2001CLC913 (PLP)

(iii) Whether the defendants are liable to pay compensation/damages to the plaintiffs and other dependent legal heirs as claimed jointly and severally? (iv) Whether the plaintiff is entitled to cost and interest as claimed? (v) What other reliefs or relief the plaintiffs are entitled? (vi) What should the decree be? In support of their case the plaintiffs examined P. W.1 Sarfraz Ahmed (Police Constable, Ferozabad), who produced F.I.R. No.30 of 1985, Site Sketch and Superdaginama, P.W.2 Ghulam Muhammad (eye‑witness) who produced death certificate of deceased issued by Cantonment Board Superdaginama of offending wagon whereas the defendants examined D.W. Arbab Khan and Gulzar Shah. My issuewise findings are as follows: These issues are inter‑related and can be dealt together. The ownership and driving of the wagon by defendants Nos. l and 2 respectively on 27‑1‑1985 on main Shahrah‑e‑Faisal is not denied. The factum of accident on the said road on the fateful day resulting into death of deceased Younus Masih is also not denied but the defendants have proceeded to take the plea that the death of deceased was caused by car driven by a foreigner's van right in front of the defendants' van which hit the deceased. According to defendant No.2 he was stopped the vehicle to witness the accident was caught by the police and involved him in the said accident. In support of the case the plaintiffs examined Ghulam Muhammad an eye‑witness who has stated as follows:‑‑ "At the time when the accident occurred I was standing at the gate of the Delivery Centre of the Duty Free Shop. At the time I was engaged as usual in handling the cargo which I carry in my transport when I heard a sound and looking in the direction found that an accident had taken place and a person was lying having fallen upon collision with a wagon. I went there and picked up the victim. Voluntarily says that at the time I also noted the vehicle number which was 132‑

365. In answer to the question as to where precisely the accident had taken place I would say that the accident had occurred while the deceased Yousuf was coming from the Duty Free Complex towards the Delivery Centre and being on the road was hit by the vehicle coming from the Saddar side and going towards the Airport. " In cases arising out of Fatal Accidents Act, 1855 it is settled principle that once the defendant pleading deceased having not hit by his car but by another car the defendant as such took upon himself burden to prove such fact. In the instant case the defendants have not examined the driver of the vehicle but examined Gulzar Shah sitting with the driver who was also employee of defendant No.

1. Mr. Nasir Maqsood, counsel for plaintiff has contended that both the defendants were interested persons and moreso their evidence as reflected in cross‑examination is not confidence‑inspiring and is prima facie couched in contradiction and mutually destructive statement. He has placed reliance on the case of Mrs. Gul Bano v. Muhammad Ramzan and another 1982 CLC 120 in which it was held as follows:‑‑ "Plea‑‑‑Burden of proof‑‑‑Defendant pleading deceased having not been hit., by his car but by another car and thrown on his car's bonnet‑‑‑Defendant as such took upon himself burden to prove such facts‑‑‑Defendant not examining any witness to prove his allegations‑‑‑Held, deceased in circumstances hit by defendant's car." He has also submitted an unreported judgment of this Court in KW&SB v. Mirza Qasim Baig H.C.A. No.67 of 2000, which was authored by me and it was held as under: "Once the factum of accident was established the burden to prove absence of negligence was on the appellants which they failed to discharge." D. W.1 Arbab Khan (driver defendant No. 2) has reiterated the contents of the plaint but in the written statement it was stated that the defendant No.2 like many other such witnesses stopped to see the accident and then resumed the journey when the policeman stopped him at traffic signal, but in cross he contradicted the said contents by saying that "as I did not hit the deceased I proceeded ahead and was stopped by the police at next signal where the Consulate's car with the driver also came". The defendants have failed to bring any independent witnesses to corroborate their stand. It is an admitted position that accident took place on a busy road where at the time of accident the spot of the incident was surrounded by many pedestrian. The defendants have also failed to give particulars of the car belonging to German Consulate alleged to be involved in accident. On the other hand the defendants have attempted to take shelter behind the acquittal of the defendant No.2 in criminal case. It has been held by superior Courts that determination of guilt in criminal cases does not have any value before the Civil Courts in adjudication of civil matters and as such even acquittal and punishment in the criminal cases did not have any bearing on the outcome of the civil cases under the Fatal Accidents Act, 1855. Accordingly, I answer the above issues in affirmative. These issues are also inter‑related and can be dealt with together. The deceased was stated to have his own taxi and used to drive the same himself. He was earning Rs.3,500 per month. He used to pick‑up passengers from Airport and Railway Station and used to earn Rs.300 per day. At the time of accident the deceased was 35 years and average life span is 70 years. He was expected to support the plaintiffs and other legal heirs for more than 35 years as such the legal heirs have suffered following pecuniary loss owning to accidental death of deceased: (a) Pecuniary loss at the rate of Rs.14,70,000 Rs.3,500 per month for 35 years, (b) 20% to be added on aforesaid Rs.2,94,000 aggregate income on account of advancement in earning. (c) Deducting 1/6th on account of Rs.14,70,000 personal expenses from gross earning (a+b) will give net loss of pecuniary benefits. Accordingly I decree the suit of the plaintiffs in the sum of Rs.14,70,000 with mark‑up at the rate of 14 % per annum from the date of filing the suit till realization. H.B.T./A‑123/K Suit decreed,