2002 PLP 2653 (YLR)

2. Issue No.2‑‑‑‑‑‑‑‑‑Affirmative

3. Issues Nos.3,4,5 and 6‑‑‑‑as under:

8. The defendants in support of the issue neither in the written statement they raised any ground nor addressed‑ any arguments and therefore, the suit is held to be maintainable.

9. The defendants neither denied the fact of accident nor the death of the deceased. It is submitted that the vehicle of the defendant No.1 was driven by the defendant No.2 during the course of their employment. The defendants, however, denied the allegations of rashness and negligence on the part of the driver. Their case is that the accident took place due to the negligence of the deceased.

10. In support of this issue, the plaintiff examined himself and supported the version of rash and negligent driving by the defendant No.2 leading to the accident and death of the deceased. Police Constable P.W. Ghalib Hussain, an eye witness narrated that the duty hours on 2‑6‑1989 were from 0800 hours to 1200 hours and he saw that the vehicle of defendant No.1 driven rashly and negligently came from Quaidabad and at Murghi Khana Bus Stop dashed the pedestrian deceased and caused his death. This witness was cross- examined by the defendants but his evidence could not be shattered; rather the witness affirmed those allegations when he categorically asserted in the cross that the child was injured upon having been hit by the Suzuki Carry which was noticed being driven in a rash and negligent manner. S.H.O. Malik Abdul Haque, the Investigating Officer brought on record the F.I.R. recorded by him on behalf of the State, the inquest report, post‑mortem report, death certificate, memo of place of incident prepared on the pointation of Police Constable Ghalib Hussain and site sketch as Exh.5/1 to Exh.5/7. The defendants have not questioned the veracity and truthfulness of the contents of these documents. Neither the defendants have brought anything on record to rebut the contents of the documents except mere the oral assertion of the driver of the defendant No.2 who is, otherwise, an interested witness. The documentary evidence cannot be rebutted merely by oral assertions as held in case of Mirza Muhammad Qasim Baig v. Government of Sindh 2000 YLR 1669.

11. The evidence of the eye‑witness whose presence at the spot was not questioned and the documentary evidence produced by the Investigating Officer supported the case or the plaintiff. It is proved that the manner in which the accident had occurred and deceased died was due to the negligent driving of the an of the defendant No. 1 by the defendant No.2.

12. Needless to say that a person driving a motor vehicle on busy road must drive the vehicle with reasonable care strictly observing the traffic regulations and rules of the road so as not to imperil the safety of the persons specially the pedestrians and cyclists or others who have a equal right to use the highway. As between the motor vehicle and the pedestrian, the responsibility to use care and diligence is far more and greater on the vehicle driver to avoid the accident. He has a duty to keep better outlook than a pedestrian and obliged not to be speedy and should have sufficient time to stop the vehicle‑ to avoid the accident. If the defendant No.2 had acted as a prudent and careful driver he could have avoided the accident.

13. The jurisprudence of compensation for road accidents is a developing phenomena and now it can undoubtedly be held that the duty to use care increases proportionately with the danger involved in dealing with particular type of vehicle which for a man's own purpose, he brings the same on the roan and into the relations of proximity to other road users. If it is found that the negligent act or omission of a driver was the proximate and efficient cause of an accident, it will not be a valid defence to say that the person injured or died was also negligent unless it is shown that the person injured had made it extremely difficult for the other to avoid the accident.

14. Adverting to the plea of defendants regarding the movement of van at slow pace, it suffices to say that mere velocity of the vehicle is not the only criteria of rash and negligent driving. But it may well consist in taking, while driving risks which by the exercise of little diligence and care could have been avoided. Be that as it may, if this is the case of defendants, even then, the defendant No.2, who was going in a very slow speed as stated by him, had the last opportunity to avoid the accident. If someone is going in a vehicle in a slow speed and a pedestrian tries to cross the road, in the normal course of things, the driver, if he is not negligent, can avoid the accident by applying the brakes and stopping the vehicle immediately on account of the low speed. But in the instant case the very fact of knocking down of the deceased by van and the resultant impact of breaking of the wind screen and extensive bleeding and traumatic injuries to the plaintiff lead to no other presumption than that the driver was not in full control of the van. The burden to show the exercise of caution by the driver to avoid the accident lies on the defendants, more so in situations like the case in hand where the defendants admitted the accident and the death of the deceased on account of impact of collision. I had opportunity to hold this in one of the fatal accident case reported in 2000 YLR 1669, Mirza Qasim Baig v. Government of Sindh, which was held up by the Division Bench in H.C.A. No.67 of 2000 KW & SB v. Mirza Qasim Baig and the aforesaid proposition was affirmed therein that, "The learned Single Judge has held, and it may humbly say, very rightly, that once the factum of accident was established, the burden to prove absence of negligence was on the appellants which they failed to discharge."

15. In the instant case, the defendants have only examined their driver as D.W. whose evidence besides being contradictory, is not confidence‑inspiring and his uncorroborated statement being an interested witness cannot be given preference over the evidence of independent eye‑witness examined by the plaintiff. The driver's evidence is of do help to the defendant. In the affidavit‑in‑evidence he has stated that he was carrying the staff members of the defendant No. 1 to their destinations but in the cross‑examination he stated that he was alone in the vehicle and no staff was accompanying him. In cross he again says that Hussain Pervaiz was accompanying him who was still employee of the defendant No. 1 as Manager. It has also been stated in the cross that the vehicle stopped without applying the brakes after the accident but further says that he applied the emergency brakes. The defendants witness stated in his affidavit‑in- evidence that the vehicle was moving at slow speed and in cross‑examination he admitted that the front screen was broken due to accident and the injuries were inflicted on the face and head of the deceased which led to extensive bleeding.

16. The aspect of contributory negligence on the part of a minor pedestrian can be well‑addressed rightly by referring to the case of Amul Ramchandra Gandhi v. Abbasbhai Kasambhai Diwan (AIR 1979 Gujurat 14) wherein the Court after examining the various cases pertaining to the responsibility and contributory negligence or minors in such cases held in paragraph 11 at page 20 as under:‑‑ "

11. The principles which emerge on a review of the authorities may be thus summarized. A distinction must be necessarily drawn between children and adults when the question of contributory negligence arises for a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be unable to fend for himself or to be naturally ignorant of danger, or where in doing an act, which contributed to the accident, he was only following the instincts natural to his age and the circumstances, he is not guilty of contributory negligence. A child should be found guilty of contributory negligence only if it is established as a matter of fact on the evidence on record that he is of such an age and understanding as reasonably to be expected to take precautions for his own safety and the blame for the accident could be necessarily attached to him. In cases of road accident, it must be borne in mind that a child is not possessed of the road sense or the experience of elders. Even if it transpires that he was taught road discipline either at home or at school and that, therefore, if he had bestowed some thought, he would have realized that it was his duty to take reasonable care for his own safety, still a normal child would not be held culpable in view of his propensity to forget altogether what has‑been taught to him if something else is uppermost in his mind. A normal child is always momentarily forgetful of the perils of crossing and walking on a road, regretfully though, and under such circumstances, if he failed to notice even an oncoming vehicle and got hurt by it, he cannot be held guilty of contributory negligence. In such a case the question of the duty of the driver, of the vehicle must be examined with greatest precision and unless the driver is in a position to show on establishment of primary facts that he was driving the vehicle in such a manner that he could have brought it to standstill in case of emergency and that the accident was inevitable or unavoidable, the inference of his negligence and his alone must be raised almost as a matter of course."

17. The defendants failed to discharge the burden of negligence on their part and as such the only irresistible conclusion is that the death of deceased was on account of the negligence and default on the part of the defendant No.2.

18. Mr. Siddiqui, learned counsel argued that in para. 1 of the plaint the plaintiff has written that accident has taken place within the area of Thatta Police Station and as such the suit is not maintainable. Mr. Nasir Maqsood pointed out that in para. 3 and para. 3 of the plaint the accident had been shown to take place at National Highway and within the area of Quaidabad Police Station. Besides, the above, the evidence of the plaintiff's side establishes that the accident had taken place within the area of Quaid abad Police Station and no question was put to those witnesses to prove otherwise. Mentioning, of Thatta in para. 1 is not a substantial error to non‑suit the plaintiff and on that score the defendants cannot be cape the liability. The defendants have not raised this plea in their written statement and as such the same cannot be allowed to set up now.

19. Mr. Siddiqui had also contended that the accident has taken place due to negligence of traffic police present at the spot. Such defence cannot be entertained as the same was not set out either by the plaintiff or by the defendant and no issue was framed to that effect. This issue, therefore, is answered in affirmative.

20. The above issues are inter‑c so taken together. Mr. Maqsood has upon the case of Mairjuddin v. KW & SB (1998 MLD 1726), which was upheld up to the Honourable Supreme Court and so reported as KW & SB v. Mairajuddin (2000 SCMR 275). He pointed out that this verdict conclusively deal with the principles of evaluation of compensation in case of the death of minors ranging around the same age as that of the, deceased in question.

21. In the plaint as well as in the evidence it has been stated that the deceased at the time of his death was aged 12 years and was survived by father, mother and grandmother. The deceased was stated to be earning Rs.30 to 40 per day by working in a road side hotel owned by one Mehboob who also entered in the witness‑box and deposed accordingly. The minors of this age are not allowed to put to work/labour according to the universally accepted norms and so the contribution of the minor towards the income of the parents is not allowed. The earning/contribution of the persons can be considered after they have attained the age of 18 years. In view of the background of the deceased and earning capacity of the plaintiff and the parents, I only allow the average earning of the deceased at the rate of Rs.3,000 per month with effect from the age of 18 years, which is the minimum allowable wage of an unskilled labour in Pakistan, I taking the average life span at seventy years. Mr. Maqsood has submitted the following statement of claim in consonance with the principles laid down by the superior Courts:‑‑ (i) The deceased was aged 12 years and was expected to earn by the age or 18 years. (ii) At the age of 18 years he could have started earning a sum of Rupees. 3,000 per month, which is the minimum earning capacity of an unskilled 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 stated to be aged 31 years and father 36 years in the plaint vide Exhs. 433 and 4/4 being their identity cards. But while claiming the loss of pecuniary benefits, the age of mother i.e. 31 years being lesser would be considered and as such (70‑31) will be the years for determining the compensation (70‑31) = 39 years. (v) Since the deceased was aged 12 years and was expected to earn at the age of 18 years six years will be deducted from 39 years to find the period of expected support and loss of pecuniary benefits by the parents (39‑6) = 33 years. (vi) Thus. (33 x 12 x 3000) will give an amount of gross loss or pecuniary benefits: Rs 11,08,800. (vii) Increment at the rate of 20% per annum will also be added to comprehend the advancement in the life: (11,08,800/5) = 2,37,600. (viii) Gross loss of pecuniary benefits Total (vii + viii) (11,08,800 + 2,37,600) Rs.14,25,600. (ix) Deductions: LESS: (a) A sum of Rs 1/3rd deducted from the above amount on account of personas expenses. Rs.4,75,200. (b) A sum of Rs.6,000 per year i.e. Rs.500 per month for six years on account of up keep of the deceased till he starts earning will also be deducted (Rs.6000 x 6) = Rs.36,000. (c) Net loss of pecuniary benefits will be obtained by deducting both deduction or personal expenses and his up‑keep from the gross loss of pecuniary benefits shown at Serial No.viii so, it comes to : Rs.9,14,400.

22. Though the quantification of damages appear to be fair and just but since the plaintiff has confined his claim to the extent of Rs.8,50,000 only I am not inclined to grant the compensation beyond the amount claimed.

23. In these circumstances, the suit of the plaintiff is decreed with cost as prayed for against the defendants Nos. 1 and 2 jointly and severally with mark‑up at the rate of 7% per annum from the date of tiling of the suit till realisation. H.B.T./S‑221/K Suit decreed.