2005 PLP 401 (MLD)

6. The first witness Mst. Farzana Shabbir (widow of the deceased) in her affidavit in evidence gave the details about the relationship of plaintiffs with the deceased along with their respective ages. She reiterated the facts and circumstances stated in the plaint to show the manner in which due to rash and negligent driving of Hino truck by defendant No.3, the other vehicles involved in the accident, which were moving on the other side of the road in opposite direction, including Suzuki No.CL‑0242, driven by the deceased were hit by Hino truck and totally damaged and resulted in the death of the deceased and 4 other persons including two ladies. This witness also gave details about the average life of family members of deceased, his sound health, simple habits and average earning of the deceased. She further deposed that the deceased used to pay her his entire earnings and being skilled worker had bright chances of increase in his income in future. This witness also deposed that income of the deceased could have been increased by 30 per cent with the passage of time and that due to the death of the deceased plaintiff No. 1 (his widow) suffered loss of his association as her life partner while the three children of the deceased also lost association and care of their father, therefore, they are entitled to claim Rs.2,00,000 each as damages in addition to the other pecuniary benefits and funeral expenses of Rs.20,000.

7. In the cross‑examination of this witness by learned counsel for the defendants it was admitted by her that she was not an eye‑witness of the accident. However, other relevant facts stated by her except the income of the deceased remained undisputed.

8. Muhammad Hussain (P.W.2) witness from the plaintiffs side was duty officer of Airport Police Station who had received wireless message about the accident and thereafter proceeded to the hospital where the victims of the accident were taken. This witness had recorded the F.I.R, visited the place of occurrence after the accident, recorded statements of witnesses under section 161, Cr.P. C. and also prepared site sketch which has been produced as Exh.P.2/7. On the basis of his site inspection and recording of statements of some of the eye‑witnesses of the accident, this witness deposed that by the time he reached at the place of incident the Hino truck involved in the accident was already taken away by the army, therefore, only other vehicles available on the spot were inspected by the vehicle inspector In his cross‑examination only one question as to the death of defendant No.3 was asked from this witness. Rest of his evidence remained undisputed in cross‑examination.

9. Last witness, Muhammad Arshad (P.W.3), is one of the injured and eye‑witness of the accident who in para. 2 of his affidavit in evidence deposed about the incident in the following words:‑‑ "That, I say that on 10th June, 1994. I was accompanying my colleagues Shaikh Muhammad Shabbir and Ejaz‑ur‑Rahim on a Suzuki Pickup No.CL‑0242 and we were going on Shahrah‑e‑Faisal from City side towards Malir. The Suzuki belonged to Shaikh Muhammad Shabbir and the same was being driven by him. It was at about 1700 hours when we reached near Colony Kabristan Shahrah‑e‑Faisal within the jurisdiction of Airport Police Station and in the meantime, I saw that an Army Hino Truck bearing No.062‑656 which was proceeding on Shahrah‑e -Faisal from Malir towards City in a very rash, negligent and careless manner when reached near Colony Kabristan, the driver of the said army truck appeared to have lost the control/balance due to reckless and excessively high speed and mounted on the central island/foot path and crossed over the said island and came on the other track meant for movement of traffic from City to Malir where our Suzuki was moving and dashed against taxi bearing No.JL‑8085, two cars bearing No.M‑4479 and 160‑483 and our aforesaid Suzuki and these vehicles were dragged along with the said offending Army Hino Truck. Consequently, all the aforementioned vehicles were badly damaged and five persons including the taxi driver Rasool Khan and two passengers of aforesaid taxi namely Mst. Haseena Khanum and Miss Huma Anjoom. Our Suzuki driver Shaikh Muhammad Shabbir and another companion Ejaz‑ur‑Rahim got fatal injuries owning to the impact of collision and died. I along with some more persons who were victims of the accident received injuries. I and all the victims were evacuated to Jinnah Hospital where the aforementioned five victims were declared to have died on account of fatal injuries caused to them in the said road traffic accident. The Airport Police Officials also reached at the Jinnah Hospital and carried out the investigation and recorded the statement and accordingly lodged the F.I.R. No.159 of 1994 on the basis of investigation and booked the driver of the Army truck for the offence of rash and negligent driving resulting into death of aforesaid five persons, injuries to other victim and for causing damages to the affected vehicles. My name was/is also figured in the said F.I.R. as being victim in the said incident."

10. In his cross‑examination when suggestion was put to this witness that army truck had hit against the tree, such suggestion was denied by him so also the other suggestion about involvement of one Toyota Car and hitting of other vehicles involved in the accident from behind the Toyota Car.

11. From defendants side one witness, Muhammad Muneer, has been examined, who was stated to be accompanying defendant No.3 in his truck at the time of accident. This witness deposed only to the extent that before the accident defendant No.3 had told him that the vehicle has gone out of his control, whereupon he had suggested him to take the vehicle on the side of the road and soon after the vehicle mounted the median and hit the tree as a result of which he got injured and became unconscious. In the cross‑examination certain questions were put to this witness to show that how without completion of required formalities the defendants Nos. 1 and 2 had taken away their Hino Truck involved in the accident from the spot. This witness in his cross‑examination did not deny that the accident took place due to rash and negligent driving of the truck driver, the defendant No3, who also later on succumbed to injuries.

12. I have heard arguments of Mr. Nasir Maqsood learned counsel for the plaintiffs and Syed Tariq Ali, learned counsel for defendants Nos. 1 and 2 in this suit and three other connected suits referred in the opening paragraph of this judgment.

13. Mr. Nasir Maqsood briefly referred the contents of the ‑plaint in each case to recapitulate the facts and circumstances in which the accident occurred on 10‑6‑1994 due to the rash and negligent driving of Hino Truck No.062‑656 by defendant No.3. He submitted that material facts about this accident are not disputed by the defendants Nos. 1 and 2, but they have narrated a different story about the manner in which the accident had occurred. Learned counsel contended that the true story of accident, as pleaded by the plaintiffs in their plaint, is fully proved from the evidence of Inspector of Police Muhammad Hussain (P.W.2) and injured witness Muhammad Arshad (P.W.3) coupled with various documents placed on record by them. He specifically made reference to documents Exhs.P.2/6, P.2/7 and P.2/9 in this regard. Referring to the evidence of only witness examined on behalf of defendants, Mr. Nasir Maqsood contended that he has not uttered a single word to dislodge the case of the plaintiffs about the manner in which the Hino truck collided with other vehicles including the vehicle of the deceased. As to the quantum of monetary compensation claimed by the plaintiffs learned counsel contended that all material and relevant facts about the family background of the deceased stated by his widow have gone unchallenged in cross‑examination and un-rebutted in the evidence led on behalf of the defendants, therefore, the same are deemed to be correct. In the end learned counsel also made reference to the doctrine of "res ipsa loquitur" to add force to his submission that once the occurrence of accident and involvement of the defendants is proved, burden had shifted on them to show that it was not due to their negligence but due to the negligence of the deceased that the accident had occurred. With reference to the burden of proof in such cases, applicability of doctrine of "res ipsa loquitur" and the sums claimed by plaintiffs under various heads learned counsel placed reliance on the following cases:‑‑ (1) Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another (1993 SCMR 848). (2) Qazi Arifuddin and another v. Government of Sindh and others (PLD 1991 Karachi 291). (3) Syed Afzal Hussain v. Karachi Transport Corporation and another (PLD 1997 Karachi 253). (4) Ameena v. Government of Pakistan, Ministry of Defence and another (1995 MLD 1922). (5) Mst. Shamim Akhtar v. Javedan Cement Limited (1997 CLC 955). (6) Kulsoom v. Jalil Ahmad Khan and another (PLD 1964 Karachi 72). (7) Muhammad Usman v. Muhammad Iqbal and others (PLD 2000 Karachi 364). (8) Punjab Road Transport Board v. Abdul Wahid Usmani and others (PLD 1980 Lahore 584).

14. Syed Tariq Ali, in his brief reply, did not dispute material facts about the occurrence of accident and death of the deceased in it. He submitted that it was the Suzuki of the deceased which had hit the Toyota Car from its back side resulting in his death and not the defendants Hino Truck. However, he frankly conceded that in support of such plea no iota of evidence has been brought on record by the defendants and contrary to it there is overwhelming evidence from the plaintiffs side, oral as well as documentary, to prove the case of the plaintiffs about the manner in which accident had occurred. Learned counsel lastly submitted that the claim of compensation made by the plaintiffs is highly exaggerated. In this context again he did not dispute the entitlement of plaintiffs being beneficiaries of the deceased and other material facts about the earning of the deceased.

15. I have carefully considered the arguments advanced by the learned counsel and perused the evidence which has come on record. My findings on the above issues are as under:

16. The relevant material facts that the Hino Truck bearing No.062 656 was owned by defendants Nos. 1 and 2; it was driven by defendant No.3 Muhammad Tanveer; he was in the employment of defendants Nos. 1 and 2 and had died later on due to the injuries suffered by him in the accident; at the time of accident Hino Truck had hit, broken and crossed the median between the two tracks of Shahrah‑e‑Faisal resulting in the accident of four other vehicles coming from the opposite direction, including the vehicle (Suzuki) of deceased bearing registration NO.CL‑0242 are not disputed. These undisputed facts are further corroborated from the material placed on record by P.W.2 Muhammad Hussain, duty officer of Police Station Airport, who in the performance of his official duty had visited the place of accident afterwards and prepared the Mashirnama of place of occurrence (Jai‑wardat) and site sketch which have been produced by him as Exh.P.2/6 and P.2/7. A glance on these two documents conforms that the manner in which accident occurred is same as pleaded by the plaintiffs. In addition to this the evidence of injured eye‑witness of the accident. Muhammad Arshad (relevant portion already reproduced above) leaves no further room for doubt to hold that it was due to the sheer, rash and negligent driving of defendant No.3 on the fateful day that the accident had occurred which resulted in the death of Shaikh Muhammad Shabbir and four others and that the narration of accident given on behalf of defendants Nos.1 and 2 in their written statement is concocted in an attempt to avoid the liability of payment of compensation to the plaintiffs for which they may be entitled under the Fatal Accidents Act 1855. Moreover, P.W.2 Muhammad Hussain has deposed that when he reached at the spot of accident he was told that Hino Truck was taken away by defendants Nos. 1 and

2. This witness has also placed on record the report of Vehicle Inspector as Exh.P.2/9 which does not show that there was any lack of safety measures or fault in the vehicle of the deceased which was seriously damaged in the accident.

17. In view of the foregoing discussion Issue No. 1 is answered in the affirmative. ISSUE NO.2:

18. In support of their claim the plaintiffs have examined Mst. Farzana Shabbir, widow of the deceased. She in Paras. 7, 8 and 9 of her affidavit in evidence has stated in detail the relevant facts to justify plaintiffs' claim in respect of suit amount. These paragraphs are reproduced as under:‑‑ "

7. That I say that the deceased Shaikh Muhammad Shabbir was aged 33 years and was very healthy and had very simple habit and used to care much for the plaintiff and other legal heirs. The deceased could have easily survived upto the age of 70 years which is average life span in Pakistan, on account of his sound health, advance medical treatment, improvement in medical facilities, good climate of the area and long life span in his family pedigree.

8. That, I say that in view of the ages of mine, other legal heirs, the deceased and the present and expected earring capacity of the deceased, I and other legal heirs have been deprived of the present and expected pecuniary benefits to an extent of Rs.35,00,000 as the deceased was earning a sum of Rs.7,000 to Rs.8,000 per month by working as petty contractor of the fabrication and construction work. He used to offer his services for the work of fabrication in different construction work and as such due to his nicety and good finishing of work he used to be over‑worked. The deceased since was himself also a skilled worker of fabrication, he used to have great profit margin for his work. The deceased was expecting the enlargement of the business in near future in view of his demand for his work due to his good punctial and prompt performance in the field of construction work along with the fabrication. Thus the income of the deceased could have increased manifold with the passage of time and at least an increment of 30% per annum can safely be assumed and anticipated in view of the present inflation. The deceased used to spend entire earning upon me and aforesaid legal heirs and used to say that he would soon ameliorate the condition of the family. The deceased was a man of very simple habit and used to keep only Rs.300 for his own personal expenses and the deceased was not used to addiction of any kind. Had the deceased not died in the accident, he could have been a useful asset for me and could have kept the family comfortably and prosperous. The deceased was very sincere, benevolent and loving to me and other legal heirs and as such he used to care much for me and other legal heirs and wanted to procure us maximum comforts and relief by spending all of the income upon me and them. The deceased used to say that he would ameliorate the condition of family and motivated by that desire the deceased used to work hard day and night and could have proved to be a very useful asset for the plaintiff and other legal heirs. The deceased wanted to see his minor children in a very prosperous, respectable and graceful position in the society by imparting best of education training and facilities available within possible means. The minors could have achieved a very bright and shining career due to the paternal training look-after, monetary support, proper nourishment and facilities, had the deceased not died on account of fatal accident. Since the minors have been deprived of prospect of the better career and position in society which is on account of accidental death of the deceased due to actionable wrong of the defendant No.3 during the, course of employment of defendants Nos. 1 and 2 and as such they also claim a sum of Rs.2,00,000 each on account of damage of their shining prospect in future in addition to the loss of other pecuniary benefits as detailed above.

9. That the widow of the deceased claims a sum 'of Rs.2,00,000 on account of damages for the loss of association with the deceased and consortium as the fife partner was lost in such a 'critical time of the life when the same was more in need. The plaintiffs also claim a sum of Rs.20,000 on account of funeral expenses."

19. The above reproduced evidence led on behalf of plaintiffs has remained unchallenged in cross‑examination and further no evidence has been adduced on behalf of defendants to rebut this position. Further it has come on record that due to injuries suffered by defendant No.3 in this accident he had died later on. In view of this undisputed position in the present suit no decree can be passed against defendant No.3. In so far as other two defendants viz., defendants Nos. 1 and 2 are concerned it is an admitted position that the Hino Truck bearing No.062‑656 belonged to them and that at the relevant time defendant No.3, who was driving the truck in rash and negligent manner, was under their employment. In view of these undisputed facts and my findings on other issue, I hold that defendants Nos. 1 and 2 are jointly and severally liable to pay compensation to the plaintiffs.

20. Having discussed' other relevant aspects of the case now the crucial point for determination is the quantum of compensation to which plaintiffs could be justly, equitably and lawfully entitled under the Fatal Accidents Act. For this purpose, Mr. Nasir Maqsood has also placed on record a statement of claim bifurcating the suit amount as under:‑‑ (i) Loss of pecuniary benefits at the rate of Rs.7500 per month for 35 years Rs.31,50,000 (ii) 20% increase on account of chances of increment in the aggregate income Rs.6,30,000 (iii) Deduction of 1/6th amount on account of personal expenses Rs.6,30,000 (iv) Damages in favour of widow/plaintiff No.1 for loss of association and loneliness under the head of consortium Rs.2,00,000 (v) Damages in favour of children (plaintiffs Nos.2 to 4) due to death of their father resulting loss of fatherly education supervision, comfort and position in society Rs.2,00,000 each Rs.6,00,000 (vi) Funeral expenses Rs.20,000 Total sum claimed Rs.39,70,000

23. Before examining the factual aspect, relevant for determining quantum of compensation it will be pertinent to, observe that for determining such compensation no mathematical formula can be evolved I which may be evenly applied in each case for this purpose; but only a rough assessment for such compensation is possible looking to the peculiar facts and circumstances of each case. This view is fortified from the observations of Honourable Supreme Court of Pakistan in the case of Pakistan Steel Mills Corporation (Supra), which read as under:‑‑ 14. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ 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. This question came up for detailed examination by this Court in the case of Sri Manmatha Nath Kuri v. Muhammad Mukhlesur Rahman PLD 1969 SC 565 in which it is held that pecuniary loss will be loss resulting to the parties beneficially entitled as consequence of death and an estimate has 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 guesswork for it may well be impossible to accurately determine the loss, which has been sustained by death of a husband, wife, parents or child. No definite hard and fast rule can be laid 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 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 health earning capacity and even chances of advancement."

24. Nevertheless, by way of precedents law some guidelines/principles can be deduced which can be followed/taken into consideration in each case for determining more rational and appropriate claim of compensation.

25. Now reverting to the facts with reference to the pleadings, statement of claim submitted on behalf of plaintiffs, evidence brought on record by the parties and the case‑law referred at the bar by the learned counsel, it seems that on the basis of un‑controverted evidence from the plaintiffs side and ratio of judgment cited at the bar by Mr. Nasir Maqsood it will be just and proper to hold that in normal course the predecessor‑in‑interest of the plaintiffs would have survived upto the age of 70 years; he could have earned about Rs.7500 per month as average income which could have increased upto 20 % in the coming years and that the deceased would have spent 1/5th of his income towards his personal expenses. On these basis the substantial claim of the plaintiffs can be worked out as under:‑‑ (a) Loss of pecuniary benefit at the rate of Rs.7,500 per month for 35 years. Rs.31,50,000 (b) 20 % increase on account, of chances of increase in the aggregate income Rs.6,30,000 (c) Deduction of 1/5th amount on account of personal expenses of deceased Rs.7,56,000 Total Rs.30,24,000

26. Besides awarding compensation in the above sum, following the ratio of the cases (1) Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman and another (PLD 1969 SC 565); (2) Mst. Shamim Akhtar v. Javedan Cement Limited through Managing Director (1997 CLC 955); (3) Saghir Ahmed Ansari v. KESC (2001 YLR 788) and Raghunath v. Gip Rly. Co. (AIR 1968 Bombay 269), further sum of Rs.1,00,000 is awarded to plaintiff No.1 for the loss of her association with the deceased. Similarly the three minor children of the deceased are also awarded compensation at Rs.1,00,000 each for, the loss of fatherly supervision, which they would have received from the deceased, if he had survived his normal life. In addition to it, further sum of Rs.20,000 is awarded towards funeral expenses of deceased. Thus, the total claim of compensation of the plaintiffs under the Fatal Accidents Act 1855 is worked out in the sum of Rs.34,44,000 which will be distributable amongst the plaintiffs as per Sunni Hanafi Law of Inheritance. The suit is accordingly decreed with costs. In addition to the decretal amount, plaintiffs will also be entitled to mark up over the decretal amount at the rate of 6% per annum from the date of this judgment.

27. To secure the interest of minor legal heirs, it is further ordered that till they attain majority their share shall be deposited with the Nazir of this Court, which shall be invested in some profit bearing Government saving scheme. H.B.T./F‑15/K Suit decreed accordingly.