1997 PLP 1510 (CLC)

The plaintiff, who is the father of deceased, Rizwan Jaleel, has brought this suit for recovery of Rs.10,00,000 under the Fatal Accidents Act, 1855, on account of damages/compensation against the defendant Corporation ‑and their driver for wrongful loss of life of his deceased son on or about 14‑11‑1987 at about 1700 hours at Shahrah‑e‑Faisal.

2. It is the case of the plaintiff that this suit has been filed in representative capacity under the provisions of the Legal Representatives Suits Act, 1855 for the benefit and interest of the plaintiff and other legal heirs of the deceased. According to him defendant No.2 during the course of his employment with defendant No. 1, while driving K.T.C. Bus.,No.802‑404 on 14‑11‑1987 on Shahrah‑e‑Faisal in rash and negligent manner ran over the deceased after knocking down car No.100‑359 and taxi No.825-299 and consequent upon receipt of fatal injuries, he died an death of the deceased was caused by actionable wrong, negligence, default and harmful act of defendant No:2, being an employee of defendant No-1, it is said, both the defendants are liable to pay compensation/damages. According to the averments in the plaint, deceased was aged about 17 years and keeping good health with simple habits. The plaintiff claimed that both the spouses and other legal heirs have been deprived of their present and expected pecuniary benefits to the extent of Rs.10,00,000 because the deceased was very promising student of Inter Commerce in Jinnah College and was likely to be a master of Business Administration as he was deeply interested in it. Besides his studies, he used to impart tuitions to the children of the locality in free hours and used to earn. Rs.1,000 per month. Additionally, he was a competent player of Squash and due to his competence in this game, other boys were also influenced by him and they desired to receive training from him in this regard. He was eager to make this game popular in this area and wanted to open squash court in his locality to I provide training to players at night and thereby he could have earned Rs.2,000 to 3,000 per month. Apart from other activities, deceased was devoting'' sufficient time to his studies. His hard work and concentration on studies evidently showed that he would have done his M.B.A. after a few years and would have earned Rs.5,000 to Rs.6,000 per month by serving in.` any foreign organisation. It is added that he used to part with all his earnings in favour of his parents for whom he had greater amount of love and affection.

3. Defendant No. l in its written statement generally denied the allegations including_the incident of death at the hands of defendant No.2 and the employment of defendant No.2 on their bus. They denied all averments with regard to studies by deceased and actual as well as probable future earnings of the deceased.

4. Defendant No.2 though served with the summons of suit did not appear to contest the same, which has proceeded against him, ex parte.

5. On the pleadings of the parties, following consent issues were settled (1) Whether the suit is mala fide as detailed in preliminary objections? (2) Whether the plaintiffs are the depending legal heirs of the deceased? (3) Whether any accident was caused by Bus No.802‑404? (4) Whether the defendant No. l was the owner of the Bus No.802‑404 and the defendant No. 2 was the driver employee of defendant No. l at the relevant time of accident i.e‑44‑11‑1987? (5) Whether deceased died due to the accident as alleged and defendants are liable to pay the plaintiffs and other dependent legal heirs as claimed. jointly and severally? (6) What relief or reliefs plaintiff is entitled? (7) What should the decree be? (8) Whether the plaintiff is entitled to costs and interest as claimed?

6. In support of his case the plaintiff examined himself P. W .1, Muhammad Akhlaq Khan P.W.2, H.C. Muhammad Nazir P.W.3, Abdul Hadi, District Manager K.T.C. P.W.4, Traffic Constable Mashooq Ali P.W.5 and Aijaz Ahmed Mashir of Wardat P.W.6, while defendant Corporation led evidence of Abdul Rasool Agha, Secretary K.T.C.

7. I have heard learned counsel for the parties and gone through relevant evidence on record. My findings on each issue with reasons there for are as under: ‑ Issues Nos. l and 2.

8. Both the issues have not been pressed by learned counsel appearing for defendant No. 1, therefore, no finding is warranted in the circumstances. Issues Nos. 3 and 4.

9. In para. 4 of his affidavit‑in‑evidence, defendants' witness, Abdul Rasool Agha, has admitted the ownership of the bus being with K.T.C. and employment of defendant No.2 as their driver on the material date but he has denied that there was an accident by Bus No.802‑

404. In order to prove the accident, plaintiff has relied upon the evidence of Traffic Constable Mashooq Ali P.W.5, who was posted at the traffic signal on the junction of Drigh Road and Shahrah‑e‑Quaideen from 1500 hours to 1900 hours. This witness stated that he was controlling the traffic and standing in the centre of Drigh Road when he noted that a K.T.C. bus was coming from Saddar side. The witness stated that the bus was driven in such a manner and it appeared to him that it was not under the control of the driver because he was trying to control its speed by turning it side‑ways from one side to the other. Eventually, the bus hit another bus of route No.W‑19 as well as two cars whereafter it hit the central foot‑path (green island) dividing the central lane of the road and also hit a traffic signal located over there. According to the witness the deceased was trying to cross the road having sports kit‑bag with him. He stated that after hitting the traffic signal the bus ran over the deceased. The witness rushed towards the deceased who was still alive and took him to J.P.M.C. in a car. The witness was cross‑examined at sufficient length but material statements of fact narrated by him were not controverted. All that was attempted was to state that he was not cited as a witness in the criminal case against defendant No.2 and that he had not lodged the First Information Report with police. During the cross‑examination, the witness frankly conceded that usually two constables remained on duty but he was confident that at the material time when this incident occurred no other traffic constable was on duty at the place of incident. Evidence of this witness being natural, straightforward and, disinterested, cannot be lightly brushed aside particularly when he has successfully withstood the touchstone of cross‑1 examination. Even otherwise, as a public servant, he has no reason to give false evidence or to exaggerate the facts. Memo of site inspection prepared by the Investigating Officer on the same day Exh.17/1, F.I.R. Exh.14/3, Medico Legal Certificate Exh.14/2, Superdginama Exh.14/1, application for release of the Bus Exh.14/4 and report of the Motor Vehicle Inspector Exh.14/5 were brought on record through H.C. Muhammad Nazir of Ferozabad Police Station. No doubt author of the F.I.R. was not examined, commission of accident by Bus No.802‑404 on the material date and time stand proved by the evidence of P.W. Mashooq Ali, which has gone almost unrebutted and supported by all other attending circumstances. In the absence of any evidence to the contrary, both the issues can be safely answered in affirmative and I hold accordingly. Issue No.5.

10. Unnatural death of the deceased apart from ocular testimony of P.W. Mashooq Ali, who was on duty at the relevant point of time, stands established by. Medico Legal Certificate Exh.14/2 issued by Senior Registrar, Ward No. III, Jinnah Post Graduate Medical Centre as well as the evidence of the plaintiff. Medical Officer has described cause of the death of the deceased as intra peritonea] haemorrhage and heaemothorax as a consequence of irreversible shock and cardio‑respiratory failure.

11. As regards liability of defendants for causing unnatural death of the deceased, there is sufficient, satisfactory and natural evidence furnished by P.W. Mashooq Ali, which has not been rebutted in material particulars. As observed earlier there is no circumstance to indicate the contrary or to show that the death was occasioned due to contributory negligence of the deceased. Since material facts deposed in the examination‑in‑chief are not controverted and disputed during the cross‑examination, in law, these are deemed to have been accepted. Learned counsel for the defendant Corporation assailed the evidence of P.W. Mashooq Ali on the ground that he had expressed his opinion that the bus was out of control of the driver though it did not carry any passenger and that there is no evidence to indicate negligence or rashness o the part of defendant No.2. I have not been able to persuade your self to subscribe to this view of the learned counsel as a witness watching the movements of vehicles at the material time and witnessing the fateful incident could only express his sentiments and opinion about the conduct of the driver and the manner in which the bus was driven at the relevant time. Indeed the Traffic Constable has given a detailed account of the incident in which the fateful accident took place culminating in the unfortunate death of the deceased who was hardly 17 years of age. The circumstance that the bus did not carry any passenger at the relevant time is not material for determining the wrongful and negligent act of defendant No.2 who happened to drive the bus in question during the course of his employment with the defendant Corporation. There is nothing particular to discredit the witness, who has deposed in a natural and straightforward manner which inspires confidence. At any rate, evidence of the witness, whose credentials have not been assailed, cannot be discarded or taken lightly so as to exclude it from consideration. In the given circumstances, I am inclined to accept the version of the witness on its face value. In view of above finding as a necessary corollary, primary responsibility for payment of damages/compensation to the legal heirs of the deceased would rest on defendant No.2 but defendant No. l is also jointly and severally responsible for the wrongful and untimely loss of human life by reason of their liability as owner of the bus. Even otherwise, defendant No.2 I G being their employee and driver Incharge of the bus, defendant No. l would be responsible for the consequences arising out of the unnatural death of the deceased as a result of the tragic accident. Needless to point out, deprivation of human life is an irreparable loss which is not measurable in terms of coins. Issues Nos.6. 7 and 8.

12. As per Matriculation Certificate to Exh.II of deceased, Rizwan Jalil, he was born on 19‑6‑1971. He was thus hardly 17 years of age at the time of his death. His identity card Exh.9 and Character Certificate from the Principal, Jinnah Government College Exh.10 tend to show that he was a student of XII Class, Commerce, during the session 1987/88. In all probability he would have hopefully passed this examination by the end of 1988. Plaintiff, Jalil Ahmed Siddiqui, in his evidence disclosed his age as 51 years while the age of his wife, Mst. Bilquis Jalil, as 45 years. Having regard to the judgments and decisions by the High Court of Sindh, in view of health awareness and latest medical scientific and technological treatment and diagnosis as well as research in the field of medicine and surgery probable expected life in this part of the country has been determined as 70 years. Besides plaintiff in his evidence stated that his father died at the age of 81 years while his mother expired at the age of 75 years. Quite hopefully deceased would have supported his both parents till attaining the age of 70 years. It may be observed that evidence on the above aspect of the case has not been challenged during the cross‑examination. Accordingly mother of deceased, being 45 years of age at the time of death, would have been benefited from the earnings of the deceased most probably for a period of about 25 years. The plaintiff himself being 51 years would have been supported by deceased for a period of 19 years In the circumstances, it would be just,, fair and equitable to hold that quite possibly the deceased would have lived and maintained his mother for 25 years and plaintiff for 19 years more. .

13. Narrating his student life as student of XII Class Commerce P.W. Jalil Ahmed stated that the deceased was also taking part in body building activities and he was a champion of Squash team of his college, P.W. Muhammad Akhlaq Khan, who is running a Health Centre in the name of Akhlaq Health Centre has corroborated this aspect of evidence. He stated that Rizwan Jalil was enjoying good health; he had joined his Club and won the title of "superman". According to this witness, Rizwan Jalil used to train new body builders, who used to pay him monthly emuneration of Rs.500 or Rs.600. He was awarded a trophy for body building and after his death, a championship in the name of Rizwan Jalil was organised. According to this witness, Rizwan Jalil was Squash player; he used to play with Jansher Khan and would have been Squash player of all Pakistan‑level with ability to open his own Squash club. In the opinion of the witness, he would have earned Rs.5,000 to Rs.6,000 p.m. from squash, had he lived.

14. Plaintiff, Jalil Ahmed, stated that his son wanted to do M.B.A. and from private tuition to some children he used to earn Rs.1,000 to Rs.1,200 per month, out of which the used to pay Rs.800 per month to his mother while balance amount was retained for his pocket expenses. He added that the deceased used to play Squash in the Squash club; he had plan to start his own Squash club; his income from Squash would not have been less than Rs.5,000 to Rs.6,000 per month and additionally he would have earned Rs.5,000 to Rs.6,000 per month after qualifying M.B.A. During his cross‑examination, the plaintiff conceded that he had no documentary proof about the earning of the deceased from Squash and body‑building or that he was earning Rs.1,200 per month from private tuition except an invitation card Exh.12, which tends to show prima facie that Akhlaq Health Club Nazimabad had organised Rizwan Memorial Open Sindh Body Building Championship on 16‑9‑1988 at Sindh Sports Complex Auditorium Nazimabad.

15. Taking an overall view of the unrebutted evidence and probable future income of the deceased, I am inclined to hold that he was paying Rs.800 per month to his mother out of his earning from tuition, which could have conveniently raised to Rs.1,000 per month by reason of escalation in cost of living and thereby calculating his support to his family at the rate of Rs.1,000 per month and Rs.12,000 per annum, he would have paid at least Rs.60;000.00 to his parents for their maintenance for the first five years of his life. I would distribute this amount in equal shares between the father and mother who would be entitled to Rs.30,000 each for the first five years.

16. For remaining period of life of his parents, calculating the average income at the rational and more reasonable rate of Rs.5,000 per month from Squash and all other walks of life irrespective of expectation, whether he would have been able to obtain degree of M.B.A. or not, he would have spent on himself and his family, after marriage to the extent of half of his expected income. Balance of monthly saving of Rs.2,500 shall be divided between father and mother in equal shares. Plaintiff would thus get a sum of Rs.125.00 x 12 x 14 = Rs.2,10,000 for remaining 14 years of his probable life. Mother would get equal amount of Rs.2,10,000 during this period. For remaining six years she would get the share of her husband as well. This amount works out at Rs.2,500 x 12 x 6 = Rs.1,80,

000. Thus the plaintiff in all would be entitled to a decree in the sum of Rs.30,000 + 2,10,000 = 2,40,000 while the mother would be entitled to a decree in the sum of Rs.30,000 + 2,10,000 + 1,80,000 + 4,20,000.00.

17. In calculating approximate income of the deceased on completion of his academic life and reaching the age of 22 years, I am benefited by a classic judgment of the Supreme Court of Pakistan in the case of Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another (1993 SCMR 848) in which following dictum was laid down: "There is no hard and fast rule or clear cut definite formula, for assessment of damages as contemplated under section 1 of Fatal Accidents Act of 1855. Pecuniary loss will be loss resulting to the parties beneficially entitled as 'consequence of death and an estimate had to be made by the Court. Assessment of damages in such a case, must, therefore, necessarily be to some extent of a rough and approximate nature based more or less on guess work for it may well be impossible to accurately determine the loss, which has been sustained by death of a husband, wife, parent or child. No definite hard and fast rule caa be lid down as to the matters which should be taken into account. But this much can be said that only such damages can be given as can be shown to have been financially suffered by those who bring the action. In estimating such damages, the Court will no doubt take into account the age of deceased; his or her death, earning capacity and even chances of advancement."

18. In the circumstances of the case, allowing all reasonable margins in favour of the defendant Corporation, the suit is decreed in the sum of Rs.6,60,000 with costs and interest at the rate of 10 % per annum from the date of suit till realisation. This amount shall be apportioned between the plaintiff and his wife Mrs. Bilqees Jaleel to the extent indicated above. A.A./J‑17/K Suit decreed