1989 PLP 514 (MLD)

(4) Whether other relief the plaintiff is entitled to? ISSUE NO.1‑‑Mr. Muhammad Maqsood, learned counsel for the plaintiff, pointed out that there is irrebuttable evidence on record to establish that the deceased was hit by the bus belonging to the defendant. My attention was drawn to the deposition of P.W.‑1 Nazir Shah, the husband of the deceased who himself had been driving the Suzuki Car. According to him, it was the bus belonging to the defendant which, while overtaking the Suzuki car, struck it from behind and threw it to the right side of the road. The statement of P.W.1 is corroborated by an independent eye‑witness, namely, Sherali, P.W.2, a chowkidar, who was standing at a nearby Bus Stop to catch a bus for Pipri and saw the bus in question overtaking the Suzuki, hitting it on the left side and throwing by its impact the deceased and the child on the road. He further states that the police arrived on the scene of the accident and recorded his statement. According to him, the injured persons (including deceased) were taken to a hospital by an ambulance which belonged to the defendant No.1. The statement of Muhammad Hussain P.W.4, S.H.O. Malir City Police Station further corroborate the statement of the plaintiff. The defendants have adduced evidence of Hafiz Rahim Bux Jatoi (D.W.1) and defendant No.2 Abdul Haq, (D.W.2) the driver of the bus D.W.1 was working as Deputy Manager, Transport, in Pakistan Steel Mills, Karachi (defendant No.1). According to him, Abdul Haq, defendant No.2, was in employment of the defendant No.1 at the time of occurrence of the accident and was the driver of the bus. He admits that he was not aware of the details of the accident and states nowhere that the death of the deceased was not caused by the rash and negligent driving of the deceased's husband (P.W.1), the plaintiff. The only evidence on record to rebut the plaintiffs case is that of the driver of the bus, namely, Abdul Haq, the defendant No.2, who blames the plaintiff for overtaking and meeting the accident. Mr. Azhar Ali Siddiqui, learned counsel for the defendant states that the sequence of events cast doubts as to the genuineness of the plaintiff's claim in as such as the accident took place before 8.30 a.m., site inspection took place by P.W.4, Muhammad Hussain Sub‑Inspector at 1.45 p.m., Mashirnama was prepared at 2.45 p.m. and F.I.R. was lodged at 5.11 p.m. It is very strange that although the accident took place early in morning and the injured persons including the deceased were taken to the hospital in the ambulance of the defendant No.1, the defendants could not adduce any independent evidence to support their defence. It is also pertinent to note that D.W. 1, who himself was Deputy Manager Transport of the defendant No.1 would be so ignorant as not to know the correct position. In view of strong evidence on record supporting the plaintiff's case, I hold that the death of the deceased Khatija Begum was‑ caused by the rash and negligent driving of Bus No.803‑531 belonging to defendant No. 1 and further A hold that the defendant No.2, an employee of the defendant Np.1 had been driving the said bus when the accident took place. Issue No.1 is, therefore, replied in affirmative in favour of the plaintiff. ISSUE N0.2‑‑The defendants in their written statement as well as in their depositions have admitted that the defendant No.2 was in employment of the defendant No.1 on the date of accident. Since I have decided issue No.1 in favour of the plaintiff and hold that the death of Khatija Begum was caused by the rash and negligent driving by the defendant N'o.2 during the cpurse by his employment B with defendant No. 1, this issue too is replied in affirmative and I accordingly hold that both the defendants are jointly and severally liable to pay compensation to the plaintiff and other minor heirs. ISSUES NOS 3 & 4‑‑Mr. Azhar Ali Siddiqui, learned counsel for the defendant has pointed out to me that there is no reliable evidence to show that the deceased, had been earning Rs.1,600 per month as alleged. Tfie evidence of P.W. 3 is not credible as she was a family friend and a neighbour. Further it is an admitted position that the deceased was not a regular employee with any one and was a mere casual worker. Mr. Azhar Ali Siddiqui, further states that since the children of the deceased have not been made parties to the suit no decree can be passed in their favour. With regard to the first contention raised by Mr. Azhar Ali Siddiqui, I agree with him that there is nothing on record to show that the deceased was a regular employee but there is sufficient evidence on record to establish that she was engaged in tailoring work at home and decidedly a working woman partly supporting her family. To me the compensation claimed by the plaintiff is on the higher side. It is rather difficult for a married woman with three children to earn Rs.1,600 per month while working at home. Assuming that a married woman spends four or five working hours every day to look after her household duties, it is difficult to concieve that she will be left with enough time and energy to earn Rs.1,600 p.m. I, therefore, hold that the earning capacity of the deceased was Rs.800 p.m. The second contention raised by Mr. Azhar Siddiqui Advocate, is that since the children of the deceased have not been joined as plaintiffs no decree can be passed in their favour and the plaintiff is entitled only to the extent of his share in the damages if any, finally determined by the Court. Mr. Muhammad Maqsood, learned counsel for the plaintiff' states that there is no issue on this point and therefore this objection cannot be raised at this stage in the written statement filed by the defendants, the defendant have raised a preliminary objection as to the maintainability of the suit for want of necessary parties. Mr. Azhar Siddiqui, Advocate, has drawn my attention to the provisions of Order III, rule 1, C.P.C. which reads as under:‑‑ "

1. Appearance, etc., may be in person, by recognized agent or by pleader ‑‑‑‑‑‑‑‑‑ Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or acting, as the case may be) on his behalf: Provided that any such appearance shall, if the Court so directs, be made by the party in person." It is stated by Mr. Muhammad Maqsood, Advocate for the plaintiff that the plaintiff is a representative within the meaning of section (1) of the Fatal Accidents Act under which he hadfiled the suit for benefit of his minor sons and daughter and further he has provided full particulars of such minors and the nature of claims as contemplated under section 3 thereof. According to him, the provisions of Order III, rule 1, C.P.C. are not applicale in view of specific provisions of sections 1 and 3 of Fatal Accidents Act. These sections are reproduced as follows:‑‑ . (1) Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name the executor, administrator or representative of the person deceased; 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 educting 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. (2) * * * * * * * * * * * * * * * * * * * * * * (3) The plaint in any such action or suit shall give a full particular of the person or persons for whom, or on whose behalf, such action or suit shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered." I, therefore, hold that there is no substance in this objection and Order III, rule 1, C.P.C. is not applicable in the case. The next question for determination is with regard to the expectancy of age of a person in Pakistan and the quantum of financial assistance, which the deceased would have provided to her husband and children if she would have lived upto the average expected age in Pakistan. According to Mr. Muhammad Maqsood, Advocate, the average expectancy of age in Pakistan is 65 years as was held in PLD 1964 Kar.72, which reads as follows:‑‑ "I have held in a case before me and inclined to think now also that the ordinary expectancy of life can be taken to be 65 years in our country now, I am supported in this view by the fact that the age of the Government servant to remain in the Government service has recently been increased from 55 years to 60 years, which limit does not normally indicate the end of life but carries with it the expectancy of earning pensions after it." This view has been upheld in PLD 1976 Kar. 131; PLD 1983 Kar. 453; 1981 CLC p. 1106; 1983 CLC p. 2054 and

131. It is an admitted position that the deceased at the time of her demise was 28 years old, therefore, she was expected to live for another 37 years. Since I have already held that the earning capacity of the deceased was Rs.800 per month she would have earned Rs.3,55,200 during these years. Out of this amount she would have spent 1/3rd of her income on her own self and upkeeping, leaving a sum of Rs.2,36,800 for her husband and three minor children. Accordingly, I decree the suit against the defendants jointly and/or D severally for Rs.2,36,800 with no order as to costs. The defendants shall deposit the decretal amount of Rs.2,36,800 in the Court to be apportioned among the plaintiff and the three minor children, namely, Muzaffar Hussain Shah, Zaima Hussain and Munawar Hussain equally i.e. each getting Rs.59,

200. The plaintiff shall be entitled to withdraw his share of Rs.59,200 from‑the Court but the share of the minors shall be invested by the Nazir in Khas Deposit Certificates. H.B.T./N‑157/K Suit decreed accordingly.