1989 PLP 1970 (CLC)

This is a suit for recovery of Rs.3,00,000 under the Fatal Accidents Act, 1855.

2. The facts giving rise to this case are that deceased Mir Afzal suffered death in a traffic accident on 17‑12‑1985 in Malir Extension Area. Plaintiffs are his father and mother respectively. Mini Bus No.806‑332, alleged to be owned by the defendant No.l, is said to be involved in the accident and was allegedly driven by the defendant No.2 on the date of the incident namely, 17‑12‑1985. It is maintained that the defendant No.2 was guilty of rash and negligent driving hitting the deceased and his companion and friend Yousuf thereby causing death of Mir Afzal and injuries to the said Yousuf. The deceased is said to be aged 16 years at the time of his demise, had simple habits and cared for the plaintiffs. As a result, the plaintiffs have, allegedly been deprived of his substantial expected earnings as the deceased was a student of Class VIl, Chamman Faize Alam Government Secondary School, Malir Extension, Karachi, which he used to attend from 12‑30 to 4‑30 p.m. and before attending which school he used, every day, to sit and assist the plaintiff No.l, his father, at the latter's shop in Abbasi Market, Model Colony, dealing in fish meat business. The job that the deceased boy rendered could have fetched and was worth about Rs.600 to Rs.700 per month and such work was, subsequently, being performed by an employee at Rs.700 per month. In addition to this it is maintained that the deceased used to look after domestic work. After Martriculation the deceased was expected to open his own shop for selling fish meat and could easily have earned about Rs.2,000 per month. On account of the untimely and unfortunate demise of Mir Afzal aforesaid the plaintiffs are said to have suffered loss of expected earnings of the deceased of about Rs.3 lacs and this suit, against the defendants, accordingly, for recovery of such sum, jointly and severally, with interest at 15% per annum from the date of suit till realization, has been filed.

3. Defendant No.l, the owner of the offending Mini Bus,is shown to have refused the process sent to him by post and is otherwise, also, indicated to have avoided the receipt of process of this Court and, as such service having been held good in relation to him, he was declared ex parte. Defendant No.2, the driver, put in appearance though no written statement was filed by or on his behalf. In these circumstances this case was put up for final disposal. The plaintiffs, in support of the cause of action, have submitted affidavit of Muhammad Younus, which details the circumstances in which Mir Afzal suffered death on account of rash and negligent driving of the defendant No.2, who was an employee of the defendant No.l. The plaint is also signed by the two plaintiffs and verified on oath by the plaintiff No.l.

4. There is discrepancy between the plaint and the affidavit in proof submitted by the plaintiffs in that the name of the other injured of the accident in the plaint is cited as Yousuf whereas the said affidavit is sworn and submitted by Muhammad Younus. I am inclined to view the contradiction as clerical or typographical and such conclusion is strengthened by the fact that the copy of F.I.R. attached with the plaint confirms the identity of the other injured as Younus. Parentage of the said Younus in the affidavit and in the F.I.R. is also identical. The apparent discrepancy, therefore, is held to be immaterial.

5. Learned counsel for the plaintiff has filed a statement of the claim which has been placed on record. While the contribution and benefit in terms of earnings, if the deceased was alive, is calculated in such statement at Rs.4,84,800 the claim is voluntarily reduced to Rs.3,00,000 apparently, to bring the same in line with the suit amount.

6. Even so, it falls for consideration as to what amount, in law, can appropriately be allowed to the plaintiffs by way of damages. Relevant factors in such context are expectancy of life in Fatal Accident cases, likely earnings of the deceased during such expectancy, probable expenses that he could be assumed to incur on his person and the possible duration of life‑spans that the youngest of the beneficiaries can be anticipated to enjoy. To this may be added, where relevant, the period or periods during which the victim of such accident was obliged to maintain the beneficiary (s). Examination of case‑law accordingly, in this context, is clearly, called for.

7. In the context of expectancy of life relatable to Fatal Accident cases the rule, based on the dicta of Waheeduddin Ahmad and Qadiruddin Ahmad, JJ. in the cases of Iftikhar Hussain v. Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550, Ursulina D'Lima and others v. Orient Airways Ltd. and another PLD 1960 Kar.712, Bashir Begum v. Mohammad Ali Premji PLD 1960 Kar. 785 and Kulsoom v. Jalil Ahmad Khan and another PLD 1964 Kar. 72 was of 45 to 65 years whereas following upon the view in the case of Manmatha Nath Kuri v. Muhammad Mukhlesur Rehman PLD 1963 Dacca 290 it may have been of 60 years. Both these views have, separately, been approved by the Supreme Court in the cases of Jalil Ahmad v. Kulsoom CA.K‑44/1969 and Manmatha Nath Kuri v. Muhammad Mokhlesur Rehman PLD 1969 SC

565. This rule after having incessantly undergone appraisals and reappraisals has, lately, more or less consistently been adopted to be of 65 years and that would seem to be reflected in the cases of Punjab Road Transport Board v. M. Muhammad Sadiq 1987 CLC 933, Moinuddin v. Karachi Transport Corporation and another 1987 CLC 1554 and Vicar Ahmad and others v. M/s. `Blue Line Air‑Conditioned Coach Service and another 1989 CLC 229.

8. However, after all these years, time may now be ripe to take note that the rule of 65 years was deduced more than a quarter century ago and in the altered circumstances of a comparatively advanced society with better medical facilities, know‑how and health care and generally an improved standard of life an ordinary citizen may actually, on an average, live longer than 65 years, as earlier determined. Compulsions for such re‑thinking may be reflected in advancements, as a consequence whereof, heart ailments are no longer incurable, typhoid is controllable, tuberculosis & leprosy have virtually been eradicated and diabetes relegated to the status of a mere nuisance. Implications of this change, inter alia have been recognised in altering the retirement ages of Government Servants from 58 years to 60 years and of Judges of the High Courts themselves from 60 to 62 years and, unquestionably, the age of retirement is never taken as the terminal point of life. Besides, in the case of womenfolk, as the plaintiff No.2 is, it is now well‑established, all the world over, that expectancy of life of females is higher than that of men. Add to this the circumstance that what is to be assessed as probable expectancy has greater nexus with the future than with the past and it goes without saying that the convenience, facilities and technical advancements the future promises are likely to be in the nature of foreseeable improvements. It may, therefore, be more in line with present day conditions to adopt a rule of 70 years average age in the matter of fatal accidents but as this question has not been raised and does not arise in this case, I would prefer to defer it for another occasion and time.

9. Taking the probable expected age of the victim, in accordance with the current rule, to be 65 years and expected earnings assessed on that basis, adjustment of likely expenses on the maintenance of the deceased is to be made, in order to arrive at the net benefit from such expected earnings to the surviving beneficiaries. However, another aspect of the case always is, as to for how long the plaintiffs/beneficiaries could be expected to benefit from the earnings of the deceased and in that context, all things being equal, the age of the youngest of the beneficiaries/representatives is to be taken into account and assessment of loss payable in the suit is to be made with reference to the erected duration of life expectancy of the beneficiaries or the youngest of them, mindful of the obligation of the deceased to maintain such beneficiary(s). In the decision of this Court in the case of Aligohar v. Muhammad Hanif PLD 1975 Kar. 432, Mushtaq Ali Kazi, J., allowed the benefit to father of the deceased for a period of 30 years even though he was of 55 years of age. Similarly, in the case of Punjab Road Transport Board v. M. Muhammad Sadiq 1987 CLC 933 a Division Bench of the Lahore High Court allowed the benefit of earnings of the deceased to her parents for 41 years irrespective of the period of time for which such parents themselves could have expected to live. With respect, it appears to me, that expectancy of life should be assumed to be the same in relation to the beneficiaries as in the case of the deceased victims. Thus, in the instant case, the age of the plaintiff No.2, the mother and younger of the two plaintiffs, being 40 years on the date of suit and 39 years at the time of the accident, she would have benefited from the earnings. of the deceased for 26 years, as calculated on the foregoing basis. The earning capacity of the deceased for 7 years upto the age of 23 years is assessed at Rs.600 per month and, allowing Rs.200 p.m. as expenses for maintenance, net benefit to the parents works out to Rs.400 p.m. 7 years providing a figure of Rs.33,

600. Allowing an income of Rs.1,800 p.m. after the deceased attained the age of 23 years, had he lived, and deducting personal expenses at Rs.600 p.m. leaves a monthly benefit of Rs.1,200 p.m. to the plaintiffs/parents of Rs.14,400 per annum. Multiplying this figure with the balance expected 19 years' life‑span of the plaintiff No.2 the anticipated loss for such number of years would be Rs.2,73,600 plus Rs.33,600 as above. The beneficiaries, being sharers in equal degrees, would get 50% each out of the detail amount.

10. A word may be said here about deductions on account of personal expenses of the deceased. In the authorities on the subject this element has varied from 1/3 to 1/6 of the income depending upon the circumstances of each case, taking into consideration the question of income, marital status, requirements of the deceased etc. In this case as the deceased would have married m due course the maximum deduction @ 1/3 of the income has been made.

11. The plaintiffs, however, have also claimed interest at the rate of 15% per annum from the date of suit till realisation. In the case of Miss Shamsun Nisa v. Karachi Road Transport Corporation PLD 1975 Kar. 914 Fakhruddin G. Ibrahim, J. of this Court allowed such interest under section 35 of the Code of Civil Procedure from the date of suit till realisation and exercised discretion in favour of the plaintiff due to an unnecessary defence which entailed a period of pendency from 1966 to 1975. With respect, section 35 of the Code deals with interest on costs and the relevant provision, perhaps, would be section 34 of the Code, which confers power to grant interest on money claims in the Court's discretion, inter alia, from the date of suit till recovery. Be that as it may, this suit, virtually, not having been defended, I am not inclined to grant interest in the circumstances of the case.

12. In view of the fact that the claim of the plaintiffs is for a lesser sum than assessed, as above, it is properly and lawfully based. 1, accordingly, decree the same for the claimed amount of Rs.3,00,000 plus costs. Decree accordingly. AA./N‑197/K Suit decreed.