SHAUKAT ALI KHAN Versus KARACHI TRANSPORT CORPORATION.
1. This is a suit for recovery of Rs.3,50,000 under Fatal Accident Act, 1855.
2. Case of the plaintiff is that their daughter Nargis Sultana aged 16 years died in a traffic accident on 5‑1‑1983 at about 12‑45 p.m. She was travelling in bus No.850‑864, which was owned by defendant No.l. Defendant No.2 was driving the said bus as an employee of defendant No.l in a rash and negligent manner. The result was that the deceased fell down from the bus and came under its rear wheel and died due to fatal injuries received by her. The deceased was said to be earning Rs.800 per month from tuition. She was a student of Second Year Science and was expected to become a lady doctor. She was said to be a healthy girl and of simple habits and would have earned Rs.5,000 per month. Hence the prayer for compensation of Rs.3,50,000 as well as interest and costs.
3. The suit was resisted by defendant No.l who has filed written statement. The maintainability of the suit is challenged as the plaintiff has agreed and accepted Rs.14,000 in full satisfaction of his claim. It was further contended that no cause of action has accrued to the plaintiff to file this suit against the defendants as there was no negligence or fault of the driver. It was denied that the deceased was a student of Second Year Science or that she was expected to become a lady doctor. It was also denied that defendant No.2 was driving the bus rashly and negligently. It is alleged that when the bus reached near Abbasi Market Stop and the bus was just to stop, the deceased without waiting for the bus to stop all of a sudden jumped and came under the wheel. It was further averred that the plaintiff had filed a claim for compensation before the Claims Tribunal and had entered into an agreement and had compromised the matter and received Rs.14,000 in full and final settlement of the claim. It is also denied that the deceased was doing tuition. On the pleadings of the parties following issues were framed:‑
(1) Is the suit maintainable on accepting the amount of compensation /claim vide the alleged compromise dated 23‑6‑1983?
(2) Whether the death of deceased Nargis Sultana was caused due to rash and negligent driving of the vehicle in question or due to her own negligence ?
(3) Whether the plaintiffs are entitled to compensation, if yes, what should be the amount of compensation ?
(4) Relief.
2. My findings on these issues are as follows:‑
(1) In the affirmative.
(2) In the affirmative.
(3) Yes. As follows:
REASONS
3. ISSUE No. l
4. Mr. Raza Hussain Haidri, Advocate for the defendant No.l contended that a sum of Rs.14000 was paid to the plaintiff in full and final settlement of the claim. He referred to the true copy of compromise application, which was produced as Exh. 8/1, which reads as under:‑
5. "Parties named above have come to compromising terms outside the Court on the following terms and conditions:‑
(1) That the claimant has agreed to accept Rs.14,000 in words (Rupees Fourteen Thousand) only as compensation and shall not claim any more amount in this Honourable Tribunal or in any other Court of law.
(2) That the Defendant has agreed to pay Rs.14,000 through cheque, which has actually been paid to the claimant in presence of Tribunal.
6. 3 That order may be passed in terms of above agreement.
7. Sd/ -
8. Applicant
9. (Shoukat Ali Khan)
10. Karachi
11. Sd/
12. Dated: 23‑6‑1983
13. Respondent
14. (Sirajul Haque)
15. Secy. KTC."
4. Mr. Mohammad Maqsood, the counsel for the plaintiff relies upon section 67 of the Motor Vehicles Ordinance as amended, which reads as follows:‑
16. "67. Compensation for the death of, or injury to, a passenger:
(1) In the case of death of, or injury to, a passenger in a stage cariage or a contract‑carriage other than a contract‑carriage constructed, adopted or used to carry not more than six passengers, including the driver, arising out of the use of such carriage, there shall be paid, if a permit has been granted in respect of that carriage by the holder of the permit, and, if no permit has been so granted, by the owner of the carriage, as compensation the amount specified in the Thirteenth Schedule‑‑
(a) In the case of death of a passenger, to the legal representatives of the deceased passenger, and
(b) In the case of an injury to a passenger, to the injured passenger.
(2) The compensation payable under subsection (1) shall be in addition to sum which the person entitled to receive compensation may receive or be eligible to receive under a policy of insurance under the provisions of section 95 of the Motor Vehicles Act (IV of 1939).
(3) Any contract for the conveyance of a passenger in a stage carriage or contract‑carriage, other than a contract‑carriage constructed, adapted or used to carry not more than six passengers including the driver, in respect of which permit has been issued this chapter, shall so far as it purports to restrict the liability of any person, or to absolve any person from his liability, in respect of any claim made against that person in respect of the death of, or injury to the passenger who is being carried in, entering from the vehicle, or purports to impose any conditions with respect to the enforcement of any such liability, be void."
17. He contended that the plain reading of subsection (2) of Section 67, and rightly so, would show that the compensation payable under subsection (1) is in addition to any sum which a person entitled to receive as compensation may receive or be eligible to receive under a policy of insurance under the provisions of Section 95 of the Motor Vehicles Ordinance. He then relied upon on the case of Mohammad Younus Khan vj. K.R.T.C. reported in 1984 C L C 2830 where it was held by Fakhruddin H. Shaikh, J. that Section 67 of Motor Vehicles Ordinance does not prevent the plaintiff from pursuing his remedy under Fatal Accidents Act, 1855 even after having received compensation thereunder.
5. Similar question had arisen in the case of Qaiser Ali v. K.R.T.C. reported in P L D 1986 Karachi 489, where Dr. Tanzilur Rehman, J. relying upon P L D 1983 F S C 20 observed as follows:‑
18. "I am therefore of the clear view that the plaintiff could file a suit for compensation under Fatal Accidents Act, 1855 even after he had received compensation under Section 67 of Motor Vehicles Ordinance, 1965."
19. The provisions contained in the compromise that the plaintiff shall not claim any more amount in the Tribunal or in any Court of law will have to be read in context with the plaintiff's receiving compensation under Section 67. Furthermore subsection (3) of Section 67 makes it quite clear that any contract which purports to restrict the liability of any person or to absolve any person from his liability in respect of claim for death is void. Hence the receipt of payment by the plaintiff under Section 67 of the Motor Vehicles Ordinance with an averment that he will not claim any further compensation in the Tribunal or any other Court being void, does not debar the plaintiff from filing a suit under Motor Vehicles Ordinance. As pointed A out by the Federal Shariat Court in their report referred to above the compensation under section 67 was, in order to immediately alleviate the suffering of the family of the deceased or injured person. Additionally it was given irrespective of the fact as to whether such death or injury was caused by a rash and negligent act of the driver or not. Therefore, additional compensation could be claimed by any plaintiff who could prove that the death or injury was due to the rash or negligent act of the driver of the bus. However, compensation paid under Section 67 was to be deducted therefrom while awarding the compensation under the Fatal Accidents Act.
20. ISSUE N0.2
21. It is an admitted position that the deceased girl was traveling in the bus owned by defendant No.1 and driven by defendant No.2. It is also admitted that she had died while attempting to get down from the bus at the stop which was her destination. The only dispute is on the issue $s to whether the accident was caused due to negligence of the d- ceased girl herself or due to the rash and negligent driving of the driver of the bus. The driver and conductor of the bus have been examined by defendants. No doubt they are the natural witnesses of the accident but the driver was not expected to have seen the girl getting down from the bus as she had fallen out from the rear gate while the cleaner does not claim to have witnessed her falling down, as he has admitted that he had heard the cries of the passengers that the girl had fallen down. Driver Sher Alam Exh. 9 has no doubt stated that he had slowed down the bus when the stop was 50 yards ahead but the deceased girl suddenly jumped out from the moving bus and fell down from the bus, but in his cross‑examination he has admitted that while driving he was concentrating on the road in his front. He, therefore, could not have seen the girl jumping from back door. His statement has been challenged in the cross‑examination by putting direct question to him alleging that it was false. His reply does not appear to be satisfactory.
22. The evidence of the cleaner Ahmad Ali Exh. 10 is of no help to the defendants as already pointed out by me that he did not claim to have witnessed the girl jumping out from the bus. On the contrary he states that he had heard cries of the passengers that a girl, who was also travelling in the bus, had fallen down.
23. As against this P.W. Mohammad Akram who was also a student and whose evidence is Exh. 6 has stated that the defendant's bus was racing with another bus at the relevant time. It did not stop at the next bus stop and while it was negotiating a turn at Jinnah Avenue the deceased girl who was standing on the footboard had fallen down as a result of sudden jerk. The evidence of P.W. Mohammad Akram appears to be convincing and reliable. He was also a student and was therefore expected to be travelling in the bus at that time. The defendants have not claimed any enmity with him nor they have alleged any motive against him. I am therefore satisfied that the death of the deceased was due to rash and negligent driving of defendant No.2. Besides defendant No.2, defendant No.l is also vicariously liable being the owner of the bus and the accident having taken place during the ordinary course of his employment.
24. ISSUE N0.3
25. The plaintiff has examined himself as Exh.
5. He is father of deceased Nargis Sultana. He has stated that the deceased was a student of Second Year Science in Saudia College. He has produced Matric Certificate as well as Admit Card and Mark Sheets of Matric and Ist year and IInd year of the deceased showing that she had passed all these examinations in 'B' Grade. He has further stated that the deceased was aged 16 to 17 years at the time of the death. Her Matriculation Certificate shows that she was born on 19th September, 1965. This aspect of the case has not been challenged at all. Hence I have least hesitation in coming to the conclusion as to the age and educational qualifications of the deceased. It is claimed that she was an intelligent girl and was earning Rs.400 to Rs.500 per month by tuition and that she intended to become a lady doctor. The educational background of other children i.e. two sons of the plaintiff has also been shown, which is also brilliant. In these circumstances the claim of the plaintiff that the deceased would have provided an assistance of Rs.700 per month to her parents cannot be underrated. The plaintiff was aged 49 years at the time of the accident while his wife was aged 42 years. The life expectancy according to the majority view if 60 years. Hence the plaintiff No.l expects to live for a period of 11 years while the plaintiff No.2 expects to live for a period of 18 years. Hence I have decided to calculate the compensation on the basis of a period of 18 years. Hence the support which the plaintiffs would have received from the deceased would have been Rs.8,400 multiplied by 18 years which comes to Rs.1,51,200 out of this Rs.14,000 which the plaintiff has already received under Section 67 of the Motor Vehicles Ordinance, be deducted, comes to Rs.1,37,200.
6. I therefore decree the plaintiffs' suit against the defendants jointly and severally for a sum of Rs.1,37,200. I also grant interest to the plaintiffs on the said amount at the rate of 6% per annum from the date of suit till realization of the decretal amount. Costs of the suit shall be borne by the defendants.
26. A.A./S‑112/K Suit decreed.