P L D 1995 Karachi 329 (PLP)

This appeal filed by two appellants (original defendants), (i) M/s. Jehangir Services (PvL) Limited Company and (ii) their driver namely Willayat, calls in question the judgment dated 25‑7‑1994 and decree dated 31‑7‑1994, passed by Senior Civil Judge, Tando Muhammad Khan in. P.C.S. No.16 of 1993, instituted by respondents (i) Mst. Bibi Rukhsana (widow of deceased Syed Abdul Sattar), (ii) Bibi Shazia,(daughter of the deceased) and (iii) Zohib Hasan Shah (son of the deceased hereinafter referred to as the appellees) for recovery of Rs.5,00,000 under Fatal Accidents Act, 1855.

2. The assertions made by the claimants (original plaintiffs and now the appellees) were that on 15‑11‑1992, appellant Willayat was driving a trailer owned by appellant M/s. Jehangir Services on Sujawal Tando Muhammad Khan Road at a very high speed negligently, rashly and recklessly due to which two wheels of the trailer parted from their axles and hit Syed Abdul Sattar Shah son of Haji Amir Muhammad Shah (house holder of the appellees) who fell down, bleeded profusely and died then and there on the spot. The deceased is stated to be far away from the road at the time of incident. The place of incident is stated to be village Sheikh Mahmood. The deceased was 30 years old at the time of accident with robust and enviable physique and ordinarily expected to live up to the normal age of 70 years. . Regarding profession and income of the deceased, evidence brought on record shows that he was a Pesh‑Imam/teacher in a mosque fetching salary of Rs.1,000 per month with expectations of bettering his prospects the benefits whereof would have all been drawn by the appellees. Thus, death caused by the appellants' negligence or default had deprived the appellees from the contribution and earnings of the deceased who was 'their main source of maintenance and support. . 3, The appellants have not denied their relationship of . master and servant between them lout they contested the claim of the appellees by Mating in the written statement that speed of the trailer was very slow but the road was badly ,damaged to such an extent that even light vehicles could not be driven easily. However, it was admitted that the deceased was hit by the wheel of their trailer after the same were parted from the axles. ', ,, On the. pleadings of the parties several issues were framed which included the issues of maintainability of the: suit, jurisdictions of the Court but; according to my point of view, following were the main issues;‑ (i) Whether Syed Abdul Sattm Shah died as a result of rash and negligent driving of defendant No.2 (means driver Willayat) as alleged by the plaintiffs? (ii) Whether Syed Abdul Sattar Shah was only source of income of plaintiff? (iii) Whether due to rash, negligent, reckless act of the defendants, plaintiffs have sustained loss of Rs.5,00,000 which the defendants are liable to pay ? On the face of evidence produced by the parties the trial Judge calculated the amount of compensation as under: "if the calculation of the earning of Syed Abdul Sattar Shah for 30 years is made, it comes to Rs.3,60,0W and by increase of salary it would have curve up to Rs.5,00,000 under the Fatal Accidents Act for which the defendants are liable to pay the same."

4. Being aggrieved by and dissatisfied with the judgment and decree, present appeal. was filed try the appellants which was admitted on 28‑8‑1994.

5. Mr. R.F_ Virjee, and Mr.Ali Gohar Soomro the learned Advocates for the appellants assailed the judgment and, decree of the trial Judge on several grounds which cart tie summarised as under:. . (a)(i) Appellee No.l Mst.Rukhsana Bibi was not an eye‑witness hence her statement regarding allegations against the appellants cannot be relied upon: (ii) The assessment of compensation on the presumption of expected age of late Syed abdul Sattar Shah virus based on misreading of evidence. (iii) The Trial Court has failed to give finding upon the Act of Almighty Allah, the condition of the loaded trailer, the act of the driver and the speed of the trailer at the time of accident etc., and thus failed to reach correct conclusion. (b) It was also pointed out by the learned counsel that at the time of incident, brother of late Syed Abdul Sattar Shah was paid an amount of Rs.20,000 because the said amount was demanded on behalf of the appellees. As the matter stood compromised, therefore, re‑agitating the same by filing a suit before the Trial Judge was not justified. (c) Several references were quoted to explain the Act of God such a "Law of Lexicon", the book of Law, Terms and Phrases by Mokal an the Judgment authored by Charaborti, J. in Messers Abdul Rehmar Abdul Ghani v. Messers United Oriental Steamship (PLD 1959 Dacc 536).

6. So far as the arguments based on the concept of "Act of God" with reference to the case of Abdul Rahman‑Abdul Ghani (supra) are concerned, think that the said case supports the claim of appellees and not of the appellants. The relevant lines of the said judgment run as under:‑‑ "There is no reliable evidence in this case that nature behaved exceptionally bad. As pointed out in paragraph 19 in the 'case of Province (State) of Madras, represented by the Chief Secretary Government of Madras v. I.S. and C. Machado, a registered firm of General Merchants and Commission Agents, Tuticorin, the expression `Act of God' is a mere short way of expressing the proposition that a common carrier is not liable for any accident as to which he can show that it is due to natural causes directly or exclusively without human intervention and that it could not have been prevented by any amount of foresight paid and care reasonably to be expected from him. Having regard to all these facts and circumstances we are not prepared to accept the contention of the learned Advocate for the respondent and we are of the opinion that the defendants have failed to discharge the onus which was on them as a bailee and they have also failed to prove that the loss was due to any Act of God or due to any defects in packing of the containers." The words "Act of God" embody a very wide range in different senses such as literal sense, judicial sense and religious sense. In case of Fatal Accidents, the courts have to deal with such contention in its judicial sense. Any party who claims that any act was the Act of God, then onus is on the same party to prove that they were innocent and the incident was the Act of God. Mere claim that an act is Act of God would have no force in it. For example, if a child falls in an open main hole and dies, the concerned department cannot be absolved from their default of keeping that main hole opened, which proved in the practical life to be a death‑hole, by saying that it was an Act of God. Same is the position of appellants in the present appeal. The appellants have failed to discharge the onus which was on them to prove that wheels parted from the trailer on account of the Act of God and they (means the appellants) were innocent.

7. It was strongly contended by the learned Advocate for the appellants that the suit has been decreed against the appellants without their being sufficient evidence against them and the learned trial judge had passed the judgment and decree on the bases of presumptions. In support of his contention, he referred several cases including those reported in AIR 1960 Rajastan 224, PLD 1965 Karachi 59, AIR 1956 Madras 59, 1988 CLC 525, 1989 CLC 229 and PLD 1960 Kar.

712. It was thus contended that the appellees were bound to establish the case of negligence against the appellants and same is the requirement of section 1 of the Fatal Accidents Act, 1855. As the appellees have failed to establish the allegations levelled against the appellants, hence the suit was liable to be dismissed by the trial Judge. Controverting the above contentions, Mr. Jhamat Jethanand, the learned counsel for the appellees submitted that in cases of Fatal Accident, if it is proved that death of a person was caused due to an accident then burden of proof would always shift to the defendants to establish that accident was not caused by rash and negligent driving.. He relied upon the cases reported rug 198? CLC 1933, 1982 CLC 1228, 1982 CLC 1220 and PLD 1982 Karachi 236 No doubt, as a matter of general rules of evidence plaintiffs are required to prove their own case instead of shifting their burden upon the defendants to disprove the alleged negligence, but I am of the view that general rules may not be applicable in several cases. Take the example of fatal accidents. These accidents may be the result of worst condition of a road (as in the present case) but such accident can also take place on the best smoothy roads such as on the highways of Europe, U.S.A. or any other developed country. Hence condition of road is not a criterion to prove innocence in the cases of Fatal Accidents. Similarly, accidents can take place not only on land but also in the sea as, a result of storms faced by ships or in the air when any aircraft crashes and no one escapes from death. It is the duty of owners of ships or aeroplanes to make all arrangements to save ships from storms in the sea or to save the aeroplanes from being crashed. It may not be possible for the human beings to have 100% default‑proof arrangement to avoid accidents. This reality is not deniable that in spite of the most advanced knowledge of science in every field in the present age, no such system could be invented by the human‑being till date. The failure of inventing any such system does not justify anyone to blame Almighty Allah by saying, in the cases of accident, that it was an "Act of God". Moreover, it is known to everyone that, in most of the accidents neither the ill‑fated heirs of the deceased person can be expected to be eye‑witnesses nor any direct evidence is possible to be collected easily. Some times no direct evidence can be collected. For example, in the cases of air‑crash, no one is expected to survive and if some one is fortune enough to have survived, even then the said person is not supposed to be an eye‑witness of negligence of any person. Therefore, it would not be proper to expect that the ill‑fated families of the deceased person in fatal accident cases should prove the negligence, default or wrongful in their strict literal or judicial sense. i.e. beyond reasonable doubt. The satisfaction of Courts, upon preponderance of probability, about existence of negligence, default or wrongful act in fatal accident cases may be treated sufficient to prove these allegations because in all such cases principle of res ipsa loquitur would be applicable which means that the things speak for themselves. This doctrine of res ipsa loquitur is applied:‑‑ (i) When a thing, which caused damage to anyone, was solely under the control of defendant, (ii) The nature of occurrence was such that it could not happen without negligence and (iii) No evidence was possible to be collected to show as to how and why the occurrence took place. In this connection, I am fully strengthened in my views by the Supreme Court in the case of Pakistan Steel Mills v. Malik Abdul Habib reported in 1993 SCMR 848.

8. The abovementioned doctrine of res ipsa loquitur is fully applicable to the case in hand. Admittedly the wheels which caused death were of the trailer which was being driven by appellant No.2 who was the driver of appellant No.l and it was solely under his control. Admittedly this road where accident took place was not a deserted road, therefore, it can be presumed that a good number of vehicles must be plying daily on the said road. NO evidence was brought on record by the appellants to show that parting of wheels from such vehicleh on the said road was a cvmmotl facivr of everyday. Even if it had been so, the parting of wheci5 cannot take place without any default of negligenct.. Although probing into details of the accident under such circumstances is not necessary .to show how and why the accident took place yet I would like to deal with this aspect from another angle too. Every student of physics, on the strength of generalizations known as Newton's Laws of Motion can easily reject the contention of the appellants. Newton's first law of motion states that:‑‑ "Everybody continues in its state of rest or of uniform motion in a straight line unless it is compelled to change that state by external forces acting upon it." According to this law of motion, velocity (speed) of the. moving trailer and its wheels would be the same. Therefore, when the wheels parted from the trailer, they moved with the same speed as the trailer was moving. Note.‑‑There is difference between velocity and speed in physics but I have used these terms with synonymous concept as understood by a common man. The force of the moving wheels can. be ascertained with the help of Newton's Second Law of Motion which states that: "The rate of change of momentum (means force) of a body is proportional to the external force acting upon it and takes place in the direction in which the force acts." This law can be understood after knowing the definitions of certain terms used in the language of physics such as force, mass, velocity, acceleration etc. But it can briefly be stated as under:‑‑ Force is directly proportional to the mass multiplied by the rate of change of velocity. The brief form of this law is usually expressed as under: F = ma. Here: `F' Stands for force `m' stands for mass and `a' stands for acceleration i.e., rate of change of velocity. The above formula of Newton's Second Law of Motion can be explained as under: If any substance has a mass of 1,000 kg and is moving with an acceleration of 1 metre per second square and another substance has ,a mass of only 1 Gram but is moving with an acceleration of 1,1100 km per second square then force of both the substances would be the same. Therefore, a football moving with highest speed may not cause an injury to a person but a very small bullet fired from a pistol can pierce through a healthy person very easily on account of the reason that it moves with a tremendous speed as compared to the speed of football although the mass of the bullet is negligible as compared to the mass of football. With the help of this example it can be easily estimated that if the trailer was moving with more than average speed then its wheels were also moving with the same speed. (Newton's First Law of Motion). When they parted from the trailer and hit the deceased they had such force which could cause death to a healthy person. If the trailer was moving with slow speed then the wheels could not have such force which could cause death. Thus, story of the appellants regarding speed of trailer does not seem to be based on reality if judged on the basis of Newton's First and Second Laws of Motion as stated above. In the light of above discussion the contention of the learned Advocate regarding first aspect of the incident regarding wrongful act, negligence or default, with reference to the speed of trailer is difficult to be accepted on account of being untenable.

9. Coming now to other point of consideration for the amount of compensation. The finding of actionable negligence by the trial Judge have been assailed by the learned counsel for the appellant on several grounds urging therein that the amount of compensation calculated by the trial Judge was not justified at all. In support of his contention the learned counsel has relied upon several judgments including the following: (i) The Secretary, Communic ation Ministry v. Ramrao (1990) 2 Current Civil Cases 247 (DB). (ii) Ursulina v. Orient Airway Limited PLD 1990 (W.P.) Karachi 712. (iii) Brij Kali Devi v. Ram Chand Bishan Singh (AIR 1979 Allahabad 49). (iv) Mst. Bashiran V. Pakistan through General Manager (P.W.R.) (PLD 1976 SC 748). (v) Hindustan General Insurance v. Swshila Gupta (1987 Coml)any Cases Vol 61, Page 3). It is necessary to point out that in this connection only last para. of section 1 of the Fatal Accidents Act, 1855 is relevant which provides that: " ... ... ...the Court may give such damages as it think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought: and the amount so recovered, after deducting all costs and expenses, including the cost not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment of decree shall direct." The word "proportioned" used in the above lines are of great importance. It is also necessary to point out that ill‑fated family members are entitled only to claim loss of pecuniary benefit to which they would have been entitled had the accident not resulted in the death of their householders but they are not entitled to get something more on account of pain and 'sufferings due‑to deprivation of love and affection of the deceased for the wife, the .children or other family members. I am of the view that love, affection and all such sentiments are the gifts of nature. Allah is love Himself The love gifted by Allah Almighty cannot be weighed with metal coins made of silver or gold or with weight of paper currency of any country of the world. Allah Himself provides patience and endurance 'to the ill-fated sufferers. So far as . the pecuniary benefits are concerned, the dependents of the deceased are entitled to get the same. from the defendants in accordance to law. These dependents cannot be deprived of those benefits unless it is proved that the deceased committed suicide or was himself responsible for his own death. The pecuniary benefits are required to be calculated on the principles of natural justice. In assessing damages in fatal accidents, Courts are required to ascertain damages by balancing the loss to the claimants of the future and the pecuniary advantages they were deprived of due to the death of their house holders. This principle gets supports from the' cases reported in AIR 1971 SC 1624, AIR 1962 SC 1, AIR 1979 (?)

50. The multiplier method of assessing compensation, according to my point 'of view, is erroneous therefore I could .not convince myself to put a seal of agreement on, the method of assessing the compensation. in this case. The learned trial Judge took into consideration the monthly income of the deceased i.e. Rs.1,000 per month, multiplied the same with 12 to get yearly income and then multiplied the yearly income with the expected remaining span of life i.e. 30 years. The trial Judge assessed the loss to Rs.3,60,000 (i.e. Rs.1,000 x 12 x 30) and thus considered the amount of Rs.5,00,000 to have been rightly. claimed. Such method of assessment may be accepted correct provided the deceased was in the habit of not spending anything out of his income of Rs.1,000 per month or Rs.1,000 per month was his saving per month.

10. I am fully aware of this aspect that, in certain judgments average age of a person in Pakistan was taken as 60 years to 65 years but it may be more than 100 years .in certain families and the same can be less than 60 years in other families. Hence I could not persuade myself with the views as expressed by other Hon'ble Judges on this point. If the criteria expressed in different judgments on the point 'of age be made the only foundation, then heirs of a deceased person who died at the age of 65 years or‑ more as a result of fatal accident must be deprived of all benefits. Keeping this difficulty in my mind I decided to find out its solution from Islamic System of Justice. I am of the opinion that death .due to fatal accidents resembles to murder by mistake as defined in section 318, Qisas and Diyat Ordinance. Therefore, if compensation is. assessed on the basis of value of Diyat, it may become a foundation for assessing the losses in fatal accident too. It may not be out of place to point out that the above view be treated only as opinion and not an authority because the Hon'ble Judges of the superior Courts can give better views and if any such view comes to light, the same may be followed by the subordinate Courts in accordance to the circumstances of each case. Section 323 Qisas and Diyat Ordinance Provides: "

323. Value of Diyat.‑‑(1) The Court shall, subject to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and keeping in view the financial position of the convicts and the heirs of the victim, fix the value of Diyat which shall not be less than the value of thirty thousand six hundred and thirty crams of silver. (2) For the purpose of subsection (1) the Federal Government shall by notification in the Official Gazette, declare the value of silver on the first day of July each year or on such date as it may deem fit, which shall be the value payable during a financial year:" As amount of Diyat cannot be less than the value of thirty thousand six hundred thirty grams of silver, therefore, I am of the opinion that amount of compensation be also assessed in accordance to section 323 of Oisas and Diyat Ordinance. The Federal Government has to declare the value of silver on the first day of July each year and according to those declarations if taken from the date of incident till the judgment was announced by the trial Judge in this case the amount of Diyat must be more than Rs. one lac and seventy thousand but less than Rs. two lacs even till date. However, when the learned counsel for the parties were asked about their views regarding the amount of compensation, both the learned counsel for the parties left this question to be decided at the discretion of this Court.

11. Keeping such generousity in my mind as shown by the learned Advocates for the parties,‑I was left with no other al ternative but to decide the same on the principles of natural justice by taking several aspects ~ into consideration. I thus, fixed the amount of compensation as Rs.1,92,000 on account of the following reasons:‑‑ (i) It is approximately equal to the amount of Diyat which is proportional to the income of deceased i.e. Rs.1,000 per month plus any other earning on the expectation of bettering the income. (ii) This amount can be divided in round figures by taking the share of each appellee in accordance to the law of Shariat‑e‑Islam. On the bases of abovementioned reasons: (a) The share of the widow, appellee No Mst. Bibi Rukhsana=1/8 of the total amount which become Rs.24,000 (Rs.1,92,000 x 1/8 = Rs.24,000). ' (b) The remaining share for daughter and son become 1-1/8 = 7/8. This share would be, divided between daughter and son in the ratio of 1 : 2 or 1/3 : 2/3. Hence share of daughter become 7/8 x 1/3 = 7/24 while the share of son becomes 7/8 x 2/3 = 14/24. (c) The remaining amount after deduction of share of widow becomes Rs.1,92.000--Rs.24,000 = 1,68,

000. Out of this amount daughter will get Rs.56,000 (1,92,000 x 7/24 = 56,000) and son will get Rs.1,12,000 (Rs.1,92,000 x 14/24 = 1,12,000).

12. The abovementioned amount of compensation for each appellee was calculated on the basis of monthly income plus expected increase in the income of the deceased. . If any loss is caused to any property on account of fatal accident, the parties can claim compensation for the loss of property also. As there was no loss of property in this case, hence I have assessed the amount of compensation on the basis of deceased's income it had been pointed out by the- learned counsel that the appellants had paid Rs.20,000 (Rupees twenty thousand) to the brother of deceased for the appellees. According to section 1 of the Fatal Accidents Act, 1855, the amount of compensation shall be for the benefit of wife, husband, parent and children, if any, therefore, it was the duty of the appellants to satisfy themselves whether the amount was paid to the persons -for whom it was obtained. No such step was taken by the appellants, hence I have ignored to take into consideration the said amount. However, this information that brother of the deceased got Rs.20,000 but nothing was paid to the appellees, I was left with no other alternative but to pass the following order to protect the shares of minors. Reduced amount of compensation i.e., from Rs.5 lac to Rs.1,92,000 shall be deposited with the Additional Registrar, High Court, Circuit Bench, Hyderabad. As soon as this amount is deposited, the surety be discharged and the documents deposited by the surety be returned to him. Out of this amount Mst. Bibi Rukhsana would be entitled to get her share amounting to Rs.24,000 i.e., 1/8 of the total amount received from the appellants. The remaining amount of Rs.1,68,000 would be left with the Additional Registrar, High Court, Circuit Bench, Hyderabad and out of the said amount Mst. Bibi Shazia, daughter of late Abdul Sattar Shah, is entitled to get Rs.56,000 and Zuhaib Hussain will get Rs.1,12,

000. The Additional Registrar is required to invest the whole amount in some profitable scheme such as purchasing Defence Saving Certificates or in any other scheme which may be more useful according to his point of view including the amount of Mst.Rukhsana Bibi if she does not -get her share at the initial stage. However, she can get her share alongwith interest, if any, at any time she likes, but the share of minor children will remain deposited in the scheme till they become major. The Additional Registrar before investing the said amount would pay Rs.15,000 to Mst. Rukhsana Bibi out of the share of minors to meet initial expenditure for maintenance of the minors if she so desires but in future she would be entitled to withdraw the amount of interest on the said deposited amount on first March of every English calender year to meet such expenditures. If no amount is withdrawn and the whole amount remains deposited in some profitable scheme, then both the minors can get their shares alongwith profits as soon as they become major. In case an application is moved by the mother of the minors for an additional amount to meet certain expenditure for the welfare of the children she can approach to the High Court of Sindh (Circuit Bench at Hyderabad) ,for the said purpose through her Advocate or through the Additional Registrar. In case, the mother of minors gets herself married the Additional Registrar shall take all possible steps to protect the interest of minors by submitting a reference before the Senior Judge of the High Court at the Circuit Bench to get any appropriate order for the said purpose. These steps can also be taken by the Additional Registrar if any information is received by him which is deemed to be against the interest of minors notwithstanding to the right of marriage of Mst.Rukhsana Bibi at any stage.

13. Resultantly the appeal is partly accepted. The decree passed in the suit is modified from Rs.5,00,000 to Rs.1,92,000 (Rupees one lac ninety-two G thousand only) with no order as to cost. ' Appeal partly accepted. AA./J-182/K , Appeal partly accepted.