1989 PLP 2218 (CLC)

In this suit, which is for recovery of Rs.4,00,000 under the Fatal Accidents Act 1855, the widow of one Nazir Ahmad, who died in a traffic accident, on 16‑2‑1984, claims compensation, in the sum named, for and on behalf of the legal heirs, including 4 minor sons, two such daughters and father and mother of the deceased aged 55 and 50 years respectively. The defendant No.l, is cited as the owner of Bus No.827‑817, involved in the accident, and the defendant No.2, as its driver and as an employee of defendant No.l. The defendant No.2, is said to be undergoing prosecution under section 304‑A, P.P.C., and the defendant No.l, has, it is said, claimed, the possession of the said Bus, as owner thereof from the Police custody, as indicated in the record of the criminal case. As to the 'facts of the case, it is maintained that the defendant No.2, while driving Bus No.827‑817, in a rash and negligent manner, and while proceeding from Gizri towards Saddar, on Choudhry Khaliq‑uzzaman Road, Karachi dashed with the deceased Nazir Ahmad, going on his motor‑cycle and, consequently, caused injuries to him, resulting in his death. The deceased is stated to have been 32 years of age, was in good health, was disposed to simple habits and cared for the plaintiff, his children and parents, all of whom have been deprived of expected earnings from the deceased, which, at the relevant time, were Rs.1,245 per month, as a clerk in Saddar Post Officers, Karachi. The deceased, allegedly, also enjoyed additional earnings at Rs.1,000 p.m. froth a side tailoring business. His personal expenses are stated to have been about Rs.200 per month.

2. The defendant No.l, besides raising some Preliminary Objections, puts the plaintiff to proof that the defendant No.l, was the owner of the offending Bus or that the defendant No.2, was his employee or that the accident was caused on account of rash or negligent driving by the defendant No.2. It is said that deceased was guilty of contributory negligence on his own part. Mere taking over possession of the Bus by defendant No.l, it is claimed, does not entitle the said defendant to its ownership. The details of the claim, including heir ship of the claimants etc., are also denied.

3. The defendant No.2, who is represented by Mr. Javed Raza, the same learned Advocate, who represents the defendant No.l, denies that such defendant is an employee of defendant No.l. Negligence or rashness in driving is also denied. Prosecution under section 304‑A, P.P.C. is, however, not denied. It is said that the deceased himself was rashly, negligently and carelessly driving his Scooter, while one of his close relatives was sitting behind him. As to the details of the accident, it is said that the offending Bus had proceeded from a nearby Bus Stop, was moving slowly, when the deceased after taking a `U' Turn, through a small cut of the pavement dividing the road, wanted to overtake the bus tried to save a padestrian, got hit with the pavement, became misbalanced, fell and collided with the rear portion of the Bus, suffered injuries and succumed to the same. Rest of the allegations are denied in the same way as by the defendant No.l.

4. Both the defendants have claimed that the suit is not maintainable for misjoinder and non‑joinder of necessary parties.

5. The following issues were adopted by the Court on 22‑12‑1985:‑ (1) Whether the necessary parties have not been joined, if so, what is its effect ? (2) Whether there has been misjoinder of parties, if so what is its effect ? (3) Whether the defendant No.l, is the owner of the bus and there is relationship of master and servant between the defendants Nos.l and 2 ? (4) Whether the suit as framed is maintainable in law? (5) Whether the defendant No.2 caused fatal injuries to deceased due to his wrongful act by rash and negligent driving of the Bus ? (6) Whether the deceased was solely responsible for accident wherein he received injuries resulting in his death ? (7) Whether the plaintiff is entitled to the amount claimed or to any other amounts ? (8) Whether the plaintiff is entitled to any relief ? (9) What should the order be ? The Issues are answered as under:‑

6. Issues Nos.l to 4.‑‑These Issues pertain to joinder of parties and the maintainability of the suit. The case of the defendant No.l, is that he is not the owner of the Bus in question and that he has wrongly been joined, the real owner not having been sued at all. He relies on Ex.9/1, a Certificate from the Office of Excise & Taxation Officer, M.R., Karachi, dated 26‑3‑1986, produced by himself, in which it is certified that the Bus under reference stood in the name of Abdul Hafeez and continues to remain so. The defendant No.l, also, relies on the relevant photstat copies of the record of the Excise & Taxation Department, Motor Registration Wing, Karachi, which, on 29‑2‑1988, were exhibited, by consent; as Exs.ll/1 to 11/10. Ex.ll, is an application by one Qaiser lqbal dated 19‑9‑1981, through which he stated that he had sold the Bus, involved here, to one Abdul Hafeez son of S. Abdul Latif, resident of R‑12/22 F.B. Area, Karachi, which was followed by a request (apparently undated) from Abdul Hafeez for transfer in his favour (Ex.11/1). Ex.ll/2, is a notice dated 17‑5‑1983, in response to application from and to one Mst. Mubina Khatoon (seemingly as owner) for clearance of tax dues in respect of the said Bus. Exs.ll/3 to 11/8, are papers pertaining to tax dues some of which are relatable to Abdul Hafeez but others pertain to Muhammad Ismail, apparently, defendant No.l here, whereas Exs.ll/9 and 11/10, are copies of Ex.9/1. Through Ex.8/5, dated 18‑2‑1984, the defendant No.]., requested the Magistrate, Traffic Section, Defence Housing Society, Karachi, for release of the above Bus and referred to the same as "my Bus", whereas per Ex.8/6, defendant No.l, secured possession of the Bus on 22‑2‑1984. Besides, father's name of the defendant No.l, and that of Abdul Hafeez aforesaid appears to be the same as the deposition of such defendant (Ex.9) would show but it is curious that in the verification clause of his written statement his father's name is shown as S. Khatib. However, the tell‑tale situation is that the address of Defendant No.l, as reflected in the referred verification clause and his deposition (Ex. 9) is the same as that of Abdul Hafeez. This is not all. A copy of instalment order, just after the accident on 16‑2‑1984, was endorsed to defendant No.l on 13‑3‑1984 (Ex.ll/5). The defendant No.l, addressed letter dated 16‑12‑1984 to the Excise & Taxation Officer, for extension in payment of taxes, seemingly, under his own signature and referred to the Bus as his own (Ex. 11/4). Such defendant also received a notice about taxes, dated 13‑11‑1985, from the Excise & Taxation Officer (Ex.ll/7). An application was, apparently, moved on 26‑3‑1986 by Abdul Hafeez for a certificate of ownership of the Bus as a case was proceeding in the High Court (Ex.ll/8). It is not inconceivable nor is it uncommon that a motor vehicle remains in the name of a particular person yet it is owned by another or a transfer by way of sale is made but its registration in the relevant department is delayed by the transferee. In this case, Abdul Hafee, the alleged owner, appears to be brother of the Defendant No.l The Defendant No.l, has substantially acted as the owner of the Bus under reference. On being confronted with Exs. 8/5 and 8/6, wherein he claimed possession of the Bus as its owner, he did not deny his signatures appearing thereon whereas the other exhibits, referred above, have been produced at his behest and he is bound by the same. Even if the Defendant No.l, was not the recorded owner of the Bus in question, there was nothing to preclude him from applying for joinder of the real owner in these proceedings. Additional to his conduct is his studious avoidance of applying for such joinder. The Code of Civil Procedure in Rule 9 of Order I, contemplates that no suit shall be defeated solely on account of misjoinder or non‑joinder of parties. The plaintiff, in the face of the record of this case, has been led to believe that the Defendant No.l, was the real owner of the Bus and that Defendant has done little to show otherwise. The registered ownership of the Bus is neither clear nor certain and the conduct not only of defendant No.l but also of Abdul Hafiz, aforesaid, is dubious and leaves much to be desired. As such, I am constrained to hold that the Defendant No.l, has acted as and is the owner of the Bus in question and that the suit is neither bad for misjoinder nor for non joinder. In the case reported as Rukayabai and 5 others v. Secretary of Defence A etc. PLD 1976 Kar. 131 hirer in possession under a hire purchase agreement has been held to be liable as owner and similar principle, at‑the very least, applies in this case. As to the question whether the Defendant No.2, was an employee of Defendant No.l, the necessary consequence of the foregoing finding, regarding ownership and possession of the Bus, is that the Defendant No.2, is such an employee even though the latter defendant has deposed otherwise, evidence in which behalf, in the circumstances of the case, I am inclined to disbelieve. Nothing else as to the maintainability of the suit has been said by and on behalf of the defendants and, as such, the suit is found to be maintainable. These Issues are answered according]y.

7. Issues Nos.5.5 and

6. Such Issues, regarding the cause of the fatal injuries to the deceased, may be taken up together. As to the facts relevant to the accident the depositions of witness Tanweer Iqbal, for the plaintiff, defendant No.2, the driver, and defendants' witness Md. Ashfaq are referable.

8. Tanveer Iqbal, a witness for the plaintiff, has said that on the day of the incident, he was standing on a Pan Shop of Gizri Road. A bus was coming from Gizri and was proceeding towards Saddar. On the right side of the Bus was a Motor‑cycle which was carrying two persons. The Bus dashed the Motor‑cycle and the two fell down. Speed of the Bus was 30/40 MPH. The witness, alongwith other persons, went to the place of accident. The Bus Driver sped the Bus away and tried to escape but was chased and stopped by the people. The witness knew the deceased. He, in cross‑examination, was confronted with his statement made in the criminal case but stated that he did not remember to have said, in such proceedings, that the Bus was in slow speed. He denied that the deceased was proceeding from Saddar side towards Gizri or that he took a `U' turn through the space in the pavement which divided the road. He also denied that it was on account of such alleged turning and with a view to save a padestrian that the deceased got misbalanced, fell on the dividing wall of the pavement and got dashed against the Bus. He has, affirmatively, maintained that the deceased was proceeding from the same side of the road as the Bus in question which crushed him in such manner that even his face could not be recognised. The deceased according to him, was crushed by the rear wheel on the right hand side of the Bus. He has explained that he answered only such questions in the criminal proceedings as were put to him. He did not remember whether he said in the criminal case that he did not see the collision with his own eyes but admits that there was a noise which arose on account of the accident, they looked towards its source, ran there and saw that the deceased had been crushed. He has denied that he said in the criminal proceedings that God knew better whether the defendant No.2, driver, was guilty. He has denied that he gave false evidence because he was a friend of the deceased.

9. Defendant No.2, Muhammad Sharif, the Driver, has examined himself. He says that Abdul Hafeez is the owner of the Bus in question and that he did not know the Defendant No.l. On 16‑2‑1984, he was driving Bus No.827‑870 (?), from, Gizri to Saddar. On such occasion, according to him, a Scooter was going towards Gizri. It had crossed his Bus. The Scooter Driver took a turn on the other side of the road. On seeing a padestrian crossing the road he lost balance and fell in the centre of the road. The driver of the Scooter was seriously injured. The witness saw the accident and went away. Some persons came behind him and told him that the injured had to be taken to Hospital. On his refusal such persons beat him. They took him to the Police Station, where he was detained. He was, allegedly, proceeding very slowly. He was, during the intervening period, acquitted in the criminal case. In such criminal case, the statement of Ashfaque, who was sitting on the rear side of the Scooter was recorded. Such Ashfaque is the nephew of the deceased. Certified copy of the statement of Ashfaque has been produced as Ex.10/1. He denies knowledge as to who moved the application for the release of the Bus. He has denied that he was driving rashly or negligently. This statement is not even consistent with his own written statement.

10. The defendants have also examined Muhammad Ashfaque, who says that the deceased was his real maternal‑ uncle (Khaloo). They had gone to attend a function in the house of deceased Nazir which function was over around 9‑00 p.m. Deceased Nazir and the witness had gone in search of a taxi. They could not find such Taxi on Gizri Road and took a `U' Turn for return. On turning back, they were coming from the other side of the road when, suddenly, a padestrian came on the road, deceased Nazir avoided to hit him, applied the brakes, got misbalanced and both of them fell on the road. The Bus hit Nazir on the back side of his head and he became unconscious. The witness left him there and rushed to the house to inform about the accident. Brother of deceased and other members of the family took Nazir to Hospital and later the witness came to know that he died before reaching the Hospital. In cross‑examination, he has admitted that it is his stepmother who is the sister of the Plaintiff (widow) and that it is for this reason that Nazir was his uncle (Khaloo). His own mother has died. He has denied that he does not maintain good terms with his stepmother or that he has deposed falsely on account of revengeful attitude or that he told the plaintiff that he would spoil her case. He knows that the Defendant No.2, driver, has been residing in Liaquatabad (in his neighborhood ) for the last two or three years but he does not know his house. He has denied that he has friendly relations with driver, Muhammad Sharif. Strangely enough, in cross‑examination he says that the Bus and the Scooter were, on the occasion, traveling on opposite sides of the road but "both were going in the same direction" and "we were a little ahead of the Bus". He has denied that it was the Bus which hit the deceased and, according to him it is they, who fell down and in the process "Nazir's head hit the back side of the Bus."

11. Now, it would be relevant to refer to the statement of this witness in the criminal case where he was declared hostile (Ex.10/1). In such statement, he had stated that the Bus in question was, "coming behind us, the back portion of the Bus (the body) struck my uncle on the head. The Driver of the Bus took away the Bus from there. I also received injuries. 1, then left my uncle on the road and went to inform the family on the Motor‑cycle". He stated that the Driver was caught hold of by the people of the area. The injured. later deceased, was taken to Hospital by his relatives but about himself he says, "I went back to my house." He denied in the criminal case that the accused was driving rashly and negligently. He admitted that the accused resided in his neighborhood but, then, he had moved there only recently.

12. Much has been made out of the evidence of witnesses Tanveer Iqbal and Muhammad Ashfaq. Tanweer Iqbal is sought to be discredited on account of purported contradictions between his depositions recorded in this case and in the criminal proceedings under section 304‑A, P.P.C. He is, apparently, an illiterate or semi‑literate person and there may be some such contradictions but on that score the entire evidence and particularly such portions as are corroborated elsewhere cannot be discarded. Muhammad Ashfaq, who claimed to be a nephew of the deceased has not been found to be so. He, in fact, was only distantly related to the deceased, being the stepson of Plaintiff's sister. Suggestions have been made from the Plaintiffs side that such witness has actually turned hostile due to step relationship. Be that as it may, he has taken a complete somersault not only in relation to his own version of the incident recorded in the criminal proceedings but also against the version of the Defendants themselves when he, in this Court, deposed that the deceased and the accused were travelling on different sides of the double‑carriage way road and that, too, in the same direction. Even so, on the same principles which I have applied in relation to the testimony of Tanweer Iqbal, I would be disinclined to throw his evidence overboard in its entirety.

13. In the circumstances of the case, and on the basis of overall evidence, I have come to the conclusion that on the fateful night of the accident, the Bus in question and the deceased, with Muhammad Ashfaq on the back‑seat of the Moter‑cycle, were traveling in the same direction, that the Motor‑cycle of the deceased was ahead of the Bus and it was on the right hand side of the Bus, then something happened, which, on evidence, I am not able to say what and the deceased somehow fell, the Defendant No.2, must have been attempting to overtake the Motor‑cycle and such overtaking came about from the left hand side of the Scooter and in the process, the deceased was crushed under the rear right hand side wheel of the Bus. The defendant No.2, therefore, even if it were to be held that the deceased was negligent or, in some manner, contributed to the accident cannot be held not to have been a contributory. He had the last opportunity to avert what happened for unless he was not attempting to overtake the Motor‑cycle from the wrong side, as overtaking, under our system, has always to be from the right hand side of the Driver in the front and unless there was an element of negligence or rashness on his part, the accident could not have B occurred. Rule of the road under Article 112 of Qanun‑e‑Shahadat, 1984, has to be taken judicial notice of. The foregoing conclusion is further supported by the fact that even though the deceased was obviously crushed under the Bus in dispute, the Defendant No.2, did not stop and continued driving as if nothing had happened. It would have been a case of hit and run unless the people, who had gathered, had not made bold to pursue the Defendant No.2, and stopped him. I have, therefore, no doubt that the Defendant No.2, was, at the very least an essential contributory, through his own negligence or even rashness, to the accident, which led to the death in this case. There is case‑law on the point that similar incidents must follow, as in cases of ordinary acts of negligence or rashness, in those where the Defendant is liable, as a contributory. This is based on the principle that where the initial negligence is attributable to a party such party cannot fall on contributory negligence of the other unless the subsequent act or omission is the proximate cause of the occurrence and, further, that liability must always fall on the one who had last chance or opportunity to avoid the accident. Reference in this behalf may be made to the cases of Malik Raza Khan v. Pakistan PLD 1965 Kar. 244, Mst. Qudsia Begum v. Younus Khan and 4 others PLD 1973 Kar. 636 and Punjab Road Transport Board v. Abdul Waheed Usman and others PLD 1980 Lah.

584. In this case, I would, further, hold that the C contributory negligence, if any, on the part of the deceased, in view of unsatisfactory evidence in the case, has not been proved. Besides, the controversy in this case can also be approached from another angle. In Fatal accident cases, a plaintiff is often confronted with a situation where there is either no ocular evidence forthcoming or at times, no ocular evidence subsists at all. In such cases, through juristic reasoning, a rule has been evolved whereby the axiom of res ipsa loquitur (the thing speaks for itself) is made applicable and all that the plaintiff is required to show is the occurrence of the accident and nothing more and then the burden shifts to person(s) responsible for the accident to prove that he or they, in the context of such accident, were not negligently involved. This, of course, is an exception to the rule that it for the plaintiff to prove and not for the defendant to disprove negligence. Recourse to the foregoing rule is to be taken, in the absence of evidence or when evidence is found wanting or where, in the circumstances of the case, it is considered that the cause of the accident is specially in the knowledge of the defendant. In such event defendant has to prove that the accident occurred not through his negligence. This rule was applied as early as in 1960, by Waheeduddin Ahmad, J., in the case of Ursulina D. Lima and others v. Orient Airways and another PLD 1960 Kar. 712, was followed by Qadeeruddin Ahmad, J., in the case of Kulsoom .v. Jalil Ahmad Khan and another PLD 1964 Kar. 72, was repeated by Ahmad Ali U. Qureshi, J., in the case of Kandan v. Messrs Hayat Services (Pakistan) Limited 1988 CLC 525, and was readopted by S. Abdul Rehman, J., in Vicar Ahmad and others v. Messrs Blue Lines Air conditioned Coach Service 1989 CLC

229. In view of the fact that the defendants have questioned ocular evidence of witness Tanweer Iqbal and purport to maintain that he did not see the occurrence when it took place and in view of the further fact that the testimony of witness, Muhammad Ashfaq, who was sitting' on the back seat of the Scooter, driven by the deceased, apart from being suspect, and the fact remaining that he had his back towards the approaching Bus from behind (but admitting that the deceased was crushed under the bus), the only relevant evidence, according to the case of the defendants, would be that of Defendant No.2, Muhammad Sharif, the Driver. The plaintiff having proved the accident and the evidence on behalf of the plaintiff, having been questioned by the defendants, the latter have placed themselves in a situation where the burden has shifted on them to prove that the Driver of the vehicle was not himself negligent. In the context of events, the deposition of Defendant No.2, being unsatisfactory, he even having been shown to run away from the scene and, on facts, rule of the road having been violated, the Defendant No.2 attempting to overtake the Scooter from the left side of such Scooter and the deceased having admittedly been crushed under the rear right hand side wheel of the Bus (as defendants are bound by the evidence of Md. Ashfaq) the event, in my. view, speaks for itself and the principle of res ipsa loquitur applies with full force. It must, therefore, be held that the Defendant No.2, was, at the very least, guilty of negligence and, as such, Defendants are liable for what happened.

14. Issues Nos.7 to 9: This brings us‑to the question of relief which, in turn, is covered by Issues Nos.7 to

9. In the context of relief in fatal accident cases, the expected loss of earnings to the claimants is to be assessed on earnings of deceased, at the time of demise, prospects of his advancement in life, had he C lived, and the formal expectancy of life generally in society and, particulars, if any, pleaded in relation to the deceased in the context of his background, for instance, where relevant, ages of his parents, his station in life to permit availability of medical facilities, nature of his vocation and even sex, to which the deceased belonged since womenfolk are attributed a longer life span than has been found in the case of male members of the sex.

15. As regards the earnings of the deceased, I am of the view that persons in the service of Government or Semi‑Government organisations are not entitled and, in fact, are precluded from taking up any other simultaneous employment or, for that matter, carrying on any side business. Such disentitlement seems to have been overlooked in some cases but since no reasons for so doing have been recorded this case‑law is of little help. In point is the case of Qudsia Begum v. Younus Khan and 4 others PLD 1973 Kar.636 where the deceased was said to be simultaneously employed in K.M.C. and the Karachi University and the earnings of both were counted towards compensation. As such, in my view, even if the deceased was gainfully running a side tailoring business, whatever be his earnings from such business, the same cannot be counted in assessing the loss of earnings to which his legal heirs may be entitled on account of his accidental death. However, in so far as the advancement in life of the deceased is concerned and his getting promoted in due course to a higher position, the evidence of his elder brother Zaheer Alam (Ex.8) on this point, has not been contradicted and such evidence is that he could have become a Superviser in the Postal Department with concomitant earnings of Rs.2,500 per month. But, as to by what time the deceased could have achieved such level or station in life nothing has been said. Nonetheless, as has repeatedly been held, there is no room for technicalities in these matters of compensation arising from a fatal accident, and I would, therefore, consider that the deceased could normally be expected to rise to such position in about 10 to 12 years of time or in other words at the age of 45 or so. Here, as to the age of the deceased, it may be noted, there is some divergence. In the plaint his age is mentioned as 32 years on the date of demise, his widow, the plaintiff, puts it at 30 whereas Zaheer Alam, his brother, asserted it to be 33 years. The plaintiff, therefore, is bound by the least advantageous part of their own evidence namely, such age being 33 years on demise. My assessment of the income, accordingly would be Rs.1,245 per month upto the age of 45 and Rs.2,500 thereafter till the normal expectancy of life, as shall be dealt with below. These are only rough estimations, depending on probabilities, but, then, an element of conjecture or even speculation with a view to reach approximations cannot be divested from these proceedings. Reference on this point maybe made to the Supreme Court case of Manmatha Nath Kauri v. Md. Mukhlesur Rehman PLD 1969 SC 565 where the Hon'ble Supreme Court, inter alia, observed that such estimations are bound to be rough and approximate to a certain extent. Another question that may arise is that a person in Government Service is expected to retire at a particular age and that, accordingly, the expected income of a deceased person in such‑like cases cannot be for the whole duration of time during which he could, normally, have expected to live. Such contention, though not raised before me, I would be disposed to repel because a Government Servant or, for that matter, any mature person, if he is capable of employing himself gainfully, even after the retirement age, can be expected, on account of his experience, knowledge and expertise to at least ensure as much income, inclusive of pension etc., as he was earning before the age of retirement. The calculation therefore, is to be on the same basis for the whole period. of life expectancy. If authority is needed for such conclusion reference may be made to the D.B.case of Md. Haleem & Ghulam Rasool Shaikh, JJ., reported as Md. Iqbal Khan v. Akhtar Hussain and others PLD 1971 Kar.864 where Md. Haleem, J., as he then was, declined to permit any depletion in monthly income on account of pensionary benefits, after the age of retirement, being only 1/3 of such income.

16. Coming to the question of expect any of life, the normal rule in this country, to start with, was held to be 45 to 60 years. But, it seems, that the law on such subject has evolved slowly though surely. Thus, in the case of Iftekhar Hussain v. Karachi Electric Supply Corporation Limited PLD 1959 Kar.550, Qadeeruddin Ahmed, J., as he then was, declared normal expectancy to be 65 years, Waheeduddin Ahmed, J., in the case of Ursulina `D', Lima and others v. Orient Airways Limited and another PLD 1960 Kar.712 and in Basheer Begum and others v. Mohammed Ali Premji and another PLD 1960 Kar.785, holding it to be around 55 years, and a Division Bench of the Dacca High Court in the case of Manmatha Nath Kauri v. Mohammed Mokhlesur Rehman PLD 1963 Dacca 290 found the same to be 60 years. Qadeeruddin Ahmed, J., in Kulsoom v. Jalil Ahmed Khan and another PLD 1964 Kar.72, placing reliance on the referred Karachi decisions, reaffirmed it to be 45 to 65 years. Subsequently, the quoted decisions of the Dacca High Court and of Qadeeruddin Ahmed, J., were approved by the Hon'ble Supreme Court in Manmato Nath Kauri v. Md. Mukhlesur Rehman PLD 1969 SC 565 and in Jalil Ahmad v. Kulsoom CA K 44/69. In the meantime, Fakhruddin G. Ibrahim, J., in Miss Shamsun Nissa and another v. Karachi Road Transport Corporation and 3 others PLD 1975 Kar.914, held such expectancy to be 60 years, Mushtaq Ali Kazi, J., in Rukayabai and 5 others v. Secretary of Defence, Government of Pakistan, Islamabad and 4 others PLD 1976 Kar.131, determined it to be 65 years, and Ajmal Mian, J., as he then was, in Muhammad Siddique and another v. Gul Majeed and two others PLD 1980 Kar.78 found the same to be 60 years. Saeeduzzaman Siddiqui, J., in Mst. Nasreen Mohd Naseem and 4 others v. M/s. Quality Steel Works Ltd. PLD 1981 Kar. 561 and Saleem Akhtar, J., in Mrs. Gul Bano and 4 others v. Muhammad Ramzan and another 1982 CLC 1120 also held such expectancy to be 60 years. On the other hand, Nasir Aslam Zahid, J., in Mst. Sharifan and 5 others v. Karachi Electric Supply Corporation Ltd. PLD 1981 Kar.701, Mst. Sharif Bibi and 3 others v. Mehmood and another 1980 CLC 1057 and some other cases, after holding it to be 60 years, modified his views to declare such expectancy to be 65 years in the cases of Barkat Ali Khan and another v. Karachi Electric Supply Corporation Ltd., PLD 1983 Kar.453, Qudsia Kishwar and 7 others v. Hakim and Company Travel Bus Service and 10 others 1985 CLC 2119 and Ghiasul Mansoor and another v. Naik Mohammad and 2 others 1985 MLD

487. Similar dicta of 65 years duration is attributable to K.A.Ghani, J., in Mrs. Asma Ibrahim and 2 others v. Sind Road Transport Corporation and another PLD 1982 Kar.236, to Ibadat Yar Khan, J., in Moinuddin v. Karachi Transport Corporation and another 1987 CLC 1554, to a Lahore Division Bench of Abaidullah Khan and Ourban Sadiq Ikram, JJ., in Punjab Road Transport Board v. M. Mohammed Sadiq and another 1987 CLC 933 and to S. Abdul Rehman, J., of this Court in Vicar Ahmed and others v. Messrs Blue Lines Airconditioned Coach Service and another 1989 CLC 229.

17. On the other side of the border, Courts in Indian Jurisdiction have, for quite sometime, been allowing 70 to 75 years by way of life expectancy. Reference in this connection may, conveniently, be made to some of the earlier decisions from that jurisdiction on which the current and prevalent trend is based. Thus in Shiv Prasad v. S.M.Sabir AIR 1968 Al1.186, T.V.Gnan Avelu v. D.P.Kannayya AIR 1969 Mad.180 and the State of Bihar v. Sishir Kumar Mukherji AIR 1976 Pat.24 etc. the Indian Courts, having found that life span of the citizens of that country was showing an upward trend, determined the same ranging between 70 and 75 years.

18. Now, the acknowledged position is that the level of economic prosperity and advancement in life styles (having direct nexus with life expectancy) in this country compares favourably with that prevailing in India and, in addition, the people of Pakistan proudly claim themselves to belong to a Martial Race, involving a more sturdy breed. Besides, in direct proportion to the availability of modern facilities of life we, in this country, have evolved a society where diseases like tuberculosis and leprosy have become stories of the past, where heart and kidney transplants etc. are no longer part of the world of fantasy, where bypass surgery is resorted to not infrequently, where standards of nutrition have markedly improved and where, generally, better facilities of livelihood are available as compared to the past decades. It would be unjust not to recognize such or similar realities and to adhere to old rules of the thumb. This is all the more so because a deceased person, if he were to live, would have lived in future, when like circumstances and benefits, would, in the ordinary course, have shown further improvements and advancements. It must also be remembered that average life span has only an outside relevance in these matters as such average is invariably affected by mortality rate at child‑birth and infant mortality, included in such averages, tends to blur the picture. Therefore, on the view I venture to take, time has come when the rule as to the expectancy of life must be reviewed and revised. It is not a rule of law but only one of practice. It must change and evolve with the changing times.

19. The plaintiff (Ex.6) has said that her husband was in good health, was a non‑smoker and could be expected to live upto 70 years of age. Her testimony on such question, remains unshaken in cross‑examination. P.W. Zaheer Alain (Ex.8), elder brother of the deceased, has corroborated the plaintiff and has further maintained that the parents of the deceased are still in good health. I would, therefore, hold that the deceased could expect to live for 70 years. Assessing his income to be Rs.1,250 for 12 years (upto the age. of 45) and Rs.2,500 p.m. for the remaining twenty‑five years we arrive at the figures of Rs.1,80,000 and 7,50,000 aggregating Rs.9,30,

000. Out of this amount personal expenses etc. of the deceased are to be deducted, which can range from 1/3rd to 1/6th, depending upon various factors. All such allowances having been made the balance left would still be more than the claimed amount of Rs.4,00,

000. The claimants, however, must remain content with the suit amount, which is decreed. No interest is payable at law and none is granted. Out of the decretal amount the plaintiff shall get Rs.1,00,000, parents of the deceased Rs.25,000 each and the balance sum of Rs.2,50,000 together with costs shall be deposited in Court for the benefit of minors, who on evidence, are held to be sons ,and daughters of the deceased. The deposited sum will be invested in WAPDA bonds and the returns would be paid, periodically, to the plaintiff for the upbringing of the minors. The whole or part of the deposited amount may, later, on passing of due orders, be disinvested to meet exigencies such as marriages of the daughters etc. or for disbursement, after all the minors, have attained majority and can usefully draw their respective shares according to the law of Inheritance to which they are subject. Decree in terms, with costs, shall follow. AA./N‑211/K Suit decreed.