ANISUR REHMAN Versus GOVERNMENT OF SINDH

1. This suit has been filed by Anisur Rehman, the father of the deceased Nadeemur Rehman, who died in a traffic accident on 8‑7‑1988. The suit has been filed in a representative capacity for the interest and benefit of other dependents/legal heirs i.e. mother of the deceased, Mst. Qaisar Jahan, aged about 37 years and others.

2. The brief facts, according to the plaint, are that the defendant No.3 is the driver/employee of defendant No.2, who drives their water tanker. The defendant No.2, Karachi Water and Sewerage Board, has been formed by the defendant No.l, Government of Sindh, for supply of water and managing and maintaining sewerage lines within its territorial jurisdiction. On 8‑7‑1988 the defendant No.3 who was driving a water tanker No.GS 3166, belonging to defendant No.2, rashly and negligently, dashed into motorcycle No.KCL 39, injuring the motorcyclist Nadeemur Rehman, who subsequently succumbed to the injuries while his companion, who was riding on the pillion, received minor injuries. The deceased Nadeemur Rehman at the relevant time was aged about 21 years and was of simple and healthy habits. He also used to look after the plaintiff and other dependents/legal heirs. He was trained in silk power-loom industry and was fully acquainted with all basics in the field of silk industry. It is stated that the deceased was the sole proprietor of the silk industry known as 'Huma Silk Industry', manufacturing all kinds of silk fabrics. He was not only supplying silk to the local market but was also trying to export the same due to which he was carning approximately a profit of Rs.20,000 to 30,000 per month. The deceased also had an import licence of silk and used to import about 5000 Kg yards by sale of which he was earning Rs.20/30 per Kg and hence an earning of Rs.80,000 to 1,00,000 per year.

2. Keeping in view of the above and the earning capacity of the deceased Nadeemur Rehman, the plaintiff has claimed an amount of Rs.2,000,000 from the defendants. No break‑up of the claim has been given.

3. The defendants No. 2 and 3 filed written statement, denying the claim of the plaintiff and giving their own version of the accident. According to the said defendants, on 8‑7‑1988 at about 9‑00 p.m., the defendant No.3 was driving tanker No.GS 3166 and was going from Sakhi Hasan Hydrant, When he reached North Nazimabad, Block N, someone attempted to climb the said tanker with the motive to forcibly take the same to get water. The cleaner, who was sitting besides the driver shouted and the driver stopped the tanker but in the process the person who was trying to climb the tanker had slipped and came under the wheels of the said tanker. According to the defendant No.3, he was driving the said tanker with all due care and caution and that the deceased came under the tanker because of his own act of claiming the running tanker, and not due to his rash and negligent driving. It has further been denied that the plaintiff could file a representative suit as the plaintiff has failed to disclose the alleged dependants apart from the mother of the deceased. It has also been denied that the deceased was earning an amount of Rs.20,000 to 30,000 per month and that he was maintaining the plaintiff and his wife as the plaintiff himself being aged 40 years, is earning himself and was not maintained by the deceased.

4. On the basis of the pleadings, the following issues were framed

(i) Whether the death of the deceased Nadeemur Rehman, was caused by rash and negligent driving of the Truck No.GS 3166 by the defendants Nos.2 and 3 driver/employee/servant of the defendant No. 1, if not what is his effect?

(2) Whether the defendants are liable to pay the compensation/damages to the plaintiff jointly and severally?

(3) Whether the defendants Nos.2 and 3 are not liable to pay the compensation?

(4) Whether the plaintiff is not entitled to costs and interest as claimed?

(5) What other relief or reliefs, the plaintiff is not entitled to?

(6) What should be the decree?

5. The plaintiff produced Ghulam Rasool (P.W.1) who was P.C. in Police Station North Nazimabad and who produced F.I.R. 397/88 (Exh. 6/1) which pertains to the accident dated 8‑7‑1988 in which the deceased Nadeemur Rehman died. The second witness is the plaintiff himself (P.W.2) who deposed and supported the contents of the plaint. He also stated that the defendants have not paid any compensation to him. He produced an import licence in the name of M/s. Huma Silk Industries (Exh.7/1). The third witness is Amjad Ali Qureshi (P.W.3) who was riding with the deceased at the time of accident. He has deposed that the deceased Nadeemur Rehman was his friend and that he was running a factory named ' Huma Silk Industry'. He stated that the income of the deceased from the factory was about 15,000 to 20,000 rupees per month. He has supported the version of the accident as given in the plaint and has stated that the tanker was travelling at a very fast speed and hit the motorcycle as a result of which Nadeemur Rehman fell and came under the wheels of the tanker. He also fell from the motorcycle and received some injuries on his arm and leg. According to him, the driver (defendant No.3) tired to run away from the scene of the accident but was stopped by the people who had gathered at the scene of the accident. The deceased and the deponent were taken to the Abbasi Shaheed Hospital. In his cross‑examination, he denied that he was deposing because he was a friend of the deceased and reiterated his statement in examination‑in‑chief.

6. The next witness was the mother of the deceased, Mst. Qaiser Bano, who had filed affidavit‑in‑evidence and supported in general the contents of the plaint. In her cross‑examination, she denied that her deceased son was fully dependent on his father and that he (the deceased) was physically sharing the business with his father. She had produced a membership certificate of Huma Silk Industry (Exh.9/4), Income Tax Assessment Form I.T. 30‑A (Exh.9/5) for the year ending 30‑6‑1986, a certificate issued by the Government of Pakistan; CCI&E dated 28‑6‑1984 (Exh. 9/7) in the name of Huma Silk Industry, and death certificate of the deceased Nadeemur Rehman dated 20‑6‑1989 (Exh.9/8). In her cross‑examination she admitted that there was shortage of water in the house and that on the date of the accident there was no water in the house. She also admitted that defendant No.3, who was challaned in the criminal Court for the present accident was acquitted by the Court.

7. The ownership of the truck, the relationship between the defendants 1,2 and 3 and the cause of death are not in dispute.

8. I have examined the record and the pleadings and have heard the learned counsel for the parties and my finding on the issues are as follows:‑‑

9. Issue No. l:

10. P.W. 3 Amjad Ali Qureshi, who was an eye‑witness to the accident, deposed that he was going with the deceased on the motorcycle to see some one and while going from L‑Block of North Nazimabad towards N‑Block when they reached T&T Gate the Tanker Truck No.GS‑3166 which was travelling at a fast speed hit the motorcycle from behind as a result of which the deceased fell from the motorcycle and was run over by the tanker. He further deposed that he himself also fell from the motorcycle and received some injuries. After the accident the driver tried to run away from the scene of the accident but was apprehended by the people who had gathered there due to accident. In his cross-examination he denied the suggestion of the defendants that the deceased wanted to take the tanker by force to get water for his house/area. He further deposed that the motorcycle was also damaged by the impact of the tanker. He also denied the suggestion that he was deposing only because the deceased was his friend, but it was a fact that deceased Nadeeniur Rehman was run over by the tanker.

11. The defendants have produced Zarif Ahmed Siddiqui, D.W.1, who was Superintendent Engineer, Karachi Water and Sewerage Board, District East Karachi. He has deposed that he was posted as Superintendent Engineer on 8‑7‑1988 and was working as Executive Engineer, North Nazimabad. According to his deposition, he was informed about the accident in the morning of the 9th July, 1988 i.e. on the next day of the accident, by some of the employees and he, alongwith Haseen Aslam, Assistant Engineer, went to the scene of the accident where they were informed by some people that out of the two boys, who were going on the motorcycle, one sitting on the rear side jumped over the moving tanker but he could not get the grip and fell and came under the wheels of the tanker. He also deposed that subsequently he came to know that the deceased used to help his father in this business. His further deposition was that the motorcycle was not damaged in any manner and that the driver Niaz Muhammad has never been involved previously in any accident. In his cross‑examination he admitted that the tanker was released from the S.D.M.'s. Office on the basis of his letter which was not produced in evidence. He also admitted that normally a cleaner is posted with the driver but he was not sure which cleaner was on duty on the said tanker on 8‑7‑1988. He was not aware if any departmental inquiry took place against defendant No.3. He, on the basis of the information collected by him, denied that the accident occurred due to the negligence of defendant No.3.

12. Niaz Muhammad (D. W.2) is the driver and defendant No.3 in this suit. In his deposition he had narrated that after filling the water from the Hydrant he was proceeding to Block 'N', North Nazimabad when he was informed by a motorcyclist that some one had come under the wheels of his tanker on which he stopped the tanker. The name of the boy who was driving the motorcycle and was carrying the body of the victim is stated to be Aijaz. By the time he stopped the truck it went about 15 paces ahead of the place of accident. After he stopped the truck and came down he was beaten by the people who had gathered there as a result of which he became unconscious and was taken to Abbasi Shaheed Hospital. In his cross‑examination he denied that this tanker was ever forcibly taken away by the boys for water. However, he denied that he was driving negligently, carelessly and at a fast speed due to which the accident took place. He did not remember the name of the cleaner who was sitting with him on that day. He denied that motorcycle was damaged.

13. It is peculiar to note that as already stated above, neither the cleaner was examined nor any independent witness by the defendants. There is no report as to the beating of the driver nor any medical report about his admission/examination in the Abbasi Shaheed Hospital. The motorcycle was not examined by any technical person as to its damage nor any report is there. The driver (D. W.2) has denied that the boys ever forced his tanker for getting water.

14. Since the other eye‑witness, who was sitting with the driver, was not produced by the defendant, the evidence of P.W.3 remains unrebutted. The defendants having given a different version of the accident, were burdened with to discharge the same and to prove the version they have put forward in their written statement. Since the eye‑witness was, intentionally or unintentionally, not produced, there is nothing on the record to disprove that the defendant No.3 was not plying the vehicle rashly and negligently.

15. In the circumstances, the facts and version given by the eye‑witness is accepted as the defendants have failed to give any supporting evidence of their version.

16. The learned counsel for the plaintiff has relied on various judgments, a few of which are as under:‑‑

(1) Mst. Sakina and 3 others v. M/s. National Logistic Cell, through Commander and 2 others (1995 MLD 633),

(2) M/s. Hayat Services (Pakistan) Limited v. Kandan (1989 CLC 2153), and

(3) Spin Gul and 2 others v. Ikram‑ul‑Haq and another (1987 MLD 2402).

17. In the case of Mst. Sakina it was observed that "the defendant has given a different version of the manner in which the accident is said to have happened then the burden would lie on the defendants to prove their version. Now the defendant has not proved his case as given in written statement but has taken a totally different stand. In these circumstances, the version of the plaintiffs would be accepted as the true version".

18. In the case of M/s. Hayat Services (Pakistan) Limited, it was observed that "No doubt the initial burden is upon the person alleging the accident and death to prove it and once he discharges this burden it shifts to the other side. But where death or the accident is not denied but different version of the incident causing death is stated then if such allegations constitute facts which are exclusively within the knowledge and possession of the defendant then even if the version alleged by the plaintiff is found to be weak or incorrect, the defendant is bound to prove his version".

19. In the case of Spin Gul and others it was observed that "now coming to the incident, on the admission of defendant No. 1, at the place of incident there were high walled trucks parked on the side of the road and that the deceased came out from behind the trucks and tried to cross the road and dashed himself with the bus. It is, therefore, admitted that an incident of this nature had occurred in which the deceased was involved and either he had struck himself or he was struck by the mini bus. Since the incident and the fact that the deceased ran from behind the truck and dashed with the bus has been admitted by the defendants, the burden is upon the defendants to prove in what manner the deceased was hit by the mini bus".

20. In view of the above evidence and judgments, Issue No. is decided in the affirmative.

21. Issues Nos.2. 3, 4 and 5

22. Since Issues Nos.2, 3, 4 and 5 are inter‑related as to the quantum compensation and the liability of the defendants, the same are dealt with together.

23. The plaintiff has examined P.W.2, P.W.3, and P.W.4, who are father, friend and mother of the deceased Nadeemur Rehman respectively. All three of them have deposed that the deceased was about 21 years old and in good health. They have also deposed that the deceased was running a cloth factory known as ' Huma Silk Industry' and he was also holding an import licence for the import of yarn which he was selling in the market. They have produced import licence as well as certificates in the name of Huma Silk Industry. They have also produced an assessment order showing the deceased Nadeemur Rehman as the proprietor of Huma Silk Industry. All the three witnesses have deposed that the deceased was earning somewhere between 10,000 to 20,000 rupees per month. On my query the counsel for the plaintiff stated that there are three looms in the said factory which apparently do not show that he could earn an income of Rs.10,000 to Rs.20,000 per month with these three looms. Since the declared income of the deceased in the Income Tax Department is already available on record, which shows that he had an annual income of Rs.41,400, the same will be taken as the established income of the deceased.

24. Since issue No. l has already been decided in the affirmative, I hold that the defendants Nos.2 and 3, jointly and severally, are liable to pay compensation/damages to the plaintiff and his wife who are the statutory legal heirs of the deceased under the provisions of Fatal Accidents Act, 1855.

25. Before I part with this case, I would like to comment that though this suit was filed by the plaintiff as a representative suit but none of the ingredients necessary under the law were present nor the procedural requirements were complied with. Order I, rule 8, C.P.C. clearly stated that "where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expenses, notice of the institution of the suit to all such persons either by personal service or, wherefrom the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct". No permission was obtained from the Court which is mandatory as a consequence to which this suit cannot be regarded as a representative suit. Apart from the present plaintiff, there was only one person i.e. the mother, who could have been joined as a party. Anyhow since the mother is entitled to receive compensation under the law, the same is being allowed to her only to the extent and the period she shares with the plaintiff.

26. As regards to what relief and how much amount the plaintiff and his wife are entitled to, the evidence shows that at the time of the accident the father of the deceased was 46 years old and the mother Qaiser Bano was 37 years old. If the normal age expectancy is taken as 65 years then the period for which the pecuniary benefit could have been accrued to the two together will be as under: ‑‑

27. Anisur Rehman (Father)

28. Average Age: ????????????????????????????????????????????????????????????????????????????????????????????????? 65 years

29. Age at the time of accident: ????????????????????????????????????????????????????????????????????????????? 46 years

30. ??????????? ????????????????????? ? ?????

31. Period of loss of pecuniary benefit; ?????????????????????????????????????????????????????????????????? 19 years

32. Established annual income of the deceased ?????????????????????????????????????????????????????? Rs.41,400‑00

33. Total income for 19 years of the deceased ??????????????????????????????????????????????????????? 19 x 41, 400

34. ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? =Rs.786,600‑00

35. Less 1/3rd of the total amount being personal expenses of the deceased: ???????????????????????????????????????????????????????????????????????????????????????????????????????? (‑‑) ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Rs.262,200‑00

36. ???????????????????????????????????????????????????????????????????????????????????????????????????????????????? =‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

37. ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Rs.524,400‑00

38. The deceased has left behind the factory, an earning unit for the LRs which will be generating income or if sold: ????????????????????????????????????????????????????????????????????????????????????????????? (‑‑) ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Rs.100,000‑00

39. ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑?

40. Parents jointly entitled to ?????????????????????????????????????????????????????????????????????????????????? = ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Rs.424,400‑00

41. ??????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

42. Issues Nos. 2, 3, 4 and 5 replied accordingly.

43. The suit of the plaintiff is decreed against the defendants Nos.2 and 3, jointly and severally, for Rs.424,400 with simple interest at 10% from the date of the decree till payment. There will, however, be no order as to costs.

44. A.A./‑A‑64/K ????????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.