2004 PLP 518 (MLD)

(1) Whether the defendant No.3 has taken over the liabilities of defendant No. 1 and is liable to pay the compensation to the plaintiff and other statutory beneficiaries by virtue of clause 4(k) of the Memorandum of the Agreement dated 13‑3‑1997 entered into, inter alia, between defendant No. 1 and defendant No.3, if so, to what extent?

4. In support of case the plaintiff No. 1 filed her affidavit in evidence and also examined Muhammad Younis an eye‑witness of the incident, also through his affidavit in evidence. The plaintiff also examined Abdul Qayum, who was posted as an A.S.‑I. at Police Station Ferozeabad on the fateful day. The witnesses were cross‑examined by the counsel for defendant No.

1. In her affidavit in evidence the plaintiff No. 1, reiterated and reaffirmed the contents of the plaint and further stated that since the defendant No.3 has taken over the liabilities of the defendant No. 1 including those arising out of the, cases pending in the Court such as the instant suit the defendant No.3 is liable to pay the amount as claimed by the plaintiff in the suit, by virtue of agreement dated 31‑3‑1997. The plaintiff No. 1 during her evidence produced the National Identity Cards, of the deceased, herself and the plaintiff No.2. She also produced a copy of the appointment letter/office order dated 4‑6‑1990 which shows that the deceased was employed with the, Services Courier' on a monthly salary of Rs. 2050. She also produced the medical certificate of the cause of death of the deceased which shows that the deceased died on 19‑2‑1991, due to head injury. She also produced photostat of clippings of daily newspaper `Dawn' `Amn' both dated 20‑2‑1991, and `Star' dated 21‑2‑1991 which carried the news of the death of the deceased caused by the defendant No. 1's aforesaid bus at the place mentioned in the plaint. The two photographs of the said bus and a motorcycle were also were produced by her. During her cross- examination the plaintiff No. 1 has stated that the deceased was drawing a salary of Rs.1500 to Rs.1600 each month.

5. PW Muhammad Younis who was an eye‑witness of the incident, in his affidavit in evidence, corroborated the details of the accident as mentioned in the plaint. The witness deposed that on 18‑2‑1991 at about 1915 hours, he was standing at the bus‑stop near the Double Patrol Pump, Tipu Sultan Road, that the traffic signal for movement of traffic from Saddar towards airport and vice versa was closed. While the signal for cross traffic, for movement from Tipu Sultan Road towards Saddar was open, and thus finding the signal for movement from Tipu Sultan Road open, a motorcyclist riding on Motorcycle No.KAQ‑529 started proceeding towards Saddar via Shahrah‑e‑Faisal, so soon he reached Shahrah‑e‑Faisal a Bus bearing No.879-511, belonging to K. T. C., came on Shahrah‑e‑Faisal in a very rash and negligent manner by violating the traffic signals and bumped into the motorcycle from its right hand side near the Double Patrol Pump and continued to drag the motorcycle alongwith its rider Muhammad Yakoob upto quite a distance, causing fatal injuries to the deceased Muhammad Yakoob who was taken to Jinnah Hospital in a very critical state, with grievous injures, by the witnesses and some other persons. Due to his precarious condition Muhammad Yakoob was admitted in ICU, who expired thereon 19‑12‑1991, owing to the injuries resulting from the said traffic accident. During his cross‑examination PW Muhammad Younis denied that it was the deceased who had violated the traffic signal and came in front of the bus and stated that in fact it was the driver of the bus who has violated the signal. P.W. Abdul Qayoom Khan who was posted as A.S.‑I. at Police Station Ferozabeabad on 18‑2‑1991, deposed that the accident took place at Shahrah‑Faisal, when he was on duty and that K.T.C. Bus No.879‑511 and Motorcycle No. KAQ 529 collided, resulting in the death of the deceased Muhammad Yakoob. He produced the relevant F.I.R. No.121 of 1991, memo. of inspection, memo. of arrest of the bus and Motorcycle, memo. of site sketch, statement about K.T.C. driver, motor vehicle inspection report, medico‑legal report, death report and the death certificate of the deceased. During his cross‑examination the witness stated that he saw scratches on the road caused due to dragging of motorcycle by the bus involved in the accident.

6. The defendant No.3 examined Gul Muhammad Soomro who was Manager Legal with the defendant No.2‑Corporation at the relevant time. The witness deposed that all enquiries regarding disciplinary action against the employees of the defunct Corporation, who were involved in fatal accidents were referred to him, in the event the driver involved in the incident was found guilty, otherwise no matter was referred to him. However in the instant case the enquiry was never referred to me as the driver was not found guilty in the departmental enquiry. During his cross‑examination he admitted that the enquiry and reference used to contain spot report, driver's statement, conductor statement and map of the site prepared by the Enquiry Officer. He admitted that he has not seen the enquiry report in the present case and that he is also not aware of the name of the Enquiry Officer in the present case. He admitted that he has not filed any paper regarding the enquiry report and that he has made no efforts to call the driver in this case, although the payments of his retirement dues were made to him personally. He admitted that the liability of the present case has been assumed by the Government of Sindh by virtue of clause 4(a) Ex.D‑1/2.

7. Heard the learned counsel for the parties and perused the record.

8. Issues Nos. 1 and

2. The factum of incident has been proved by the plaintiff No. 1 through her evidence, wherein she has produced the various documents including the death certificate and the newspaper clippings. The F.I.R. and various other documents clearly show that the deceased has died as a result of the accident involving a bus that was owned by the defendant No. 1 Corporation and driven by its driver, the defendant No.2. The factum of accident has not been denied by Gull Muhammad Soomro the sole witness examined on behalf of the contesting defendants. The eye‑witness of the incident Muhammad Younis who has given a detailed account of the accident, imputing negligence and rashness on the part of the defendant No.2 who was driving the bus at the time of incident, has not been contradicted in material details by the counsel appearing for the defendants. In the circumstances I hold that the deceased Muhammad Yakoob has died as a result of fatal injuries received by him in an accident caused by defendant No.2 while driving the bus owned by the defendant No.1 in a reckless and negligent manner. Issues Nos. 3. 4 and 5 additional Issue: In view of my above findings, the defendant No.3, admittedly having assumed the liabilities of the defendant No.1 is liable to compensate the plaintiffs under the‑ Fatal Accidents Act.

9. The average life span in Pakistan is assumed to be seventy years. Muhammad Yakoob died at the age of forty years. In their plaint as well through the affidavit‑in‑evidence of the plaintiff No.1, the plaintiffs have claimed that the deceased was drawing a gross salary of Rs.2,600 per month, which salary would have increased to Rs.3,500 within a couple of months. However since the maximum salary even in respect of unskilled workers has been fixed at Rs.3,000 per month, it would be just and fair to compute the average income of the deceased at the rate of Rs.3,000 per month. The quantum of compensation may thus be calculated as follows: (1) Average income of the deceased for 30 years. Rs. 36000 X 30 = 10,80,000 (2) Add‑20%, expected increase in the income. Rs. 12,96,000 (3) Less 1/6th, towards presumed personal expenses. Rs. 10,80,000 (4) Plus funeral expenses Rs. 10.000 Net amount Rs. 10,90,000 In view of the above, the suit is decreed for Rs.10,90,000 against the defendants, jointly and severally with interest at the rate of 14% from the date of the suit till that realization. The plaintiff shall also be entitled of the cost of the suit. The decretal amount shall be paid within two months. M.H./N‑2/K Suit decreed.