1995CLC196 (PLP)

The respondent No. 2 was debarred from filing the written statement. From the pleadings of the parties, learned trial Judge settled the following issues:‑‑ (1) Whether the death of deceased was caused due to negligence of the driver or the deceased himself? (2) What was his income? (3) Whether the plaintiff is entitled to any compensation, if so, to what extent? (4) Whether the suit is time‑barred? (5) Whether the plaintiff is entitled to cost and interest, as prayed? In support of her case the respondent, No.1 examined herself, Bilal Ahmed Khan, Assistant Administrator Multipack Fauji Foundation Karachi, and Noor Muhammad. The appellant examined Jahangir Abdullah and Ahmed Khan Bus Conductor. On assessment of the evidence brought on record, learned trial Judge decided issue No.1 in affirmative. For Issue No.2 he held that monthly income of deceased was Rs.2,

500. On Issue No.3 his finding is that respondent No.1 is entitled to compensation. Issue No.4 was not pressed. For Issue No.5, he held that respondent No.1 is entitled to cost and interest at the rate of Rs.14% per annum from the date of institution of suit, till its realisation. Consequently the suit was decreed for Rs.6,00,000 with cost and interest, as above, by judgment and decree, which have been impugned in this appeal. Mr. Muhammad Maqsood, learned counsel for the respondent No.1 raised a preliminary objection that as per order dated 10‑1‑1991, the appeal was admitted only on the point that whether or not a sum of Rs.6,00,000 granted by way of compensation on the basis of monthly salary of Rs.2,500 was in accordance with the principle laid down in several cases of this Court. According to learned counsel, the appeal be decided only on above point and all other pleas raised by learned counsel for appellant be not taken into consideration. Mr. Naraindas C. Motiani meeting above point cited the case of Begum Humayun Zulfiqar Ismail v. Begum Hameeda Saadat Ali, reported in 1968 SCMR 828, wherein it was held that generally in appeal from original decree the appeal is both on facts and law but in an appeal from Appellate decree or order the appeal is on ground of law only. This being an appeal from original decree, .both the questions of facts and law would be considered. Preliminary objection of learned counsel for respondent No.1 is overruled. Learned counsel for appellant contended that learned trial Court failed to appreciate the evidence available on record and as such reached wrong conclusion. He also argued that the accident toad occurred due to negligence of the deceased as he was driving the scooter rashly and negligently and dashed with a stationary Bus. We have examined the evidence and are of the view that finding of learned trial Judge that the accident had occurred due to the negligence of the bus driver, is perfectly correct and no exception can be taken to it. The accident was witnessed by P.W. Noor Muhammad. He furnished the details of the accident, stating that two buses were overtaking to each other and a scooter was hit by one of them. He noted the number of the Bus, which hit the scooter. Mr. Naraindas C. Motiani learned counsel for the appellant criticised the evidence of this witness on the ground that he was a neighbour of the deceased and he obliged the family of the deceased by deposing in their favour. We do not find any fault in evidence of this witness and only on the ground of being neighbour his testimony cannot be ignored. Besides his evidence, there is also evidence of Ahmed Khan, who was examined by the appellant. He was Conductor of said Bus. Narrating about the incident he stated that at that time he was busy in issuing tickets to passengers and Bus was stopped by the Driver after the accident when the passengers traveling therein started shouting. This clearly establishes that the Bus was in I motion and the plea of the appellant that it was standing still is palpably false. The driver was not examined by the appellant and nor any reason for this omission was assigned. Mr. Muhammad Maqsood, learned counsel for the respondent argued that, under the circumstances of the case the principle of res ipso loquitur (things speak for themselves) is applicable. According to him it was sufficient to show that deceased had died because of accident and nothing more was required to be proved by the respondent. He cited the case of Pakistan International Airlines Corporation, Karachi and another v. Ursulina D'Lima and another, reported in PLD 1966 Karachi 580 to contend that above doctrine applies when the thing that inflicted the damage was under the sole management and control of the defendant, or of some one for whom he is responsible or whom he has right to control, and that the occurrence is such that it would not have happened without negligence. Learned counsel submitted that above conditions are satisfied and it is now for the appellant to show otherwise. As discussed in above‑cited case, there must be no evidence as to why or how the occurrence took place. In this case we have sufficient evidence giving the necessary details about the accident. In the case of Mst. Kamina and another reported in 1992, SC"N1R 1715 on this point the following was observed:‑‑ "in the cases under Fatal Accidents Act, 1855, general rule is that burden of proof with regard to negligence is on plaintiff to prove negligence and not for the defendant to disprove it but in cases where true cause of accident lies solely within the knowledge of defendants then this hardship is avoided by invoking the rule of res ipsa loquitur." We, therefore, are of the view that above doctrine is not applicable to this case. The factum of negligence on the part of the Driver of the. Bus stands `B proved by irrefutable evidence which is on record. Learned counsel appearing for appellant argued that learned trial Judge has granted compensation, which is on higher side and is unreasonable. He has submitted that the Court shall arrive at fair figure after giving due consideration to all the material factors. In support of this proposition, he cited the case of Mst. Manjulogoari and others v. Gowardhandas Harjewandas Rawal, reported in AIR 1956 Nagpur

86. In this case, about mode of Assessment the following observations were made:‑ "To be precise in assessing damages under the Act proportionate to the loss resulting to the claimants is by no means easy. While speculation has to be avoided, as estimate of damages has to be made. When one is making an estimate, one cannot be dogmatic. The Court has to arrive at fair figures after, giving, due consideration to all the material factors. The result reached may at best be described as a quasi scientific guess." Coming back to the facts of the case, it is noted that respondent No.1, in her deposition, stated that deceased used to give her Rs.2,200 per month for house‑hold expenses. On the point of income of deceased, the main evidence is of Bilal Ahmed Khan, Assistant Administrator Multipack Limited, where the deceased was employed. The witness deposed that the deceased was working as operator of Machine and he was appointed on 17‑12‑1980 at monthly salary of Rs.17,

00. He confirmed the authenticity of Salary Certificate of deceased, which has come on record at Exh.6/5. According to this Certificate, the . monthly salary of deceased at the time of accident was Rs.2,

139. He also has mentioned that deceased was entitled to over‑time and generally the amount of his over‑time was Rs.400 or Rs.500 per month. He stated that besides salary, the deceased was entitled to other benefits like insurance, credit, old age benefits etc. He was also entitled to‑attendance allowance. According to him, the deceased was a good worker and there was prospect of his rising to higher position. Also, he deposed that deceased, within a period of 5 years could earn Rs.5,000 per month. He has specifically mentioned that he was having good health and physique. Keeping above factors in view, learned trial Judge fixed monthly income at Rs.2,

500. At the time of accident admittedly the deceased was 45 years old. Before taking up the issue of compensation, it is necessary to deal with first the question of expectancy of life. Normally in Pakistan, as per various decisions of the superior Courts, the expectancy of life ranges from 45 to 65 years. For this purpose various factors are taken into consideration. For example general physique of deceased, his habits, nature of duties, history about ages of family members etc. In the instant case, the respondent No.1 stated that the age of the mother of deceased is 70 years. P.W. Bilal Ahmed deposed that deceased had good health. On this point nothing is said either by appellant or by respondent No.2. Learned trial Judge, keeping in view the above evidence reached the conclusion that expectancy of life of deceased could be up to 65 years. We also hold the same view. This brings us to the issue of compensation. As pointed out earlier, the monthly salary of deceased was Rs.2,

139. It is said that deceased was also getting overtime, but the actual amount of over‑time is not disclosed. In general terms, it is alleged that he was drawing Rs.400 or Rs.500 per month. The respondent No.1, in her cross‑examination has clearly admitted that deceased used to go on his motor‑cycle and bore all the expenses of Petrol. Besides this, he also used to bear some other personal expenses. It being so, he could not possibly give Rs.2,200 to respondent No.1 towards household expenses. At the most we are of the view, he could give Rs.2,000 per month. Accordingly, we hold that above was the amount, which said respondent was p getting. Calculating at above rate, the income for a year comes to Rs.24,000 and for 20 years the figure would be Rs.4,80,

000. Learned counsel for respondent No.1 submitted that pegging the income at above rate for next 20 years would be unjustified. He argued that, by passage of time the income of everybody increases. It is true but at the same time the personal expenses would also increase. Mr. Naraindas C. Motiani learned counsel for the appellant next argued that interest granted to respondent at the rate of 14% per annum from the date of the suit, is illegal and conirary to law. In support of this contention, he cited the case of Pakistan. Railway v. Abdul Haq and others, reported in 1991 SCMR 657, wherein it was held that it was fair that the interest should have been allowed from the date when the amount of compensation was, for the first time, quantified and not from the date when the suit. was brought. Following the above rule, we hold that respondent No.1 is entitled to the interest at above rate from the date of the decree i.e. 23rd September, 1990 and this interest should be calculated on the decretal amount of Rs.4,80,000 E granted by this Court. The suit of the respondent No.1 against the appellant and respondent No.2, stands decreed jointly and severally for the aforesaid amount with interest as above and with proportionate costs. In consequence with above modification in the decree, the appeal is dismissed with costs. A.A./K‑365/K Appeal dismissed.