1986 PLP 2027 (MLD)

The plaintiff has filed this suit in forma pauperise for recovery of Rs.80,000 as compensation for the death of his son Muhammad Anwar who died due to injuries received in an accident with a truck bearing No. KAX‑8243 which was rashly and negligently driven by defendant No.2 and owned by defendant No.1. It has been alleged that on 23‑7‑1973 while Muhammad 'Anwar Khan was going on foot to his work at West Wharf the aforestated truck driven rashly and negligently by defendant No.2 in the same direction knocked him down near K.P.T. ground, Agha Khan Road, Karachi. He was fatally injured and later died in Civil Hospital. The deceased was 18 years old and was a crane driver earning Rs.10 per day, which he used to give to his mother for the maintenance of his family. At the time of the accident his father was alive but he died before filing the suit. The defendants have filed their written statement in which it has been pleaded that the suit is barred by time and that the defendant No.1 is not the owner of the truck. The incident has been related by the defendants in the written statement as follows:‑

‑"The true facts are that on 23‑7‑1973, it was raining in the morning when aforesaid truck was fully loaded with iron sheets and was passing from Aga Khan, Road very slowly on account of raining and was proceeding towards Lasbella House, Garden West, Karachi, when suddenly Muhammad Anwar Khan tried to board the moving truck without giving any signal to the driver or asking for stopping the truck, and his foot slipped away from the foot board, and as such said Muhammad Anwar Khan was quite guilty of negligence on his part, and there was no rashness or negligence whatsoever on the part of the driver: The claim of the plaintiff was denied. The suit was, first decreed ex parte but the decree was set aside and the parties examined their witnesses afresh. The plaintiff examined herself and one Ibrahim who is stated to be the eye‑witness and also Dr. Abdul Majeed to prove the medical report and closed her side. The defendants examined themselves, Faqir Muhammad and Sajjad Sub‑Inspector. On the basis of the pleadings following issues were framed:‑

(1) Whether the suit is time‑barred? (2) Whether defendant No.1 was not the owner of vehicle bearing Truck No. KAX.‑8243 ors the date of the accident. If so its effect? (3) Whether the deceased Anwar Khan died as a result of rash and negligent driving by defendant N o.2 or by, the, negligence of the deceased? (4) To what relief is the plaintiff entitled to? (5) What should the decree be? Issue No. 1: The contention of the defendant is that the suit should have been filed within one year from the date of accident, i.e. 23‑7‑1973. The plaint was presented on 5‑8‑1974 which was the opening day of the Court after summer vacation. My finding is in the negative. The plaintiff has stated that the defendant No.1 was the owner of the vehicle bearing No.KAX‑8293 but no evidence has been produced to show that this vehicle was registered in his name. Mr. Lakhani contended that as the defendant No.1 was sitting on the truck and it is possible that it may have been transferred in his name without registration it should be presumed that he was the owner of the truck. The contention is misconceived. The defendant No.1 has denied that he was the owner. The ownership could easily be ascertained from the record of the Excise and Taxation Department but the plaintiff has not produced any evidence to that effect. My finding is that the defendant No.1 is not the owner of the truck. Issue No.

3. Taking into consideration the plea raised by the defendant it cannot be disputed that the deceased died due to an accident with Truck No. KAX‑8243 which was driven at the material time bar defendant No.

2. The only controversy seems to be that the defendant No.2 was not driving the truck rashly and negligently. According to the defendants the accused died due to his negligence. The plea taken by the defendants has been reproduced above. Therefore, it has to be seem whether the defendant No.2 was driving the truck rashly and negligently. According to the defendants while trying to board the moving truck the deceased slipped from the foot‑board. The result was that he came under the wheels. The defendant No.2, does not state that he had seen the incident. Faqir Muhammad does not support the plea taken by the defendants in the written statement. According to him incident occurred while the truck was moving on the road and the deceased tried to climb from behind and got fatal injuries. To a question put by the Court he stated that the deceased was not boarding the truck from the foot‑board‑or from the side of the truck. In these circumstances, the question of the deceased coming under the wheels does not arise. If the deceased was boarding from behind and had fallen down on the road, how could he come under the wheel of the truck which was moving forward. Therefore, the plea of the defendants has not been established. From the evidence of the defendant it is clear that the deceased had met with an accident. In this regard the plaintiff has examined one Ibrahim who is stated to be an eye‑witness of the incident. He has stated that in his presence the deceased was knocked down by the truck on the road and suffered serious injuries. He was confronted with his affidavit which he had filed in ex parte proof proceeding from which it seems that he had not seen the incident as he had reached after the accident. The contradictory statement of this witness does not inspire confidence and I am not inclined to accept his version. The accident is also admitted by the defendants. The plaintiff has proved the medical report which supports the plea that the deceased was crushed under the wheels of the truck. It is important to mention that the 7th, 8th and 10th ribs of the deceased had fractured; right lobe of the liver was ruptured, kidney was crushed and intestines were protruding out of anus. These injuries could not have been caused unless the deceased would have been overrun by the truck or by a heavy object. My finding is that the deceased died due to rash and negligent driving of the defendant No.2. The question arises to what compensation the plaintiff is entitled. The plaintiff was 49 years old at the time of accident. The deceased was earning Rs.10 per day and used to pay the same to the plaintiff. The plaintiff is present in Court, although her age at present is 60 years, she seems to be in a perfect good health. In these circumstances I will determine her expectancy of life as 70 years. Mr. Nisar Ali the learned counsel has contended that there is no evidence about the income of the deceased and further that he would have married and maintained his family and would 'not have given the entire income to the plaintiff: It is true that except the words of the plaintiff no other evidence about the income of the deceased has been produced but the same has not been shaken in cross‑examination. In any event for argument sake‑if it is accepted that the plaintiff is not able to establish the income of the deceased (which is not so), the fact remains that even if no proper means of earning of the deceased has been established, as he was able to earn a livelihood compensation can be assessed on average income basis. This principle was propounded in Raza Khan v. Pakistan P L D 1965 Kar.244 where proper means of earning of the deceased was not established and it was held that "he was a young man of 26 years and would have been able to earn a livelihood. I will assess the compensation on the basis of an average income of Rs.100 per month of Awwal Khan" deceased. In this case the deceased had'. died in December, 1957 and the average income was assessed at Rs.100 per month. In the present case the deceased died in the year 1973. Since 1957 the cost of living has risen high. In' the year 1973 a healthy young man can reasonably be expected to earn an average amount of Rs.300 per month. I will, therefore, determine the earning capacity of the deceased at Rs.300 per month. The marriage of the deceased in further would not have affected the maintenance he would have paid to his mother as with the passage of time the income would have also increased. It cannot be presumed that merely because a son has married and grown family he would stop maintaining his parent. In our culture and society a Muslim son is bound to maintain his parent. Reference can be made to P L D 1958 Kar. 383. 'In this view of the matter I will determine the amount of compensation at the rate of Rs.200 per month which the plaintiff would have .received from the deceased. This amount is calculated after excluding at least Rs.100 per month as personal expenses of the deceased. The total compensation will come to Rs.50,

400. The suit is decreed for Rs.50,400 against defendant No.2 with costs and interest @ 10% p.a. from the date of suit till recovery. As the defendant No.1 is not the owner of the truck suit against him is dismissed. As there is no evidence that the truck was insured with the Asian Mutual Insurance Co. Ltd. notice under section 96 of Motor Vehicles Act issued to it is discharged. H : B . T . Pauper suit decreed.