1996CLC530 (PLP)

It may, in this connection be noted that the defendants have not produced any evidence to support the plea that the accident was caused by the negligence of the deceased; and, in fact, the defendant No.2 in his evidence took an about turn and denied that the accident had occurred at all. His evidence apart from contradicting his express plea in the written statement, was obviously false. ISSUE No. 2: In view of the finding as to the negligence and in view of the admitted fact that at the time of the accident the defendant No. 2 was driving the bus in the course of his employment as a driver of the defendant No. 1, both the defendants are liable to pay compensation to the plaintiff and to Deval Bal, the mother of the deceased. As for the amount of compensation, it is in evidence that the deceased was employed by Diamond Rubber Mills and that he was earning Rs.974 per month; and further that after three years he would have earned Rs.1,800 per month. That evidence has not been questioned although some attempt was made by the defendants to show that the employment was temporary. With regard to the period for which the plaintiff and his wife have been deprived of the pecuniary benefit by the death of the deceased, the national p identity cards of the plaintiff and his wife (Exhs. 5/2 and 5/3 respectively) show that at the time of the accident, they were respectively, 51 and 45 years old; and, on the basis that they can expect to live up to the age of 70 years, they have been deprived of the benefit for a period of 25 years. They have, thus, been deprived of and. are entitled to recover pecuniary benefit amounting to Rs.3,93,536 worked out as follows:‑ (A) Income at the rate of Rs.974 per month for three years Rs.35,064.00 (B) Income at the rate of Rs.1,800 per month for 22 years Rs.4,75,200.00 (C) Increase at 20% of Rs.4,75,200 Rs.95,040.00 Gross Income Rs.6,05,304.00 (D) Less (i) Deduction of 1/3 of gross income for personal expenses of the deceased. Rs.2,01,768 (ii) Money received by plaintiff from Insurance company Rs.10,000 Rs.2,11, 768.00 Rs.3,93,536.00 ISSUE No.3: The plaintiff is obviously entitled to costs of the suit. As to interest, Mr. Siddiqui submits that it should be awarded from the date of the decree and not from the date of the suit. He has, however, advanced no reason in support of his submission; and I am of the view that the plaintiff is entitled to interest from the‑date of the suit. ISSUE No.4: Mr. Nasir Maqsood submits that in the circumstances of the case, the plaintiff is entitled to compensatory costs. The accident occurred on the 7th December, 1986 and the suit was filed on the 6th December, 1987. The defendants, in their written statement, took the plea that the accident was caused by negligence of the deceased but that plea was abandoned when evidence came to be recorded; and the defendant No. 2 stated in his evidence that no accident had occurred. The plea in the written statements of the defendants was therefore, either false or vexatious to their knowledge; and, in consequence of that plea the plaintiff and his wife have been deprived until now of what was justly due to them. The conduct of the defendants, in the circumstances, has been quite reprehensible. Such conduct has been condemned by the Supreme Court and this Court. In Pakistan Steel Mill Corporation v. Nazir Hussain Shah (1990 CLC 515), a Division Bench of this Court, after referring to several cases from the Indian jurisdiction, observed:‑‑ "In the above cases, inter alia, it has been observed that the public body should resist the temptation to litigations like cantankerous litigants for insignificant amount, raising technical pleas and that it should not compel the handicapped to fight litigation against his formidable adversary. There cannot be any cavil to the propositions of law propounded in the above cited cases. We are also inclined to hold that a public functionary particularly, in Pakistan which is an Islamic State is enjoined not only by our Constitution but also by 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 accident spends considerable amount on litigation instead of settling the matter with the dependants of the deceased." The present defendant No. l was a party to that case which had also arisen out of a fatal accident. Its conduct there was deplored by this Court but obviously the defendant No. 1 has remained immune to the criticism. Again, in Karachi Transport Corporation v. Latif‑ur‑Rahman (1993 SCMR 1149), it was observed by 4he Supreme Court:‑‑ "We may also observe that a Government Department/functionary is not expected to raise frivolous pleas in an action brought by a citizen for recovery of his lawful claim, with the object to deny it or to prolong litigation in respect thereof. Such a practice is to be deprecated in strongest terms. The officials responsible for the same should be made accountable for their above uncalled for and unjustified approach, particularly in cases arising out of fatal accidents, the approach of the Government Department/functionaries should be human and pragmatic, all efforts should be directed to ensure that an aggrieved person gets his reasonable, admissible claim promptly, without loss of any time." It does not appear that any functionary of any Government Department has been made accountable for indulging in false and vexatious litigation to the detriment of the citizens of this country; and it appears also that it would be too optimistic to expect that such an action will be taken in the foreseeable future. In the meantime litigants continue to suffer on account of false, frivolous and vexatious defences set up by such departments/ functionaries; and there is not method of adequately compensating them for the misery and financial burden and loss which the prolonged litigation entails. It is true that section 35‑A of the Civil Procedure Code provides for payment of compensatory costs; but in many cases even the maximum amount of such costs is not adequate to compensate the litigant who has been subjected to prolonged, false, frivolous and vexatious litigation. The limit of Rs.25,000 set by section 35‑A, therefore, needs to be raised‑ substantially. In the present case, the plaintiff and his wife are poor people and have lost their young son in consequence of the fatal accident caused by the negligence of defendant No. 2 who is a driver of defendant No. L 'The defendant No. 1, instead of admitting the just claim of the plaintiff, chose to contest the claim, without a shadow of justification, and set up an obviously false defence; and even that defence was abandoned at the trial. Meanwhile, the plaintiff continued to suffer for almost nine years. In the circumstances, I consider that he is entitled to the maximum amount of compensatory costs allowed by law. I, therefore, hold that the plaintiff is entitled to Rs.25,000 by way of such costs. ISSUE No.5: The plaintiff and Mst. Deval Bal are entitled to decree for Rs.3.93,

536. They have, however, claimed only Rs.3,50,

000. The suit is, therefore, decreed against the defendants jointly and severally in favour of the plaintiff and Deval Bal for Rs.3,50,000 with interest thereon at the rate of 14% per annum from the date of the suit till payment and costs of the suit; and for Rs.25,000 on account of compensatory costs. The decretal amount shall be shared equally by the plaintiff and Mst. Deval Bal. ' A.A./D‑138/K Suit decreed.