P L D 1996 Karachi 153 (PLP)

By this suit, the plaintiffs seek to recover from the defendants Rs.19,01,400 by way of damages under the Fatal Accidents Act for the death of one Bashir Ahmad F. Wazir said to have died as a result of accident caused due to rash and negligent driving of the vehicles involved in the accident. The facts as alleged by the plaintiffs are that the plaintiff No.1 is the widow of late Bashir Ahmed, plaintiffs Nos. 2, 3 and 4 are his sons and plaintiff No‑5 his mother. BashirAhmed died on 25‑6‑1984 as a result of injuries sustained by him in the accident which occurred on 16‑6‑1984 on the Super Highway, between the Coach, owned by defendant No.1, in which the deceased was travelling from Hyderabad to Karachi and a truck, belonging to defendant No.6 and driven by defendant No.7, due to rash and negligent driving of their respective drivers. In that accident 10 persons including the driver of the coach are said to have died on the spot and 6 persons, including deceased Bashir Ahmed, were seriously injured and later on 25‑6‑1984, Bashir Ahmed died. On the pleadings of the parties following issues were adopted:‑‑ (1) "Whether deceased Mr. Bashir Ahmed died due to injuries sustained by him in a road accident at Super Highway on 16th June 1984? (2) Whether the above accident was result of negligent and rash driving of luxury coach of Messrs Blue Lines? Whether the above accident was result of negligence of both the drivers i.e. One of Blue Lines and the other of N.L.C? (3) To what amount of damages plaintiffs are entitled for the loss of life of Bashir Ahmed? (4) Whether the defendants are severally and jointly liable to pay the damages to the plaintiffs? (5) To what relief, if any, the plaintiffs are entitled? (6) What should the decree be? (7) Whether suit is not maintainable against defendant No.5?" Issue No.1 ‑‑This issue pertains to the cause of death of Bashir Ahmed. According to paras. 2 and 3,of the plaint, Bashir Ahmad died on 25‑6‑1984 of injuries. Received by him in the accident which took place on the Super Highway on 16‑6‑1984 between ‑defendant 1's Coach No‑856‑865, on which the deceased was traveling, and defendant's vehicle No.824‑068, both being driven rashly and negligently, by their respective drivers. In reply to the above assertion the defendants Nos.1 to 3 in paras. 2 and 3 of their written statement have admitted the accident and also that Bashir Ahmed was injured in consequence thereof and removed to the Abbasi Shaheed Hospital, but do not admit, for want of knowledge, if later he died due to those injuries. Defendants Nos.6 and 7 in their pleading as also evidence have admitted the occurrence of the accident only. Plaintiff No.1, the widow of the deceased who was examined as P.W.1 and one Nisar Hussain, the brother of the deceased examined as P.W3, have both in their depositions, narrated the cause of the accident and the injuries sustained by Bashir Ahmed. However, admittedly their statement on the point was based on what others informed them and therefore, as hearsay evidence cannot be relied upon., The two eye‑witnesses examined in the case are both on behalf of defendants Nos.6 and

7. One of these is Muhammad Shafi (D.W.1) and the other Taj Ali Khan the defendant No‑

7. These witnesses have given the details of the accident but they neither said anything about the injury to Bashir Ahmed nor were asked any questions about that. Other defendants did not examine any witness. The position that emerges from the above discussions is that, the occurrence of the accident is established from the pleadings of the parties as well as the evidence on record, but for the alleged injuries to Bashir Ahmad resulting from that accident, there is no direct evidence. However, as far as defendants 1 to 3 are concerned such injuries as also Bashir Ahmed's admission in Abbasi Shaheed Hospital are admitted in their Joint written statement. As for the events that took place after Bashir Ahmed's admission in Abbasi Shaheed Hospital on 16‑6‑1984 and his death at Medicare Hospital on 25‑6‑1994 there is un-rebutted evidence of deceased's widow (P.W.1) and his brother (P.W.3). According to these witnesses, on receiving information about the accident, they reached Abbasi Shaheed Hospital and in order to provide proper treatment they shifted him to Medicare Hospital where he underwent skull surgery too but ultimately died on 25‑6‑1984. Deceased widow has stated that: "It took us one hour to make arrangement of his shifting from Abbasi Shaheed Hospital to Medicare Hospital. I produce as Exh. 7/4 the memo. dated 16‑6‑1984 from Abbasi Shaheed Hospital. He remained admitted at the medi-care Hospital for nine days. His brain was operated upon and he was administered medical care throughout. His both legs were broken and were plastered. The hands were also broken and were plastered. On the tenth day my husband Bashir Ahmed expired. I produce death certificate from Medicare as Exh. 7/5...' It is thus established from the evidence of P.W.1 and P.W.3 that Bashir Ahmed was shifted by them from Abbasi Shaheed Hospital to Medicare on 16‑&1984 to provide him better treatment for the injuries sustained by him and it was in the latter hospital that he died on 25‑&1984. The upshot of the above discussion is that having regard to the admission contained in the joint written statement of defendants Nos.1 to 3 and the evidence mentioned above, in so far as defendants Nos.1 to 3 are concerned, this issue is answered in the affirmative. Issue No. .‑‑The allegation in the plaint is that the accident in question took place due to rash and negligent driving by the drivers of the two vehicles, namely, Blue Lines Coach and N.L.C. Truck, belonging to defendant 1 and defendant 6 respectively. Of course, the defendants 1, 2 and 3 as also defendants 6 and 7 in their written statements have denied the allegation. The widow of deceased Bashir Ahmed (P.W.1) and his brother have stated in their evidence that the accident took place due to rash and negligent driving by the drivers of the two vehicles. However, both have admitted that their information is based on report that was given to them by others and therefore as a mere hearsay this statement cannot be given weight. In this regard plaintiffs counsel also referred to Exh.7/14 which is a certified copy of the deposition of one Moula Bux recorded in another suit bearing No356/85. This document was produced by P.W.1 who was admittedly not a party in that suit. It was strenuously argued that Exh.7/14 being a certified copy of the deposition of an eye‑witness to the accident, in another suit, arising out of the same accident should be read as evidence in this suit also for determining the question of negligence. I am afraid it is not possible to accept the contention for the simple reason that the condition of section 47 of Oanun‑e‑Shahadat for accepting such evidence are not met, inasmuch as, neither the earlier suit was between the same parties nor has it been shown that the witness was dead or could not be found or was in-capable of giving evidence or was kept out of the way by the adverse party or his presence could not be obtained without unreasonable delay or expense. Moreover this document does not show that the accident referred to by the witness was the same accident which is the subject‑matter of this suit as the registration numbers of the vehicles involved are nowhere mentioned therein. Relevant on this point are the depositions of defendant No.7, TaJ Ali Khan (D.W.2) and Muhammad Shafi (D.W.1). TaJ Ali Khan was driving the truck involved in the accident and Muhammad Shafi another NLC truck following D.W. Ts truck. According to D.W. 2 he was driving on the left side of the road when the Blue Lines Coach overtook a cement truck and in doing so collided with his truck. He stated that he was driving the truck at the speed of 25 miles per hour, while the Blue Lines Coach was travelling at a very fast speed. He denied the suggestion that while driving at a fast speed he overtook another vehicle and while doing so hit the coach which too was overtaking a vehicle. He insisted that it was the coach alone which had overtaken a vehicle and had hit his truck.Muhammad Shafi (D.W.1) who was driving another NLC truck which was following the truck which met with the accident also stated that the coach was travelling in speed and while trying to overtake a Truck it hit the NLC Truck ahead of him. He too denied the suggestion that the NLC truck was also overtaking a vehicle at the time of accident. No witness has been examined on behalf of the defendants 1, 2 and 3 and there is no other evidence on record to explain as to how the accident took place. Accordingly, on the basis of the evidence available my finding on this issue is that the accident was the result of rash and negligent driving of the Blue Lines Coach belonging to defendant No.1 Issues Nos.1 and 5.‑‑ These connected issues may conveniently be taken up together. The amount of compensation claimed by the plaintiffs is Rs.19,01,400, based on deceased Bashir Ahmed's alleged monthly salary of Rs.2,750 with Rs.100 anticipated annual increment and life expectancy of 75 years. It is settled that quantum of damages for purposes of the Fatal Accidents B Act is linked with the financial suffering of the dependants of the deceased and is therefore estimated on the basis of earning capacity of the deceased and the period for which the benefit would have been available to the dependents. in the present case, for determining the earning capacity of the deceased, we may take into account the available evidence about his earning at the time of death and prospects of future advancement. On this point the evidence on record consists of averments made in the plaint, the deposition of the widow and the brother of the deceased and a certificate of Wary issued by the employer of the deceased. In paras. 9 and 10 of the plaint it has been stated that the deceased was employed in National Impex (Pvt.) Ltd. as Manager and was drawing monthly salary of Rs.2,

750. In their depositions, both, Mst. Abida Bashir the widow of the deceased (P.W.1) and his brother Nisar Hussain (P.W3) have reiterated that the deceased was earning Rs.2,750 per month by way of salary from National Impex (Pvt.) Ltd. In this regard Nisar Hussain also produced as Exh.10/6, a salary certificate from National Impex (Pvt.) Ltd. certifying that at the time of his death the deceased was working as their Manager on monthly salary of Rs.2,

750. No evidence in rebuttal has been produced by any of the defendants. I would therefore accept Rs.2,750 as the monthly salary of the deceased Bashir Ahmed‑ at the time of his death. By way of progressive increase in the salary annual increment in the salary at the rate of Rs.100 each year has been claimed in the plaint as also in the. deposition of P.W

3. System of annual increment is well established in this country and is accepted as a term of service, both, in Government and private employment. As such considering the quantum of deceased's salary, annual, increment of Rs.100 as claimed is not at all unreasonable. Next to be determined is the period for which the monetary benefit would have been available to the family, and this would of course depend on the life expectancy of the deceased and the age up to which he could be expected to earn. The general trend in decisions of superior Courts here, in cases under Fatal Accidents Act, has been to assume life expectancy of 60 to 65 years. Therefore, in this case too I would take the life expectancy of the deceased to be 65 years. Having regard to the fact that the deceased was in private service where rule of retirement at the age of 60 years may not be very rigidly followed it could be expected that he would have continued in service also up to 65 years of age. On the question of deceased's age at the time of death, his widow has deposed that it was 40 years and this finds support from the photocopy of deceased's National Identity Card produced as Exh.7/17, showing his year of birth as 1944. As such, I accept deceased's age as being 40 years at the time of D death. Accordingly, the deceased would have continued to earn and support the plaintiffs for almost another 25 years. Now on the basis as determined earlier, he would have earned during this period a total sum of Rs.11,85,

000. Out of this earning a reasonable portion has to be deducted towards the personal expense of the deceased. Obviously, this has to be based on guess A and generally, the Courts in Pakistan have accepted such expense to be 1/3 of the earning. I would adopt the same ratio for the present case too. On this basis the personal expense of the deceased works out Rs3,95,000 and after deducting this amount from the total earning there remains a balance of Rs.7,90,000 to which the plaintiffs would be entitled to as damages. On these two issues my finding is that the plaintiffs are entitled to Rs.7,90,000 by way of damages. Issue No. .‑‑In view of my findings on issues Nos.1, 2, 3 and 5 on issue No.4, I hold that defendants Nos.1, 2 and 3 are jointly and severally liable to pay damages to the plaintiffs. Issue No. .‑‑As none of the counsel made submissions on this issue I would take this to have been given up. Issue No.6.‑‑For the reasons discussed above the suit is decreed against defendants Nos.1, 2 and 3 jointly and severally in the sum of Rs.7,90,000 with proportionate cost and out of the decretal amount the plaintiff No.1 (widow of the deceased) shall get Rs.1,00,000 the plaintiff No.5 (mother of the deceased) shall get Rs.15,000 and the balance amount of Rs.6,75,000 together with costs shall be divided equally amongst the three minor sons of the deceased namely, plaintiffs Nos.2, 3 and 4, so however, that for the present the shares of the three minors shall be deposited in Court and be invested in profit bearing Government security, and shall remain so deposited until the minors attain majority or the Court otherwise directs, provided further that if the plaintiff No.1 desires, the profit earned from the investment of minors shares would be paid to her from time to time for the maintenance and up bringing of the minors. Suit against defendants Nos.4 to 7 is dismissed. AA./A‑1604/K suit decreased.