1980 PLP 1993 (CLC)

The word "merely" is important in the observation. The two judgments of the Supreme Court delivered in Manmatha's and Jalil Ahmad Khan's cases highlight the other aspects of the matter. In the former at page 576, it has been observed "Thus parents may recover for the loss of the probability that the deceased child would have contributed towards their maintenance and children may recover for the loss of education, comfort and position in society which they would have enjoyed if the father had lived and maintained the income which had died with him. The basis of the assessment is not the requirement of plaintiff but the money value of the assistance which the deceased might probably have given had he continued to live." The second case had arisen out of the judgment reported in P L D 1964 Kar. 72 where also the deceased had left two minor children but still the compensation was calculated on the basis of the deceased's age expectancy multiplied by the financial loss to the beneficiaries. The Supreme Court, as said above, upheld the judgment delivered in this case.

15. Even otherwise, the principle known as family dependency in foreign jurisdiction is somewhat differently applicable in our society because there is no disassociation amongst the parents and children merely upon the lattet's attaining the age of majority. Generally parents in Pakistan do not discontinue the assistance to their children simply on their ceasing to be minors. Rather they earnestly wish and make efforts in finding a respectable position for their children in the society and for that all possible financial assistance is made available. In the instant case, the deceased was a Professor and if he had lived it would have been his wish to see his sons to be highly educated and well settled in life. All this is not possible on attaining the age of eighteen years and to materialise his wish he would have to continue to impart education beyond the ages of 18 years and marrying them afterwards. Undoubtedly all this would entail financial assistance. We are, therefore, not inclined to hold in this case that the view as expressed in P L D 1970 Lah. 442 debars the dependants from the damages as assessed by the learned trial Court. It may be mentioned that the learned counsel advanced similar arguments in relation to the entitlement of the father, the mother and the widow but the same have no force for the reasons given above in view of the nature of the family life in Pakistan.

16. The next question which requires examination relates to the deduction of personal expenses. The learned Senior Civil Judge has allowed 1/4th as the benefits utilized by the deceased himself. This too hay beer, questioned by the learned counsel who contended that in a large number of cases one-third has been deducted from the income of the deceased as his personal expense. It is true that in various judicial decisions one-third has been deducted from the income as personal ex penses, but it is not a rule of universal application. There are a number of authorities wherein one-fourth has been deducted. In dealing with such like questions, facts of each case have to be taken into account and the Court is to keep in mind the number of family members, the standard of living and the deceased's personal involvement in the walks of life. In his cast, the deceased Professor would appear to be a man of frugal habits from his pine smoking per evidence. He was supporting his parents and providing maintenance to wife and the two minor sons. Thus in the circumstances and on the facts of the case, we are not prepared to believe that the deceased would be spending on himself about Rs. 317 per mensem out of Rs. 950, monthly salary, and the remaining Rs. 633 on five dependants. This would be unproportionate. Even otherwise, there is no evidence on the record to show that the deceased had been spending one-third on himself. We, therefore, uphold the one-fourth deduction made by the learned trial Court.

17. As observed above, the learned trial Court has awarded a total compensation of Rs. 2,85,

195. A statement of account explaining the working of this figure was placed on the file of this Court by the learned counsel for the respondents. A perusal of the same demonstrates that the learned trial Court has made certain additions in the total salary- which. the deceased would have received up to the age of 58 years, the age of superannuation, had he remained alive. These additions of Rs. 33,000 gratuity and Rs. 51,975 as seven years' pension. This statement also makes reference of certain deductions as well such as Rs. 24,889 to wards income-tax, Rs. 8,870 pension already received, and Rs. 98,021.50 as personal expense of the deceased. These figures excepting the amount awarded as pension have not been questioned by either party. It appears that the formula applied by the learned trial Court is that it has added Rs. 33,000, the amount of gratuity, in the gross receipts, and deducted therefrom Rs. 24,889, the income-tax. The percentage of income-tax deducted roughly comes to 6% respectively. We shall be following this formula while making the assessment.

18. About the award of Rs.. 51,975 as pension for a period of seven years, the contention of the learned counsel for the appellant was that it was without any basis. No concrete points in this regard were, however, raised by the learned counsel. The maximum scale of N. P. S. 18 is Rs. 1,750 and on working the monthly pension it comes to Rs. 618, i.e., about 27% of Rs. 1,750, the maximum of the scale. This is not un reasonable.

19. Since we have agreed with the learned counsel for the appellant that pursuant to the provisions as contained in rule 5 ibid, no arrears were receivable for the period prior to 1st August, 1973. therefore, such amount as may represent the increment from 14th May, 1972 to 31st July, 1973 is to be excluded from the statement of accounts placed on the file. Furthermore, in the said statement some ambiguity appears as regards the working of the benefits accruing upon the introduction of the Punjab Senior Teaching Posts (National Pay Scale) Rules, 1974. Therefore, we have decided to make the calculations ourselves. It may, however, be pointed out that these Rules contemplate that if an existing Government servant fails to opt for existing pay scales or the National Fay Scales within the prescribed time, it will be presumed that he had opted for the National Pay Scales with effect from 1st March 1972 or 1st October, 1972, as the case may be. Rule 5, postulates that a Government service holding the post of Associate Professor in a Goverment College shah have his pay fixed at the stage next above the existing pay plus Rs.

100. There is nothing on the record to indicate that the deceased had exercised the option within the meaning of rule

3. According to the statement of Muhammad Nawaz (P. W. 1), the deceased was receiving Rs.950 in the scale of Rs. 600--1,

250. The present scale being Rs. 1,000.-75-1,750 (NPS. 18), on a tentative view. per these Rules, the deceased at the time of his death would be considered to be drawing a salary of Its 1,100 and further that he would earn an increment of Rs. 75 in December, 1973.

20. Before proceeding to calculate the measure of loss and assess ment of damages, we feel it appropriate to examine some other points raised by the learned counsel for the appellant. as well. The first of the miscellaneous contentions is that the plaint does not contain the particulars and details about various sums and, therefore, such sums not so mentioned in the plaint could not be awarded. Reliance was placed on the judgments reported as Messrs Chaudhry Brothers Ltd. v. The Jaranwala Central Co operative Bank Ltd. (1968 S C M R 804) Pakistan v. Abdul Ghani (P L D 1964 S C 68). There is no dispute about this principle propounded by the Courts including the Supreme Court but the principle has no application to the facts and circumstances of the present case. The plaint does contain broad items. Minute details and particulars relating to the claims of various sums are not required and, at any rate, if it be assumed that the plaint has been inartistically drafted, it is not fatal to the case especially when it involves the construction of mofassil pleadings. We are fortified in our view by the judgment of the Supreme Court in Jalil Ahmad khan's case.

21. The next point raised by the learned counsel is that Abdul Wahid, father of the deceased, died during the pendency of the suit and, therefore, his share of compensation if any, could not be awarded to the present respondents. In support of his contention, .the learned counsel placed reliance on P L D 1970 Lah. 442 wherein . Rs. 30, share of the mother, was not awarded to the remaining statutory beneficiaries. This conten tion has also no force because it is the date of the cause of action which is relevant and not subsequent events. In Kulsoom's case, which was approved by the Supreme Court in Appeal No. K-44 of 19,69, one of the beneficiaries had died still his share was allocated to the remaining beneficiaries.

22. The other contention of the learned counsel relates to the non apportionment of compensation awarded amongst the beneficiaries of the deceased, which is a statutory requirement. No doubt, the learned Senior Civil Judge has not made such apportionment but in this first appeal we can certainly set right the irregularity by making apportionment our selves.

23. The Fatal Accidents Act does not lay down any method for calcu lating the loss and assessment of damages. It is impossible to accurately determine the loss which is suffered by the death of a son, husband, or father. In order to compensate, the bereaved family, the Courts have laid down the formula that approximate loss suffered in terms of money may be awarded as damages. Keeping this in view and on the basis indicated above, the damages work out as follows :-. (i) Salary from June 1372 to July 1973 at the rate of Rs. 950 per mensem. Rs. 950 x 14 = Rs. 13,300 (ii) Add increment for one year at the rate of Rs. 50 per mensem. Rs. 50 x 12=Rs. 600 (iii) Salary from August, 1973 to November, 1973 at the rate of Rs. 1,100 per mensem. Rs. 1,100 x 4 =Rs. 4,400 (iv) Salary from December, 1973 to November, 1982 at the rate of Rs. 1,100 per mensem. Rs. 1,100 x108=Rs. 1,18,800 (v) Add increment at the rate of Rs. 75 per mensem but with an increase of like amount after every year for the period from December, 1973 to November, 1982 (icy this time the deceased would have touched maximum of scale., =Rs.40,500 (vi) Salary from December, 1982 to December, 1989 at the rate of Rs. 1,750 per mensem i.e. upto the age of superannuation as given in the statement of accounts. Rs. 1, 750 x 84 = Rs. 1,47,000 (vii) Pension amount for seven years as calculated by the trial Court. =Rs. 51,975 (viii) Gratuity as calculated by the trial Court. =Rs. 33,000 Total ... Rs.4,09,575 24.. The amount of the Income-tax at the rate of six per cent (6%) comes to about Rs. 24,600 which alongwith an amount of Rs. 8,870, the temporary pension already received, being deducted, the balance would be Its. 3,76,

105. From this amount a further deduction of one-fourth as personal expenses of the deceased is made and the net amount of compensation comes to Rs, 2,82,078.75. This the respondents are entitled to receive as damages for their loss. This sum is apportioned amongst the statutory beneficiaries, present respondents, as follows :- (i) Mother (respondent No. 2), Rs. 30,000 (ii) Son (respondent No. 3)., Rs. 82,078.75 (iii) Son (respondent No. 4). Rs. 1,00,000 (iv) Widow (respondent No. 5). Rs. 70,000 Total ... Rs.2,82,078.75 In awarding the above compensation to the sons (respondents Nos. 3 and 4), larger amount has been given to the younger son (respondent No. 4 who has to go a long way to complete his education' and settle in life.

25. For the reasons given above, the appeal is partly allowed by modifying the decree passed by the learned Senior Civil Judge, Dera Ghazi Khan on 28th May 1976, to Rs. 2,82,078.75 (two lacs eighty-two thousand seventy-eight rupees and paisas seventy-five). As the success has been divided, the parties shall bear their own costs of this appeal. M.Y. M. Appeal partly allowed.