Fatal Accident

Plaintiffs sought recovery of damages for the death of their predecessor-in-interest caused due to rash and negligent driving of a vehicle driven and owned by defendants

Validity

Factum of death of predecessor-in-interest of plaintiffs was admitted fact

Liability of such gross wrongful act fell on defendants

Claim of damages was maintainable under Fatal Accidents Act, 1855

Deceased was 52 years old man, his nature of business was business of "dates" and simultaneously indulging in business of import/export of "dates"

Longevity in family of deceased had established life expectancy of 75 years

Deceased could also have lived for another 23 years approximately, therefore, the claim of awarding damages of Rupees 1,25,00,000/- was justifiable and the same was granted

Suit was decree accordingly.

If an accident/incident resulting in death of a person had not been disputed by the defendant then onus to prove that a person died not because of negligence or wrongful act of defendant would be on the latter and not on the plaintiff

Failure to examine driver of the vehicle involved in an accident would create an adverse presumption against the defendant

Drivers of heavy vehicle were required to take extra care while driving on the roads to prevent any incident

Incident, in the present case, had occurred while overtaking the vehicle in which deceased was travelling with the driver

Accident had occurred due to reckless and negligent driving of defendants

Principle of vicarious liability was applicable and all the defendants were jointly and severally liable to compensate the plaintiffs

Plaintiffs had been deprived of the association and company of one of their family members

Negligent conduct of defendants to forestall such incident in future should be made more expensive in terms of actual damages

Deceased was a young man of 26 years old at the time of fateful accident and life expectancy in his family was 75 years

Life expectancy of victim in the present case could be 70 years, in circumstances

Minimum rates of wages in the year 2016 of an unskilled adult employee in the Province of Sindh was Rs. 16,200/

Plaintiffs had claimed Rs. 5,000,000/- in the year 1991 which would not be adequate in the year 2019 due to devaluation of currency and inflationary trend

Plaintiffs were also entitled to additional sum of Rs. 1,000,000/- towards loss of consortium

Suit was decreed in the sum of Rs. 8,190,000/- as damages with Rs. 1,000,000/- towards loss of consortium with 10% markup per annum from the date of institution of suit till realization of the amount.

Per application of the maxim "res ipsa loquitur" (things speak for themselves), if an accident / incident resulting in death of a person itself was not disputed by defendant, then onus to prove that such person died not because of negligence or wrongful act of the defendant, was on defendant and not on plaintiff

Defendant, if took the plea that death of deceased was caused by his/her own negligence, then defendant had to produce evidence that the machine / equipment causing such death, was in perfect order and had no defect, but that it was negligence of deceased resulting in his/her death

To disprove the causation of death, onus was on defendant

Where injury was caused by two or more persons, then in such cases, each wrongdoer was jointly and severally liable to make good for such loss

For workplace accidents, employer was vicariously liable for tortious liability of its employees

For calculation of quantum of damages in case of fatal workplace accident, factors such as deceased being an educated person and his / her employment (and salary) were to be considered.

Husband of plaintiff died due to rash and negligent driving of the driver of vehicle and suit was filed against the driver and owner of the vehicle

Defendants failed to appear in witness box to plead and justify their stance and to rebut claim and contention of plaintiff, except cross-examining plaintiff's witnesses

Averments in plaint as well as evidence led on behalf of plaintiff had gone un-rebutted

Plaintiff, in circumstances, was entitled for compensation as per calculations proved on record

Suit was decreed in circumstances.

Deceased 36 years of age, a Head Constable in Traffic Police, died on account of electrocution by coming into contact with energized pole erected by Electric Supply Company

Plaintiffs being legal heirs of the deceased filed suit for recovery of compensation against the Company

Issues in question were whether the suit was not maintainable; whether no cause of action had accrued to the plaintiffs to file the suit and whether the plaintiffs had alternate remedy under S.33 of the Electricity Act, 1910 to get redressal of their grievances

Burden of proof of said issues, was on the defendant Company

Defendant, having not advanced any arguments on the issues, same were answered against the Company

Burden of proof that deceased died due to electric shock owing to negligence and wrongful act of the defendant company and about deceased's earning was on the plaintiffs

Evidence on record had proved that deceased had died due to electrocution, and there was also a clear evidence that monthly salary of deceased was Rs.9945 as he was Head Constable in Police Department

Documents produced on record had confirmed that the cause of death of the deceased was due to electricity current in the electric Pole

Plaintiffs, in circumstances, were entitled for the relief they had claimed as compensation for the death of the deceased

Plaintiffs being immediate family of the deceased, directly affected by accidental death of the deceased had given well calculated figures to claim quantum of damages amounting to Rs.10,802,220

Defendant company, in cross-examination, had not even disputed the calculation given in the plaint as well as in the affidavit-in-evidence on oath and conceded that the figures of quantum of damage given in the affidavit, were proper calculation

Quantum of compensation had been determined keeping in view life span of the deceased, future benefit with the charge in salary etc.

Plaintiffs, were widow of the deceased, his mother, one son and four daughters

Preamble of the Fatal Accidents Act, 1855 had explained that purpose of the said Act, was to provide compensation to the families for loss occasioned by the death of a person caused by actionable wrong

Suit was decreed with cost and the defendant was directed to deposit, decretal amount with Nazir of the court within 30 days.

Deceased was drawing salary of Rs. 16084/- per month and Trial Court had rightly calculated the salary payable to deceased till his superannuation

Dependents of deceased under Fatal Accidents Act, 1855 were only entitled for damages payable due to accidental death of deceased

Trial Court had erred in law while passing a decree in favour of legal heirs of father of deceased

Deceased, in the present case, was unmarried and his dependents were only his parents

Father of deceased had died before maturing the claim into a decree and only mother was alive

Trial Court had wrongly impleaded the legal heirs of father of deceased and passed decree in their favour

Legal heirs of father of deceased did not fall within the definition of "dependents of deceased"

Claim of father of deceased before decree was passed was not an inheritable estate

Suit to the extent of father of deceased should have been abated

If suit to the extent of father of deceased was abated even then claim would not be reduced as his mother was dependent and decree could be passed in her favour for entire suit amount as both the plaintiffs had not claimed amount of damages separately

Entire amount would be payable to the mother of deceased who was only his dependent

Mother of deceased was alive at the time when decree was passed and as such decree was rightly passed by the Trial Court

Appeal was allowed to the extent that legal heirs of father of deceased were not entitled for any amount of decree and total amount of decree should be paid to the mother of deceased

Order accordingly.

Suit was decreed accordingly.

Onus of probandi stands shifted upon defendants, in either situation where they deny negligence or take specific plea of not causing accident.

Suit was decreed to the extent of Rs. 11,000,000/- in circumstances.

Normally onus would lie on the person who had asserted the fact but in matters relating fatal accident where the defendants either denied negligence or had taken specific plea of not causing accident then burden would shift upon the defendants to prove their stand

Speed of vehicle was not an important factor while gauging the negligence of a heavy vehicle

Defendants had not discharged the burden rested upon their shoulders except by mere denial or disputing the claim

Defendants had not produced evidence and inference would be against them

Defendants were jointly and severally liable for the tort in question

Deceased died at the age of 37 years and his age for compensation/damages was determined as seventy years

Average monthly income of deceased could not be believed to be less than Rs. 10,000/- per month

Suit was decreed to the extent of Rs. 36,30,000/- in circumstances.

Initial burden to prove the circumstances of fatal accident which would identify the carelessness on the part of defendant (driver) lay on the plaintiff

Presumption of negligence in driving the vehicle would be against the driver once accident was admitted by him to have happened

No discrepancy, in the present case, was pointed out in the evidence of plaintiffs disentitling them to get the benefit of the decree which had already stood satisfied

Plaintiffs had supported the averments made in the plaint through their evidence

Occurrence of the incident had not been denied by the defendants in their written statement

Death of the deceased in the accident had not been denied by the defendants

Burden of proof in fatal accident cases would immediately shift from the plaintiff to the defendant where he had expounded his own version of accident

Occurrence of accident in which two persons had lost their lives had been admitted by the defendants in their written statement

Duty of the driver driving heavy vehicle had to be construed proportionately higher than the person who was either pedestrian walking on the road or a cyclist or motorcyclist going on his own side

Responsibility of the driver of the heavy vehicle to drive the vehicle with due care and diligence was heavier than the obligation of a cyclist or motorcyclist

Maxim "Res Ipsa Loquitur" was applicable in accident cases

When an accident had occurred and loss had suffered at the scene then same would bring out negligence of the defendant (driver)

Simple fact of accident causing loss of lives could be construed prima facie an evidence of negligence on the part of the defendant (driver) as against the pedestrian or a cyclist or motorcyclist

Plaintiff was to prove that death of the deceased had occurred due to an accident involving the vehicle which was being driven by the defendant

Nature and mode of the accident needed examination to determine that the accident had not occurred due to negligence or rashness of the driver

Plaintiffs had discharged their initial burden of proving the happening of the fatal accident causing death of the deceased by the driver at the relevant time

No hard and fast rule could be laid down nor a definite formula could be applied to assess the damages under Fatal Accidents Act, 1855

Simply guesswork to be undertaken with regard to expectancy of life of the deceased who had died in an accident and the resultant pecuniary loss suffered by his legal heirs

No infirmity or illegality had been pointed out in the impugned judgment

Appeal was dismissed in circumstances.

Plaintiff/legal heirs of the deceased, claimed that accident wherein deceased died occurred due to rash and negligent driving of defendant (driver), during deceased's employment with defendants

Defendants had not denied the ownership of vehicle in question as well as employment of defendant as their driver

Defendants had neither denied the accident nor death of deceased due to such accident

Plaintiff claimed damages of Rs.5,74,45000

Validity

Quantum of the compensation in fatal accident, was to be determined on the basis of the earning of the deceased, his average age, his legal heirs, their expected expenses as well as other attending circumstances

Trial Court assessed the compensation, keeping in view the average income of the deceased for his remaining excepted life as well as other things and calculated the amount to the tune of Rs.69,50298

Said determination of the compensation by the Trial Court was based on sound reason in as much as the basic aspects were considered while assessing the same

Trial Court had properly thrashed out the evidence of the parties and came to a right conclusion with regard to the responsibility of the defendants, as well as determination of the compensation in respect of the deceased, who was a young person having wife and children

Said findings of the Trial Court had rightly been upheld by the Appellate Court below

Findings of courts below on the issue of quantum of compensation, not suffering from any illegality or irregularity, arrived at after proper appreciation of evidence, could not be interfered with.

Witness produced by the defendant had clearly admitted that she was not aware whether deceased was wearing a helmet or not

Forums below had concluded that it was a case of rash and negligent driving

Truck of the defendant, in fact had, dashed against the stationary motorcycle resulting in death of deceased for which defendant was entirely responsible

Supreme Court declined interference and refused the leave to appeal.

When a person has surmounted his teenage, and early youth and enters into his practical life by joining an employment or a business etc. it can be legitimately expected that such person would complete his inning by attaining the age of his normal retirement from such practical life, meaning thereby, that such person remains engaged in some gainful activity till the time he in the ordinary course, is mentally and physically fit and capable

Such an age on the touchstone of "reasonable standard" can be termed to be somewhat around sixty five to seventy years.

Plea raised by Railway authorities was that on the rule of contributory negligence of deceased, plaintiffs were not entitled to any compensation

Validity

If due to failure of Railways to safeguard against hazard, any accident had occurred, the Railways could not avoid consequences of its negligence on the pretext that victim of accident should have taken due care to save himself and that the rule of "contributory negligence" should so be applied to absolve it from its liability

In such cases, the plea of "contributory negligence" was not available to defence, until and unless through positive and cogent evidence it was established by Railway authorities that all safety measures were fully secured and intact but it was the victim who had been aware of peril breached those measures such as having opened the closed gate or scaling over the fence he/she had met the accident

Such was not the position in the present matter, admittedly the gate was not closed at that time of accident

Present was a case of negligence of Railways, its employees and rule of "contributory negligence" had no nexus thereto

High Court had rightly held Railways to be liable to pay compensation and damages to plaintiffs

Employer in such accidents was vicariously liable for the acts or omission, commission and negligence of his/its employees

Supreme Court declined to interfere in the judgment and decree passed by High Court against Railways

Appeal was dismissed.

Four innocent young persons were travelling in a car on road during the night and while crossing the bridge when reached in the centre of bridge, their car due to the breakage in the bridge fell in the river, three of them lost their lives; whereas fourth one sustained serious injuries

Said accident was not due to fault of the victims, but they lost their lives due to negligence of public functionaries who were responsible to maintain the road and bridge

Degree of carelessness about the life of people was cruel and criminal

Matter relating to the right of life of the people in terms of Art.9 of Constitution of Pakistan read with Art.19-A of the Northern Areas Governance Order, 1994, was of public importance and Supreme Appellate Court exercising the power under Art.45(2) of Northern Areas Governance Order, 1994 was concerned to take cognizance of the matter

Careful examination of the statements of the witnesses had shown that on the day of incident, neither the road leading through bridge was closed for traffic nor any sign board that bridge was out of order, was put on the road

General Manager of National High Way Authority had not been able to bring on record any evidence in support of version that necessary precautions were taken to close the road for traffic to avoid any incident

Clipping of newspaper and statements of the witnesses, had clearly shown that the damage caused to the bridge concerned due to the breakage of its pillars, was well within the knowledge of National High Way Authority, but said Authority knowingly had omitted to block the road and close it for traffic, so much so that no sign board indicating "danger" was installed on the road on either side of the bridge to warn the public

Failure of Authority to take the precautionary measures for the safe journey on the road was a gross negligence for the purpose of civil as well as criminal liability and aggrieved persons at their choice could surely avail the appropriate remedy provided under the law

Suo motu notice was disposed of with direction that National Highway Authority would pay compensation in the sum of Rs. five lac for each deceased to his legal heirs and same amount to the injured and Authority would bear the expenses to the treatment of injured.

Defendants had raised objection with regard to pecuniary jurisdiction of High Court and contended that one suit was filed for. recovery of Rs.13,30,000 and other suit was filed for recovery of Rs.27,31,600 and both were much below the pecuniary jurisdiction of High Court, which jurisdiction started at Rs.30,00,000; that third suit was filed for recovery of Rs. 68,14,000; that since no order of consolidation of three suits was passed, first two . suits were beyond pecuniary jurisdiction of High Court

Validity

When suits were filed in 1997, High Court had the jurisdiction, which subsequently was amended by Sindh Civil Courts (Amendment) Ordinance, 2002, whereby the pecuniary jurisdiction of civil courts was increased upto Rs.30,00,000; and all proceedings not exceeding such amount pending in the High Court, stood immediately transferred to the District Court for disposal

As all the civil suits arose from the same cause of action, Supreme Court ordered that suit which was filed for recovery of Rs.68,14,000 pending in High Court after promulgation of Ordinance, 2002 was directed to be tagged along with other two suits to avoid conflict of decisions.

Four innocent young persons were travelling in a car on road during the night and while crossing the bridge when reached in the centre of bridge, their car due to the breakage in the bridge fell in the river, three of them lost their lives; whereas fourth one sustained serious injuries

Said accident was not due to fault of the victims, but they lost their lives due to negligence of public functionaries who were responsible to maintain the road and bridge

Degree of carelessness about the life of people was cruel and criminal

Matter relating to the right of life of the people in terms of Art.9 of Constitution of Pakistan read with Art.19-A of the Northern Areas Governance Order, 1994, was of public importance and Supreme Appellate Court exercising the power under Art.45(2) of Northern Areas Governance Order, 1994 was concerned to take cognizance of the matter

Careful examination of the statements of the witnesses had shown that on the day of incident, neither the road leading through bridge was closed for traffic nor any sign board that bridge was out of order, was put on the road

General Manager of National Highway Authority had not been able to bring on record any evidence in support of version that necessary precautions were taken to close the road for traffic to avoid any incident

Clipping of newspaper and statements of the witnesses, had clearly shown that the damage caused to the bridge concerned due to the breakage of its pillars, was well within the knowledge of National Highway Authority, but said Authority knowingly had omitted to block the road and close it for traffic, so much so that no sign board indicating "danger" was installed on the read on either side of the bridge to warn the public

Failure of Authority to take the precautionary measures for the safe journey on the road was a gross negligence for the purpose of civil as well as criminal liability and aggrieved persons at their choice could surely avail the appropriate remedy provided under the law

Sue motu notice was disposed of with direction that National Highway Authority would pay compensation in the sum of Rs. five lac for each deceased to his legal heirs and same amount to the injured and Authority would bear the expenses to the treatment of injured.

Application for production of documents filed by the defendants under O.XI, R.14, C.P.C., having been accepted by the courts below, the plaintiffs had filed constitutional petition thereagainst

Notice under O.XI, R.14, C.P.C. for production of document could be given to the party to the suit and not to third party who had not been arrayed as party.

Application for production of secondary evidence filed by the defendants having been accepted by the courts below, the plaintiffs had filed constitutional petition thereagainst

Courts below had not found that the loss of documents sought to be produced had been proved

Without proving the loss of original documents, the permission of secondary evidence was wrongly allowed by the courts below

Order allowing application for secondary evidence, without ascertaining loss of documents, being without any justification, was not sustainable in the eyes of law and was set aside, in circumstances.

Defendants filed application under O.XVI, Rr.1, 2, C.P.C. for summoning the Police Official from the concerned Police Station as witness, contending that file of accident's record could only be produced through the Police Official

Said application having been accepted by the Trial Court the plaintiff had filed constitutional petition thereagainst

Defendants while filing written statement had failed to mention the names of witnesses in the list which were in their knowledge

Defendants had not relied upon the Police file in the list under O. VII, R.14, C.P.C.-Defendants, at that stage, had to explain and prove on record that a sufficient cause was available to them for not relying upon the Police file and not including the names of Police Officials in list of witnesses

Courts below, however, without giving any findings, whether any sufficient cause had been shown by the defendants, had allowed the application

Technicalities should not be allowed to defeat the ends of justice and in the interest of justice, the parties should have been permitted to place on record all available evidence for proving or defending their case

Order on application under O.XVI, Rr.1, 2, C.P.C. passed by the courts below was upheld, in circumstances.

Witness who supported the case of plaintiffs regarding rash and negligent driving resulting into death of predecessor-in-interest of plaintiffs was not cross-examined by defendants and statement of such witness remained unrebutted

Omission to cross-examination on such material aspect of evidence led to the conclusion that defendants admitted veracity and truth of the statement of plaintiffs witness

Statement of such witness of plaintiffs deemed to have been admitted and the same would be relied upon by the court

In view of the evidence of plaintiffs on the factum of ages of plaintiffs and deceased forming basis of claim was not rebutted and controverted nor defendants had led any evidence to prove diminution of plaintiffs' claim against defendants

Suit was decreed accordingly.

Plaintiffs who were legal heirs of the deceased who died in fatal accident, had alleged that accident in which deceased had died, had taken place due to rash and negligent driving. of driver of the Truck in question, owned by defendants

Occurrence of the accident and death of five persons resulting from the accident had not been denied by the parties

Burden heavily lay upon the defendants to prove that the accident which resulted in death of five persons, was not due to their negligence, but due to negligence of the deceased persons

Defendants had failed to discharge the burden that accident was not caused due to the negligence of the driver

Counsel for the driver, though undertook to file written synopsis within three days, but had failed to file same

Even witness of the defendants in his statement did not deny that accident took place due to rash and negligent driving of the truck

Doctrine of `res ipsa loquitur' was attracted to the facts of the case

Defendants failed to bring on record any tangible evidence to show that the accident was not caused due to their negligence

Suit filed by the plaintiffs having rightly been decreed by the single Judge " of the High Court, High Court Appeal was accordingly dismissed.

Valuation of the suit was fixed by the plaintiffs to be Rs.25 Lac and the value for the purpose of jurisdiction was above one million

Appeal or revision, in circumstances, was not competent before the Additional District Judge and only the High Court was competent to hear the appeal or revision under provisions of Civil Courts Ordinance, 1962, read with S.115, C.P.C.

Revision petition filed before the Additional District Judge, in circumstances, being not competent, order passed in revision was without jurisdiction and coram non judice

Impugned order passed in revision by Additional District Judge, was set aside being without jurisdiction, without lawful authority and of no legal effect.

Plaintiff, who was a minor and had become permanently disabled on account of traumatic injuries in road accident filed suit through his father/next friend for recovery of Rs.5,500,000 against defendants

Defendant driver was alleged to be driving the vehicle rashly and negligently resulting in causing plaintiff serious traumatic injuries

Trial Court, after recording evidence, decreed suit in the sum of Rs.8,00,000 with 14% annual interest from the date of decree till realization

Defendant being aggrieved 'by said judgment of the Trial Court had preferred appeal

Evidence on record had proved that defendant/driver of the Coach wrongfully dashed against the minor plaintiff pedestrian in excessively high speed and dragged the minor pedestrian for about a dozen feet ahead along with the wheel of the Coach causing serious injuries to the minor plaintiff

Defendant had failed to bring on record any evidence that due care had been taken by him while driving heavy vehicle on public road to avoid accident

Jurisprudence of compensation for motor accidents must develop in the direction of no-fault liability and the determination of the quantum must be liberal, not niggardly since the law values life and' limb in free country in generous scales

Suit having rightly been decreed by the Trial Court, appeal against judgment and decree of the Trial Court having no merits was dismissed in circumstances.

Evidence adduced by the parties had proved that accident took place in the manner as alleged by the plaintiff; and it had also been ,proved that driver of Coach in question was rash and negligent in plying such Coach when accident occurred in which the plaintiff was seriously injured

No evidence was available to demonstrate the consciousness, care, caution and sense of duty on the part of the driver-:-Plaintiff had suffered traumatic injuries

Ample evidence was on record that said injuries were caused to the plaintiff on account of rash and negligent driving of driver who was serving as agent and servant of the defendants during the course of event

Case of the plaintiff was covered by vicarious liability of driver and defendants

Plaintiff, in circumstances, was entitled .to compensation for the injury sustained by him at the hands of the driver who purportedly drove the vehicle rashly and negligently, culminating in ' vital accident which resulted into the injuries caused to the plaintiff in which his left leg was amputated

Suit filed by the plaintiff against the defendants was decreed jointly and severally in the sum of Rs.8,00,000 with 14% interest from the date of decree till its realization, with costs.

Single Judge of High Court, after careful scrutiny of evidence produced by the plaintiffs, duly supported with documentary evidence, came to the conclusion that accident had occurred due to negligence of defendant driver of the bus and in circumstances other defendants were jointly responsible to pay compensation to the plaintiffs/ legal heirs of deceased

Main defence of the defendant was that one defendant had been acquitted by the Trial Court from the criminal case

Validity

Fate of criminal proceedings had no relevance for the purpose of determination of the civil liability; as in civil cases, judge of facts must find for the party in whose favour there was preponderance of probability, though evidence be not entirely, free froth doubt; while in criminal cases the factum of incident should be proved beyond any reasonable doubt

Even the acquittal finding of guilt in the criminal case did not carry bearing for adjudication of civil cases in any manner, whatsoever

Evidence of eye-witness of the. case had not been challenged and could not be shaken

Non-rebuttal of evidence of the plaintiff by the defendant and non-production of driver of the bus for evidence in the court, were sufficient enough to saddle the defendants with the liability of the compensation

Single Judge had rightly held that defendants were jointly liable for payment of compensation to aggrieved family of deceased.

After admission of accident, heavy burden lay upon the defendant to prove that accident was not caused due to his or his employee's negligence, which defendant had failed to discharge-Merely because examination report of the vehicle was not produced, F.I.R. was registered in the matter giving details of the accident, was duly exhibited

Non-production of site report etc. would not affect merits of the case in any manner to disentitle the plaintiffs from the relief granted to them

Grant of Rs.10,000 on account of funeral expenses of deceased, could not be said unjustified

Evidence on record, showed that Van in which deceased were travelling on the National High Way, was running on an average speed and accident was caused all of a sudden when defendant's trailer was running on a high speed and driver of the trailer/defendant lost his control on the trailer-Trailer hit the van in question on the other side of the road

Evidence on record further showed that accident was caused due to negligence of driver of the trailer and no evidence was in rebuttal that driver of the van in which deceased were traveling contributed towards the accident

Suit was rightly decreed by the High Court and High Court appeal against order of the court was dismissed.

Cheque of amount of compensation as determined and received from defendant issued in the name of widow of deceased was handed over to her

Said amount was directed to be deposited in some profit bearing Government Scheme for the benefits of five minors of the deceased

Widow of deceased being mother of the minors and their natural guardian ad litem would be entitled to withdraw the profits accrued on the deposited amount for up keep of minor children on moving proper application before the High Court.

Defendant/the driver of the bus in question filed application for reducing the surety amount from Rs.10,00,000 to Rs.1,00,000 to enable him to get the bus released and earn his livelihood

Validity

Surety amount was quite high and defendant driver could not arrange such huge amount of surety

Since the attachment of the bus, it had not been properly maintained and the value of the bus thus had gone considerably low

All the tyres of the bus had worn out and the body and parts of the bus had become rusty and due to such attachment defendants had lost their earning and incurring loss and, damages

Amount of surety, in circumstances, was reduced to Rs.2,50,000 from Rs.10,00,000, accordingly.

Plaintiffs, who were legal heirs of deceased who died in accident, filed suit for recovery of amount of compensation against defendant

Case of the plaintiffs was that bus owned by defendant while being driven by his driver in a rash and negligent manner crushed predecessor of the plaintiffs aged about 39 years and at the time of death was earning Rs.2408 per month

Plaintiffs by producing eye-witness had proved that accident was caused due to rash and negligent driving of the driver, which was owned by defendant

Another person had taken over assets and liabilities of owner of the bus in the year 1997, whereas accident took place in the year 1988

Plaintiffs in circumstances had filed suit much before the assets and liabilities were taken over by the said person

No clause existed in the agreement, whereby assets and liabilities were taken over by the other person to the effect that he had not taken over any liability and/or that he was not answerable for the liability of defendant (owner of the bus) prior to date of taking over all his assets

In absence of such plea in written statement and document on record said person could not avoid liability of defendant

Defendant had failed to point out any evidence on record contrary to findings recorded by the Single Judge about the average income of the deceased to call for any interference

Appeal was dismissed.

Suit was maintainable in circumstances.

Plaintiffs being legal heirs of deceased claimed recovery of damages on the ground that their predecessor-in-interest died in accident due to rash and negligent driving of defendant

Validity

Widow of plaintiff was not present at the time of incident, therefore, she could not be termed as eye-witness of the case

Sister of widow was going with deceased and also sustained injuries at the time of incident, she was the real and natural witness of incident but she had not been examined by plaintiff to prove that vehicle was driven by defendant recklessly in rash and negligent manner

Non­-examination of natural witness adversely reflected on the case of plaintiffs

Plaintiffs produced copy of F.I.R. which was registered against unknown vehicle and driver

Name of driver could not be mentioned in F.I.R. as the driver was not known to plaintiff but registration number of vehicle could have been noted and must have been mentioned in the F.I.R., which was the base of the suit

F.I.R. was completely silent to implicate defendant and his vehicle to be responsible for the incident

Plaintiff had also produced a copy of charge-sheet framed against defendant, in which number of vehicle was also mentioned but charge-sheet was completely silent regarding arrest of defendant and seizure of vehicle in question

No sufficient evidence was on record to prove that defendant was driving vehicle in question which hit deceased in rash and negligent manner and vehicle did not receive any damage while climbing on foot-path

Plaintiff failed to lead any cogent, convincing and plausible evidence to prove that defendant was driving vehicle in rash and negligent manner

Plaintiff could not prove that defendant was responsible for causing death of deceased and evidence led by plaintiff was wholly insufficient to award any compensation/damages against defendants

Suit was dismissed in circumstances.

Suit was time-barred in circumstances.

Plea raised by plaintiff was that death was caused due to negligent firing of police and suit was covered under Fatal Accidents Act, 1855, hence no court-fee was required to be fixed

Office raised objection to the fact that according to averments made in plaint, death was caused in police encounter, therefore, court-fee was required to be fixed

Validity

Question as to whether deceased died due to wrongful and negligent firing of police officials, required recording of evidence, which could not be decided at the stage of filing of suit, without recording of evidence

Plain reading of plaint showed that it was a case of compensation under the provisions of Fatal Accidents Act, 1855

Plaintiff stated in his plaint that no court-fee had to be deposited as the suit was under the provisions of Fatal Accidents Act, 1855, which was exempted from court-fee

High Court directed the office to register the suit and issue summons to defendants

Objection was over-ruled in circumstances.

Principles.

Plaintiff by his application had sought attachment of Truck of defendants apprehending that likelihood existed that defendants could. remove it from jurisdiction of the Court concerned to frustrate decree, if any passed in suit

Plaintiff had apprehended that by the time suit was decreed, Truck in question could have changed many hands and third party interest could be created

Submission of plaintiff was that Truck in question was the only tangible asset belonging to defendants which was known to plaintiff and in case defendants succeeded in removing same from jurisdiction of the Court, there would remain nothing for him to seek realization of decretal amount, if any

In view of said apprehension, as an interim arrangement, notice was issued to defendants and S.H.O. concerned was directed to attach/seize Truck in question and continue to detain the same safely at the police station till further order of the Court

Excise and Taxation Officer, Motor Registration Wing was also directed not to transfer Truck in favour of any third party till further orders.

Accident in which son of plaintiff was killed had taken place when defendant who was an employee of other defendants drove truck in a rash, negligent and careless manner which rammed into yellow cab which was being driven by deceased at the relevant time

Deceased had died as a result of actionable wrong, negligence and default on part of the driver (defendant) during course of his employment with other defendants

All three defendants were liable to compensate plaintiff, the father of deceased and mother of deceased

Deceased at the time of his death was 30 years old and was a healthy man with simple habits

Father of deceased died during pendency of suit at the age of 72 years

Amount of compensation was determined taking into consideration expected remaining age of deceased, his earning capacity, damages sustained by yellow cab of deceased and funeral and other expenses payable etc.

Suit was decreed accordingly.

Defendants having failed to file written statement despite chances were given to them, Court passed order debarring them from filing written-statement; thereafter matter crossed the stage of filing written-statement and plaintiff filed evidence in shape of affidavit

Nearly about five years thereafter, defendants filed application for recalling order of Court debarring them from filing written statement

Application filed by defendants not only was belated one but reasons mentioned for not filing written-statement, were neither cogent nor sufficient

Defendants having failed to avail opportunity to file written-statement, could not be permitted to file the same after such an inordinate delay and also after evidence had been filed

Even otherwise party was not absolved of pursuing its matter vigilantly by merely engaging an advocate

Application filed by defendant being meritless was dismissed.

Mashirnama of place of occurrence and site sketch produced on record .by Police Officer concerned had confirmed that manner in which accident occurred was same as was pleaded by plaintiffs in their plaint

Evidence of witness, who was injured in accident had fully proved beyond any doubt that it was due to sheer rash and negligent driving of defendant driver of truck that accident had occurred which resulted in death of deceased

Narration of accident given on behalf of defendants/owners of truck concerned in their written statement, was concocted in an attempt to avoid liability of payment of compensation to plaintiffs for which plaintiffs could be entitled under Fatal Accidents Act, 1855

Death of deceased was caused on account of negligence of driver of the truck

Quantum of compensation to which plaintiffs could be justly, equitably and lawfully entitled under Fatal Accidents Act, 1855, was determined taking into consideration average expected age of deceased, his earning capacity, damages to be suffered by wife and children of deceased, funeral expenses and other losses etc.

Total claim of compensation as worked out taking into consideration all said losses and damages would be distributed amongst plaintiffs as per Hanafi Law of Inheritance

To secure the interest of minor legal heirs of deceased, their share would be deposited with Nazir of the Court which would be invested in some profit bearing Government Saving Scheme.

Legal heirs of deceased who died on account of fatal injuries caused to him in accident occurring due to irresponsibility and negligence employees of defendant, had filed suit for compensation against defendants

Element of sheer negligence of employees of defendants, had fully been exposed not only from evidence of eye­witnesses, produced by plaintiffs, but even from evidence of defendant's own witnesses

Status of plaintiffs in their capacity as legal heirs of deceased was also not disputed

Once happening of accident was proved and such evidence was brought on record by aggrieved party, then doctrine of, "res ipsa loquitur" would come into play which would shift the burden on other side to discharge that it was not due to his/their negligence or fault that accident had occurred

In the present case not only sufficient `evidence had come on record showing irresponsible conduct of gate man by opening Railway crossing gate and of driver of railway engine for driving railway engine at a high speed, but negligence of 'employees of defendant which resulted in the loss of three human lives, was also established beyond any doubt

Court, in circumstances had rightly decreed suit accordingly taking into consideration expected life of deceased and his earning capacity

Impugned judgment and decree passed by Single Judge not suffering from any misreading or non ­reading of evidence, could not be interfered with in High Court appeal

­High Court, however held that plaintiffs were entitled for 20% addition in expected income of deceased on basis of income determined by Single Judge

Decree passed by Single Judge of High Court, was modified accordingly.

Evidence on record had fully proved that car involved in accident was owned by defendant and was being driven in rash and negligent manner by the other defendant which had resulted in accident of deceased and his consequent death

Findings of Single. Judge of High Court that car was not owned by defendant and that same was not being driven by the other defendant in a rash and negligent manner at time of occurrence, were based on misreading of evidence and same were liable to be reversed and said two points were to be answered in affirmative

Fact that deceased had left behind him his father, mother, widow, daughter and one son who was born after death of deceased remained un­ controverted

Deceased at time of his death was aged 25 years

­Keeping in view his expected remaining life and his average income, amount of compensation was determined

Impugned judgment and decree passed by Single Judge was set aside and suit was decreed accordingly

Upon realization, shares of two minors would be deposited with Nazar of the Court who would invest same in some profit bearing Government saving Scheme for the benefit of minors.

Defendants who were police officials opened fire indiscriminately on a motor car for stopping the same which had not cared for the signal of the police officials

Deceased at relevant time was sitting in Bus and he was not aware of indiscriminate firing made by police officials and could not adopt any precautionary measures and was hit with negligent firing of police officials and died later on

Police officials being negligent, plaintiffs being legal heirs of deceased were entitled to damages

Police officials present on the spot made indiscriminate firing due to which not only deceased sustained fatal injuries, but other passengers who were traveling in motor car, also received injuries

Husband of plaintiff aged about 30 years and being in stable physical state, was a taxi driver and while driving his taxi was hit by an oil tanker belonging to defendant and driven by the other defendant and he died due to rash and negligent driving of the driver of oil tanker

Deceased left behind him a widow and two minor daughters aged 3 and 6 years

Plaintiff filed suit for compensation claiming a sum of Rs.8,00,000 by way of compensation

High Court found factum of rash and negligent driving on part of the driver of oil tanker and liability of both defendants to compensate plaintiff, but granted amount of compensation to plaintiff Rs.2,08,000 instead of Rs.8,00,000 as claimed by the plaintiff

Suit filed by father of deceased who died in the accident due to negligent and rash driving of bus by defendant, was dismissed by (Single Judge) of the High Court holding that plaintiff had failed to prove that death of the deceased was caused due to negligent and rash driving of defendant

Findings of High Court that it was an un-witnessed accident was not justified because plaintiff had produced witness who saw the accident

Even if it was accepted that it was un-witnessed accident, then too, the doctrine of res ipsa loquitor' would apply in the case which meant that `the things speak for themselves'

Applicability of said doctrine in the cases of negligence to the effect that once the factum of accident was established by the plaintiff, the burden to show absence of negligence would shift on the defendant

Factum of accident in the present case was not in dispute as not only same was proved by the plaintiff by producing all relevant documents, but defendant had also admitted that bus driven by him did meet with an accident by which deceased who was riding the motorcycle was hit

Defendant only had disputed the factum of rash and negligent driving by him

Doctrine of res ipsa loquitor, was fully attracted, in circumstances

Plaintiff who had proved his case by leading

documentary, as well as oral evidence was entitled to relief of damages/compensation sought by him

Judgment of (Single Judge) of High Court not based on material on record and being erroneous, was set aside and suit filed by plaintiff was decreed accordingly.

Predecessor of plaintiffs died due to rash and negligent driving of one of the defendants while the vehicle was owned by the other defendant

Plea raised by the defendants was that as the vehicle was registered jointly in the name of the defendant and the Bank, therefore, the Bank was liable to pay the damages

Validity

As per the Registration Certificate on the record the Bank had only been mentioned as a banker and so also it had been clearly stated that the vehicle was purchased under Hire Purchase Agreement with the Bank

Bank was not the joint owner of the vehicle and the defendant was the only owner of the vehicle

Bank was not liable to pay any damages

Suit was dismissed to the extent of Bank in, circumstances.

Evidence produced on record had fully proved that accident which resulted in death of deceased had occurred due to negligence of defendants

Suit filed by plaintiff was decreed and amount of compensation to be given to legal heirs of deceased was determined keeping in view age, earning capacity of deceased, etc.

When negligence of two or more persons results in some damage, the same is said to be "composite negligence" and persons responsible for causing such negligence are known as "composite tortfeasors " and were jointly and severally liable.

Evidence on record has established that defendant (Railway Authorities) had been negligent in taking proper care resulting in the death of three persons in accident at the railway crossing

Suit for damages/compensation filed by legal heirs of deceased was decreed taking into consideration age and earning capacity of the deceased.

To maintain an action under. Fatal Accidents Act, 1855, plaintiff must prove that the deceased person was injured by the wrongful act and neglect or default of the defendant; that he died in consequence of such injury; that at the time he died he had a right to recover damages and that the beneficiaries have suffered pecuniary loss from his death

All such things must be proved and failure in anyone of them is fatal to the pause of action.