P L D 1993 Karachi 168 (PLP)

Even though the Court time is about to be over , there is no representation from the side of the defendants. As such, I am proceeding to decide this case on the basis of the affidavit-in-evidence of attorney--Syed Akbar Shah, which has been filed on behalf of the plaintiff by Mr. Nasir Maqsood in Court today. According to the averments in the plaint and in the affidavit-in evidence deceased Abrar Hussain Shah, son of the plaintiff, the sole claimant in the suit, suffered death at 11-55 p.m. on 16-5-1986, while disembarking from mini-bus No.836-894 as a result, allegedly, of rash and negligent driving of the defendant No.3

driver, who was an employee of the defendant No.2, the then purported actual owner of the mini-bus. The defendant No.1 is the registered owner of such bus. Compensation in the suit is claimed at Rs.7,00,

000. None, as observed above, has appeared to controvert the referred affidavit-in-evidence, with annexures appended therewith. The case of the plaintiff thus stands broadly established on the factual plane. However, the plaintiff has failed to produce any satisfactory evidence to prove that the deceased was employed or was earning Rs.1,500 per month, as claimed and it is, therefore, difficult to accept plaintiff's version on face value. Learned counsel for the plaintiff himself concedes that in such situations of uncertainty average income of a victim in a fatal accident case, could, at a minimum, be taken to be Rs.1,000 per month, as opined by Saeeduzzaman Siddiqui, J., then in this Court, in Habibullah Akhtar v. Mushtaq Ahmad 1986 MLD

704. This may also be in line with the concept of minimum wage envisaged in some statutory promulgations. Still, as of July 1, 1992, the Schedule to the W.P. Minimum Wages for Unskilled Workers Ordinance, 1969, has been proposed to be substituted by a Bill notified on 20-8-1992 whereby, on the passage of the amendment, currently before the National Assembly, minimum wages for the Karachi District w.c.f. July 1, 1992 should be Rs.1,500 per month. It would, however, be unsafe to assume that the legislation before the House would be carried from a back date. It appears more likely that the law may be made prospective either from the date it is passed or as from the ensuing financial year. One, therefore, may assume the last to be a nearer probability. Even so, cases are not decided on assumptions may it even be on the strength of official legislative business actually pending before Parliament. In this suit, however, .there is the added factor of the plaintiff averring that the deceased, at the time the suffered the fatal accident, was in fact drawing Rs.1,500 per month. No details, as to the source of employment seem to have been provided. Yet, as from July 1, 1993, an unskilled worker, in the current state of inflation, may illegitimately be expected to earn a minimum wage of Rs.1,500 per month. This may be irrespective of the fact whether he was or was not in commercial or industrial employment. Accordingly, probable minimum earnings at Rs.1,000 )per month are acceptable in respect of the deceased victim as from 16-5-1986 .etc 30-6-1993 where after a uniform wage at Rs.1,500 per month may plausibly be allowed, which the deceased could conceivably earn. On principle and authority, in cases of an unmarried victim of a fatal accident it is an amount ranging around 50% of likely earnings, which may be deducted as probable expenses of the deceased and the balance may be 14 deemed as the expected benefit to the parents, the only beneficiaries statutorily recognised in such cases: Kandan v. Hayat Services (Pak.) Ltd. 1988 CLC 525 and Shah Jehan Begum v. Government of Sindh 1988 CLC 2325. Learned counsel concedes to this. This, therefore, brings up a net probable benefit of 11ts.6,000 per annum up to 30-6-1993 and Rs.9,000 per annum thereafter to the mother of the deceased, sole plaintiff in this suit. I have already said elsewhere that an average age of 70 years may be assumed in the context of fatal accident ,cases and that view has not been shown to be dissented from or overruled: Naseer Khan v. Muhammad Yousuf 1989 CLC 1970; Nafeesa Begum v. Muhammad Ismail 1989 CLC 2218; Abdul Rashid v. Muhammad Anwar 1990 XLC

502. Resultantly the plaintiff, the only beneficiary, being 47, as claimed in the plaint, would be entitled to a continuing benefit in the above order for 23 cyears. The prospects of the deceased in the ordinary course surviving all this Rime is irrelevant since he being only 20 when he suffered death, at any event, could possibly outlive his mother who was much older. The mother's total entitlement thus works out to be Rs.1,85,625 for the entire such period. However, the foregoing assessment does -not take into consideration the possible and routine advancements in life of the deceased nor does it contemplate the prospects of marriage, which the deceased could be expected to have contracted in the ordinary course of things, as also raising and maintenance of a family of his own. The first is a positive factor and the second t a negative one, correspondingly reflective on the claim in suit; As a mean )(between these divergent and as a just and convenient alternative, I would allow an additional 2001o over the aggregate to the plaintiff, bringing the total figure to Rs.2,22,750 upon an addition of Rs.37,

025. The addition, an overall net, is at a low key and a moderate one, for it cannot be said that the deceased, had he lived, would have earned only 20% more on his probable current prospects all through his life-span coming to relief, none except the defendant No.2 has defended these proceedings. During the pendency of the suit, one Muhammad Aslam appeared in the case and, maintaining that through an agreement dated 10-11-1986 he had purchased the mini-bus in suit from the defendant No.1, claimed that the attachment of the bus be raised. He also said that the defendant No.2 had nothing to do with the bus. The defendant No.2 in his written statement had also pleaded lack of any interest in the bus but did not subsequently appear. Attachment of the bus was withdrawn with the consent of the plaintiff. However, the sale. to Muhammad Aslam was also through a hire purchase agreement not precluding the possibility that a similar transaction may have been concluded by the defendant No.1 with the defendant No.2 and that may have, as alleged by the plaintiff, held the field on 16-5-1986, at the time of the fateful impact. The liabilities of the three defendants, joint and several, vicarious and actual, cannot, therefore, be retracted except by cogent contrary evidence, which, as seen, is missing: Pakistan Railways v. Abdul Haque 1991 SCMR

657. Still, since a sum of Rs.30,000 has already been admittedly obtained by the plaintiff, as an ex gratia payment, from Muhammad Aslam--claimant, aforesaid, such sum shall have to be deducted. Accordingly, the suit of the plaintiff is decreed jointly and severally against the defendants in the sum of Rs.1,92,750 together with costs of the suit. Learned counsel at the same time does not press the claim for interest, as raised in the suit. Decree accordingly. AA./S-964/K Suit decreed.