KARACHI, Aug 24: The Sindh High Court has decreed a suit against the Pakistan Steel and others, in a fatal accident case, with cost, jointly and severally, with mark-up at the rate of 7 per cent per annum from the date of filing of the suit till realization.

The quantification of damages appeared to be fair and just, but since the plaintiff had confined his claim to the extent of Rs850,000, Justice Ataur Rahman was not inclined to grant the compensation beyond the amount claimed.

Justice Rahman gave the decision in the suit filed by advocate Nasir Maqsood on behalf of the plaintiff, Sahib Ali.

Sahib Ali filed the suit for himself and for Ms Naeema and Ms Taj Bibi, the father, mother and grandmother of Masood Jan who died in an accident.

On May 20, 1990, the court framed the issue, including whether the suit is maintainable, whether the death of Masood Jan was caused by rash and negligent driving of the bus bearing No 280-782 by the defendant No 2 belonging to the defendant No 1 on 2-6-1989 on National Highway, whether the plaintiff and other beneficiaries/legal heirs mentioned in para (1) are entitled to compensation/ damages from the defendants, if so, to what extent and against which defendant?

The issue before the court was also to determine whether the defendants were liable to pay compensation to the plaintiff and other legal heirs jointly and severally?

Some evidence was recorded before the Commissioner and the rest before the court.

The suit was held maintainable because the defendants in support of this issue neither in the written statement raised any ground nor addressed any arguments.

The defendants neither denied the fact of accident nor the death of Masood Jan.

The evidence of the eyewitness whose presence at the spot was not questioned, and the documentary evidence produced by the investigation officer supported the case of the plaintiff. It is proved that the manner in which the accident had occurred and Masood Jan died was due to the negligent driving of the van of the defendant No 1 by the defendant No 2.

Justice Rahman observed that a person driving a motor vehicle on a busy road must drive the vehicle with reasonable care and strictly observe the traffic regulations and rules of the road so as not to imperil the safety of people, especially pedestrians and cyclists or others, who had an equal right to use the highway.

As between the motor vehicle and the responsibility to use care and diligence was far more and greater on the vehicle diver to avoid the accident. He had a duty to keep a better outlook than a pedestrian and was obliged not to be speedy and should have sufficient time to stop the vehicle to avoid the accident. If the defendant No 2 had acted as a prudent and careful driver, he could have avoided the accident, he observed.

In the instant case, the defendants had only examined their driver as defence witness whose evidence, besides being contradictory, was not confidence inspiring and his uncorroborated statement being an interested witness could not be given preference over the evidence of independent eyewitness examined by the plaintiff, he observed. The driver’s evidence was of no help to the defendant.

He held that the defendants failed to discharge the burden of negligence on their part and as such the only irresistible conclusion was that the death of the deceased was on account of the negligence and default on the part of the defendant No 2, and as such the same could not be allowed to set up now.

Counsel for the defendants had contended that the accident had taken place due to negligence by the traffic police present at the spot. Such defence could not be entertained as the same was not set out either by the plaintiff or by the defendant and no issue was framed to that effect.

The counsel for the plaintiff, Nasir Maqsood, relied upon the case of Mairajuddin Vs KW&SB (1998 MLD 1726), which was upheld up by the Supreme Court and so reported as the KW&SB Vs Mairajuddin (2000 SCMR 275).

He pointed out that this verdict conclusively dealt with the principles of evaluation of compensation in case of the death of minors ranging around the same age as that of the deceased in question.

In the plaint, as well as in the evidence, it has been stated that the deceased at the time of his death was aged 12 years and was survived by father, mother and grandmother. The deceased was stated to be earning Rs30-40 a day by working in a roadside hotel, owned by Mehboob, who also entered the witness box and deposed accordingly. Children of this age are not allowed to put to work/labour according to the universally-accepted norms, and so the contribution of children towards the income of parents is not allowed.

In view of the background of the deceased and earning capacity of the plaintiff and the parents, Justice Rahman only allowed the average earning of the deceased at the rate of Rs3,000 a month with effect from the age of 18 years, which is the minimum allowable wage of an unskilled labour in Pakistan.