P L D 1965 (W (PLP)

(3) Has the suit been framed under Fatal Accidents Act or for general damages under Torts? (4) Was the taxi car bearing No. KAP 4280 owned by the plaintiff, and if in the affirmative, is the Insurance Company not liable to pay for the alleged compensation/damages claimed in the suit? (5) Has the driver of Taxi Car No. KAP 4280, Khan Afzal been rash and negligent which resulted in proximate collusion of the vehicle with the Railway engine? (6) Have the defendants taken all the care and caution of a prudent man to avert the collusion? (7) Was the deceased, Awwal Khan, an asset to the plaintiff? (8) What is the nature and extent of loss and damages sustained by the plaintiff, if any? (9) Relief, if any?"

5. Issue No. 1.‑-It was the contention of Mirza Mukhtar Ahmad, the learned Advocate for the defendants, that the notice of suit in this case was bad because the claim contained in this notice was only on behalf of Malik Raza Khan, the father of the deceased Awwal Khan, whereas in the amended plaint the claim has been stated to be for the benefit of the mother, widow and the two minor children of Awwal Khan besides the father Malik Raza Khan. The argument was that these heirs of the deceased are in the position of plaintiffs and in so far as notice of suit was not on their behalf it was not a proper notice and, therefore, the whole suit should be dismissed in view of the provisions of section 80 of the Civil Procedure Code.

6. It may be mentioned that in the original plaint there was no reference to the Fatal Accidents Act, nor was the name of the other beneficiaries mentioned, nor was it stated that this suit was for their benefit as is required by the provisions of the Fatal Accidents Act. However, upon an application for amendment of the plaint having been made I passed an order on 31‑10‑60, as prayed for. The first amendment sought was to correct the description of the defendants from North‑Western Railway to Pakistan. The second amendment was to fulfil the requirement of section 3 of the Fatal Accidents Act. After this the plaint was accordingly amended, both as regards the title and also in the body of the plaint inasmuch as two paragraphs namely 12(a) and 12(b) were added. The names and descriptions of the beneficiaries were set out in para. 12 (b) and it was stated therein that the suit was filed by Malik Raza Khan in a representative capacity for the benefit of himself and the other beneficiaries mentioned therein. It must be noted that a suit under Fatal Accidents Act is not to be filed by describing all the beneficiaries as the plaintiffs. The plaintiff Malik Raza Khan is representing the beneficiaries mentioned in section 1 of the Fatal Accidents Act. The notice of suit by him would, therefore, be not only for his benefit but for the benefit of the other beneficiaries as well. A My finding, therefore, on issue No. 1 is that the notice was proper and effective.

7. Issue No. 2.‑The accident took place on 5th December 1957. The suit was instituted on 4th December 1958. It was, therefore, filed within one year. Article 36 of the Limitation Act' is applicable. It was, however, the contention of Mr. Mukhtar Ahmad for the defendants that the suit in the first instance was against the North‑Western Railway and the amendment which was allowed brought a new defendant, that is Pakistan, and this was long after the expiry of the period of one year as provided by Article

36. I do not agree. The original description of the defendant in the) plaint was merely a case of misdescription. When the amendment was allowed the description was corrected. It was not, therefore, a. case of adding a new party, to the suit. In substance it is the Railway administration against which the claim is made. In this case the notice of suit was served upon the General Manager as provided by section 140, of the Railways Act. The reply Exh. 10/4, to that claim was also by the General Manager. Mirza Mukhtar Ahmad, the learned Advocate for the defendants, has himself been given the Vakalatnama by the Divisional Superintendent, N.‑W. R. for General Manager, N: W. R.

9. The next contention of Mirza Mukhtar Ahmad was that in so far as the names of the other beneficiaries were brought in the plaint after the expiry of the period of one year from the date of the accident, the claim with regard to those beneficiaries must be held to be barred by time. The short answer to this contention is that the Fatal Accidents Act provides that only one action or suit can be brought in respect of the subject matter which gives rise to the cause of action. Such a suit would in term of section 1 of the Act be "for the benefit of the wife, husband, parents and children, if any, of the person whose death shall have been so caused and shall be brought in the name of the executor, administrator or representative of the person deceased." This is, therefore, a representative's suit and the mere fact that the names of the other beneficiaries were not mentioned in the body of the plaint, which addition was allowed by amendment, the nature of the suit still remained the same. This suit was brought within one year of the date of the cause of action and the giving of the particulars in the body of the plaint, did not render the suit as time‑barred. My finding, therefore, on issue No. 2 is that the suit is not barred by time.

9. Issue No. 3.‑This issue relates to the question whether the suit has been framed under the Fatal Accidents Act or for general damages under the Law of Torts. There is no doubt that if the plaint had not been amended and the additional paragraphs 12 (a) and 12 (b) had not been added, it would have appeared that the suit was under the general law of torts. However, after the amendment it must be held that the suit is under the Fatal Accidents Act. I answer the issue accordingly.

10. Issue No. 4.‑This issue relates to the issue of the owner ship of the car, in respect of which damages have been claimed to the extent of Rs. 16,000, In view of the fact that the plaintiff amended the plaint and brought the suit specifically under the Fatal Accidents Act, the claim for damages in respect of the injury to the car cannot be made in this suit. I might, however, observe that upon the evidence it cannot be held that the taxi car belonged to the plaintiff Malik Raza Khan. He himself stated in his evidence that this taxi was owned jointly by him and the driver Sher Afzal Khan. He admitted in cross‑examination that he had no document such as the insurance policy or the registration of the car so as to show that it either belonged to him exclusively or jointly with Sher Afzal Khan: He further admitted that the insurance policy was in the name of Sher Afzal Khan. When asked as to what happened to the registration book of the taxi car he answered that he had handed it over to the son of Sher Afzal Khan. I find it difficult to believe this statement. He was further questioned as to what happened to the car after the accident and he replied that he had merely asked Afzal Khan's son to take the damaged car in his possession. Upon this state of evidence I hold that it has not been proved that the taxi car bearing No. KAP 4280 was owned by the plaintiff. The further question involved in this issue with regard to the liability of the insurance company does not arise. In any case, it was a matter of admission that the insurance in this case was only with regard to third party. I answer this issue accordingly.

11. Issues No. S and 6.‑These issues relate to the question of rashness and negligence of the railway employees as well as the driver of the taxi car and may be dealt with together. It was the case of the defendants in the written statement in para. 3 that the level crossing upon which the accident took place was an unmanned level crossing the movement over which is controlled by the Railway Regulations. The indication as to these regulations is given by what is pleaded in that paragraph immediately thereafter. It is stated that the "driver of the railway engine concerned before entering the level crossing stopped the engine dead until a clear signal by the operating staff on board the engine was given as against the road traffic." This case was attempted to be proved at the trial through the oral evidence of the railway staff. The witnesses examined by the defendants in this connection are D. W. 1 Muhammad Khan who was posted at the West Wharf as shunting porter and according to him he went to the road and stood there on the instruction of the shunting Jamadar Alam Shah and from the point of the level crossing gave signal to the engine to cross the road. This, according to him, he had done after he had seen that the road was clear. The next witness is D. W. 4 Latif Hussain, a shunting porter who had accompanied the railway engine as a shunting porter on the day when the accident took place. He stated that according to practice which he described, the railway engine which was carrying oil tanks stopped at the PAF post which was only 15 to 20 paces away from the railway crossing, and then he along with Muhammad Khan, another shunting porter and the shunting Jamadar Alam Shah alighted from the engine and proceeded to the level crossing in question that he was on one side of the crossing and Muhammad Khan and Alam Shah on the other; that he gave a red light to any approaching traffic on the road and finding that there was none he gave a signal to his Jamadar Alam Shah and Muhammad Khan who were on the other side of the rail and the Jamadar gave the signal to the driver of the engine upon which the railway engine was started by the driver towards the level crossing and when it was about to cross it he saw a car approaching from Mauripur side being driven at a very fast speed of 60 to 70 miles an hour. It disregarded the red light signal which had been given by this witness and as it was passing the level crossing the rear portion of it came into contact with the railway engine and the car was thrown away to a distance of about 50 paces. The two men who died were lying in the kutcha portion of the track. The other occupants had also been thrown out. He added that his duty was towards the left side of the engine and it was from this direction that the car came; that there was no head light of the car when it approached the level crossing though the engine had head light; that the accident took place at about 6‑30 a.m. and the two men died on the spot. To the same effect is the evidence of D. W. 5 Sanaullah who was working as a fireman on the engine in question. The driver of the engine Wahiduddin, D. W. 6, also gave the same story as was given by the shunting porter Latif Hussain, D. W.

4. On the other side, there is the evidence of P. W. 1 Pir Muhammad who was one of the persons in the taxi car and who had been injured and had remained in the hospital for over a month. He stated that the level crossing is situated on the bend of a road; that there was no gate at the crossing that no employee of the railway was there; nor was there any lantern; that his taxi was going at 15 to 20 miles per hour; that they did not see the railway engine nor could hear any noise and that the direction from which the engine came there are quarters and it was not possible to see the approaching engine that the head light of the car in which he was travelling was on and as it was crossing the railway crossing the accident took place by the impact of the engine with the car.

12. I have carefully considered the evidence of the railway employees referred to above and I must say that I am unable to accept it. If the two shunting porters had walked up to the railway crossing and one of them had held the red light to warn the coming traffic from the Mauripur side as is alleged, I have no doubt that the driver of the taxi would have stopped the car. In fact, Mr. Muhammad Siddiq, Divisional Engineer (D. W. 3) within whose jurisdiction this unmanned crossing falls, had visited the site after the accident on the same day. He was the president of the inquiry committee constituted for inquiry into this accident. This committee submitted a report which was proved by this witness. It is Exh.

17. He stated in his evidence that he adhered to the findings of this report. He admitted that the position taken by the railway staff (who had given evidence in this case) that the shunting Jamadar had got down from the engine to satisfy himself that the railway line was clear of obstruction, was not accepted by the inquiry committee, where in it was found that this had not been done. It was further held by the committee that the shunting Jamadar and the yard foreman had not taken effective steps to protect railway crossing against road traffic as required under the working rules and that they had remained on the engine. This is the conclusion which I myself have reached upon the exami nation of the evidence in this case. Therefore, the position boils down to this that under the Railway Regulations or the Working Rules, the employees of the railway who were plying a vehicle which were inherently dangerous to the traffic at the railway crossing, did not take the required precaution and steps to ensure that the approaching traffic was given due warning or signal. This was imperative, because admittedly this railway crossing had neither a gate nor it was manned by any one. It is also a matter of admission that there are Government quarters by the railway track on the Mauripur side so that it would not be possible for the driver of the taxi to see the approaching engine when he was driving his car towards the railway crossing. It is true that if the driver of the taxi had been extra cautious he should have stopped the car when it came to the crossing and looked both towards the left and the right to make sure that no railway engine was approaching towards the crossing. But if this was not done it does not absolve the servants of the defendants from their obligation to take care which they were required under the rules and which, in any case, they would have to observe so as to claim that they had acted as prudent man in the situation in question. My finding, therefore, is that inasmuch as the servants of the defendants were initially negligent and had not taken due care and precaution, it is not open to the defendants then to urge that if the driver of the car had taken the necessary care the accident could have been avoided. A person who is initially negligent cannot fall back upon the contributory negligence of the other party so as to avoid liability arising from an accident, unless it can be held that it was the act of the other side which was the proximate cause of the accident. This is not the case here. I, therefore, hold that the servants of the defendants were guilty of negligence and had not taken the care and caution required of them both under the rules as well as under the general Law. I answer issue No. 6 accordingly.

13. As regards issue No. 5 I am of the opinion that even if the driver of the taxi car was not as cautious as he should have been or was even a little negligent, that does not affect the claim in suit. The proximate cause of the accident was the negligence of the servants of the defendants. I might add that even if the driver of the taxi car had himself been rash and negligent that would not completely absolve the railway of its liability to pay damages. That liability might in that case be only reduced. I answer issue No. 5 accordingly.

14. The next question is as to what compensation should be awarded in this case. A part from the claim of Rs. 50,000 for compensation with regard to the loss of the life of Awwal Khan there are two other heads of claim in the plaint. The first of these is the claim of Rs. 16,000 for damage to the car. This I have already rejected. The second claim is for Rs. 20,000 as compensation for mental worry of the plaintiff Malik Raza Khan. Such a claim does not lie in a suit under the Fatal Accidents Act and is not even otherwise tenable. I, therefore, reject this claim as well. That leaves us with the claim for compensation under the Fatal Accidents Act. The plaintiff's evidence on the question of the earning capacity of Awwal Khan is thoroughly unreliable if not mostly false. P. W. 2 Malik S. M. Gul stated that Malik Raza Khan had established a firearm factory at Durra (tribal area) and had given its management to his son Awwal Khan; that 200 to 250 men used to work in that factory and that it yielded an income of about Rs. 3,000 per month. P. W. 1 Pir Muhammad has also stated that Malik Raza Khan, the plaintiff had a big factory for manufacturing rifles and revolvers at Durra near Peshawar which was owned by him but which was run by his son Awwal Khan. The plaintiff Malik Raza Khan himself stated that he had given his factory to Awwal Khan who was running it and he was making Rs. 3,000 per month because he got Rs. 10 from every person who came to manufacture arm in that factory; that there used to be 300 workers in that factory and each one of them used to pay Rs. 10 per month to Awwal Khan, that is he got Rs. 3,000 per month. In cross‑examination he stated that the factory was his and he had put Awwal Khan incharge of that factory and that he allowed him to retain all the earnings of the factory. He was closely cross‑examined with regard to the existence of the factory and its dimensions and the evidence that he gave is such which cannot be accepted for the purpose of holding that either he owned such a factory or Awwal Khan received its income. Asked about his own sources of income he said that he had owned 5 or 6 taxis at Karachi. But he was not able to give any information whatever about them and when pressed hard he said that he had sold them all away. He admitted that at the time he gave evidence he was being prosecuted in three charas cases under the Excise Act and that he had been externed from Karachi. He also admitted that he had no document to prove the existence of the factory. I am, therefore, of the opinion that in the first place it has not been established that Malik Raza Khan had owned such a factory as he alleged and in the second place even if it was assumed that he had some sort of workshop there is no reason why he should have allowed the deceased Awwal Khan to appropriate its income while he himself had other sons and a wife. No other means or profession of Awwal Khan has been shown. But he was a young man of 26 years and would have been able to earn a livelihood. I would assess the compensation on the basis of an average income of Rs. 100 per month of Awwal Khan. He was, according to the evidence of Malik Raza Khan, aged 26 years at the time of the accident. Expecting him to live up to 60 years, his earnings at the average of Rs. 100 per month would amount to Rs. 34,

000. But he would not have spent the whole of his earnings on his parents, wife and children. He would have certainly spent a reasonable amount on himself In fact, there is evidence that he was given to pleasure seeking He along with his friends had spent the night at Hawkes Bay There were two women in the car when the accident took place one old and the other young. The name of the younger woman was Haseena. It was suggested that she was a prostitute and in my opinion this suggestion was well founded. I would, therefore hold that the average amount which the dependents of the deceased would have reasonably got from Awwal Khan would be about Rs. 60 per month. The test is as to what are the benefits which the claimants have lost by reason of the death of Awwal Khan and taking every thing into consideration I hold that they have lost a sum of Rs. 720 per annum. This sum over a period of 34 years (the difference between the age of Awwal Khan when he died and the age to which he may have lived and earned) would amount to Rs. 24,

480. To this sum the claimants are entitled. I answer issues 7 and 8 accordingly.

15. In view of my findings I grant a decree against the defendants for Rs. 24,480 with proportionate costs. The rest of the claim of the plaintiff is dismissed. Under section 1 of the Fatal Accidents Act I order that this amount shall be distributed equally between the plaintiff Malik Raza Khan, his wife (the mother of Awwal Khan) and the widow of Awwal Khan and the two minor children of Awwal Khan. K.B.A. Suit decreed.