1987 PLP 1557 (CLC)

Issue No.4: In support of the issue the widow plaintiff has examined herself and according to her statement, her husband Zafar Hussain at the time of his death was drawing a salary of Rs.1600 out of which he used to give Rs.1,400 per month for house‑hold expenses. This remains uncontradicted and may be accepted. At the time of his death he was aged only 27 years and if he had lived the normal span of life of 65 years, he could live another 38 years. Calculated at the rate of Rs.1,400 per month, the resulting loss to this widow and her infant children would be Rs.16,800 per year. For 38 years it should be Rs.16,800 x 38 = Rs.6,38,

400. As the plaintiff has claimed Rs.5,00,000 a decree in the sum of Rs.5 lacs should be passed in favour of the plaintiff with costs. The next question that remains to be determined is in what proportion this amount should be distributed among the claimant heirs. A careful look at section 1 of the Fatal Accident Act would show that the basic concept of an action under this Act is to make provisions for maintenance and subsistence of a restricted class of relations and to provide them such compensation from which they have been deprived of on account of the sudden and I may say unexpected death of their bread‑earner. It is not a distribution of the Estate of the deceased in which all the heirs would be entitled to a share. Nor it is a fine or penalty imposed on the wrong doer out of which the survivors should be invited to share the spoils according to the relationship they had with the deceased. The Act does 'not even recognise the right of a class of relations who would have been otherwise entitled for inheritance of the deceased, to file an action for damages under this Act. For instance a real brother or sister or other members of the family who under the law of inheritance would, be entitled to a share in the estate of the deceased are not eligible to file any suit for compensation. It is only the restricted class of survivors i.e. spouses (wives, husbands) parents and children, can bring an action under this act against the wrong doer. Again even the grown up children namely sons and daughter who are self earning and were not dependent upon the father and 'nave not been put to any monetary loss on account of the death would not be entitled to a share in the amount realised from the wrong doer. If this aspect of the case is kept in view then in my humble opinion the allocation should be proportionate to the loss deprivation suffered by each survivor. The eldest child though he may be entitled to a larger share in the inheritance would in my opinion be awarded a lesser amount than infant who has a long way to go in life to reach the age of majority till he develops a muscle to earn his livelihood. It is he who has been deprived of the protecting wings of the bread‑earner and must be tended and provided for a, relief as far as possible to obviate the hardship to which he would l be otherwise subjected if the support which he was getting or would have continued to get from his deceased father is cut of. It is, in my humble opinion on account of this concept that the legislature have given wide powers to the Courts to determine the share of each plaintiff at the time of passing a decree. The words of section 1 para 3 enjoining the Court to determine the share of each plaintiff are to the following effect:‑-- "and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct."

3. Courts have endeavoured to interpret the above words in a large number of cases. I may refer to quite a few of them. In Raquya Bhai v . Secretary of Defence PI,D 1976 Kar.

131. Mushtaq Kazi, J. has passed a decree against the defendants in the sum of Rs.90,000 and made the allocations of shares in the following manner:‑-- "Out of the decretal amount the plaintiff No.l Raquya Bhai may be paid her share 1/8 and remaining shares of the minor sons and daughter should be kept in their names in fixed deposit till they attain majority."

4. In a case Mst. Qudsia Kishwar and 7 others v. Hakim & Co. 1985 C L C 2119. Nasir Aslam Zahid J. passed a decree in favour of seven plaintiffs which included mother of the decea0ed, widow, sons and daughters of different ages. The allocation has made in the following way:‑

"According to the plaintiffs, the deceased was expected to give Rs.890 per month to them for a period of about 16 years that is, till the age of 65 years, the deceased being 49 years of age at the time of the accident. On the basis of the aforesaid formula, the claim of the plaintiff come to Rs; 1, 70,

880. In my view, the claim for Rs.1,70,880 is supported by the evidence on record. Plaintiff No.8 is the mother of the deceased and according to the learned counsel for the plaintiffs, she does not claim any amount and she was joined only as a pro forma plain tiff . The share of plaintiff No.l to 7 in the decfetal amount are proportioned as follows:‑ Plaintiff No. l ?? Mst. Qudsia Kishwar??????????????????????????? Rs.65,800 Plaintiff No. 2 ? Babar Afzal ???????????????????????????????????????? Rs.10,000 Plaintiff No. 3 ? Shaista ??????????????????????????????????????????????? Rs.10,000 Plaintiff No. 4 ? Humayoon Afzal ????????????????????????????????? Rs.20,000 Plaintiff No. 5 ? Afshan ???????????????????????????????????? Rs.20,000 Plaintiff No. 6 ? Farrukh Shahzad ???????????????????????????????? Rs.20,000 Plaintiff No. 7?? Saba ????????????????????????????????????????????????? Rs.25,000

??????????? Rs.1,70,880

6. In another case Mst. Asghari Begum v. KRTC 1984 M L D

756. The suit was filed by the mother widow and four' minor children of the deceased Muhammad Ibrahim for recovery of es‑6,80,000 but the plaint was amended and the claim was reduced to gs.60,000 only. The learned Judge while passing the decree in the sOm of Rs.60,000 with interest at the rate of 14 per cent per annuli allocated the shares of the mother, widow and the children in the following manner:‑-- "Out of the decretal amount the share of the plaintiff No.l (mother) will be Rs.5,000 and the rest of the plaintiff Rs.11,000 each."

7. In Muhammad Yusuf Khan v. KRTC 1984 C L C 2830. This was a case by an invalid husband and two minor children of a deceased woman, who had died in a road accident. It was proved that she was the only earning member and was supporting her invalid husband as well as two minor children. A learned Judge of this Court passed a decree in the sum of Rs. 60,000 in favour of the plaintiffs without making any allocation of shares between invalid father and the two minor children.

8. Now I take up two leading judgments which have decided the issue differently. Each one of them has adopted equally pursuasive reasonings in support of the view taken. I may first refer to Mst. Varkhima v . Abdul Rasheed and others 1981 C L C

944. This case was decided by Naimuddin, J. as he then was sitting on original side. This suit was filed by a widow and three minor sons and a minor daughter of the deceased. The learned Judge framed a issue. "Whether the plaintiffs have suffered pecuniary loss due to the death of Raisham Gul. If so, how much?" Learned Judge has disposed of this issue. It would be profitable to quote the findings on this issue in extenso to show that approach was brought to bear on the question of allocations of shares of the different heirs: "Since the deceased was undisputedly earning Rs.600 per month and was spending Rs.500 per month on the maintenance of the plaintiff and his children and according to the normal expectancy of life in Pakistan he being in good health, would have lived for another twenty years and earned for the said period a total sum of Rs.1,44,

00. Out of his amount at the rate of Rs.500 per month as proved by affidavit of Nek Badin he would have spent Rs.1,20,000 on the maintenance of the plaintiff and his children. Ordinarily he would have maintained plaintiff 1 for about 20 years and plaintiffs 2 to 5 for about 10 years, 11 years, 14 years and 15 years, respectively. Although it is not stated in the plaint or in the affidavit filed on behalf of the plaintiffs as to how much amount the deceased was spending on each of the plaintiffs every month, it was stated by Mr. K.B. Bhutto at the bar that the deceased was spending Rs.200, per month on plaintiff 1, which included maintenance of the house, Rs.75 each on all the remaining plaintiffs. This statement has not been disputed by Mr. Riazul Hassan Advocate for defendant

3. Accordingly each plaintiff is entitled to the following compensation: (i) Plaintiff 1 (Widow)?? Rs.48,000 (ii) Plaintiff 2 (Minor)??????????????? Rs.9,000 (iii) Plaintiff 3??? "?????????????????????? Rs.9,000 (iv) Plaintiff 4??? "?????????????????????? Rs.13,050 (v) Plaintiff 5???? "?????????????????????? Rs.13,950

Total . . .????????????????????????????????? Rs . 93 , 900 I, therefore, decide this issue accordingly."

9. In a bunch of cases disposed of by a single judgment by my brother Tanzilur Rehman, J. reported in PLD 1986 Kar. 489 the question was examined from a different angle. The learned Judge has exhaustively dealt with this question and has opined that the allocation of shares should be made strictly in accordance with the entitlement of different heirs under the Muslim Law of Inheritance. The reasonings of the learned Judge for adopting the criterion of distributing shares according to the Muslim Law are inspired by an anxiety to enforce the law of Shariat in letter and spirit.

10. The learned Judge has rightly held that the award under the Fatal Accidents Act being similar in nature to the blood money awarded in cases of Qisas and Diyat should also be distributed in the same manner. There is a consensus that the Diyat money has to be distributed among all the heirs of a deceased person in proportion to their respective entitlement under the Muslim law of inheritance.

11. Before applying principle of Diyat it is to be kept in mind that there are two things one the eligibility of a share‑holder and secondly proportion of the share to which such a share‑holder would be entitled. My brother has followed only the later part of the doctrine. He could not and has not followed the earlier part. The Fatal Accident Act restricts the class of heirs, who would be entitled to bring an action under the Fatal Accidents Act brothers, sisters and even the sons and daughters, who are entitled to a share in the Diyat and Qisas money are excluded from the limited class of beneficiaries under the Fatal Accidents Act. Under the Fatal Accidents Act only the dependents of a deceased person should be compensated. Self supporting sons and daughters, who were not drawing any benefit during the life time of the deceased and as such have not suffered any deprivation or loss on account of death cannot be awarded any share in the decree.

12. In my humble opinion unless the Fatal Accidents Act is amended and its scope is widened and enlarged to include even those who would be entitled to a share on the pattern of Diyat mere apportionment of shares among the existing class of beneficiaries would not serve any purpose and it would neither be following the award according to the Diyat nor would be inconsonance with the spirit of the Fatal Accidents Act.

13. I feel inclined to award 1/6 to the widow and preserve the rest of the decretal amount in custodia legis till such time that all the children attain majority. During this period they should be entitled to draw such amounts from time to time as the Court may deem fit to award on their applications. The expenses during the time of their minority would include such pressing needs as their maintenance, education, and medical expenses etc. etc. All these benefits they would have enjoyed if the deceased has remained alive.

14. In my humble opinion the object of this Act is to recoup the loss to the heirs as far as money can do. It would neither be proper to give away the shares of the minor to the mother nor to keep their share in save deposit with the anxiety to preserve it and pay them on their majority because by adopting the later course the darkest and hardest period of their life would pass away without any relief to them. If their shares are kept in custodia legis and are spent on their maintenance, education and medical expenses as needed during minority they would get the real benefit of the decree. After they have attained majority the residue whatever it may be, should be distributed among them in accordance with the Muhammadan Law male getting double the share of a female child. This would fulfil the requirement of Shariat and would also not cause any violence to the provisions of the Fatal Accidents Act as they presently stand on the statute book. The result is that the suit is decreed in the sum of Rs.5,00,000 with costs against Defendant No.2 only and dismissed against defendant No.l without order as to costs. M.B.A./M‑106/K??????????????????????????????????????????????????????? Suit decreed.