Mst.ZARI ROHJAN Versus Syed AFSAR SHAH

This is a suit for the recovery of Rs.1,75,000 as damages under the Fatal Accidents Act, 1855.

2. The Plaintiffs case in brief is that Plaintiff No.1 is widow of, Plaintiff No.2 is mother of and Plaintiffs No.3 to 6 are the children of deceased Sher Khan. On 14‑12‑1977 the deceased was driving Scooter No.KAH‑3467 from Saddar towards Police Head Office on I.I.Chundrigar Road, Karachi. P.W. Muhammad Jamil Khan was sitting behind him. As soon as they reached near M/s. Butt Engineering Works near Police Head Office, a speedy Mini Bus No.KCB‑75 (hereinafter called the Vehicle) coming from Marry Weather Tower, while overtaking other vehicles, from the same direction, reached right side of the road and smashed the Scooter, as a result of which deceased Sher Khan died of injuries and Muhammad Jamil Khan sustained injuries. The Scooter was also damaged. Sher Khan and Jamil Khan were removed to the Hospital, but Sher Khan died on the way. The Vehicle was being driven by Defendant No.2 while Defendant No.1 was the owner of the said Vehicle viz. Mini Bus. The Defendant No.2 was challaned by the Police under Section 304‑A P.P.C.

3. The deceased was the sole supporter of the Plaintiffs and he died because of negligent driving of the Vehicle which was being driven by Defendant No.2 as servant of Defendant No.1. The deceased, at the time of his death, was employed in G.M.Fisheries Ltd., and was drawing salary gs.652 per month and was likely to get promotion in future. The deceased was also Auto‑Mechanic and used to earn Rs.500 per month by doing repair work of autos after office hours. The deceased at the time of death was aged 27 years. Hence the Plaintiffs have calculated their damages to be Rs.1,75,000 and also claim interest at the Bank rate from the date of suit and the cost of suit.

4. In the Written Statement Defendant No.1 denies to be driving the Vehicle in question. Defendant No.2 alleges that he was driving a Taxi No.KAZ 758, which belonged to one Shamroz Khan in which lie removed the injured to the Hospital alongwith Police Constable Jehangir but later on he was implicated by the Police in that case. Defendant No.1, in his written‑statement, has denied to be the owner of the Vehicle in question arid avers that it belonged to one Hatif.

5. On pleadings of the parties the Court settled the following issues on 1‑2‑1981:‑

(1) Whether the defendant No.2 Muhammad Asho of was Driver of the Mini Bus No.KCB‑753 at the time of the accident?

(2) Whether the deceased Sher Alam died due to the rash and negligent act of the defendant Muhammad Ashraf?

(3) Whether the defendant No.2 was servant of the defendant No.1 at the time of accident?

(4) 'Whether the Plaintiffs are entitled to claim any damages, if so what amount?

(5) What should the decree be and against whom.

However, after the Defendant No.1 filed written statement following consent issues were also framed which may be considered as additional issues:‑

(1) Whether the Defendant No.1 was the employee of Mr.Hatif Hussain at the relevant time, who was holding the vehicle of accident No.806‑353 (Old No.KCB‑753) as owner?

(2) Whether the allegations against defendant No.1 contained in the plaint are not correct?

(3) Whether the defendants are in collusion with each other to defend the claim, of the Plaintiff.

(4) Whether Plaintiffs claim, if any, is maintainable and enforceable against Defendant No.1?

6. It is not disputed that the deceased died of injuries sustained as a result of dashing of the Vehicle against his Scooter and that the Vehicle at that time was on the wrong side of the road and was being driven negligently. What is being disputed is that neither the Defendant No.1 was the owner of the Vehicle, nor was the Defendant No.2 driving it. It is also admitted fact that the Defendant No.2 was convicted under Section 304‑A P.P.C. for having caused death of deceased by rashly and negligently driving the Vehicle. Admittedly his appeal has been dismissed by the Appellate Court, but he has filed a revision application which is pending m the High Court. It is also admitted, that in the Registration Book the Defendant No.1 is not shown as owner of the Vehicle. It is further admitted, that Defendant No.1 had obtained the custody and possession of the Vehicle from the Trial Court in the criminal case under a "SAPURDARINAMA".

7. In the light of the above admitted facts, I now proceed to examine the evidence produced by the parties. The main questions that require decision by the Court in the instant suit are, (a) Whether the Defendant No.2 was driving the Vehicle at the relevant time which caused. accident? and (b) whether Defendant No. l was the owner of the Vehicle?

8. The evidence on the question as to whether Defendant No.2 was driving the Vehicle at the relevant time is ocular evidence of P.W.Ex.8/4 Muhammad Jamil. He stated that on 14‑12‑1977 deceased Sher Alam and he were going on Vespa Scooter which was being driven by deceased Sher Alam Khan. He states, that a Wagon coming from the opposite direction was being driven negligently and while overtaking other vehicle hit their Scooter. He further states, that the number of the Wagon, which hit their S‑outer was KCH‑753 and that he had seen the Driver of the Wagon, whom he could recognise. lie pointed to Defendant No.2, who was sitting in the Court, to be the Driver of the Wagon.

9. It is contended by the learned counsel for the Defendant No.2, that it was night time and the lights of the Wagon were falling on the face of the witness and, therefore, he could not have recognised the Driver.

10. As already pointed, the Defendant No.2 has been convicted by a competent Court of law under Section 304‑A P P C for causing the accident in question resulting in death of the deceased by driving negligently the vehicle in question. The judgment has been produced as ~Ex.6/11. Appeal of the Defendant No.2 has admittedly been dismissed. Thus the Defendant No.2 has been held by the competent Court of law to be negligently driving the Vehicle in question, which caused death of the deceased. This fact, coupled with the ocular evidence of P.W.Muhammad Jamil, is sufficient to discharge the burden of proof on the part of the Plaintiffs.

11. Now I proceed to examine the evidence of Defendant No.2 Ex‑O as to how far it rebuts the evidence of the plaintiffs. D.W.Ntn.2 Muhammad Ashraf has admitted to be present at the spot and to have taken the deceased as well as the injured to the Hospital from the scene of offence. He, however, contends that he was not driving the Vehicle, but was driving a Taxi. In his deposition, he has not given the number of the Taxi he was driving, but he states that he was driving the Taxi of one Shamroz Khan. He further states that one passenger Mehboob‑ur -Rehman was in the Taxi with him and that one police constable accompanied him with the deceased and the injured to the Hospital, He has given the name of that police constable as Jehangir. He has not examined any of the three above mentioned persons in his defence in this Court. He has, however produced, with his written‑statement, copies of the evidence of Shamroz Khan and Mehboob‑ur‑Rehman examined by him in the criminal case against him. But apparently they were disbelieved by the trial Court and hence the Defendant No.2 was convicted. However, their non‑examination by the Defendant No.2 in this Court raises presumption against him, that had he examined them, they would not have supported him. His evidence, that he was driving the Taxi and not the vehicle in question is not supported by any other evidence whatsoever. His admission that he was at the scene of offence at the relevant time, lends support to the plaintiffs' case. The cumulative effect of this admission, the evidence of P.W. Muhammad Jamil and admitted conviction of defendant No.2 in the criminal case, would lead to only one conclusion viz. That the Defendant No.2 was driving the Vehicle at the relevant time.

12. It is an admitted fact, that the name of Defendant No.1 does not appear, as owner in the Registration Book of the vehicle which book has not been produced in this case. The main evidence in this case is, that of Defendant No. l himself. He states, that Hatif was the owner of the vehicle, but he had an arrangement with Hatif with regard to Wagon which was involved in the accident under which he had to get 25% of the daily earnings of the Wagon. He further admits, that although the Wagon was in the name of Hatif in the record, he was known as the owner, as he used to collect money from the Driver. He admits that, I he made statement before the Magistrate, that the Wagon in question belonged to him. Admittedly he had obtained the possession of the Wagon on "SUPARDARP from the trial Court. He has produced his statement before the Magistrate as Ex‑10/l. He has admitted, that his statement before the Magistrate, is correct. In this statement in the very first sentence he has described the Vehicle as his Wagon No.KCB‑753. The word "owner" as defined in Black's Law Dictionary amongst others means "he who has dominion of a thing, real or, personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases".

13. This witness has denied the suggestion in the cross‑examination, that he had purchased the Wagon No.KCB‑753 on hire‑purchase and had taken open t letter of transfer from Hatif, but did not get his name entered in the record of Excise & Taxation Department‑‑His evidence clearly shows, that he exercised dominion over the vehicle and that he was known to be acting as owner of the said Wagon in spite of the fact that the wagon was not entered m his name in the Registration Book.

14. Under the circumstances there appears to be great force in the suggestion made by the Plaintiffs in the cross‑examination of the witness in spite' of denial by him. The Defendant No.1 states to be acting on behalf of Hatif, whom he has failed to xamine and as such presumption would be drawn against him. P.W.5 Sajjad Mushir, a Sub‑Inspector 4 Excise & Taxation Department has stated that without giving any information regarding the sale and purchase of Vehicle in the Excise & Taxation Department, the ownership of Vehicle may change and the vehicle may continue to ply the road. Defendants admission before the trial Court in the examine case that the Vehicle belongs to him and the fact that in that capacity he took the possession of the Vehicle from the trial Court, coupled with his admissions in this Court as pointed above, leave no room for the doubt that he was the owner of the Vehicle in question and as such liable for the damages.

15. The next question that requires decision by the Court is as to how much compensation the plaintiffs are entitled to receive and from whom in what shape. Issue No.4 has been framed to this effect and in fact that is the main question to be decided and on which parties have led evidence.

16. Plaintiff No.2 Mst.Rabia Gul has examined herself. It may be pointed that even she died during the pendency of the suit and her legal heirs have been joined as plaintiffs. The deceased was her son and according to her, his age was 27 years and he used to get Rs.652 per month from G.M.Fisheries and that he used to earn Rs.500 to 600 per month by carrying repair works of Auto‑Mobile. She states that he was enjoying good health and would have lived a normal life upto the age of 70 years. According to her, he used to spend Rs.60 to 70 upon himself and the rest of money used to pay to her for maintenance of family. She states that Plaintiff No.1 is his widow and he has left four children including one daughter, who is aged 10 years and three sons aged 8 years, 6 years, and 5 years, respectively. She is supported by Mst.Zari Rohjan widow of the deceased. She states that the deceased was earning Rs.650 per month from M.G.Fisheries and Rs.500 to 600 per month from repair works. She states that had he lived, be would have earned Rs.1,500 per month from his Company and would have reached the maximum of Rs.2,000 per month. Both of them claim Rs.1,75,000 as compensation for the death of deceased.

17. P.W.Muhammad Abdul Mobin Siddiqui is an employee of :.1.M.Fisheries. He was examined by the Plaintiff and he states that according to register, the cross salary of the deceased was Rs.652 in November, 1977. He. further states that the employees were paid Bonus at the rate of two months gross safari per year.

18. The plaintiffs' evidence as to the age of the deceased, his earnings and a dependents is not rebutted nor is it challenged in the cross‑examination, of witnesses.

19. Even if the salary of the deceased that he was receiving at the time of his death from G.M.Fisheries, is taken into consideration for the purpose of determination of compensation, it will be found, that he earned Rs.7,824. per year. According to Mr.Muhammad Abdul Mobin Siddiqui, (P.W.3) of G.M.Fisheries the employee was paid bonus at the rate of two months' gross salaries each year. Thus the deceased would be receiving Rs.1,304 as bonus per year. Thus the total earning of the deceased per year from G.M.Fisheries would come to Rs.9,128 per year. According to his mother and wife, he used to appropriate Rs.60 or 70 for his personal expenses which would come to Rs.840 n per year at the rate of Rs.70 per month. Thus the net amount that the deceased was giving to the family would be Rs.8,288 per year. The deceased was of 27 years and would have lived normally upto the age of 65 years. Thus he had 38 years more to earn.. If the above figure is multiplied by 38, the amount that he would have paid to his family for maintenance, would come to Rs.2,85,944. As against this the Plaintiffs have claimed only Rs.1,75,000 and I find no reason not to accept ;his claim of the Plaintiffs to be reasonable compensation for the death of the deceased.

20. I have already held that Defendant No.1 was the Driver of Vehicle KCB 753 at the time of the accident and that the deceased died due to the negligent act Defendant No.2. As such my finding or issues No.1 and 2 are in affirmative.

21. Neither the Defendant No. 1 accepts the Defendant No.2 to be his servant, nor the Defendant No.2 admits to be the servant of Defendant No.1. However, as per aforesaid discussion, I have already held that Defendant No.1 was the owner of the Vehicle and Defendant No.2 was driving the same. The defendant No.1 has not produced the books of accounts to show as to who was the Driver of the Vehicle on the relevant date and time, nor has he examined any Driver named by him in his deposition. Under the circumstances the only conclusion that can be drawn is that Defendant No.2 was the servant of Defendant No.1 and that they are in collusion with each other to defend the claim of the Plaintiffs. My finding on Issue No.3 as well as on additional issue No.3 is in affirmative.

22. I have already held that Hatif has not been produced to prove that the Defendant No.1 was employee and the facts on record indicate, that the Defendant No‑1 was the owner of the vehicle at the relevant time. As such my finding is in negative on additional issues Nos.1 and 2. In view of the above findings, my finding is in affirmative on additionally issue No‑4.

23. I have already held that the plaintiffs are entitled to claim Rs.1,75,000 as compensation from the defendants jointly as well as severally.

24. As already pointed, the mother/plaintiff No.2 died during the pendency of proceedings and her legal heirs, who are apparently brothers and sisters of deceased, have been joined as parties. Under the Fatal Accidents Act such relatives of the deceased are not entitled to any compensation. As such the amount is to be distributed among the Plaintiff No.1 and Plaintiffs No.3 to 5. Plaintiff No.1 being the widow of the deceased is entitled to 1/8th share which would come to Rs.21,875, Plaintiff No.3 who is the daughter of the deceased would receive Rs.21,975, while Plaintiffs No.4, 5 and 6 would each receive 'Rs.43,750.

ISSUE N0.5.

The suit is decreed in the sum of Rs.1,75,000 with costs to be paid to the Plaintiffs in the shares as mentioned above. The Plaintiffs are awarded interest at the rate of 10% from the date of the suit.

AA./Z‑57/K Suit decreed.