2009 PLP 12 (CLC)

KHILJI ARIF HUSSAIN, J.

By this appeal appellants impugned judgment and decree, dated 14-5-2002 passed in Suit No.1037/1991 decreeing the suit in a sum of Rs.14,28,000 against the appellant jointly and severally along with mark up at the rate of 14 per cent per annum from the date of filing the suit till payment. Brief facts for the purpose of deciding listed appeal are that one Malik Saeed Ameer Awan died in traffic on 13-5-1997 leaving behind respondents Nos.1 to 5 who were minors sons and daughters as his legal heirs besides others who are major and whose names are mentioned in paragraph 1 of memo. of plaint. It was the case of the respondent that Bus No.JA-5106 owned by appellant No.1 and while being driven by appellant No.2 in a rash and negligent manner on Shahrah-e-Faisal lost the control of bus it dashed against more than a dozen vehicles waiting for signal and dashed against motorcycle of traffic police on road-side and crushed the motorcyclist Malik Saeed Ameer Awan. At the time of accident deceased was aged about 39 years and was earning Rs.2,408 per month as Incharge Traffic Section. Appellant No.1 filed written statement whereas defendant No.2 was declared ex parte. In the written statement the appellant No.1 alleged that the suit is time-barred while denying his liability. On the basis of the pleadings between the 'parties four issues were framed and following two additional issues were framed:

(1) Whether the death of deceased Saeed Ameer Awan was caused on 13-5-1991 due to rash and negligent driving of defendant No.2, while driving the Bus No.JA-5106 on Shahrah-e-Faisal, during the course of employment of the defendant No.1? If so, what is its effect? (2) Whether the defendants are liable to pay the compensation/damages to compensate the plaintiffs and other legal heirs, if so, to what extent? (3) Whether the plaintiffs are entitled to cost and interest as claimed? (4) What other relief or reliefs? Respondent examined three witnesses and closed his side whereas appellant No.1 examined one Gull Muhammad Comoro. After hearing the parties learned Single Judge decreed the suit for Rs.14,28,

000. Heard Mr. Adnan Karim, learned Assistant Advocate-General for the appellants and Mr. Nasir Maqsood for respondents. Mr. Adnan Karim called in question impugned judgment on following four grounds:

(1) That assets and liabilities of the appellant No.1 was taken over by the appellant No.3 in the year 1997 whereas accident took place sometime in the year 1988, therefore, appellant No.3 is not liable for any illegal act of appellant No.1 and his employee. (2) There is no evidence that the accident was caused due to rash and negligent driving of bus by appellant No.2. (3) That there is no evidence about the income of the deceased. We have taken into consideration respective arguments advanced by the learned Advocates for the parties and perused the record. As regards the contention of the learned Advocate for appellant No.3, the appellant No.3 had taken over the assets and liabilities of appellant No.1 in the year 1997 whereas accident took place sometime in the year 1998 as such appellant No.3 is not liable for the act done by the employee of appellant No.1. We have gone through the memo. of appeal as well as documents on record but neither any document to this effect has been produced with the memo. of appeal nor through witness. The respondent filed suit against appellant No.1 much before the assets and liabilities were taken over by the appellant No.3. The learned Advocate for the appellants failed to point out any clause in the agreement dated 13-3-1997 or any other agreement that while taking over the assets of appellant No.1 by appellant No.3, appellant No.3 has not taken over any liability and or that appellant No.3 is not answerable for the liability of appellant No.1, prior to date of taking of all assets of the appellant for disinvestments. In the absence of such plea in written statement, and document on record, appellant No.3 now cannot avoid liability of appellant No.1. As regards contention of Mr. Adnan Karim learned A.A.-G. that there was no evidence that the accident was caused due to rash and negligent driving of bus by appellant No.2, the respondent examined Nazar Ahmed an eye-witness, A.S.-I. Abdul Latif of Saddar Police Station supported the case of respondent. The appellant plea of failure of brake by learned Judge for want of evidence in support of it. Admittedly deceased died due to accident of bus owned by the appellants. In the case of Punjab Road Transport Corporation v. Zahida Afzal and others 2004 SCMR 207, the Honourable Supreme Court held that "it is settled proposition of law that it is the duty of the plaintiff to prove the factum of accident. Thereafter the burden is shifted upon the defendants to prove that the accident occurred not due to his or their negligence. As regards the contention of Mr. Adnan Karim learned A.A.-G. for appellant that benefit of sections 6 and 7 of Limitation Act cannot be extended to major legal heirs of the deceased the suit was filed by minor legal heirs under Fatal Accidents Act, 1855 the law is now well-settled. Similar question was dealt with by this Court in the case of Iftikhar Hussain v. Karachi Electric Supply Corporation PLD 1957 Kar. 552, in the case of Bakhtawar Sheikh v. Karachi Transport Corporation 2004 MLD 528 and Karachi Electric Supply Corporation v. Aisha Kanwal and others 2006 MLD 697 and learned Advocate could not have persuaded us to take a view different than the view taken by the Court in the cases referred hereinabove. As regards the last contention of the learned Advocate for the appellant that there is no evidence about the income of the deceased. Respondent examined one Nazar Ahmed and A.S.-I. Abdul, Latif of Saddar Police Station who stated that deceased was earning Rs.2,408 per month as Incharge Traffic Section. The appellant failed to point out any evidence on record contrary to findings recorded by the learned single Judge about the average income of the deceased to call for any interference. For the foregoing reasons, the appeal has no merits and is accordingly dismissed. H.B.T./K-32/K Appeal dismissed.