board and bus in question came and stopped at the bus stop. It has also come on record that when the deceased put his step on the foot board of the bus, in the meantime the conductor directed the driver to go ahead resulting into falling down of the deceased from the foot board. It is also reflected from the deposition of the eye‑witness that on foot board there was little place for one or two passengers and the deceased tried to be careful in boarding the bus. It is also nowhere case of defendants that the deceased Nadeem attempted to catch hold of the handle of the bus while it was moving nor anything in this regard was suggested to the eye‑witness produced on behalf of the plaintiffs. Thus it is established that while the bus in question was in stationary condition at the bus stop, the deceased attempted to board on the said bus and while he was still managing to catch hold of iron handle and his one foot was on board and other was on road the conductor directed the driver to go ahead and the driver without carefully ensuring that the deceased and other passengers have safely boarded all of a sudden started the bus and accelerated the same so due to jerk the deceased fell down from the bus and was fatally crushed under the wheel thereof.

19. Learned counsel for the defendant urged contributory negligence that the parents were careless in allowing a minor of 11 years to move out and travel alone in the absence of any elder. This plea is not acceptable in view of judgment in case, of Muhammad Moosa v. KW&SB (1997 CLC 925). This judgment was upheld by the Division Bench in case of KW&SB v. Moosa (2001 CLC 221). The petition for leave to appeal in case of KW&SB Moosa (C.P. NQ.1643 of 2000) was also dismissed by the Hon'ble Supreme Court. There is no reason to take a different view in this case. Even where an adult was exposed to such risk as emerged in the instant case from the negligent operation of the bus in question by the defendant No.2, the consequences would have not been different and the difference of ages of then intending passengers would not have mattered at all in view of the evidence on record. The, fact that daily thousands of children move out and travel on public transport for going to their educational institutions or to their working places cannot be overlooked. If such plea taken by the defendant is found to be tenable, it will tantamount to absolve the persons otherwise under obligations and common law duty to be vigilant from demonstrating conscious care, caution and sense of duty towards those children.

20. In addition it is found from the evidence that the deceased was I not at all wrong in boarding the bus the manner he did. In the instant case there is no counter‑version to the statement, of the eye‑witnesses that conductor directed the driver to go ahead without waiting till the deceased moved himself from the foot board into the bus.

21. In the light of the evidence, the only conclusion could be drawn is that the death of Nadeem was caused due to the rash and negligent act of the defendant No.

2. There is not the slightest evidence, which could establish that the accident was caused due to negligence on the part of the deceased Nadeem. The defendants are therefore, jointly and severally liable for damages and pecuniary loss caused to the plaintiffs as beneficiaries under the Fatal Accidents Act, 1855.

22. For the assessment of pecuniary losses caused to the plaintiff arising out of the death of the deceased Nadeem, Mr. Nasir Maqsood, counsel for the plaintiffs has drawn the attention to the case of KW&SB v. Mairajuddin (2000 SCMR. 275). In the plaint as well as in the evidence it has been stated that the deceased Nadeem at the time of his death was working in Kanch Factory in mills area as labour and earning a sum of Rs.30 per day but the plaintiffs failed to show that name of the factory and did not bring anything on record to support the version regarding his earning. It is noted that even otherwise under the law of the land a child cannot be made to work as a labourer. Thus, the consideration of such earning in assessment of compensation cannot be H allowed. I will only consider him capable of earning by the age of adulthood i.e. 18 years and would be holding him to earn an average at least minimum allowable wages of an unskilled labour i.e Rs.3,000 per month. The sum of Rs.500 per month is deducted for his upkeep and maintenance till the time he becomes adult and was expected to earn. Holding the average life span at seventy years, the plaintiffs are entitled to Rs.7,64,400 as narrated by learned counsel for the plaintiff in the statement, which is in consonance of the law laid down by the Courts earlier in the similar cases. The statement of claim prepared by Mr. Nasir Maqsood is reproduced as under:‑‑ Quantum of damages: (i) The deceased was aged 11 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 a skilled worker in Pakistan and can be considered for the purpose of assessment of damages. (iii) Annual income per year comes to (Rs.3000 x 12) at the age of 18 years. Rs.36,000. (iv) Since the mother was aged 35 years, while claiming the loss of pecuniary benefits, her age being lesser would be considered and as such (70‑‑35) will be the years for determining the compensation (70‑‑35) = 35 years. (v) Since the deceased was aged 11 years and was expected to earn at the age of 18 years, 7 years will be deducted from 35 years to find the period of assessment of damages (35‑‑7) = 28 years. (vi) Thus (28 x 3000 x 12) will give an amount of gross loss of w pecuniary benefits: Rs.10,08,000. (vii) Increment at the rate of 20% per annum will also be added to comprehend the advancement in the life: [10,08,000 : 5] Rs.201,600 ' (viii)Gross loss of pecuniary benefits Total (vii + viii) Rs.1209,600 (ix) DEDUCTIONS: (a) A sum of Rs.l/3rd will be deducted from the above amount on account of personal expenses: Rs.4,03,200. (b) A sum of Rs.6,000 per year i.e. Rs.500 per month for 7 years on account of upkeep of the deceased till he starts earning will also be deducted (Rs.6000 x 15) = Rs.42,000. (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 [403,200 + 42,000] = (Rs.4,45,200) minus Rs.12,09,600 = Rs.7,64,400.

23. Thus the suit of the plaintiff is decreed against the defendants jointly and severally for a sum of Rs.7,64,400 alongwith mark‑up at the rate of 6%r per annum from the date of the filing of the suit till realization.

24. Since the defendant No.3 is the Provincial Government, six months' time is allowed under section 82, C.P.C. for satisfaction of the decree. H.B.T./Y‑26/K Order accordingly.