1986 PLP 111 (MLD)

4. The plaintiffs have examined P.W. Dr. Brain Chen, Exh. 6, who, was incharge of Mideast Medical Centre, Karachi, on 25‑4‑1980. He found the deceased deeply unconscious. He was profusely bleeding from the mouth, nose and ear, and he had multiple injuries. The doctor states, that the deceased died after 1/2 hours after admission in hospital. In his opinion, death was due to head injury suffered by the deceased. He has produced death certificate which is as Exh. 6/1.

5. The plaintiffs have examined P.Ws. 2, Gul Rahman, Inspector, who was Sub‑Inspector at Clifton Police Station at the time of incident. He has produced F.I.R. as Exh. 7/1, and investigated the case and seized the car, He has produced Mashirnama of seizure of car as Exh. 7/2, and site. plan as Exh. 7/3. He also seized the motor‑cycle.

6. P.W.3. Syed Muhammad Arif, is authorised representative of National Cement Industries Limited, Karachi, where the deceased was employed as Assistant Manager (Mechanical). He has produced a letter of appointment of the deceased as Exh. 8/1, the confirmation letter as Exh. 8/2, revised pay scale as Exh. 8/3, and also a letter of further Increment as Exh. 8/4. He states, that Exh. 8/5 shows the total emoluments drawn by the deceased.

7. P.W.4, Abdul Latif Shaikh, is eye‑witness. He states, that the defendant No.1 was driving car rashly and hit the scooter of the deceased from behind. He is the father of the deceased, and has produced some certificates of the deceased, viz. Secondary School Leaving Certificate as Exh. 9/1 and certificate of B.E., as Exh. 9/2.

8. P.W.5, Furqani, Exh. 10, has produced report of motor vehicle inspection, post‑mortem report and record of criminal case as Exhs. 10/1 to 10/3.

9. P.W. Dr. Abdul Hameed Gajani, Exh. 11, conducted post‑mortem of the deceased, and has proved the post‑mortem notes and produced the same as Exh.10/4

10. P.W. Alley Nabi, Exh. 12, is also Deputy Manager in National Cement Industries Limited, Karachi, where deceased was employed. He states, that Muhammad Iqbal, who joined service alongwith the deceased, is now drawing salary of Rs. 3,476 p.m.

11. P.W. Abdul Qayum, Exh. 13, Senior Clerk in Motor Registration Office, states, that the car in question was registered in the name of defendant No.2.

12. P.W. Haq Nawaz, Exh. 14, A.S.I. investigated the case. P.W. Abdul Hafeez, Exh. 15, is brother of deceased. He was also informed about the accident.

13. P.W. Ahsanur Rehman, Exh. 16, Motor Vehicle Inspector, has produced the report of examination of the car of defendant No. 2, as Exh. 10/2.

14. P.W. Abdul Hameed, Exh. 17, is an eye‑witness of the incident.

15. The defendant No.1 has examined himself as Exh.

19. He denies to be driving car rashly and negligently, but states, that deceased took turn to right side without indication and this was the reason that he was hit by the car.

16. My finding on the issues for the reasons recorded are as under:

17. Issues Nos. 1 and 4 are not pressed except that it is contended, that plaintiffs Nos. 3 to 7 have no right to file this suit. The learned counsel for the plaintiffs concedes, that under section 1 of the Fatal Accidents Act, 1855, only parties mentioned therein, Viz. wife, husband, parents, and children have the right to sue. The plaintiffs Nos. 3 to 71 do not fall within the categories mentioned above. They are brothers and sisters, and as such they have no right under the Fatal Accident Act. The names of plaintiffs Nos. 3 to 7 are, therefore, struck of. Both issues are disposed of accordingly.

18. There is no dispute, that Abdul Hanif died due to accident, when his motor‑cycle was hit by the car being driven by defendant No.1., The evidence of the Medical Officer, Dr. Brain Chen, Exh.l, shows, that the deceased died due to head injury suffered by him. There is evidence of P.W. Abdul Latif to this effect, that a car driven by the defendant No.1 at a high speed dashed against the scooter of deceased and hit him and the defendant No.1 took the deceased to Mideast Hospital, where he died. It is admitted by the defendant No.1 in his deposition at Exh. 19, that P.W. Abdul Latif was present and accompanied him to the hospital.

19. Defendant No.1, however, contends, that' he was not driving the car rashly and negligently, but he was driving at modest speed when deceased, who was going in front of him on motor‑cycle, suddenly took abrupt turn, without any prior indication in front of the car, because an old man, who was standing on the right side of the road, shouted and in this process he was hit by the car. From the evidence of defendant No‑1, it is clear, that the deceased was going in front of the car of defendant No.1 and the car hit the motor‑cycle from the back side and the deceased fell in front of the car. It is also further admitted, that the old man, who is P.W. Abdul Latif, father of the deceased, was also present at the time of accident. P.W. Abdul Latif states, that the car was following the deceased at a fast speed and hit the scooter of the deceased from behind. The deceased was thrown on right side of the road and was dragged by the car for some paces. He denies the suggestion, that the deceased took abrupt turn in front of car. It may be pointed, that the reason advanced by the defendant why the deceased took abrupt turn is, that the father of the deceased shouted and called him. No such question has been suggested to the P.W. Abdul Latif in cross‑examination. Admittedly, the house of Abdul Latif;‑ which was under construction, is a few paces away from the place of incident. According to P.W. Abdul Latif, the deceased was to pick him from there. The deceased knew where he had to go and as such there was no need for the deceased to take abrupt turn as claimed by the defendant No.1. P.W. Abdul Hameed, Exh. ,17, states, that he was going on a cycle when he saw a motor‑cycle and behind it a car. He further states, that deceased's father was constructing a house in Shireen Jinnah Colony, and was standing on the road. He called scooterist. As soon as scooterist tried to take turn he was hit by the car. He further states, that the car was going in a normal speed.

20. This witness was examined after 3 or 4 years of the incident. His evidence does not appear to be confidence inspiring. It may be due to lapse of memory or may be for some other reason, that he has tried to oblige the defendants. He was examined in the criminal case against defendant No.1 and his statement before the trial Court has been produced as Exh. 17/1. Though contradictions have not been specifically brought on record but apparently it appears, that he was changed his statement in this Court at least so far the speed of the car is concerned.

21. The defence has argued, that the burden of proof was upon the plaintiff and only witness of the incident apart from Abdul Hameed, is father of the deceased who is plaintiff and is thus an interested witness. As a matter of fact, the accidents occur so suddenly, that no person specifically notices and remembers as to what exactly happened before the accident. The safe course for the Courts is to read the evidence of witnesses keeping in view the other circumstantial evidence on record. According to P.W. Latif, the car of the defendant hit the motor‑cycle from behind, whereas according to the defendant No.1, the accused was caking turn on the right side and in the process he was hit. If it be so, then the motor‑cycle of the deceased would have been hit from the side, and consequently the leg of the deceased on that side of the motor‑cycle, would have been badly crushed. There is no evidence that any leg of the deceased was badly crushed. Furthermore, the evidence of P.W. Ahsanur Rehman Exh. 16, who is Motor Vehicle Inspector and who inspected the car as well as motor‑cycle after the incident and has produced such report Exh. 10‑B, shows, that the motor‑cycle was hit by the car from behind. In view of this evidence of disinterested and independent witness and as already pointed that there was no reason for the deceased' to take turn on the right side abruptly, we have to discard this theory that the deceased was hit while taking abrupt turn.

22. It is contended that P.W. Latif that the car was being driven by the deceased at fast speed, whereas defendant No.1 claims to be driving it at moderate speed. The report Exh. 10‑B shows, that left side of front registration place of the car was denied, bumper was dented, mudguard was dented and bonate was dented. According to P.W. Ahsan Rehman and the report Exh. 10/B rear wheel 'of the motor‑cycle, the rear mudguard, rear light registration plate, carrier and fuel tank were damaged and the feet rests were twisted on both sides. It may be pertinent to note, that the motor‑cycle was also moving in front of the car, therefore, such damage can be caused to both the car and motor‑cycle, only when the car had hit the motor‑cycle with force. This is also apparent from the evidence of P.W. Latif, that even after the car had hit the motor‑cycle, the deceased eras dragged by the car for about 10 paces. This fact also finds support from the evidence of 1.0. Mr. GuI Rehman P.W.2 who produced and proved the Mashirnama of the site Exh. 7/2 and sketch of the site Exh. 7/3. Both these documents show there were marks of the wheel of the car and dragging of the motor‑cycle for about 10 paces. Therefore, I have no hesitation in holding, that death of the deceased was caused due to rash and negligent driving of the defendant No.1 and the defendant No.1, is responsible for the accident. My findings on issue No.2 accordingly. Issue No.3:

22. The court‑fee on claims under Fatal Accidents Act has been abolished under Sind Ordinance No.12 of 1981, therefore, this issue become redundant. Issues Nos. 5, 6 and 7:

23. In view of my findings on issue No.2 defendant No.1 as the driver of the vehicle, defendant No.2 as owner .of the vehicle and defendant No.3 as insurer of the vehicle which caused this death are liable to pay the compensation. The only question now to be decided is as to what should be the amount of the compensation. Certain principles, with regard to determination of the compensation in such cases have been settled by the superior Courts in number of cases and can safely be made as basis of the calculation of the claim. These principles are;

. (1) Net annual income of the deceased and what was his future prospects in respect of his earning. (2) Whether the claimants have received any financial benefit due to death of the deceased. (3) Expected life of the deceased. (4) Expected life of the claimants and the loss caused to them.

25. As for the point No.1 is concerned there is documentary evidence as Exh. 8/5, which has been produced by Syed Muhammad Arif P.W. No.3, who is Deputy Manager of National Cement Industries, employer of the deceased. According to this document, the total emoluments drawn by deceased at the time of his death on 25‑4‑1980 was Rs.2,

375. The evidence of another officer of this company P.W. Alley Nabi Exh. 12, shows that one Muhammad Iqbal, who had joined the service alongwith the deceased was now drawing salary of Rs.3,

466. The deceased was promising youngman and the documents produced show, that he was confirmed and was also given increments from time to time. At the time of his death he was aged 27 years and normally he would have expected to receive increments in his pay as well as promotion. The retiring age at present is 60 years. As such he had 33 years to serve. Keeping in views his past record and future expectations his monthly income ca be fixed Rs.4,200 per month. This amount would include conveyance and other allowances. The deceased would have had to pay income ‑tax and other usual deductions viz. Benevolent Fund, Insurance, G.P. Fund etc. Thus, his net average income would be about Rs.3,000 p.m.

26. Next we come to the principle No.2. There is no evidence on record that the plaintiffs Nos.1 and 2 have in any way benefited by the death of the deceased. They are the parents of the deceased and no amount of money can compensate or erase their grief or the mental shock, that they have received due to death of their young promising son, who was engaged to be married.

27. Coming to point No.3, while calculating the amount of compensation, the deceased is generally given about 1/3rd. for his personal expenses. Normally such person has got family and substantial part of money of his earning is spent upon his family. Learned counsel for the defendant No.3 has argued, that the deceased would not have contributed more than one‑sixth of his earning towards maintenance of his parents. Whereas the learned counsel for the defendants Nos.1 and 2 contended that he would have contributed 1/3rd of his income. At the time of his death, deceased was not married but was only engaged. He had no child. Even after marriage, he may or may not have ha children. As such we can safely assess the amount, that the plaintiff Nos.1 and 2 would have received from the deceased as 1/3rd of his net monthly income which comes to Rs.1,000 per month in the instant case.

28. Next,' we come to the question as for what period the plaintiff would have received maintenance from the deceased. They could have received it so long as they are alive. Normal life expectancy in our country is from 55 to 65 years. He may fix it at 60 years. P.W. Abdul Latif has given his age as 50 years, when he was examined on 25‑10‑1983. He has further stated that his wife is 5 years younger to him. There is no other evidence to show what is the age of plaintiffs. Therefore age at the time of accident would be 47 years in the case of Abdul Latif and 42' years in the case of plaintiff No. l mother of the deceased. As such they expected support from the deceased for 13.years and 18 years respectively. The principle governing assessment of damages has been discussed at length by their Lordships in the case reported in P L D 1969 S C

565. It is observed therein:‑-- "That under section 1, the pecuniary loss will be less 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 be apportion the sum so determined between the beneficiaries and proportionately according to the nearness of their relationship and the interest which of them had in the life of the deceased. 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 to be "some extent a rough and approximate in nature based more or less on guess work, for it may well be impossible to accurately determine the loss". We have already come to the conclusion, that we can safely fix the net earning of the deceased, keeping in view of his future increments at Rs.3,000 per month.

29. The share of plaintiffs No.2 at the rate of Rs.500 per month for 18 years would come to Rs.78,000 whereas that of plaintiff No.1 at the same rate per month for 23 years would come to Rs.1,08,

000. The total compensation payable is Rs.1,86,000.

30. The insurer viz. the defendant No.3 can only raise such defence, which is allowed to him under subsection (2) of section 96 of the Motor Vehicles Act, 1939. No such defence has been taken by the defendant No.3, which was open to him under the said provision of law. Therefore, as held by their Lordship of Supreme Court in P L D 1969 S C 565, he is liable to pay decretal amount to the decree‑holder to the extent liability has been incurred by him under the Insurance Policy. Under clause (1) of section 11 of the Insurance Policy Exh. 18 the company has undertaken to indemnify the insured in the event of accident caused or arising out the use of the Motor Car against all sums including claimant's costs and expenses, which the insured shall become legally liable to pay in respect of death of or bodily injury to any person. I, therefore, decree the suit in favour of plaintiff No.1 to the extent of Rs.1,08,000 and in favour of plaintiff No.2 in the sum of Rs. 78,000 and also allow them costs of the suit. I also allow them interest on the decretal amount at Rs.10$ per annum from the date of suit. A. A. Suit decreed.