KHATOON Versus NOOR SHER KHAN

1. This suit has been filed by the plaintiff under the Fatal Accidents Act, 1985 for recovery of Rs.1,10,000.

2. The facts leading to the filing of the above suit are that on 4‑12‑1984 at 8.15 a.m. one Jan Muhammad was going on cycle on Manghopir Road near Mart Abbasi Hotel, Karachi, Sabroz Khan the defendant No.2 was driving wagon 806 115 rashly and negligently and the wagon struck against the cycle of the‑said Jan Muhammad, fatally injuring him. P.W. No.2, Muhammad Bashir (Ext.6) took Jan Muhammad in a taxi to Abbasi Shaheed Hospital. The said P.W.2 informed brother of Jan Muhammad and both of them took the said Jan Muhammad to Jinnah Hospital but Jan Muhammad succumbed to injuries. Hence the plaintiff filed this suit on 29‑10‑1985. Plaintiff is the wife of the deceased Jan Muhammad. The wagon which caused accident was owned by defendant No.1.

3. The defendants filed separate written statement. The defendant No.1 stated in his written statement that he was not the owner nor the defendant No.2 was the servant of defendant No.l, on the day of the said incident whereas the defendant No.2 stated in his written statement that the defendant No.l, was not the owner nor he was servant of the defendant No.1. The defendant No.2 further stated that he was neither rash nor negligent when he was driving the said wagon. It is denied that the wagon, driven by the defendant No.2, dashed the deceased Jan Muhammad. By consent of the parties the following issues are framed:‑

(1) Whether the death of the deceased Jan Muhammad was caused by rash and negligent driving of the wagon No.806‑115 by defendant No.2 (driver) employee of the defendant No.l.

(2) Whether the defendant is vicariously liable to pay compensation/damages to the plaintiff as claimed for actionable wrong of their driver or are the defendants jointly and severally liable to pay the compensation to the plaintiff.

(3) Whether the plaintiff is entitled to interest and cost as claimed.

(4) What other relief the plaintiff is entitled to.

4. The plaintiff examined herself Ex.5 besides P.W?. Bashir as Ex.6. The defendants examined themsleves as Exs.7 and 8.

5. Issue No.l. There is no dispute, that Jan Muhammad died due to accident when he was hit by the wagon being driven by the defendant No.2. P.W.2 has stated that on 4‑2‑1984 at about 8.15 a.m. the deceased was. going on cycle when a wagon which was also going in the same direction hit the cycle from behind throwing out the deceased. This witness has stated that at that time he was also on the bicycle going to the Lakhani Mills for duty. This witness has stated that the Mini‑bus which hit the cycle of the deceased was going on a very fast speed. This witness denied the suggestion in cross‑examination that the accident occurred because the deceased suddenly wanted to turn to the right. This witness admitted that the Mini‑bus hit the cycle but did not overrun the cycle. This witness admitted that as a result of the impact the deceased was thrown off and sustained head injury. This witness denied the suggestion in cross‑examination that the bus was in the normal speed.

6. D.W.1, Sheraz Khan has stated that the deceased, who was going on a bicycle and was also proceeding in the same direction, suddenly took a turn to the right in order to go to the other side of the road and fell in front of his vehicle. He has stated that he immediately applied brakes and the cyclist fell down on the ground and he suffered head injures. This defendant No.2 admitted in his cross -examination that P.W.2 accompanied him to hospital.

7. According to P.W.2, Muhammad Bashir the wagon hit the deceased, whereas according to the defendant No.2 the deceased while taking turn to the other side of the road fell in front of his vehicle. Whereas defendant No.2 claims to be driving it at moderate speed and the deceased suddenly took a turn to the right in order to go to the other side.

8. It appears to me that from the evidence of the eye‑witness produced by the plaintiff it is quite clear that the cycle of the deceased was hit by wagon driven by defendant No.2 at a very high speed and the deceased was hit while he was on his own side of the road and he died as a result of these injuries sustained by him.

9. The evidence of the defendant No.2 is of no consequence as he is an interested witness.

10. There is another aspect of the case. in suit for damages in accident cases normally the case is that it is for the plaintiff to prove negligence. In some cases the above principle may cause hardship to the plaintiff, because it may be that the true cause of the accident lies solely within the knowledge of the defendants who cause it. This hardship is, however, avoided to a considerable extent by the maximum reslipsa Loquitur. The maximum means that an accident may by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other causes, and that in such a case the mere fact of accident is prima facie evidence of such negligence.

11. In such cases it is sufficient for the plaintiff to prove accident and, therefore, a presumption of negligence arises. The onus then shifts on the defendants to show that the accident could not be avoided at any cost. Adverting to the facts of the present case, it is evident from the evidence of the P.W.2 that the accident occurred due to the rash and negligent driving of the wagon by defendant No.2. This fact could be within the knowledge of defendant No.l the owner of the Wagon but he denied that he was the owner of the wagon at the relevant time. The defendant No.2 stated that the deceased suddenly took a turn which fact was denied by P.W.2.‑The defendant, however, led no independent evidence to show that the accident was not occurred due to rash and negligent driving.

12. After taking into consideration all the facts of the case, I am of the view that it was for the defendants to show that they were not liable for the accident but they have failed to do so. Therefore, I have no hesitation in holding, that death of the deceased was caused due to rash and negligent driving of the defendant No.2 and the defendant No.2 is responsible for the accident.. My finding on issue No.l accordingly.

13. Issue No.2. The defendant No.l stated in his written statement that he was neither owner of the wagon nor the defendant No.2 was the servant of the defendant No.l, on the day of the accident.

14. The defendant No.2, has admitted in cross‑examination that the wagon was taken away by police after the accident. The defendant No.2 stated that both the defendant No.l and Naqsh Khan had applied to the Court for return of the vehicle.

15. The defendant No.l, admitted in his cross‑ examination that he had applied for the return of the vehicle as owner and it was returned to him under the orders of the A.C.M. This witness has admitted his signature on the application (Ex.9). Therefore, I hold that the defendant No.l is the owner of the wagon and the defendant No.2, was the employee of the defendant No.l.

16. The plaintiff has stated in her deposition that the deceased used to pay her Rs.2,000 per month for the house‑hold expenses. The plaintiff has also stated that he was keeping a very good health at the tune of his death. The deceased was doing tailoring work. The plaintiff has stated that the deceased was aged about 60 years. The expectancy of life in their family is 65 years. The learned counsel for the plaintiff has relied upon P L D 1969 S C 565 and P L D 1980 Kar. 584, where 65 years of expected life was considered. In my view the deceased was of good health, therefore, 65 years of expectancy, of life in his case is reasonable.

17. I have come to the conclusion, that I can safely fix the net earning of the deceased, keeping in view of his future prospects at Rs.2,000. I estimate that the f plaintiff would be receiving a benefit of about Rs.1,500 per month thus the expected benefit which the plaintiff could have expected is the sum of Rs.90,000 in the 5 years to come from the deceased.

18. I, therefore, decree the suit in favour of the plaintiff to the extent of Rs.90,000 and also allow her cost of the suit. I also allow her interest on the decretal amount at 10% per annum from the date of this judgment.

19. A.A./K‑73/K Suit decreed.