2007 PLP 946 (MLD)

SYED ASGHAR HAIDER, J.

This second appeal is directed against the judgment and decree, dated 24-8-2004, passed by the Additional District Judge, Gujranwala, affirming the judgment and decree, dated 29-1-1996, passed by the Civil Judge, Gujranwala, dismissing appeal for enhancement of quantum of damages filed by the appellants.

2. The appellants/plaintiffs filed a suit for recovery of damages of Rs.60,70,638.40 under the Fatal Accidents Act, 1855 pleading that husband of appellant No.1 and father of appellants Nos. 2 to 5 was travelling in a Flying Coach, the vehicle was owned and operated by the respondents. The vehicle met with an accident, due to over-speeding, rash, negligent and reckless driving, this resulted into casualties of passengers, including the husband of appellant No.1, Muhammad Jamil. His death was caused due to hemorrhage, shock and bleeding, the deceased was sole bread-winner for the plaintiffs appellants, he was employed in the United Bank Limited as Garde-I officer, his untimely death caused colossal mental and financial loss to the appellants plaintiffs, they requested the respondents to pay damages, upon refusal, for partial vindication of this irreparable loss they filed the present suit.

3. The suit initially was contested by the defendant/respondent No.2. Respondents Nos. 1 and 3 were proceeded against ex parte, the trial Court deleted the name of defendant No.2. Of the divergent pleadings of the parties issues were framed, whereafter the trial Court decreed the suit, ex parte for Rs.5 Lac. Aggrieved thereof the appellants filed appeal seeking enhancement of decretal amount to Rs.40,55,

980. This appeal was dismissed, hence the present appeal.

4. Learned counsel for the appellants contended that the appellants produced 6 witnesses and tendered in evidence Exh. P-1 to P-6 and Mark A. P.W.3. Audit Officer of UBL gave the details of the salary and emoluments of the deceased. P.W.6 appeared as attorney and affirmed the contents of the plaint, the other witnesses corroborated the details of accident etc. Thus, it stands proved from record that the appellant was sole bread-winner of the family, he is survived by a widow and four children, it is also proved that deceased was in the employment of UBL and working as a Grade-I Officer. Life expectancy in Pakistan is 70 years, thus, plaintiffs produced formidable evidence but the trial Court awarded a very meagre amount in the form of damages, if failed .to consider the evidence tendered and the law on the subject. Likewise the lower appellate Court also ignored these parameters, he relied on Punjab Road Transport Corporation, Lahore v. J. V. Gardner and 2 others (1998 CLC 199), Mst. Razia Khatoon and 6 others v. Province of N.-W.F.P. through Secretary Transport, N.-W.F.P. Secretariat, Peshawar and 2 others (2002 MLD 539), Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another (1993 SCMR 848). Water and Power Development Authority (WAPDA) through Chairman and others v. Mst. Shamim Akhtar and others (2006 MLD 518), Mst. Nasim Akhtar v. Karachi Transport Corporation, through Chairman, Managing Director or Directors Karachi and 2 others (2006 MLD 71), Baby Mahek alias Sakeena and 4 others v. Miss Aisha Qayyum and 2 others (2006 MLD 468), Mst. Shamim Akhtar v. Javedan Cement Limited through Managing Director (1997 CLC 955), Fouzia Begum v. Karachi Transport Corporation and another (1997 MLD 2787)(, Karachi Transport Corporation v. Latif-ur-Rehman and others (1993 SCMR 1149), Punjab Road Transport Corporation v. Zahida Afzal and others (2006 SCMR 207), Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman and another (PLD 1969 SC 656) and Pakistan through Secretary, Ministry of Defence and others v. Haji Abdul Razzaque (2006 SCMR 587).

5. I have heard the learned counsel and perused the impugned judgment as well as the judgment of the trial Court.

6. The trial Court of the divergent pleadings of the parties framed the following issues:-- (1) Whether the plaintiffs have no cause of action against the defendant No.2? OPD-2. (2) Whether the Court lacks jurisdiction to adjudicate upon this matter? OPD. (3) Whether the suit is not maintainable in its present form? OPD. (4) Whether the plaintiffs are estopped by their own words and conduct to bring this suit? OPD. (5) Whether the defendant No.2 has no link with the Flying Coach, which caused the death of the predecessor of the plaintiffs? OPD (6) Whether the plaintiffs are entitled to a decree for Rs.60,70,638.40 on account of damages under Fatal Accidents Act from the defendants? OPP. (7) Relief. 6-A. Issue No.6 is pivotal to the cause of the plaintiffs appellant and has been dealt with by the trial Court as well as lower Appellate Court in detail, both concur that the accident was caused due to rash the negligent driving which resulted into the death of deceased Muhammad Jamil. It is also clear from record that he was approximately 39 years of age in robust health, employed as Grade-I Officer with salary and emoluments of Rs.8055 per month with 3 bonuses in a year, he had chance of advancement in grade, his record with the bank is unblemished, there were recommendation certificates etc., the deceased was the sole bread-winner for the appellant and orphan children, they have been deprived of the love and affection of their father and have also lost opportunity to compete with people of equivalent resources, with the death of the deceased their financial security and benefits have evaporated. The only point for adjudication is whether the quantum of damages awarded is commensurate with injury suffered, and has it adequately alleviated misery of the appellants, the answer is no. There is no barometer or yardstick to strictly measure the loss suffered and offset its effect by awarding damages. Thus, the award of damages, is speculative and guess work, but effort has to be made to balance the scale and ensure adequate compensation. Therefore, the method adopted to determine the damages is life expectancy, the calculation of pecuniary benefits if the deceased remained alive till the age of retirement, he consequential loss suffered by the dependents. The guidelines in this context have been laid down by the Honourable Supreme Court in Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and anther (1993 SCMR 848), Mst. Shamim Akhtar v. Javedan Cement Limited through Managing Director (1997 CLC 955) and Fouzia Begum v. Karachi Transport Corporation and another (1997 MLD 2787), Baby Mahek alias Sakeena and 4 others v. Miss Aisha Qayyum (2006 MLD 468) and Punjab Road Transport Corporation v. Zahida Afzal and others (2006 SCMR 207). Therefore, the trial Court was required to undertake this exercise and calculate damages in the manner laid down, this was not done. The trial Court only awarded lumpsum damages of Rs.5 Lac without discussing or giving any reasons, how it arrived at this figure and what were the reasons to disallow the damages claimed by the appellants, especially when there was no evidence in rebuttal. Therefore, the impugned judgment cannot sustain. The appellants, therefore, are awarded damages in the sum of Rs.40,70,300, the break up is as follows: (i) Income of the deceased per month as per salary Rs. 8055 per month-- Rs.195 annual increment. (ii) Average loss of salary benefits for 25 years and 8 months. Rs.3,705,795 (iii) Annual bonuses on basic salary Rs.578,595 (iv) Gross loss of pecuniary benefits for 25 years and 8 months (Rs.3,236,565 + Rs.578,595) Rs.4,284,260 (v) Less 1/6th on account of Personal expenses of deceased Rs.714,060 (vi) Net loss of pecuniary benefits (Rs.4,284,360 - Rs.714,060) Rs.3,570,300 (vii) Life long shock and mental agony Rs.5,00,000 Total Pecuniary Loss Rs.40,70,300 Resultantly, this appeal is allowed, the impugned judgment and decree is set aside, the decree, dated 29-1-1996, passed by the trial Court is modified and enhanced to Rs.40,70,

300. The appellants shall also be entitled to interest from the date of decree till realization at the bank rate. S.A.K./S-40/L Decree modified.