P L D 1973 Karachi 636 (PLP)

5. The defendants have not examined any witness. An application was made today, when the matter was fixed for arguments, on behalf of defendant No. 1 for an adjournment, to enable the defendant No. 1 to summons oral as well as docu mentary evidence. The application was unsupported by any affidavit. No justifiable reasons were given for the delay in making this application. Moreover I bad made it clear to the learned counsel appearing for the parties, on one of the previous dates when the case was not taken up, that the suit will proceed day today and parties must be ready with all their evidence. In these circumstances by a separate order I dismissed the application.

6. The amended issues were framed in this case on 19‑2‑1973 and adopted by the Court on the same day. The issues are as follows:‑ (1) Whether the plaintiff and the four minors mentioned in para. 6 of the plaint are the representatives of the deceased? If so, whether they are the only representatives? (2) Whether the fatal accident was caused by the rash and negligent act of the bus driver or of the tram‑car driver or of both? (3) Whether there was any negligence on the part of the deceased himself, which chiefly contributed to the accident? If so, its effect? (4) What was the age and monthly income of the deceased at the time of his death? (5) What would have been the normal life span of the deceased had he remained alive. (6) Whether the plaintiff and the four minor children of the deceased are entitled to any compensation? If so, to what extent? (7) Whether defendant No. 3 is not liable on the plaintiff's claim under the terms and conditions of the insurance policy? (8) What should the decree be and against whom?

7. Issue No. 1.‑In so for as issue No. 1 is concerned the plaintiff has deposed that the deceased died leaving behind the widow, the plaintiff herein, and four minor children. In the cross‑examination suggestion was made and accepted by the lady that the deceased also left behind a sister. However, the sister, is not one of the beneficiaries entitled to share in the compensa tion under section 1 (2) of the Fatal Accidents Act. I will, therefore, answer this issue in favour of the plaintiff and hold that the plaintiff and her four minor children mentioned in para. 4 of the plaint are the only representatives of the deceased entitled to share the compensation for the loath of the said deceased.

8. Issues Nos. 2 and 3.‑These issues may be combined to gether. The only evidence on this issue is that of the eye witness, the conductor of the tram‑car Abdul Saeed (Exh. 9). According to this witness it was a little before darkness that the accident tools place. According to him the tram‑car had just arrived and stopped at the traffic signal near Mama Parsi School when the traffic light give clearance for entry of traffic into Preedy Street. The tram‑car was packed to capacity and as many as 30 to 35 persons were standing on the foot‑board on both its sides. The witness himself was on the left foot‑board of the train‑car facing Mama Parsi School as is usual with the conductors, on the near portion of the, tram, while the deceased was on the same foot‑board in tine front part of the tram‑car. According to this witness the bus came on the left side of the tram and since the bus driver wanted to enter the Preedy Street to go to Saddar, for which the traffic light had already given clearance, he speed up, crossed the tram and in an attempt to enter the Preedy Street came in contact with the tram, though nominally, where the deceased was standing, resulting in head injury by the bus to the deceased. The tram‑conductor alongwith several other persons ran after the bus driver and by the time type witness came back the deceased was being taken in a car to the hospital. According to this witness the speed of the bus was 20 miles per hour. As I have stated earlier there is no ‑evidence to contradict this witness but in the cross‑examination an attempt was made to show that the tram conductor was in fact team driver and was on that duty, driving the tram and further the bus had arrived earlier than the tram, and was standing on the tramway rail track for going towards Boulton Market the tram‑car came from behind and the deceased who was standing on the footboard on that side of the left side of the bus struck against the bus resulting in injury to him and his demise. I am not impressed by this line of questioning inasmuch as according to me the bus had no business to be on the said tram track, even for entry into Preedy Street. The bus was coming from Boulton Market towards Saddar. It was not expected to be on the said other than the left side of the road whether or not the bus desired to enter into Preedy Street on the right side and the occasion to turn right would only arise at the corner of Preedy Street and Bunder Road near about the traffic light, when it would be moving into Preedy Street. The angle of entry into Preedy Street should be as near as possible to right angle and not diagonally as would be the case, at the suggestion made on behalf of the learned counsel for the defendants 1 and 3 is accepted. That this witness was present at the time of the accident is not denied. It was, however, argued that the evidence of this witness is at variance with what has been stated in the pleadings inasmuch as the plaint gives the time of the accident at 9 p. m. and further states that the deceased was standing on the right side of the foot‑board of the tram. It was further argued that this witness has given evidence to save defendant No. 5, the tramway company. It is difficult for me to believe that an employee of the tramway company would, go so far as giving false evidence to help his master, when the master has not even chosen to produce any evidence. Coming to criticism on the merits of the evidence of this witness, I agree that there is discrepancy as regards the time of the accident but its importance is whittled by the fact the witness was admittedly present when the accident took place. As regards the controversy as to the place where the deceased was standing on the left or right side of the tram car‑it is possible to say that there is in fact no variation between the plaint and the evidence inasmuch as the expression right side is a relative expression depending upon the connotation in which the expression is employed. What may be directionally right side need not be the right side in the sense, the word is synonymous with correct side. In that sense the deceased was standing on the right side if by that expression is meant, the correct side, inas much as he was not expected to stand on what would be, direc tion‑visa right side of the foot‑board of the tram‑car. By that as it may, I cannot loose sight of the fact that the plaintiff is a widow and is not an eye‑witness and what is stated in para. 3 of the plaint regarding the accident is on the basis of information received and believed by her to be true. This, therefore, not one of those cases ire which the Court would say that the plaintiff' cannot be permitted to prove a case not alleged in the plaint. It was next argued that the driver of the bus was acquired though challaned. I fail to see its relevancy in this trial but in any event no documents have been placed before this Court and one does not know the grounds which led to the acquittal. It was next argued that while according to this witness the Injury received was to the head of the deceased according to the Doctors certificate filed with the plaint, the death is said to be consequent upon shock resulting from fracture of ribs. This discrepancy would have soma relevancy if I had reason to doubt the veracity or truthfulness of the tram conductor. I am also doubtful whether I can look at the prohibited death certificate filed with the plaint to which no reference was made by the learned counsel for the defendants at any time during the trial except at the argument stage. It is equally possible that the witness may have been mistaken as regards the actual Injury to the deceased but his evidence is otherwise clear as regards the accident.

9. It was alternatively argued that the deceased had no business to stand on the foot‑board of the tram‑car and in fact but for his so standing there would have been no accident. In other words what is alleged against the deceased is contributory negligence. The evidence is that the tram arrived first and was stationary and the bus carne from behind. The evidence further is that before the bus cam: the deceased was already on the root‑boards therefore, if I were a to assume that the deceased was negligent in standing cm the footboard the last opportunity for avoiding the accident was with the bus driver and the defence of contributory negligence is therefore, not available to the defendants. My conclusions therefore, on this issue is, that the rash and negligent act of the bus driver resulted in the death of the deceased and that the deceased had not contributed chiefly or otherwise to the occurrence of that unfortunate event.

10. Issue No. 4.‑As regards the age of the deceased the plaintiff has deposed that the deceased was at the time of his demise 40 gears old. In the; plaint the age given is 43 years. Tito witness Fahim Akhtaf (Exh. 8) are employee of the Karachi Municipal Corporation, who brought the service record of the deceased referred to a certificate issued by the Chief Medical Officer of the Karachi Municipal Corporation at the time when the deceased was first employed in service on 20th July 1960 as 36 years old. It would, therefore, appear that as on the date of the accident the deceased would be 43 years old. I will, therefore, hold on the basis of evidence on record that the deceased at the time of the accident was 43 years old. As regards the monthly earning of the deceased the evidence on record is that as an employee of the Karachi Municipal Cor poration he was drawing Rs. 154 per month as his salary. Additionally he was employed at the University of Karachi at the monthly salary of Rs.

150. There was some doubt expressed on behalf of the defendants that the deceased was rise simul taneously so employed a: two places. In so far as the University of Karachi is concerned the deceased Joined service on 16‑1‑1967. According to K. M. C. record he remained in service until his death arid the last pay drawn by him from K. M. C. was 1st June 1967. It would. therefore, appear that the deceased was employed at two different places. The plaintiff lass deposed that the deceased worked in the K. M. C. in the morning and at the University in the afternoon. Being a book‑binder I am inclined to think that he was employed at more than one place. My finding, therefore, on this issue is that the age of the deceased at the time of the accident was 43 years old and at that time the total salary drawn by him was Rs. 304 per month.

12. Issue No. 5.‑This issue raises mixed questions of law and fact. In so far as the health of the deceased is concerned the evidence of the plaintiff is that he was never ill except for minor ailments and was of sober habits. An attempt was made to show from the K. M. C. service record of the deceased that the deceased used to remain ill. The register, however, shows that the deceased took leave on medical grounds only once in his entire service of nearly seven years and even this illness would appear to be pretended indisposition as according to the employee of the University of Karachi the deceased was during this period employed and working with the University of Karachi. The presumption is that the deceased was of normal health and since nothing contrary has been brought on record I will assume that the deceased enjoyed normal health. As regards the normal expectation of life, Mr. Mushtaq Hussain the learned counsel for the plaintiff was good enough to invite my attention of several decisions of this Court, where 60 years has been held to be life expectancy in Pakistan. The learned counsel contended that In view of the improved conditions of living it may now be reasonable to hold the life expectancy at 65 years. I am, however, inclined not to depart from the more conservative view of this Court that 60 years is the normal life expectancy in Pakistan. In that event the remaining period of the life expectancy of the deceased would be 17 years.

13. Issue No. 6.‑The next question for consideration is, on what basis the beneficiaries of the deceased should be com pensated. The leading authority on the subject is the judgment of Waheeduddin Ahmad, J, reported in P L D 1960 Kar. 785 a p. 793 where it was observed that:‑‑ "The next question for consideration is on what basis the beneficiaries of the deceased should be compensated. There are certain broad general principles to determine the amount claimed the chief amongst them being the loss of reasonable pecuniary benefit to the beneficiaries. This can be determined by taking into consideration the following facts: (1) The net annual Income of the deceased and what was his future prospects in respect of earning. (2) Whether the claimants have gained financially in the death. (3) The expected amount of maintenance of the deceased. (4) What was the expected life of the deceased and the present worth of the receiving amount lost to the beneficiaries.

14. The evidence in the present case is that the deceased vas drawing Rs. 304 per month as total salary from two different places. There is no evidence of his future prospects or that claimants have gained financially in his death. As regards the expected amount of maintenance of the deceased the evidence is that he was spending Rs. 50 on his personal expenses. I am, however, inclined to think that the deceased was spending at least one‑third of his Income on himself including his food, clothing and personal expenditure, leaving a sum of Rs. 204 for the maintenance of his family, that is the plaintiff and the four minor children. Therefore, dividing the remaining years of the normal life expectancy of the deceased, namely 17 years, by Rs. 204 per month the amount lost to the beneficiaries would come to Rs. 41,616.00. This amount will be divided between the plaintiff and her four minor children in accordance with their shares under Muslim Law.

15. Issue No. 7.‑The liability of defendant No. 3 Insurance Company is to the extent of Rs. 20,000.00 and cost only. No defence available to the Insurance company under section 94 of the Motors Vehicles Act has been taken. I will, therefore, hold the Insurance Company liable for this amount and in so far as the cost of the proceedings are concerned they will be jointly and severally liable alongwith defendants Nos. 1 and 2. 16 The result is that the plaintiffs' suit is decreed for Re.41,616.00 (rupees forty‑one thousand six hundred sixteen) against defendants Nos. 1 and

2. Out of this the liability of defendant No. 3 will be for Rs. 20,000.00 (Rupees twenty thousand) and the cost of the suit including the court‑fee payable in law to the Government which wilt be borne jointly and severally by t defendants Nos. 1 and 2 and defendant No.

3. The suit is dismissed with no order as to costs against defendants Nos. 4 and

5. K. B. A. Suit decreed: