P L D 1980 Lahore 584 (PLP)

the appellant. Even if it be said that defendant No. 2 had unauthorised! and wrongfully diverted the bus to the route not prescribed for it, yet the appellant cannot escape its liability to the statutory beneficiaries, i.e the respondents. If there be need of any authority on this question reference be made to the judgments reported as Hyder and another v. BurmahShell Oil Company of India Ltd. and others (1), Mukhtar Ahmad v. Ramzan and another (2), Ursulina D'lima and others v. Orient Airways Ltd. and another (3), Mst. Hamida Begum v. Su!eman Jan and another (4), Government of West Pakistan and another v. Mst. Sakina Begum and others (5) and Miss Shamsun Nissa and another v. Karachi Road Transport Corporation and 3 others (6). (1) P L D 1951 Sind 24 ?????????? (2) P L D 1956 Sind 124 (3) P L D 1960 Kar. 712 ??????? (4) P L D 1961 Kar. 529 (5) P L D 1962 Pesh, 70????????? (6) P L D 1975 Kar. 914

8. An attempt was made by the learned counsel to demonstrate that the deceased was guilty of contributory negligence and, therefore, the claim lodged by the respondents was not sustainable. Particular reference was made to the statements of Muhammad Bakhsh and Karim Dad D. Ws. According to Muhammad Bakhsh D. W., Professor Izhar Ahmad was coming on bicycle with his right hand on the handle, holding a packet of tobacco in his left hand and smoking a pipe. This witness has further stated that the deceased passed in front of the bus. The learned trial Court has not believed Muhammad Bakhsh and Karim Dad D. W., who too had given a somewhat similar version. In discarding the statements of these witnesses, the learned trial Court has given cogent reasons. Although, we were taken through their statements but we did no find any material which could persuade us to disagree with the opinion of the learned trial Court in respect of the credibility of these witnesses. There is thus no] evidence to show that the deceased was guilty of any contributory negligence,! Which even if it be so assumed would still not absolve the driver or the appellant from their liability towards the beneficiaries of the deceased because' in that eventuality there is sufficient evidence on record to prove that the driver was initially negligent. A person who is initially negligent cannot be permitted to fall back upon the contributory negligence of the other party in order to avoid liability arising out of an accident. It may also be noticed that such a plea was not even raised through the written statement, by the appellant and, therefore, cannot be permitted to be raised now.

9. The finding of the learned trial Court on issue No. 7 has been the subject of strenuous arguments from both sides. The learned counsel for the appellant while dealing with this issue raised a number of contentions involving the age of expectancy of the deceased, the future prospects, the personal expense, reduction in the decretal amount on account of accelerated benefit resulting from lump sum payment, and family dependency.

10. The learned trial Court has estimated the age of expectancy of the deceased at 65 years which has been challenged by the learned counsel for the appellant in the light of various judicial pronouncements. According to him it was an estimate on the high side and inconsistent with the proper standard of judicial decisions. He wished us to estimate the age of expectancy of the deceased either 55 or 60 years. In support of this contention, the learned counsel cited-Bashir Begum and others v. Mahomedali Premji and another (1), Mst. Hamida Begum v. Suleman Jan and others; Government of West Pakistan and another v. .4Tst. Sakina Begum and others; Mst. Qudsia Begum v. Younus Khan and 4 othera (2), Miss Shamsun Nissra and another v. Karachi Road Transport Corporation and 3 others and Mst. Mominbai and 3 others v. Ghulam Muhammad and 2 others (3). As against this the learned counsel for the respondents made reference for the judgments reported as-Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. (4) and Rukayabal and S others v. Secretary of Defence, Government of Pakistan, Islamabad and 4 others (5). Wherein the age is fixed as 95 years. On this question, reference can also be made, with advantge to a judgment delivered in the case of Kalsoom v. Jalil Ahmad Khan (6). In this case one Abdullah, a vegetable and fruit vendor, was pushing a handcart along the Hub River Road when Bus No. KAP 5361, which was coming from the opposite direction, struck against the handcart causing serious internal injuries to Abdullah who died in the hospital. He was considered to be 43 years at the time of his death and it was held that he could be expected to live for twenty-two years more. This finding was unsuccessfully challenged through a Letters Patent Appeal, and late leave was granted by their Lordships of the Supreme Court of Pakistan vide their order reported as .1alil Ahmad Khan v. Mst. Kulsoom and another (7), to consider whether the expectancy of Abdullah was rightly pitched at 22 years by the High Court. The judgment in this case (Civil Appeal No. K-44 of 1969) has since been delivered by . toe Supreme Court and after considering the various judicial decisions on the subject their Lordships have been pleased to upheld the view expressed by the High Court. The relevant passage from the judgment, for full comprehension, needs to. be quoted with advantage : (1) P 'L D 1960 Kar. 785 ??????? (2) P L D 1973 Kar. 636 (3) P L D 1977 Kar. 685 ??????? (4) P L D 1959 Kar. 550 (5) P L D 1976 Kar. 131 ??????? (6) P L D 1964 Kar. 72 (7) 1968 S C M R 448 "According to these judicial decisions, the expectancy of life ranges from 45 to 65 years. The expectation of life of Abdullah up to the age of 65 years, as estimated by the learned Judges of the High Court; is thus within this range, although, it has been pitched at the maximum. Abdullah's own father, who comes from the same walk of life, was .aged 70 years when the suit was filed in 1957. If the-father's age is taken as offering a guide, then, the expectation of life of Abdnllah up to the age of 65 years was not anything abnormal. I-n any event, his life expectancy up to the age of 65 years is within the range of judicial precedents. This being so, we do not feel that we are called upon to interfere with the High Court's estimate of life expectancy of the deceased in this case and thereby to disturb the finding of the learned Single Judge, as affirmed by the Letters Patent Bench, with regard to the quantum of damages."

11. A perusal of the various judicial judgments lead us to conclude that there is no rigid rule on this question which has to be considered and decided on the facts and circumstances of each case, especially upon considering the physique of the deceased, his habits, the nature of duties performed l by him (avocation), family history about ages of its various members and the deceased's gender, In the case in hand, there is an overwhelming evidence on the file that the deceased was possessing sound . physique and was a man of moderate habits. The age of the father or the mother of the deceased is not available but at the same time it is an admitted position that they were alive on the date the accident took place. It appears from the proceedings of the trial Court recorded on 17-12-1975 that. the father of the deceased died somewhere after 13-10-1975 meaning thereby that he lived for more than 31 years after the death of his son. It is also in evidence that the late Prof. Izhar Ahmad at the time of his death, was aged about 40 years. On this data it can safely be taken to mean that in May 1972 his father and mother would be about 62 years and 58 years of age respectively. In other words the father lived up to 651 years while the mother is still alive and thus would be now aged about 65 years. It may be observed that these estimates have been made keeping the undisputed fact in view that the deceased was 40 years of age when he died. A person aged 40 years in 1972 must have been born in 1932, the marriage of his parents taking place in 1921 at the ages of 21 years (father) and 17 years (mother). Considering all these factors and the improved conditions of living, including the advanced standards of medical facilities, we are not inclined to disturb the finding of the learned trial Court whereby it had fixed the age expectancy of the deceased as 6s (sixty-five) years:

12. The next submission made for consideration related to the other important item, i.e. the net annual income, which can reasonably be considered as a yearly pecuniary loss to the beneficiaries. Dealing with this question it was contended by the learned counsel for the appellant that the amount of compensation awarded by the trial Court is highly excessive and against the spirit of the provisions as contained in section 1 of the Fatal Accidents Act. Elaborating his submissions it was urged that under the law . only such amount of salary could be made use of for calculating the damages as was last drawn by the deceased immediately before his death and that the. fixation of pay and the increments as envisaged by the Punjab Senior Teaching Posts (National Pay Scales) Rules, 1974, could not have been taken into account. In the alternative, the learned counsel further submitted that under rule 5 of the above Rules, the arrears prior to 1st August 1973 were not receivable, therefore, any calculation of damages in disregard of the aforesaid rule is erroneous. We have gone through the above Rules and agree with the learned counsel for the appellant that the monetary benefits conferred by the 1974 Rules - were subject to the condition that no arrears as a result of revision would be payable in respect of the period prior to 1-8-1973. But we do not agree with him that for calculating the damages only the pay which the deceased was drawing immediately before his death could be made use of and not the future prospects. The damages awarded under the Act are compensation for the loss of actual pecuniary benefit which the beneficiaries might reason-ably have expected to enjoy had the deceased not been killed. This can be determined by taking into consideration, amongst others, the net annual income of the deceased and what his future prospects in respect of earning could have been. Dealing with the question of determination of damages their Lordships of the Supreme Court of Pakistan in the case reported as Manmatha Natha Kuri v. Muhammad Mokhlisar Rehman (PLD 1969SC565) were pleased to observe, "In estimating such damages the Court will, no doubt, take into account?????? the age of the deceased, his or her health, earning capacity and even the chances of advancement." (the underlining" is ours). The learned counsel, however cited the judgments report as P L D 1959 Kar. 550 and P L D 1970 Lab. 442, but in view of the above judgment of the Supreme Court, we need not examine the view expressed in these two High Courts judgments. Additionally, we may also refer to the leading authority on the subject reported in P L D 1960 Kar. 785 wherein it was observed that in determining the damages, among others, the net annual income of the deceased and what his future prospects in respect of earning have also to be taken into consideration. This is in consonance with the view expressed by the Supreme Court in Sri Manmatha Nath Kuri's case. .

13. The learned counsel for the appellant next contended that we should take into consideration the scaling down factors and allow a deduction of an amount ranging between 10 and 12 per cent. from the amount awarded as damages. In support of his contention reliance was placed on P L D 1959 Kar. 550 and P L D 1962 Pesh. 70 where in each case a sum has been deducted from the amount assessed on the award of lump sum payment. But this view was not subscribed to in a case reported as P L D 1964 Kar. 72 where the deduction was disallowed on the ground that "the defendants have retained and enjoyed the benefits of the amount of compensation for about 7J years and the beneficiaries have suffered by deprivation in that period." This judgment reported as P L D 1964 .Kar. 72 was unsuccessfully impugned before a Letters Patent Bench and later in the Supreme Court of Pakistan (Civil Appeal No. K-44 of 1965). Before the Supreme Court it was contended that the amount of the decree was liable to be deducted on account of accelerated benefit resulting from lump sum payment and personal expense etc. It observed "The learned Single Judge and also the Letters Patent Bench repelled this contention for which they gave convincing reasons." From this it is deducible that the view expressed in Kulsoom's case has been approved by the Supreme Court. In the instant case, more than seven years have passed but no payment has been made to the responden and one can safely imagine the sufferings of the beneficiaries resultin from the sudden stoppage of financial assistance. After having gone through the case law, we are clear in our minds that there is no rigid rule warranting any deduction and the circumstances of the case do not justify a reduction. Moreover, for a long time, the person liable to pay cpmpensation had made use of the amount of compensation and deprived the beneficiaries from its use we may also add that the money value during these years has drastically been reduced, This fact has been taken notice of while assessing damages in recent decisions in England. In Hart v. Griffiths-Jones ((1948) 2 All H R 729), it was observed that, " . although I should have awarded less than ? 200 had I been considering like values, the depreciation of the pound justifies me making an award under this head of ? 200." Further, it is apparent that the amount had been paid to the beneficiaries in 1973 and - had been invested in real estate it would have by this time multiplied tremendously. For all these reasons we do not find any force in the contention that the compensation be reduced because of lump sum payment.

14. The next point urged by the learned counsel for the appellant related to the question of awarding damages' in the light of the principle known as Family Dependency. The learned counsel submitted that damages to the minor children could be awarded for the period of their minority. In this regard it was submitted that at the time of the death of the deceased, respondents Nos. 3 and 4 were minors, stated to be aged 14 and 10, respectively, and therefore, they could be awarded damages upto their attaining the age of 18 years. The learned counsel placed reliance on P L D 1970 Lab.

44. In that case the dependents of the deceased comprised of an aged further nearing 60, a mother equally aged, a young widow aged 25 years, a son aged 7 years, and a daughter aged 2 years. The earning of the deceased at the time of the accident was held to be at least Rs. 200 per mensem and deducting the benefit which was utilized by the deceased for himself, a sum of Rs. 150 was worked out for distribution amongst the statutory beneficiaries, in equal proportion. Since the mother of the deceased had died after the dismissal of the suit and before filing of the appeal, the amount of Rs. 150 was reduced by Rs. 30 and the balance amount of Rs. 120 was distributed amongst the surviving dependents. The father was awarded damages for a period of ten years, the widow for a period of 25 years, and the minor children for a period of l I years and 16 years, respectively. In that case following the speech of Lord Wright in Davies v. Powell Duffeyu Associated Colleries Limited (1942 A C 601), the learned Judges observed : "That quantum of damages because of death of the plaintiff's son, husband or father in an accident cannot be awarded merely on the basis of expectation of the life of the deceased and the assessment is to be made for the period for which the plaintiff is expected to live, is no doubt a sound rule propounded by various judicial authorities on the question." The word "merely" is important in the observation. The two judgments of the Supreme Court delivered in Manamth's and Jalil Ahmad. Khan's cases highlight the other aspects of the matter. In the former at page 576, it has been observed: "Thus parents may recover for the loss of the probability that the deceased child would have contributed towards their maintenance and children may recover for the loss of education, comfort and position in society which they would have enjoyed if the father had lived and maintained the income which had died with him. The basis of the assessment is not the requirement of plaintiff but the money value of the assistance which the deceased might probably have given bad he continued to live." The second case bad arisen out of the judgment reported in P L D 1964 Kar. 72 where also the deceased had left two minor children but still the compensation was calculated on the basis of the deceased's age expectancy multiplied by the financial loss to the beneficiaries. The Supreme Court, as said above, upheld the judgment delivered in this case. ???????????

15. Even otherwise, the principle known as family dependency in foreign jurisdiction is somewhat differently applicable in our society because there is no disassociation amongst the parents and children merely upon the latter's attaining the age of majority. Generally parents in Pakistan do not discontinue the assistance to their children simply on their ceasing to be minors. Further they earnestly, wish and make efforts in finding a respectable position for their children in the society and for that all possible financial assistance is made available. In the instant case the deceased was a Professor and if he had lived it would have been his wish to see his sons to be highly educated and well settled in life. All this is- not possible on attaining the age of eighteen years and to. materialise his wish he would have to continue to impart education beyond the ages of 18 years and marrying them afterwards. Undoubtedly all this would entail financial assistance. We are therefore, not inclined to hold in this case that the view as expressed in P L D 1970 Lah. 442 debar the dependents from the damages as assessed by the learned trial Court. It may be mentioned that the learned counsel advanced similar arguments in relation to the entitlement of the father, the mother and the widow but the same have no force for the reasons given above in view of the nature of the family life in Pakistan.

16. The next question which requires examination relates to the deduction of personal expenses. The learned Senior Civil Judge has allowed 1/4th as the benefits utilized by the deceased himself. This too has been questioned by the learned counsel who contended that in a large number of cases one-third has been deducted from the income of the deceased as his personal expenses. It is true that in various judicial decisions one-third has been deducted from the income as personal expenses, but it is not a rule of universal application. There are a number of authorities wherein one-fourth has been deducted. In dealing with such like questions, facts of each case have to be taken into account and the Court is to keep in , mind the number of family members, the standard of living and the deceased's personal involvement in the walks of life. In this case, the deceased Professor would appear to be a man of frugal habits from his pipe smoking per evidence. He was supporting his parents and providing maintenance to wife and the two minor sons. Thus in the circumstances and on the facts of the case, we are not prepared to believe that the deceased would be spending on himself about Rs. 317.00 per mensem out of Rs. 950 monthly salary, and the remaining Rs. 633 on five dependants. This would be unproportionate. Even otherwise, :here is no evidence on the record to show that the deceased had been spending one-third on himself. . We, therefore uphold the one-fourth deduction made by the learned trial Court.

17. As observed above, the learned trial Court has awarded a total compensation of Rs. 2,85,

195. A statement of account explaining the working of this figure was placed on the file of this Court by the learned counsel for the respondents. A perusal of the same demonstrates that the learned trial Court has made certain additions in the total salary which the deceased would have received up to the .age of 58 years, the age of superannuation, had he remained alive. These additions are of Rs. 33,000 gratuity and Rs. 51,975 as seven years' pension. This statement also makes reference of certain deductions as well such as Rs. 24,889 towards income-tax, Rs. 8,870 pension already received, and Rs. 98,021.50 as personal expense of the deceased. These figures excepting the amount awarded as pension have not been questioned by either party. It appears that the formula applied by the learned trial Court is that it has added Rs. 33,000, the amount of gratuity, in the gross receipts, and deducted therefrom Rs. 24,889, the Income-tax. The percentage of Income-tax deducted roughly comes to 5 %, respectively. We shall be following this formula while making the assessment.

18. About the award of Rs. 51,975 as pension for a period of seven years, the contention of the learned counsel for the appellant was that it was without any basis.". No concrete points in this regard were, however; ,raised by the learned counsel. The maximum scale of N, F. S. 18 is Rs. 1,750 and on working the monthly pension it comes to Rs. 618, i.e. about 27 % of Rs. 1,750, the maximum of the scale. This is not unreasonable.

19. Since we have agreed with the learned counsel for the appellant that pursuant to the provisions as contained in rule 5 (!bid), no arrears were receivable for the period prior to 1-8-1973, therefore, such amount as may represent the increment from 14-5-1972 to 31-7-1973 is to be excluded from the statement of accounts placed on the file. Furthermore, in the said statement some ambiguity appears as regards the working of the benefits accruing upon the introduction of the Punjab Senior Teaching Posts (National Pay Scales) Rules, 1974. Therefore, we have decided to make the calculations ours.-Ives. It may, however, be pointed out that these Rules contemplate that if an existing Government servant fails to opt for existing pay scales or the National Pay Scales within the prescribed time, it will be presumed that he had opted for the National Pay Scales with effect' from 1-3-1972 or 1-10-1972, ors the case may be. Rule 5 postulates that a Government servant holding the post of Associate Professor in a Government College shall have his pay fixed at the stage next above the existing pay .plus Rs.

100. There is nothing on the record to indicate that the deceased 'had exercised the option within the meaning of rule

3. According to the statement of Muhammad Nawaz (P. W. 1), the deceased was receiving Rs. 950 in the scale of Rs. ' 600-1,

250. The present scale .being Rs. 1,000-75-1,750 (N. P. S. 18), on a tentative view, per these Rules, the deceased at the time of his death would be considered to be drawing a salary - of Rs. 1,100 and further that he would earn an increment of Rs. 75 in December 1973.

20. Before proceeding to calculate the measure of loss and assessment of damages, we- feel it appropriate to examine some other points raised by the learned counsel for the appellant as well. The first of the miscellaneous contentions is that the plaint does not contain the particulars and details about various sums and, therefore,. sums not so mentioned in the plaint could not be awarded. Reliance was placed on the judgments reported as Messrs Chaudhry Brothers Ltd. v.. The Jaranwala Central Co-operative Bank Ltd. (1968 S C M R 804), and Pakistan v. Abdul Ghani (P L D 1964 S C 68). There is no dispute about this principle propounded by the Courts including the Supreme Court but the principle has no application to the facts and circumstances of the present, case. The plaint does not contain broad items. Minute details and particulars relating to the claims of various sums are not required and_ at any rate, if it be assumed that the plaint has been inartistically drafted, it is not fatal to the case especially when it involves the construction of mofassil pleadings. We are fortified in our view by the judgment from the Supreme Court in Jalil Ahmad Khan's case.

21. The next point raised by the learned counsel is that Abdul Wahid; father of the deceased, died during the pendency of the suit and, therefore, his share of compensation if any could not - be awarded to the present respondents. In support of his contention, the learned counsel placed reliance on P L D 1970 Lah. 442 wherein Rs. 30, share of the mother, was not awarded to the remaining statutory beneficiaries. This contention has also no force because it is the date of the cause of action which is relevant and not subsequent events. In Kulsoom's case; which was approved by the Supreme Court in Appeal No. K-44 of 1969, one of the beneficiaries had died still his share was allocated to the remaining beneficiaries.

22. The other contention of the learned counsel relates to the non apportionment of compensation awarded amongst the beneficiaries of the deceased, which is a statutory requirement. No doubt, the learned Senior Civil Judge has not made such apportionment but in this first appeal we can certainly set aright the irregularity by making apportionment ourselves. 23, The Fatal Accidents Act does not lay down any method for calculating the loss and assessment of damages. It is impossible to accurately determine the loss which is suffered by the death of a son, husband, or father. In order to compensate the bereaved family, the Courts have laid down the formula that approximate loss suffered in terms of money ,may be awarded as damages. Keeping this in view .and on the basis indicated above, the damages work out as follows : Rs. (i) Salary from June 1972 to July 1973 at the rate of Rs. 950 per mensem. ??????????????????????? Rs. 950 x 14 = 13,300 (ii) Add increment for one year at the rate of Rs. 50 per mensem. ??????????? Rs. 50 x 12=??? 600 (iii) Salary from August 1973 to November 1973 at the rate of Rs. 1,100 per mensem. Rs. 1,100 x 4= 4,400 (iv) Salary from December 1973 to November 1982 at the rate of Rs. 1100 per mensem. Rs. 1,100 x 108 ==????? 1,18,800 (v) Add increment at the rate of Rs. 75 per mensem but with an increase of like amount after every year for the period from December 1973 to November 1982 (by this time the deceased would have touched maximum of scale).?????????????????????????????????????????????????????????????????????????????????????????? 40,500 (vi) Salary from December 1982 to December 1982 at the rate of Rs. 1,750 per mensem, i.e. up to the age of superannuation as given in the statement of accounts. Rs. 1,750 x 84 =????????? 1,47,000 (vii) Pension amount for seven years as calculated by the trial Court.????????????????? =????????? 51,975 ??????????? (viii) Gratuity as calculated by the trialCourt.????????????????????????????? =????????? 33,000 ??????????? Total:??? 4,09,575

24. The amount of income-tax at the rate of six per cent (6 %) comes to about Rs. 24,600 which alongwith an amount of Rs. 8,870, the temporary pension already received, being deducted, the balance would be Rs. 3,76,

705. From this amount a further deduction of one-fourth as personal expenses of the deceased is made and the net amount of compensation comes to Rs. 2,82,078.75. This the respondents are entitled to receive as damages for their loss. This sum is apportioned amongst the statutory beneficiaries, present respondents, as follows :-- ??????????? Rs. ??????????? (i) Mother (respondent No. 2).???????????? 30,000.00 ??????????? (it) Son (respondent No. 3)?????????????????? 82,078.75 ??????????? (iii) Son (respondent No. 4)????????????????? 1,00,000.00 ??????????? (iv) Widow (respondent No. 5)???????????? 70000.00 ??????????????????????? Total:??????????????????????????????????????? 2,82,078.75 In awarding the above compensation to the sons (respondents Nos. 3 and 4), larger amount has been given to the younger son (respondent No. 4) who has to go a long way to complete his education and settle in life. For the reasons given above, the appeal is partly allowed by modifying the decree passed by the learned Senior Civil Judge, Dera Ghazi Khan on 28-5-1976 to Rs. 2,82,078.75 (two lac eighty-two thousand seventy-eight rupees and paisa seventy-five). As the success has been divided, the parties shall bear their own costs of this appeal. S. Q.??? Appeal partly allowed.