1982 PLP 558 (CLC)

Rs. 2,000 1,000 5,400 10,000 20,000 98,400

2. The above suit was resisted by the owner of the bus as well as the Insurance Company i.e. respondent No.

3. On the basis of the pleadings the learned Single Judge framed 5 issues. Respondent No. 1 in support of the suit claim examined himself, his employer Mr. Saeed Abdullah Haroon, driver of the scooter Najmul Islam and Shabbirul Hassan for production of X‑rays and the reports etc. and Mohammad Islam an eye=witness. Whereas the appellant examined Abrar Muhammad Qureshi, Riaz Hussain and Chawan. Mr. Najmul Islam was recalled by respondent No. 3 as their witness in order to prove that he had no driving licence. The learned Single Judge by his judgment under appeal decreed the suit as claimed. The appellant being aggrieved by the above judgment decree has filed the above appeal. The above appeal was admitted only on the ground of the quantum of damages and, therefore, the learned counsel for the appellant has confined leis arguments to the above question. 3. (a) It has been contended by Mr. Rizvi, learned counsel for the appellant that there is no reliable evidence on record to prove the various items of damages claimed by respondent No.

1. On the other hand, it has been urged by Mr. Mubarak Hussain Siddiqui, learned counsel for respondent No. 1 that since the evidence of respondent No. 1 on the quantum of damages remained unchallenged, the learned Single Judge could decree the suit on the basis of the above evidence in the absence of any evidence in rebuttal. Mr. Nur Muhariimad appearing for respondent No. 3 has urged that the insurance policy was taken by Messrs National Bank of Pakistan and not by the appellant and, therefore, the Insurance Company was not liable under the Insurance Policy. (b) Reverting to the contention of Mr. Rizvi that'fere was no reliable evidence on record to prove the various items of damages, it may be pertinent to observe that Item No. 1 relates to the special damages on account of the medical expenses, namely, Rs.2,000, Item No. 2 pertains to the amount spent by respondent No. 1 on the special diet Its. 1,000, duriniz his treatment; Item No. 3 is the loss of income from 11‑4‑68 to the date of filing of the suit for a period of one year amounting to Rs.5,400; Item No. 4 relates to the compensation for the loss of earning capacity amounting Rs.70,000, and Item No. 5 being the amount of Rs.20,000, claimed on account of the compensation for mental shock and suffering and for the bodily pain and for shortening of expectency of life. (i) As regards Items Nos. 1 to 3, it will suffice to observe that respondent No. 1 was the person to know how . much amount was spent on the above 3 items, and, therefore, he could depose on oath in support of the above items. It is an admitted position that respondent No. 1 remained as an indoor patient in the hospital for nearly 6 months. Keeping in view the above period in our view the amount of Rs.2,000 claimed on account of the medical expenses is very reasonable amount. Similarly the amount of Rs.1,000 spent on the special diet appears to be on the low side. Further more, the loss of income for a period of one year at the rate of Rs.450, namely, Rs.5,400 also seems to be reasonable. It may be observed that respondent No. I was not cross‑examined on the above items, and, there is nothing on record to conclude that these figures were not genuine/reasonable. In the absence of any evidence in rebuttal, in our view the learned Single Judge acted in accordance with law in accepting the above figures. (ii) With reference to Item No. 4 being the amount of Rs.70,000 claimed by respondent No. 1 as compensation for the loss of earning capacity, it may be observed that there is no dispute on the factum that respondent No. 1's right side leg was amput9ted from thigh. It has come on record through the evidence of P. W. Saeed Abdullah Haroon that at the time of the accident, respondent No. 1 was employed as an Assistant Manager in Messrs Eastern Studios Karachi, and was drawing a salary of Rs.450 p.m. respondent No. 1's above job involved lot of running inside and outside the studio according to the‑ evidence. Mr. Saeed Abdullah Haroon in his deposition has also stated that according to his estimate respondent No. l would have been drawing a salary of about Rs.2,500 in December, 1974 when the above witness was examined. It may be pertinent to mention that this statement was made nearly after more than 6 years from the date of the accident. The learned Single Judge has calculated the loss of earning capacity on the basis of Rs.200 per month and according to the evidence on record in respondent No. 1's family the expectancy of life is about 70/ 75 years, whereas at the time of the accident the age of respondent No. 1 was about 26 years old. In this view of the matter, the learned Judge, in our view, has rightly observed that respondent No. 1 would have been entitled to claim about a sum of Rs.96,000 as compensation for the loss of earning capacity because of the amputation of the right side leg i.e. Rs.200 x 12 x 40=Rs.96,

000. However, the learned Single Judge has awarded a sum of Rs.70,000 only as respondent No. I had claimed only the above amount in the suit. In our view, no exception can be taken to the above figure, which seems to be reasonable. (iii) Reverting to the last item, i.e. Rs.20,000 being the amount of compensation of mental shock., suffering and for bodily pain and for shorten ing expectancy of life, it may be observed that there cannot be any definite evidence on the quantum of damages for the above items. In this connection a reference may be made to the case of Sri Man‑Matha Nattkuri v. Moulvi Mohammad Mokhlisur Rehman (PLD1969SC565), which was a case of fatal accident, in which Hamoodur Rehman, C. J. while dealing with the question of assessment of quantum of damages made the following observations "If this distinction is kept in mind, it will not be difficult to appreciate that under section 1 the pecuniary loss will be loss resulting to the parties beneficially entitled as consequence of the death. The Act itself does not, however, lay down any principle for calculating the measure of such loss but an estimate has still to be made by the Court which has also to apportion the sum so determined between the beneficiaries proportionately, according to the nearness of their relationship and the interest which each of them had in the life of the deceased. Under this head legal liability alone is not the test of the loss. But even the reasonable expectation of pecuniary advantage which might have been derived from the deceased had he remained alive, may be taken into account, and damages given in respect of that expectation. 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 the death of a husband, wife, parent or child." In our view, the assessment of quantum of damage for the above items is to be made on the basis of the guess work. The learned Single Judge while assessing the amount of Rs.20,000 has not considered the loss of expectancy of life as there was no evidence on the above point. According to the finding of the learned Single Judge the amount of Rs.20,000 would be a reasonable amount for shock, suffering and for bodily pains. Keeping in view the fact that respondent No. 1 would have been entitled to claim about a sum of Rs.96,000 under Item No. 4, for the loss of earning capacity, whereas he had only claimed Rs.70,000 only, we are not inclined to disturb the finding on Item No.

5. In our view the amount of Rs.20,000 seems to be reasonable. It cannot be denied that so long as respondent No. 1 will remain alive he will continue to feel the pinc

4. For the aforesaid reasons, we do not find any merit in the appeal and the same is dismissed with costs. M. Y. M. Appeal dismissed.