1968 SCMR 446 (PLP)

S. A. RAHMAN, J.

The petitioner Bank was successful in obtaining a decree for the principal amount plus 8 per cent. per annum interest, till the date of the decree and 6 per cent, per annum interest thereafter, till realization, against the respondents, frpm a learned Single Judge of the High Court of West Pakistan exercising jurisdiction of the Court on the original side. The judgment and decree were affirmed on appeal by the Bank, by a Letters Patent Bench of the High Court. The contention that interest should have been granted on the principal sum due, at 10 per cent, per annum, the contractual rate of interest agreed between the parties, was rejected by the High Court as not substantiated by the facts of the case. This is a petition for special leave to appeal, from the order passed by the Letters Patent Bench of the High Court. It is argued by Mr. Mansoorul Arfin that the respondents had been allowed an overdraft account, to the limit of Rs. 56,000, by the petitioner Bank on their depositing certain documents of title to property, by way of equitable mortgage. The memorandum of hypothecation mentioned that interest would be payable on the amount thus loaned but it was silent as to the rate of interest. Similarly it seems that by way of collateral security, a promissory note was also executed by the respondents, bearing interest at 10 per cent, per annum with monthly rests. It was the rase of the petitioner in the High Court that 10 per cent. per annum was the agreed rate of interest for the loan and the petitioner was entitled to have a decree. The High Court has taken the view that the petitioner Bank had obtained two alternative independent securities, namely, the equitable mortgage by deposit of title deeds of property and the pro-note. As they had chosen to base their action on the equi table mortgage the memorandum whereof did not specify any agreed rate of interest, the High Court exercised its own discretion and allowed 8 per cent. per annum interest to the petitioner Bank on the principal amount. Mr. Mansoorul Arfin has contended before us that the promissory note did mention an interest of 10 per cent. per annum with monthly rests and this document should have been considered for determination of the question of the contractual rate of interest payable by the respondents. We do not think the view that prevailed in the High Court in the circumstances of this case is open to any substantial objection. In the plaint itself the petitioner Bank mentioned a certain sum as due to it from the respondent by way of principal and interest and costs, but did not give any break-up to show at what rate interest had been charged on the principal amount. In particular, there was no allegation made that 10 per cent. per annum interest, with monthly rests, had been agreed to be paid by the respondents. In the prayer clause, no doubt, a reference was made to the A execution of the promissory note bearing interest at 10 per cent. Per annum but there again it was not specified that this rate of interest had been agreed upon. In the absence of such a plea there was no occasion for the respondents to raise an issue about the agreed rate of interest. The question involved in the case appears to be one of facts and there seems to be no question of law of general importance arising on the case, such as would justify grant of special leave to appeal. The petition is dismissed. Petition dismissed 1968 5 C M R 448 Present: A. R. Cornelius, C. J. and Fazle-Akbar, J JALIL AHMAD KHAN-Petitioner Versus Mst. KULSOOM AND ANOTHER-Respondents Civil Petition for Special Leave to Appeal No. K-8 of 1968, decided on 16th February 1968. (On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 2nd June 1967, in Letters Patent Appeal No. 117 of 1963), Fatal Accidents Act (XIII of 1855)-Calculating damages under Act-Ascertaining expectancy of life-Whether average or maximum expectation to be adopted-Whether reduced capacity in earning livelihood after superannuation should not be taken into consideration in assessing quantum of damages-Special Leave to Appeal granted by Supreme Court to consider question. Khalid M. Ishaq, Advocate Supreme Court instructed by Shafiq Ahmed, Senior Attorney for Petitioner. Nemo for Respondents. Date of hearing: 16th February 1968. ORDER CORNELIUS, C.J. -In a suit by the widow of one Abdullah for damages under the Fatal Accidents Act, 185 5, the High Court has found:- (1) that Abdullah was a vegetable and fruit vendor, who hawked these commodities on hand-carts, pushing one himself, and owning two others which were worked by his employees; (2) that his monthly income, applicable to the support of his wife and family exclusively, was Rs. 300 per month; (3) that he was 43 years of age when he died in a fatal accident; and (4) that he had, at the time, a further expectation of life of 22 years. The sum claimed was Rs. 54,200, i.e., markedly less than that ascertained upon the above findings, and was decreed of this, Rs. 20,000 fell to be paid by an insurance, company, and the rest by the present petitioner Jalil Ahmed Khan, who owned the bus which caused the accident. This petition is directed against the judgment of a Letters Patent Bench, dismissing Jalil Khan's appeal. The question of the approximate net income that Abdullah earned was decided on the admission of the parties, who agreed that of this income, some Rs. 300, per month were available for the family. This finding is not susceptible of interference, Mr. Khalid Ishaque does not challenge the finding that hi$ Client's bus caused the accident. He urges, however, that the expectation of his life has been pitched too high at 22 years, bearing in mind that the occupation involved great and continuous physical strain. In the judgment of the learned Single Judge it is pointed out that whereas the precedent cases in Lahore fix the normal age of a citizen at 46 years, in the Karachi cases, it has been variously fixed between 53 and 65 years. The latter age f was adopted in this case on the following basis, by the learned Single Judge: "I have held in a case before and am inclined to think now also that the ordinary expectancy of life can be taken to be 65 years in our country now. I am supported in this view by the fact that the age of Government Servants to remain in service has recently been increased from 55 years to 60 years, which limit does not normally indicate the end of life but carries with it the expectancy of earning pension after it." In the appellate judgment it is said "nothing has been shown to us which would persuade us to take a different view." It is urged that the adoption of the maximum age, on what is at best a guess, is not consistent with proper standards of judicial decision. Statistics to show the length of life that manual workers and others following arduous physical occupations may expect in Karachi should have been referred to. The idea that even after he ceased to push a hand-cart himself, Abdullah could have earned income from hand-carts pushed by his employees, does not take into account that this would reduce his income to less than one-thirds of the estimated Rs. 300, since the profit an employee brings in from an enterprise never exceeds that which the employer can himself make from the same activity, and is mostly much less. In any case, an average expectation of life should have been adopted, and not the very maximum. The plaintiff herself had claimed Rs. 54,200 on the basis that Abdullah used to give her Rs. 12 to Rs. 15 every day, and that indicates a calculation of some 12 years life expectancy. These circumstances have not been taken into account in setting the amount of damages, and as the excess may eventually, be found to be large, we grant leave to appeal as prayed. Security Rs. 1,

000. Recovery of the decretal amount over and above the sum of Rs. 20,000 payable by the Insurance Company is stayed, on furnishing security in the sum of Rs. 20,

000. The amount due from the Insurance Company will be recoverable immediately. Petition accepted.