1997 PLP 2682 (MLD)

The present suits has been filed for recovery of damages under section 3 of the Fatal Accident Act, 1855. The plaintiff is widow of late Ahmed Ali who, according to the plaint, had died in traffic accident on 18‑9‑1986 when he was 38 years old. The deceased has left behind one mother aged 70 years, widow aged 43 years, two daughters aged 14‑1/2 and 4‑1/2 years respectively and 3‑sons aged 10‑1/2, 9‑1/2 and 3‑1/2 years old respectively. Defendant No.1 is the owner of bus bearing Registration No.841‑023 and defendant No.2 was employee of defendant No.1 who was driving the said bus on 18‑9‑1986 at the time of accident which took place near Nursery, Shahrah‑e‑Faisal, Karachi at about 7‑30 p.m. The case of the plaintiff is that the accident took place due to rash and negligent driving by defendant No.1. Ahmad Ali succumbed to the injuries at the spot. The death was caused due to actionable wrong of defendants Nos.l and 2 and both of them are jointly and 'severally liable to pay the compensation and damages to the plaintiff and other dependants of the deceased, who have been deprived of the support that was being received from the deceased. . It is further stated that at the time of death, the deceased was 38 years old and maintained very good health. He was a man of simple habits and used to care very much for the plaintiff and the other dependents. The deceased was employed as constable at the time of his death in Sindh Police and was earning Rs.1,100 per month. His monthly salary would have increased with the passage of time. The plaintiff has claimed Rs.3,00,000 with interest at 15 % per annum and ether ancillary reliefs. Defendant No.2 was reported dead and the learned counsel for the plaintiff dropped the suit against him. His name was accordingly deleted by order dated 29‑1‑1989. Defendant No.1 has filed written statement in which it is pleaded that the deceased himself was responsible for the accident. According to the said' defendant, when the bus was on stop‑bay, the deceased tried to catch it but did not succeed and dashed with the rear wheel and met with the accident. It is further pleaded that the plaintiff is not entitled to claim compensation and the said defendant is not liable to pay the compensation. On the pleadings of the parties, the following issues were framed:‑

(1) Whether death of Ahmed Ali son of Syed Amjad Ali on 18‑9‑1986 at Nursery Bus Stop of Shahrah‑e‑Faisal, Karachi was caused by wrongful act, neglect or default by defendant No.2 Bukhtiar in driving Bus No.841‑023 rashly and negligently and in dashing the bus against him? (2) Whether the defendant No.1 being owner of Bus No.841‑023 allowed the same to be driven on 18‑9‑1986 by its employee driver Bukhtiar so rashly and negligently as to cause death of Ahmed Ali by wrongful act, neglect or default? (3) Whether death of Ahmed Ali was due to his unsuccessful effort to catch Bus No.841‑023 which was stopped at Nursery Bus Stop of Shahrah‑e- Faisal, Karachi? (4) Whether defendant No is responsible for act of his driver and employee Bukhtiar? (5) What should the decree be? Both parties have led evidence in the matter. The plaintiff has examined herself as Exh. 5 wherein she stated that the accident took place on 18‑9‑1986 between 7‑00 and 8‑00 p.m. She deposed that the deceased had five children whose names and ages have been stated hereinabove. The mother of the deceased is also alive. She is stated to be 80 years old at the time when evidence was being recorded. She deposed in consonance with the averments made in. the plaint. The plaintiff further stated that she was informed about the accident on the same day by one Yousuf at 9‑00 p.m. so also by police. She was taken to the hospital by police at about 11‑00 p.m., where she identified the dead body of her husband and it was handed over to her on the next day in the morning. She produced original death certificate of her husband as Exh. 5/3, heirship certificate as Exh.S/4. She produced N.I.C. of the mother of the deceased as Exh. 5/5. It was disclosed by her that Mst. Khatoon Bibi, the mother of the deceased, resided in the separate house adjoining the house in which she lives. She expressed her ignorance about the age of the deceased having been recorded 52 years in the record of the Police Department. She produced documents relating to the service of her husband in the Police Department and the last salary certificate as Exhs. 5/6/1 to

7. In cross‑examination, she denied the suggestion that deceased Ahmed Ali was not related to her. The plaintiff also examined one Yousuf Masih who deposed that on the day of accident he was travelling in the same bus which caused the accident. The bus was being driven by defendant No.2 rashly and negligently. When the bus reached Nursery Bus Stop about 7‑30 p.m. defendant No‑2 speeded it up to reach the Bus Stop first by over‑taking the other buses with an object of getting more passengers. While defendant No. 2 was over‑taking the other buses, Ahmed Ali who was standing on the bus‑stop, was hit by the bus. In the cross-examination, he further stated that the deceased was hit by front side of the bus and then he was trampled under the rear wheel. The evidence of the witness could not be discredited in the cross‑examination. Defendant No.1 filed affidavit‑in‑evidence of Azmatullah Khan, Secretary of defendant No.1 as Exh.7. He admitted that the bus involved in the accident was owned by defendant No‑1 but denied that defendant No.2 was driving the bus rashly and negligently and caused the death of Ahmed Ali. It was stated by him that the deceased was responsible for the accident. In cross‑examination he has stated that he had no personal knowledge of the facts mentioned in the written statement or the facts of the present suit. The evidence of the said witness of the defendant is of no avail. The evidence produced by the plaintiff has sufficiently established that the accident was caused due to rash and negligent driving by defendant No.2 and the deceased Ahmed Ali died due to the injuries suffered by him in the accident there is no evidence on the record that the deceased in any manner was responsible for the accident. In fact the evidence of the plaintiff has remained unrebutted. The Issue No.1 is, therefore, answered in affirmative whereas Issue No.3 is replied in negative. With regard to Issues Nos.2 to 4, suffice it to say that the death having been caused by defendant No.2 who was an employee of defendant No.1, the latter is vicariously liable for the wrongful act of its employee. It is not relevant whether defendant No. l had allowed defendant No.2 to drive the bus rashly and negligently. This brings us to assessment of compensation payable to the plaintiff and other dependents of the deceased Ahmed Ali. The plaintiff has produced last salary certificate which shows that the deceased was paid Rs.580 as his salary for 17 days on 17‑9‑1986. Learned counsel for the plaintiff in view of the amount claimed in the suit submitted that even if the above figure is taken to be monthly salary of the deceased, the compensation payable would exceed the amount claimed. The normal life span in Pakistan is 70 years. Such view has been taken in several cases decided by this Court. Following are some of such cases:‑‑ (1) Mst. Meriam v Maulana Ismail and another (1986 MLD 2027 (Karachi)). (2) Pehlwan Khan and another v. Sindh Employees' Social Security Institution and 3 others (1988 MLD 2061 (Karachi)). (3) Nafeesa Begum v. Muhammad Ismail and another (1989 CLC 2218 (Karachi)). (4) Naseer Khan and another v. Muhammad Yousaf and another (1989 CLC 1970 (Karachi)). (5) Abdul Rashid and another v. Muhammad Anwar and 2 others (1990 CLC 502 (Karachi)). (6) Rasheed Abdul Hafeez and 3 others v. Ahmed and another (1991 CLC 370 (Karachi)). (7) Mst. Bibi Surat Jan v. Mir Azam Khan and 2 others (PLD 1993 Karachi 168). (8) Rafique Jabir v. Superintendent of Police and 2 others (1993 CLC 1751 (Karachi)). (9) Syed Akbar Ali and 5 others v. Pakistan Steel Mills Ltd., Karachi and 2 others (1993 MLD 1759 (Karachi)). (10) Pakistan Steel Mills Corporation Ltd. and another v. Malik Abdul Habib and another (1993 SCMR 848). Out of the monthly income of Rs.580 a sum of Rs.200 is deducted towards personal expenses of the deceased, he would have contributed to the maintenance of his dependents a sum of Rs.380 per month. The minimum wages were fixed at Rs.1,500 per month in the year 1992. The income of the deceased from January, 1993 would have been Rs.1,500 per month. Out of which the deceased would have spent about Rs.250 on himself and the remaining Rs.1,250 would have been contributed by him to the maintenance of his dependents. As the deceased died at the age of 38 years, he would have survived for 32 years but for the accident. The computation of the compensation in view of the above would be as under: (a) Expected contribution from the date of accident till December, 1992. 380 x 12 x 6 = Rs.27,360.00 (b) Expected contribution from 1993 during remaining expectancy of 26 years at Rs.1,250 per month. 1250 x 12 x 26 = Rs.3,90,000.00 Total = Rs.4,17,360.00 Since as against the above amount, the plaintiff has claimed only a sum of Rs.3,00,000 as compensation, it is not necessary to consider the, aggregate of the annual increase in the income of the deceased. The suit is, therefore, decreed in the sum of Rs.3,00,000 with interest at the rate of 14 % per annum from the date of the suit, pendente lite, till payment thereof. The widow of the deceased has been maintaining the children after the death of her husband. She, therefore, shall be paid 40% of the compensation amount. 10% of the compensation shall be paid to the mother of the deceased who is by now 78 years old. The daughters who are now approximately 20 and 12 years old respectively are unmarried. Their marriage expenses are to be taken into consideration. It is, therefore, considered just and proper that each of them is paid 5 % of the compensation towards their marriage expenses. The remaining 40 % shall be distributed among the aforesaid two daughters and three sons in such manner that each son gets twice the amount payable to each daughter. In deposit of the decretal amount by defendant No. 1, the minor dependent's share shall be invested by the Nazir of this Court, in Defence Saving Certificates. The above are the reasons for short order dated 19‑4‑1995, whereby the suit was decreed. H.B.T./S‑28/K Suit decreed.