1991 PLP 1471 (MLD)

Apart from that it is a matter of common knowledge that a motor vehicle turns turtle on the bursting of a tyre only when it is in a high speed and the driver instead of controlling it by means of gear and steering, negligently and nervously applies brakes to it. The learned Single Judge also rightly pointed out that if the bus was not being driven at a high speed, the appellant No.2 would have been able to control the same and avoid the accident and at least so many casualties would not have occurred. We also agree with the learned Single Judge, who has decided to place reliance in the deposition of P.W.2 Jamil Ahmed, as he had the opportunity of watching his demeanour in the witness-box, that his evidence is reliable.

6. Now we take up the second issue which relates to the quantum of compensation fixed by the learned Single Judge. The appeal is also admitted only on the question of quantum of damages and no other grounds, as was clarified by the above two learned Judges forming D.B. in their order dated 2-10-1989.

7. Mr. Naraindas, learned counsel for the appellants, has contended that the learned Single Judge has in these cases granted compensation in an unreasonable manner specially in the case of deceased Shuaib-ur-Rahman and he has not taken into consideration that for a boy of 18 years or a boy, who was not earning anything, the amount of compensation was to be much less than what was awarded. He has also contended that respondents Nos.1 and 2 in that case had not produced any documentary evidence to prove their ages and that the learned Single Judge should not have fixed their expectancy of life at 65 years. Lastly, it was contended that the learned Single Judge had not given the specific finding as to the earning capacity of the deceased Shuaib and as to from which age he would have earned and what he would have spent on his personal needs and what he could have paid to his parents. He therefore concluded that the compensation that was granted to the respondents in that case was unreasonable and against the established legal principles. He therefore urged that the amount of compensation be reduced as the period for which in that case the respondent No.1 would have expected to live was five years less than respondent No.2, there being difference of about five years in their ages. Hence the period during which these respondents were likely to be supported by the deceased was 15 years and not 20.

8. We have gone through the judgment of the learned Single Judge. We do not find any justification for interfering with the same either on the calculation or on the quantum of compensation. The learned Single Judge has rightly fixed the expectancy of life of the plaintiffs Nos.1 and 2 at 65 years. The age of plaintiff No.1 was 41 years and plaintiff No.2 was 35 years and they were enjoying good health. In view of the settled law on the point it is incorrect to say that the learned Single Judge had fixed the expected age of the plaintiffs on the higher side. The deceased was a bright student. He wanted to become an engineer. After completion of his studies he would have earned Rs.5,000 per month. He would have earned about 12 lacs of rupees in these 20 years and would have. provided to the plaintiffs at least Rs.4,80,000 out of his income. The calculation of the learned Single Judge, therefore, appears to be reasonable and appropriate.

9. Apart from that by now it is a settled proposition of law that the assessment of damages by the trial Judge in a Fatal Accident case is not to be interfered with lightly. As the amount to be awarded in each case under Fatal Accidents Act is a matter of considerable difficulty and different Judges may differ considerably as to the amount which they would have considered appropriate in any particular case. The Appellate Court should, therefore, not interfere only because it would have awarded a different amount unless it considers that the lower Court's discretion was improperly exercised.

10. The following passage from Kemp & Kemp on quantum of damages at page 19-003 may be usefully reproduced as under, which is taken from an unreported decision of Diplock L.J. :-- "In the case now under appeal liability for negligence was admitted, and the only issue was as to the amount of monetary reparation to be made by the defendant to the plaintiff for the consequences of his admitted breach of duty. That amount was assessed by the jury at ?.2,

000. That is the decision which this Court is now asked to set aside. A decision of this kind, it has been contended, we ought not to disturb unless we are convinced that it is not merely wrong, but something worse than wrong, a concept which it is suggested, was intended to be expounded in such oft-cited phrases as "a wholly erroneous estimate (applicable to Judges sitting alone) and "out of all proportion to the circumstances of the case."

11. It will also be beneficial if following passage from Mayne and Megregor on Damages at pages 1026, 1027 and 1028 is re-produced:-- "There are thus two distinct grounds of interference; that the Judge has acted on a wrong principle of law, and that he has made an entirely erroneous estimate of the damages. These two categories, in relation to awards by juries, of where the jury are misled and where the jury are at fault. If the Judge has misdirected himself as to the law or has given undue or insufficient weight to the evidence, this falls within the first category. If the damages are hopelessly incorrect or if it can be shown by calculation that the Judge must have wrongly taken or failed to take certain elements into consideration this falls within the second category. The Court will not interfere with the amount if it is of the view that the Judge has awarded the right amount although for the wrong reason. Thus in Williams v. Thernycraft, in a claim under the Fatal Accidents Act on behalf of a wife in respect of her husband's death, the Court of Appeal held that the trial Judge had wrongly omitted to take into account in assessing the value of her dependency, her remarriage, before the case was heard, but refused to interfere with the figure of the award since in the Court's opinion this was substantially correct."

12. In P L D 1957 PC 23 Lim Joo Chang v. Lim Siew Choo and another, it was held by the Privy Council as under:-- "These cases raise questions of opinion on which minds whether of Judges or Jury applying right principles may differ substantially. No appeal Court will interfere only because the figure awarded by a trial Judge is greater or less than that which the Appellate Court would itself have awarded. The burden on an appellant, who invites this Board to interfere with a figure which has commanded itself to the Courts below is indeed a heavy one. Their Lordships do not find it necessary to review the evidence in detail. They are satisfied that there was evidence as to the deceased's expectation of working life which justified the sum awarded allowing for all proper deductions:"

13. In P L D 1966 (W.P.) Kar. 271 Ghulam Mustafa v. Travor A. Robertson, it was observed as follows:-- "Mr. Ghulam Ali has not directly objected to the quantum of damages but has directed his criticism to the quantum. The assessment of damages is primarily the work of the trial Judge whose discretion should not be lightly interfered with in appeal. Except on a question of principle, the High Court or the Privy Council will not interfere with the quantum of the measure of damages fixed by the lower Court. Even where the action was pursuaded in a spirit vindictiveness and with a desire to inflict punishment on the defendant, a Court of appeal ought not to interfere with the decision of the trial Court on the question of amount of damages unless it appears to be entirely erroneous, (Justin Hull v. Arthor Francis Paul 58 IC 421). In order to justify reversing the trial Judge on the question of amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very small as to make it in the judgment of this Court an entirely erroneous estimate of the damage to which the plaintiff is entitled (Flint v. Lowell, (1935) 1KB 354 at 360). But what an appellate Court must avoid doing is to substitute its opinion as to what it would have awarded for the sum which has been awarded by the Judge below. But in Subbiha Reddy v. T. Ferdon AIR 1945 PC 168 the Privy Council have thrown out a caution that in India there was no reason for holding that full rigour of the rule in Flint v. Lowell applies. Their Lordships consider that the appellate Court is some times entitled to give effect to its own view on matters within its competence. To avoid otherwise; they say, would be to deprive parties of the benefit of a right of appeal which they possess. But an award made for a claim which is not made by the plaintiff and without affording an opportunity, to the defendant to meet, will not be maintained."

14. In P L D 1983 SC 340 Punjab Road Transport Board v. Naziran Bibi and another, it was observed as follows:-- "In fact we feel that the damages allowed to the respondents is really derisory. The sum of Rs.30,000 for the life of a young and active person of 28 years is hardly any recompense for the young widow and minor child and we are surprised that the Punjab Road Transport Board instead of speedily meeting its obligation under the decree, which could have resulted in some succour to the unfortunate family of Nemat Ali deceased, thought it fit to prolong their agony by challenging the decree passed by the Civil Court right up to this Court and in this process spent a sum presumably almost equal to that awarded under the decree. (Such an attitude is not only deplorable but also against the spirit of speedy and inexpensive justice, which is the declared policy of the Government. A copy of this order should be forwarded to the Chairman Road Transport Board, Lahore."

15. From the unreported judgment in H.CA. No.105/1986 to 111/1986 Karachi Road Transport Corporation v. Zahid Ali the following observations are reproduced:-- "The first submission of Mr. Muhammad Maqsood has been considered by a Division Bench of this Court in an unreported judgment dated 21-3-1989 in H.CA. No.48/1989 Pakistan Steel Mills Corporation and another v. Nazir Hussain Shah in which the learned Judges of the Division Bench came to the conclusion after giving cogent reasons, which are fully supported by various authorities discussed by them in the said judgment, that "a public functionary, particularly in Pakistan which is an Islamic State, is enjoined not only by our Constitution but also by the tenets of Islam that it should act in aid of advancing the cause of justice and not to frustrate or defeat it. It is indeed a deplorable act, when a public functionary in order to resist a genuine claim arising out of fatal accidents spends considerable amount on litigation instead of settling the matter with the heirs of the deceased persons:" We are in respectful agreement with this decision of the Division Bench for the reasons given by it in its unreported judgment and as such we are of the opinion that a public functionary should act in aid of advancing the cause of justice and not to frustrate or defeat it and it is indeed a deplorable act when a public functionary in order to resist a genuine claim arising out of a fatal accident spends considerable amount on litigation instead of settling the matter with the heirs of the deceased persons." We are, therefore, of the clear view that the judgments of the learned Single Judge do not call for any interference, and therefore, we dismissed the appeals, by our short order dated 26-3-1991. A.A./K-250/K???????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.