1986 PLP 1741 (MLD)

One Kalimullah Baig died in an accident 'on 20‑3‑1983. He was hit by a truck owned by defendant No.1 which was at the material time driven rashly and negligently by defendant No.2 in the course of his employment. The deceased left behind his father the plaintiff, Sultana Begum the mother, Sahala Begum the widow and Shamaile the daughter aged 3 months at the time of his death. The plaintiff has filed the suit for recovery of. Rs. 15,50,000 for the benefit of the persons mentioned above and for himself. The defendants have not disputed the accident or the death of the deceased. They have pleaded that the defendant ‑No.2 was not driving rashly and negligently. It was pleaded that the plaintiff No.1 and the widow approached the defendant No.1 for compensation which without prejudice purely on humanitarian ground agreed to pay 'Rs. 50,

000. The Government has also approved payment and steps were taken to make payment. In the circumstances, it was pleaded that the plaintiff is estopped from making the claim and the, plaintiff is not entitled to any compensation. The following issues were framed:‑ (1) Whether the death of deceased Kalimullah Baig was caused on account of rash and negligent driving of defendant No.2. (2) To what damages and against which defendant the plaintiff is entitled. (3) Relief. Issue No.1.‑‑The learned counsel for the defendant has not dispute this issue. The deceased died due to the accident caused by the truck of the defendant No.1 which was driven by its driver the defendant No.2. The statement of plaintiff has remained unchallenged. Furthermore, the fact that the defendant No.1 approached the plaintiff pressed for compensation and even agreed to pay Rs. 50,000 establishes that the defendants were keen to hush up the matter. For these reasons m finding is in the affirmative. Issue No.2.‑‑Before assessing the amount of compensation, the objection of the learned counsel for the defendant that the plaintiff is estopped from making claim against the defendant has to be considered. It is an admitted position that soon after the death of the deceased, the defendant No.1 contacted the plaintiff and the widow who agreed to accept Rs.50,000 as compensation. The defendant No .1 however, did not pay this amount and ultimately the plaintiffs filed the suit on the last day of the period of limitation. After the suit was filed the defendant No.1 paid Rs. 40,000 to the widow but did not pay any amount to the plaintiff D.W.1 has stated that the defendant No.1 paid Rs. 50.,000 to the widow out of which 40,000 was appropriated' by her and Ks. 10,000 was returned to defendant No.1 but it was never paid to the plaintiff. In these circumstances in my view, the plaintiff is not bound by the settlement made by him. The defendant No.1 did not honour his par of the agreement which was made before filing the suit. Furthermore, there is nothing on record to show that this settlement was also fo the claim made by on behalf of the minor daughter of the deceased. After the suit was filed the payment made to the plaintiff or the widow will not discharge the defendant No.1 from the liability t compensation the minor unless such settlement has been made with the permission of the Court. The widow has received Rs. 40,000 from the C defendant No.1 and as according to the evidence she has remarried she does not seem to be interested in pursuing her claim. In these circumstances, the plaintiff is not estopped from making the claim. The deceased was 36 years of age. According to P,W.1 there is longivity of life in his family. Therefore, I will determine his expectancy of life upto the age of 65 years. He was earning Rs. 1,057 as tally: clerk in K.P.T. The evidence regarding additional income of 4,000 as artist is very vague and cannot be accepted. None of employees have been examined nor any certificate from them has been produced. The oral evidence of the P.W.2 is not acceptable to prove this fact. The income of the deceased is determined at Rs. 1,057 per month out of which he would have spent at least 1/3rd on his personal expenses. According to the plaintiff, the deceased used to pay Rs. 4,000 to his mother every month. This statement does not seem to be correct but it seems that the deceased was maintaining the plaintiff and his mother. The plaintiff would not, have spent the entire money on his parents as he would have been spending on the maintenance of his wife and daughter. Considering the age of the plaintiff and his wife the deceased would have maintained them till their life time which may be assumed to be prolong not more than 10 years. Now coming to the claim of the widow suffice to say that as she has remarried within a period of two years of the death of the deceased and left the infant daughter who is in the custody of the grandmother, she is not entitled to any compensation. She has already received Rs.40,000 which the defendant No.1 has paid at its own risk after the suit was filed. The deceased has left Shamaila, a daughter who at the time of his death was three months old. She has been completely deprived of. parental care and love and affection. Upto the age of her marriage she' would have been maintained by the deceased. In this way the deceased would have maintained her upto the age of at least twenty years. Therefore, the compensation would be limited to 20 years even if the deceased would have lived beyond that period. On that basis the family is entitled .to a compensation of Rs. 1,69,200 which has to be apportioned amongst the plaintiff, mother of the deceased and Shamila. The suit is decreed' for Rs. 1,69,200 against the defendants jointly and severally 1 with proportionate cost. The share of the claimants will be as follows. Father (plaintiff) and mother Rs. 50,000 Shamila minor. Rs. 1,19,

200. The defendant No.1 shall deposit the decretal amount in Court within a period of two months. On‑deposit being made or on realization Rs. 50.000 and cost will be paid to the plaintiff and the mother of the deceased. The Nazir will invest Rs. 1,10,000 in Mahana Amadni Scheme of N.D. F.C. Out of Rs. 9,200 Rs. 200 per month shall be paid for the maintenance of Shamalia which may be increased or, reference made by her guardian. After Rs. 9,200 has exhausted the monthly maintenance allowance as fixed by the Court shall be paid out of the profit accruing from the investment. M.Y.H Suit decreed.