1980 PLP 1305 (CLC)

7. Excellent.

8. Nil. . . ..

9. At the time of his 7unfortunate death he bad acquired the necessary experience and skill of the carpet industry. As he acquired experience he took control of the entire management independently by himself unaided by any body. He extremely hard working attending his work with fortitude and foresight continuously for 15 to 16 hours a day and seven days a week. This very fact is verifiable. Had he lived his earning capacity would have been considerably increased as he had great potentialities of growing into a great industrialist and businessman. He had plans to enlarge the industry manifold.

10. Sardar Mir Khwaja, 6 Md. Abdullah Md. Ahmed Mansion, near Saeed Manzil,. Banaress Street, Karachi-B.

11. Father. 12. (1) Sardar Mir Khwaja, father. (2) Masuda Begum, mother- (3) Ghuiam Abbas Mir, brother. (4) llyas Mir, brother. (5) Mahera Qureshi, sister. (6) Shahnaz Begum, sister. 13. (a) None of the heirs were dependent on the deceased (b) No. (c) Own business. (d) Not applicable

14. None.

15. Wearing apparels Rs. 2,500 Wristwatch Rs. 700 Camera about Rs. 1,000 Cash on person Rs. 800. (estimate)

16. Its. 50,000 - (fifty thousand) Yours faithfully, (Sd.) Sardar Mir Khwaja, father of Mohammad Sajjad Mir:" Out of the remaining 2. documents one is the photostst copy of the passenger ticket (Exh. 11.) and the other is a specimen of the air ticket. There are two other documents brought on record in evidence of the witnesses. One is the questionaire (Exh. 13/2) and the ocher is Power of Attorney (Exh. 13/1). The power of attorney was executed by the other plaintiffs in favour of plaintiff No.

1. I have beard Mr. Khalid Hamid, Advocate on behalf of plaintiff and Mr. Saleem Akhtar on behalf of the defendants and have read the evidence and examined the documents brought on record and my decision on the issues is as follows :- issue No. 1 The plaintiff in his deposition has give the names of the legal heirs of the deceased they are same as given in the., plaint as well as in the reply to the questionaire (Exh. 8). It is not now disputed by Mr. Saleem Akhtar that plaintiffs are the legal heirs of the deceased Mohammad Salad Mir. It is also not claimed that there are any other heirs of the deceased I therefore, hold that the plaintiffs are the legal heirs of the deceased. Issue No. 2 This issue is not pressed by Mr. Saleem Akhtar for the reasons that it is immaterial for the purposes -of award of compensation whether the plan crashed due to rashness, negligence or carelessness, of the defendants or otherwise. There is however, no evidence that the plane crashed due to/ rashness, negligence or carelessness of the defendants. I decide the issue accordingly. Issues Nos. 3 and 4 The plaintiff I stated in his deposition that the deceased was of the age of 19 or 20 years at the time of his death which is more or less same age as stated in paragraph 6 of. the plaint. Although the plaintiffs have not produced the best evidence which would be school leaving certificate or birth certificate yet I accept the same as from, the evidence of the above mentioned witness it appears that deceased had already obtained passport and he was student of the Sind Medical College who had issued an identity card to him two years before his death as nothing to the contrary has been brought on the record. As regards the income of the deceased according to plaintiff he was earning Rs. 400 to Rs.

500. To a Court question the witness stated that the income of the factory in which deceased was a partner was Its. 25,000 to Rs. 30,000 per year. Since the share of the deceased was 20% in the income of the factory, the claim that the deceased's income was Rs. 400 to Rs. 500 per month can be true. The statement of this witness finds support from. the statement made in reply to question No. 5 in the questionaire which is as follows :- "He was a partner in the firm namely 'Mir Carpet Industries'. His share of gross earning was Rs. 3,714.20 in 1967, Rs. 22,283, in 1968, Rs. 5,839.11 in 1969 and Rs. 6,778 in 1970 shown in the Income Tax Returns already submitted." Above statement was made on the basis of the Income tax returns of the firm by the name of Mir Carpet Industry in which the deceased was a partner. Mr. Saleem Akhtar submitted that plaintiffs have not produced the account books and the income-tax returns on which the reply to the questionnaire was based. However if the deceased was managing the factory which claim appears to be true, he must be earning Rs. 400 to Rs. 500 per month. I therefore, hold that the deceased was of the age of 19 years at the time of death and was earning Rs. 400 to Rs. 500 per month and was a partner of plaintiffs 2, 5 and 6 in the firm known as Mir Carpet Industry. Issue No. 5 There is no documentary or oral evidence on this issue. However, Mr. Khalid Hameed referred to the particular contained in column No. 15 in the reply to the questionnaire (Exh. 8) and argued that at least plaintiffs are entitled to the amounts mentioned in this column. The articles mentioned in this column are wearing apparels a wrist watch, a camera and cash on the person of the deceased. The value of the articles given in the said column is Rs. 2,500, Rs. 700 and ' Rs. 1,006 respectively and the amount of cash is Rs. 800 Mr. Khalid Hameed submitted that this document has come on record by consent and has not been questioned by the defendants and therefore, he argued that the plaintiffs are entitled to these amounts, but the 'plaintiff in his deposition, has said not one word about these articles as to how he knew that the deceased was carrying these articles with him or on his person. In the absence of sufficient evidence and proof that the deceased was carrying these articles with him or on his person and their value it is not possible to accept the claim on account of the said articles. Mr. Khalid Hameed further submitted that the deceased was wearing some clothes and there fore some amount must be allowed but it is not known that what kind of the clothes he was wearing and what was their value. The burden o this issue was on the plaintiffs and they failed to discharge the same. It was further submitted by Mr. Khalid Hamecd that the deceased must have carried some luggage with him but again there is no evidence that the deceased did not carry any luggage with him and there is no presump tion in law or otherwise that the deceased must have carried some luggage with him. It is quite possible that the deceased might have gone without any luggage. Mr. Khalid Hameed submitted that plaintiffs could not produce the luggage tags as the same were destroyed in air crash. It is true if the deceased was carrying any luggage with him the tags might have been destroyed but then it was open to the plaintiff to summons the records of the defendants to prove if the deceased in fact had carried any luggage with him or should have given a notice to the defendants to produce the same but neither any record was summoned from the defendants nor was admittedly any notice served on the defendants to produce the same. In these circumstances, I decide this issue against the plaintiffs. Issue No. 8 Under the Carriage by Air Act 1934 by virtue of clause 22 of Schedule I to the said Act. as amended by Notification No. S. R. O. 295 (K)J62 dated 14th March, 1962, the maximum liability of the carrier in the carriage of passenger in respect of injury, including injury resulting in the death to any passenger is limited to the sum of Its. 39,500 and in respect of destruction or loss or damage to luggage the liability is limited to the sum of Rs. 40 per lb. As regards objects of which the passenger takes the charge himself, the liability of the carrier in respect of destruction, loss or damage is limited to Rs. 1,700 per passenger. I hold accordingly. Issues Nos. S-A, 6, 7 and 9 The plaintiffs' claim in the suit is that the deceased used to earn Rs. 500 per month which he used to contribute to the family welfare. P. W. 1 Sardar Mir Khawaja in his examination-in-chief has stated that the deceased share in the profit of the firm which was running Mir Carpet Factory was Rs. 400 to Rs. 600 per month. He used to pass on the entire amount to the entire family. It is in his evidence that plaintiffs 5 and 6 were the brothers of the deceased had independent source of, income at the relevant time. It is also in his evidence that the two sisters, plaintiffs 7 and 8 were already married and were living with their husbands. Plaintiff 1 himself was doing business and his share in the profits of the firm in which he was a partner was Rs. 25,000 to Rs. 30,000 yearly. Nothing was said in the evidence about the plaintiffs 3 and

4. Therefore, there remains the question whether the mother has sustained any damage on account of death of the deceased. The learned counsel for the plaintiffs argued that it was satisfactorily established by the evidence of P. W. I that the deceased was giving Its. 500 to Rs. 600 to his mother for the maintenance of the entire family. No doubt the P. W. 1 has stated so, but in cross-examination he could not say whether deceased used to give his entire income to his mother not. According to the witness the deceased used to give money to his mother. However, it is in his evidence that the mother was a partner with the deceased in Mir Carpet Factory at Lahore and the share of the mother in the profits of the firm was 30% while share of the deceased in the profits of the firm was 20%. It is also in evidence that the income of the firm in which the deceased and his mother besides others were partners was Rs. 25,000 to Rs. 30,000 yearly that is, approximately Rs. 2,000 to Rs. 2,500 monthly, and thus the share of the deceased in the profit was Rs. 400 to Rs. 500 and the share of the mother was Rs. 600 to Rs. 750 monthly. If the deceased was giving any money to his mother this must be on account of her share in the profits of the firm and not by way of her maintenance. It is also in evidence of P. W. I that the deceased was maintaining a separate house in Lahore and living separately from the other members of the family and since his income according to the witness himself was about Rs. 400 to Rs. 500 per month, be must he spending this money on himself and must not be contributing any amount out of his earning for the maintenance of his mother, plaintiff

2. This conclusion finds support from the statement contained in the reply to questionnaire (Exh. 8.) wherein P: W . 1 has stated that none of the members of the family was dependent on the income of the deceased. Of course, the witness tried to explain that he had made this statement in the reply without consulting the other members of the family, before answering the questionnaire, but I am not prepared to accept the same because the mother of the deceased had her own independent source .of income and the father was. also earning Rs. 25,000 to Rs. 30,000 per year: If she required any support it would have come from her husband not fro the son. I am therefore, of .the view. that the plaintiff 2 has not sustained any damage, Accordingly I ,hold none of the plaintiffs is entitled .to an compensation. In the result I dismiss the suit with costs. M. Y. M. Suit dismissed.