P L D 1966 (W (PLP)

KADIR NAWAZ S. AWAN, J.‑

Three suits giving rise to the present three appeals were tried separately by the 1st class Civil Judge, Hyderabad (Mr. Sadikali Khoja) but were disposed of by him under one judgment, for the reason that same questions of fact and law were involved in all these three matters. For the same reason we shall dispose of these three appeals under this judgment.

2. An accident resulting into deaths of Mir Malik Muhammad Khan Talpur and Mir Haji Ghulam Hyder Khan and serious injuries to other occupants of the car including Mir Allabachayo Khan Talpur took place on the night of 5th April 1953, at about 11‑45 p.m. Case of the respondents is that a Pick Up jeep No. S.N.M. 964 carrying about 8 persons was on its way to Mirpurkhas from Hyderabad. When it reached the railway level crossing Tando Thoro village, its driver (Late Mir Malik Muhammad Khan) found the two gates at both the ends open and there were no lights. The night was dark and there was strong wind. They further allege that no gate man was on duty. While this Jeep was still crossing the second broad gauge down line, goods train No. 506 running at great speed collided with this jeep which was caught by the buffers of the engine and was lifted by one of those two buffers and dragged along the railway line for a distance of about 200 yards and thereafter the train stopped. According to them the engine had no headlights nor a working whistle and lastly that its brakes were not in order. They contend that there were no suitable arrangements for the safety of public traffic at this level crossing and have therefore blamed the appellants for the unlawful acts, negligence and defaults which have resulted into death of two persons and injuries to several persons.

3. On the basis of these facts dependants of later Mir Malik Muhammad Khan (Bibi Shahzadi and others) had filed a suit No. 32/54) claiming 10 lacs of rupees as damages‑8 lacs of rupees as general damages and Rs. 1 . lacs by way of special damages detailed below: Rs. (1) Loss to the standing crop (wheat) of 52‑53 and Kharif crop (cotton) of 53‑54 ... 1,25,000 (2) Taccavi loans paid by deceased in his lifetime to haris became unrecoverable ... 19,000 (3) Repairs and deterioration of the said pick up jeep ... 6,000 In Suit No. 33 of 1954, Bibi Dhanno and other dependants of late Mir Haji Ghulam Hyder Khan had claimed Rs. 2 lacs‑one lac as general damages and one lac as special damages.

4. Third Suit No. 34/54 was filed by Mir Allabachayo Khan claiming Rs. 2 lacs as general damages and Rs. one lac as special damages detailed below: Rs. (1) Medical and other expenses fully described in paragraphs 7 and 8 of the plaint 5,000 (2) Loss to standing crop (Rabi) of wheat of 52‑53 and Kharif crop (cotton) of 53‑54 95,000

5. While disputing all these claims the appellants had admitted this collision and its results. It is also admitted by them that the night was dark and that the gates on the Hyder abad side alone were open. It is further admitted by them that the jeep car was dragged for a distance of about 200 yds. After the accident and lastly that the goods engine was without head lights. Stand taken by them is that in the absence of headlights buffer lights were working and that the brakes were in perfect order, and lastly that the whistle was of standard type and was being blown constantly from the whistle board at mile 115/4 upto the level crossing. Their case therefore is that all suitable arrangements for the safety of the traffic were provided, though there was no statutory obligation on the appellants to close the gates. Their further version is that vacuum was applied after the impact but the train could not be stopped at the spot. They have disputed the damages on the plea that the accident was due to the negligence of the driver of the jeep which was the real and proximate cause of this unfortunate collision resulting into the deaths of two persons and injuries to some persons. Their further case is that the gate man on duty after noticing this goods train closed the Mirpurkhas gate first as he had found two cars coming from that direction and was thereafter proceeding to close the Hyderabad gate when he saw this jeep rushing into the level crossing. He shouted and cried to warn the driver of this car about the approaching train but the driver of the jeep instead of slowing down, accelerated the speed of the jeep intending to slip pass the incoming train. Their case therefore is that the driver of the jeep in "absolute disregard of the dangers of the dark nights on the highway and its junctions, the constant sound of whistling, rattling, jolting of the train, sign on the road, and the rules of the road the driver of the jeep hazarded a venture into speed and thus counted death and injuries to the inmates of the jeep." Their further case is that "for all the reasons stated above accident could not be avoided due to crashing speed of the jeep and lastly that respon dents are responsible for contributory negligence." According to them, damages claimed by the respondents have been exaggerated. Their legal pleas are in respect of limitation and secondly, that the respondents are not the dependents and hence they had no cause of action. Both the parties had adduced evidence in support of their versions before the trial Court. It had allowed Rs. 4,50,000 as general damages and another sum of Rs. 50,000 by way of special damages in Suit No. 32/54 filed by the dependants of late Mir Malik Muhammad Khan Talpur. In Suit No. 33/54 a sum of Rs. one lac only was allowed towards general damages to the dependents of Haji Mir Ghulam Hyder deceased. Lastly Mir Allabachayo Khan was allowed Rs. one lac towards the general damages and a sum of Rs. 12,000 towards special damages.

6. The learned Advocate‑General had not pressed the limitation objection before us and therefore the two material questions for our consideration are: (1) Whether this accident took place on account of the contributory negligence of the jeep driver. (2) To what amount the respondents are entitled by way of damages?

7. The question of contributory negligence on the part of the respondents was lightly pressed before us by the learned Advo cate‑General. However we find that the appellants have failed to prove that the driver of the pick up jeep was responsible for the contributory negligence. Haji Mir Muhammad Manathar and Mir Allabachayo, Talpur were examined by the respondents to prove this accident. Admitted position is that they were the occupants of this unfortunate jeep when it met the accident on that night. Both Manathar and Mir Allabachayo Talpur had received injuries. Latter has filed the suit and his claim was partly allowed by the trial Court. Manathar though he had received injuries had not put any claim. He is their servant. Mir Muhammad alone was the fortunate occupant to have escaped injuries. Evidence of Mir Allabachayo shows that when they reached this level crossing they found the gates wide open at both the ends. His evidence further shows that late Mir Malik Muhammad Khan was driving that unfortunate pick up jeep. In view of this position the jeep entered the level crossing and while it was at the second broad-gauge down line the goods down train coming with great speed collided against this jeep, which was literally lifted by the cow catcher of the engine as it had got entangled in one of the buffers and dragged along the railway line for a distance of about 200 yds. On all these facts he is corroborated by the other two witnesses Haji Mir Muhammad and Manathar. Admitted position is that these two witnesses were occupants of this jeep. Their evidence further shows that the engine was without headlight, that it had defective brakes and lastly, that its whistle was not working. Evidence on record shows that Mir Allabaphayo Talpur belongs to ex-ruling family of the former province of Sind. He is well educated, having graduated from foreign universities in England and America. He has been a member of Ex-Sind Assembly as well as West Pakistan Assembly. He is member of many institutions, organizations and has represented our country as member of several delegations abroad. Story given by him appears to be natural, probable and true. Many of the facts deposed by all these three witnesses have been admitted on behalf of the appellants. The trial Court in its judgment has described the situation at the level crossing with great clarity. It shows that there is a big incline with a sharp bend when it reaches the level crossing. Evidence on record further shows that this accident took place about 8 or 10 ft. away from the gates at the Hyderabad end. It is admitted on behalf of the appellants that this engine was without headlights, secondly that the night was dark and thirdly that the gates at Hyderabad side were open. They have also admitted the collision and its results, and that this jeep car was dragged for a distance of about 200 yds. They have examined Rahimullah driver of the engine, Mazhar Khan its guard and Ghulam Nabi the gate man to prove that the buffer lights were on, secondly that the whistle was being blown constantly and thirdly that Ghulam Nabi gate man was on duty. We find that Ghulam Nabi is a false witness. Admitted position is that this accident took place at 11-45 p.m. Evidence on record shows that Ghulam Nabi was to take over charge from Siddik at 12 O'clock in the night. In view of this fact Ghulam Nabi could not be present at the site when this accident took place. His evidence shows that he had taken over charge from Siddik at 12 mid-night and the accident took place ,thereafter. He had further stated that he had noticed the goods down train when it was 1 electric pole away from the level crossing. It would mean that he had not seen the buffer lights of the engine as pleaded on behalf of the appellants. His further evidence shows that on noticing the train being very close to the level crossing he rushed to the Mirpurkhas side as he had noticed two cars coming from that side. It is strange to find that nobody occupying those two cars has been examined either in the departmental inquiry or before the Criminal Court or in these three civil suits. This story that Ghulam Nabi had closed the Mirpurkhas side gate is palpably false. Proceeding further he had stated that after closing that gate he rushed towards the Hyderabad side gate as he had noticed this jeep rushing. He shouted and cried out to the driver of this jeep about the incoming goods train but the jeep driver instead of stopping his jeep accelerated the speed with intention to pass through before the train arrived. Appellants have also led evidence to show that the driver of the engine was constantly whistling and he had applied vacuum brakes after the engine had collided with this jeep car. This is the entire evidence which had been adduced by them to prove that this accident could not be avoided and secondly that the driver of the jeep was responsible for contributory negligence. It is perfectly clear that we have no reasons to doubt that the accident had taken place at 11-45 p.m. when Siddik gate man who should have been on duty at that time was absent and had deserted his duty. This fact strongly corroborates the case of the respondents, that no gate man was on duty when this accident took place. Even if we accept, the version of the appellants that Ghulam Nabi was on duty then also they cannot escape the responsibility as the admitted position is that late Mir Malik Muhammad Khan who was driving the pick up jeep had found the Hyderabad gate open. This amounts to invitation as held in a case reported in Federation of Pakistan v. The Muslim Vehari and Vehniwal Bus Service (P L D 1955 Lah. 256). There were even no gate lights at the time of the accident. Ghulam Nabi is further falsified by Rahimullah and Mazhar Khan when they had stated that they had found one gate man at Mirpurkhas side after the accident and he had given out that he was ill due to fever.

8. Admitted position is that this engine was without its headlights. Stand taken by the appellants is that buffer lights were working. This does not appear to be correct. If the lights were on, the gate man on duty should have seen the approaching train. But the evidence of Ghulam Nabi shows that he noticed this goods train not due to light but on account of its sound. Appellants have led evidence to explain the absence of the headlights of this engine. Even if they succeed in doing so that would not absolve them of the responsibility of this accident. Both the driver and the guard of this goods train had admitted that this headlight went out of order while the train was running between Shahdadpur and Tando Adam and consequently report to this effect was made to the Assistant Station Master at Tando Adam who contacted the Controller at Karachi and obtained permission for the train to continue its journey without headlights. Even if this position is correct the learned Advocate‑General has failed to satisfy us that this fact would absolve the appellants of their responsibility for this accident. Rahimullah (driver) has admitted that he could not see with buffer lights. He had further added that persons from opposite direction only could see the buffer lights. We have already pointed out that even this plea does not appear to be correct as Ghulam Nabi had stated that he had not seen the lights but noticed the train when it was at a short distance from the level crossing. Apart from these facts this unfortunate jeep was not coming from the opposite direction so as for its driver to see the buffer lights.

9. Another plea raised on behalf of the appellants is that the jeep was in a hurry. But it has been proved that Ghulam Nabi who has supported this plea of the appellants is false witness. However, the evidence on record shows that the occu pants of the car had come from Mirpurkhas to Hyderabad to consult late Mir Ghulam Ali regarding Sind Assembly elections and they were going back to Mirpurkhas as they had taken no meals and had to file nomination papers on the next day. It was further pleaded that the occupants were rushing to Mirpur khas in order to start canvassing work for Mir Allahbachayo Khan Talpur and late Mir Malik Muhammad Khan. But we find very little force or material in these arguments as nobody would take risk or hazard his life while crossing the railway level crossing, if the driver finds the train coming at a great speed. The evidence on record shows that late Mir Malik Muhammad Khan was at the wheels.

10. Appellants have led evidence to show that Rahimullah driver was constantly whistling. He has admitted that it was an ordinary whistle and not of C.W.D. type. He had made a report at Kotri for its repairs and had also made demand for the C.W.D. whistle. He had admitted all these facts in the departmental inquiry but had resiled from this version and had denied all these facts before the trial Court. Mazhar Khan (guard) had also admitted in this inquiry that this Whistle was not in order but he too made a different statement in civil Court when he deposed that this whistle was not audible like C. W.D. whistle. According to Ghulam Nabi whistle sound was faint.

11. All this discussion shows that it was a dark night and there was strong wind. Gates at both the ends of railway level crossing Tando Thoro were wide open. There were no lights at the gates. Nor any gate man was on duty. Pick up jeep, at the evidence on record shows, is a covered wagon. This incident took place about 8‑10 ft. from the gates. This fact would show that the goods train had nearly reached the spot and was not seen by late Mir Malik Muhammad Khan for the reasons stated above. This evidence further shows that this engine was without its headlights. Appellants have failed to prove that buffer lights were working or that the driver was blow ing the whistle constantly. It is further evident that even the brakes were not in perfect order as the engine had stopped about 200 yards from the place of accident. This fact also corroborates the respondents that the train was running at great speed. Evidence on record further shows that there is a sharp bend or curve at the top of the incline and very close to the gates. On account of these factors as well as buildings in village Tando Thoro it was not possible for the driver of the jeep car to have noticed the incoming goods train. It was pleaded on behalf of the appellants that it was not their statutory obliga tion to close the gates. However they have led evidence to show that one gate man was on duty and further that he had first closed the gate of Mirpurkhas side and was then rushing to Hyderabad side to close the gate as he had noticed this jeep car coming.

12. On examination of the evidence discussed above, admis sions made by the appellants and the circumstances and legal aspects of the case we hold that this accident was caused by the wrongful act, negligence and defaults on the part of the appel lants and not on account of the contributory negligence of the jeep driver.

13. In Suits Nos. 32/1954 and 33/54 dependents of Mir Malik Muhammad Khan and Mir Haji Ghulam Hyder Khan claims have been filed under the Fatal Accidents Act, 1855. This Act was intended to compensate the families for loss occasioned by the death of the member of the family through actionable wrong, and gives the executor or administrator of any person, whose death has been cause by the wrongful act, neglect, or default of any other person, right for an action to recover damages in respect thereof, when the act is such as would (if death had not been caused) have entitled the party injured to sue. It is provided that every suit shall be for the benefit of certain specified near relations of the deceased and shall be brought by and in the name of the executor, administrator or representative of the person deceased. The cause of action in cases arising under this Act is the wrongful act resulting in injuries which have caused death and not the death simply, although the cause of action is not complete for the relatives until death has occurred and death is an essential constituent of their cause of action. The cause of action consists of two parts, viz., the neglect of the defendant and the death caused by such neglect. It is for a plaintiff to adduce evidence, affording reasonable basis for the ascertainment of the pecuniary loss inflicted. Where the Court of first instance exercises a judicial discretion in its award, the High Court should not set aside that award, unless it can be shown that the award is capricious or unreasonable. The Court of first instance is invested with the right of determining what is proper and the appellate Court should not interfere unless it considers that the lower Court's discretion was improperly used. The principle in each case is whether the damages claimed are the natural and reasonable result of the defendants act. A damage will assume this character if it can be shown to be such a consequence, as, in the ordinary course of things, would flow from the act. It will be too remote when, although arising out of the cause of action, it does not, so immediately and necessarily flow from it, that the offend ing party can be made responsible for it. Every cause leads to an infinite sequence of effects, but the author of the initial cause cannot be made responsible for all the effects in the series. He is liable only for those, which immediately flow out of his wrongful act. In each case the circumstances may differ, and these circumstances must necessarily relate to the amount to which a party might be entitled, or measure the loss which that party has suffered by the death of the person concerned. The damages must be fixed solely with reference to the pecuniary loss sustained by the relatives of the deceased in respect of past contribution or in respect of reasonable expectation of future pecuniary benefit from the deceased. The amount to be awarded in each case under the Fatal Accidents Act is a matter of considerable diffi culty and different judicial officers may differ considerably as to the amounts which they consider appropriate in any particular case. It must view the matter broadly and take into account the chances of life, chances of any improved conditions, in which the family of the deceased might have passed their days, it must take into account the standard of living of the family, which was dependent upon the deceased, and having regard to all the material circumstances, it must do the best it can to estimate what is a fair and reasonable amount to be awarded. The damages awarded under this Act are compensation for the loss of the actual pecuniary benefit, which the beneficiaries might reasonably have expected to enjoy, had the deceased not been killed. Nominal damages cannot be awarded in a suit under this Act. The proper way of finding out the financial loss to the plaintiff is to form some estimate of what the value of the continue life of the deceased would have been to the plaintiff and how it was probable that it would continue. Even in cases where the estate of the deceased survived for the benefit of his family, the relatives are entitled to compensation in respect of their reasonable expectations of the value of the deceased's services, which are lost to them. Where the means of the deceased have been exclusively derived from his own exertions, whether physical or intellectual, it becomes necessary to consider what, but for the accident which terminated his existence, would have been his reasonable prospects of life, work and remuneration, and, how far, these if realised, would have conduced to the benefit of the individual claiming compensation. Under this Act the plaintiff cannot recover either nominal damages or a solatium, but must show that they have suffered appreciable pecuniary loss by the death of the deceased or had a reasonable expectation of pecuniary benefit from the continu ance of his or her life. Under this Act, a widow is not entitled to anything for pain or suffering or anything of the kind, but purely for the financial loss sustained by her. The question of the reasonable expectation of pecuniary advantage is a mixed question of fact and law. The status of the deceased can be determined by regarding his position at the time of his death and the probabilities of his future career, bearing in mind such things as that he was healthy, strong, young, energetic, smart or intelligent, and the prospects of his promotion any increment, etc.

14. In this respect parties had referred us to several reported cases. The first case referred to us is reported in Secretary of State v. Rukhminibai (A I R 1937 Nag. 354). It explains the principle of contributory negligence and was observed that under the Fatal Accidents Act in assessing damages one cannot take into consideration the mental suffering of the survivors. The fact therefore, that the widow of the deceased, being a Brahmin, cannot remarry, cannot have children and is thus left at the early age of 1k years a widow for the rest of her life is for this purpose an irrelevant consideration. The next case is reported in Limo Jeo Chiang v. Lin Siew Choo (P L D 1957 P C 223). It was held that the cases of damages in respect of death resulting from fatal accident raise questions of opinion on which minds whether of Judge or jury applying right principles may differ substantially. No appellate Court will interfere only because the figure awarded by a trial Judge is greater or less than that which the appellate Court would itself have awarded The burden is on the appellant who invites the Court to interfere with a figure which has commanded itself to two Courts below is indeed a heavy one. Gwalior & Northern India Transport Co., Ltd. v. Drinkar Durga Shankar Joshi (AIR 1955 M B 214), deals with cases of tort and negligence. It was held that the matters that should be taken into account in the assessment of general damages are, (1) pain and suffering endured past, present and future (2) inconvenience and loss of enjoyment of life sustained, past present and future and injury to health, (AIR 1955 M B 214) and a shortened expectation of life. The damages must give the plaintiff a reasonable compensation for the injuries sustained and the suffering entailed. Two more cases are reported in Ursilina D'Lima v. Orient Airways Ltd. (P L D 1960 Kar. 712) and Bashir Begun v. Muhammad Ali Premji (P L D 1960 Kar. 785). The first case is of a salaried servant. It was held that it is a well recognised rule that only such damages car, be awarded to the dependents of the deceased which directly resulted to them from his death. They cannot claim any solatium for the grief caused by his death or for the loss of his society. The second case is also of a salaried servant. It was observed that there are certain broad general principles to determind the amount claimed the chief amongst them being the loss, of reasonable pecuniary benefit to the beneficiaries. This can be determined by taking into consideration the following facts; (1) The net annual income of the deceased and what was his future prospects in respect of earning: (2) Whether the claimants have gained financially in the death. (3) The expected amount of maintenance of the deceased. (4) What was the expected life of the deceased and the present worth of the receiving amount lost to the beneficiaries.

15. In fact this was the only point which was argued at great length by the learned Advocate‑General. According to him in the case of Mir Malik Muhammad Khan and Haji Mir Ghulam Hyder the lands left by them have devolved on the dependents who are the plaintiffs and as such they have not suffered any pecuniary loss. We are unable to agree with him in this respect. As already pointed out the lands were being managed by them. They had to engage Haris, make arrangements for the cultivation and harvesting of crops and for the sale of the produce. Taccavi loans are given and recovered from Haris by them. All their income from the lands was derived from their own exertions and therefore, it cannot be said that the plaintiffs have not suffered any pecuniary loss. All the cases relied upon by the learned Advocate‑General are in respect of deceased persons who were salaried servants. No case of a zamindar or a merchant was brought to our notice in support of this case.

16. Evidence on record shows that late Mir Malik Muhammad Khan was aged about 35 years at the time of the accident. Ordinarily it is expected that he would have lived for 20‑25 years more. He was a big zamindar and was manag ing 12,000 acres of land 5,000 acres of his own and the remaining 7,000 acres belonging to Mir Qasim Mir Abdullah and Mir Muhammad Khan. The accident took place in the month of April when the wheat crop (1952‑53) was ready for harvesting and arrangements had to be made for cultivation of Kharif crop for 1953‑54 Special damages to the extent of Rs. 1,25,000 have been claimed in respect of these two crops. Another sum of Rs. 19,000 was claimed as due to his death, this amount which was paid to Haris as Taccavi loans could not be recovered. Another sum of Rs. 6,000 was claimed as special damages for the repairs carried out to this unfortunate pick up jeep. The trial Court has allowed a sum of Rs. 50,000 only in respect of these items, Rs. 8,50,000 were claimed by way of general damages and after taking into consideration all the factors stated above the trial Court allowed a sum of 4,50,C

00. It was urged before us that in the case of late Haji Ghulam Hyder a sum of Rs. 1,00,000 only was allowed by the trial Court. But we find that both cases are different on many grounds. ' Haji Mir Ghulam Hyder was aged 48 years when this accident took place while Malik Mir Muhammad Khan was only 3,5 years old. He was young, promising zamindar and was then aspiring for a seat in Sind Assembly. We have already referred to the general principles in this respect. Appellate Courts are always reluc tant to interfere with the quantum of damages allowed by the trial Court unless it is shown that wrong principles have been followed by the latter. We feel that in this case the amount awarded is excessive and is not proportionate to the facts which the trial Court has taken into consideration in both the cases. In our opinion, a sum of Rs. 1,00,000 would be a reasonable amount towards general damages. No appeal was filed by the respondents of this case disputing the finding of the trial Court in allowing less amount in respect of general damages. We allow Rs. 1,00,000 as general damages and a sum of Rs. 50.000 as allowed by the trial Court in Suit No. 32/1954, in respect of which Appeal No. 15/1961, has been filed. This appeal is disposed of with this modification.

17. In Suit No. 33/1954, which has given rise to Appeal No. 22/61, the trial Court has rejected the claim for special damages as no evidence was adduced by the respondents. No appeal has been filed against this finding by them. The learned First Class Judge has allowed a sum of Rs. 1,00,000 only towards general damages. He had relied upon the decisions reported in A I R 1922 Cal. 317 and A I R 1926 All.

703. We consider this amount to be reasonable and therefore, we confirm the judgment and decree of the trial Court and dismiss the appeal No. 22/1961 with costs.

18. Lastly there is the case of Mir Allahbachayo Khan Talpur. He is a big zamindar and owns 3,500 acres of land. He is also lessee in respect of lands measuring about 4,000 acres. He is well educated and has obtained degrees from Universi ties in England and America. He is the ex‑member of the Assembly of Sind and West Pakistan. He is also member of several institutions and has been member of delegations sent abroad. He was 40 years in age at the time of the accident. Injuries received by him are as follows:

(a) Fracture of five ribs. (b) Abrasion 1 x " on right knee joint. (c) Abrasion 1" X " on right side of face. (d) Bruise 1 " X " on upper 1/8 of right arm. (e) Four abrasions on the scalp at the woult, each measuring 1 '' x ". (f) Severe pain and shock and deep psychological traum as a result of narrow escape from death. He had remained as indoor patient from 6‑4‑53 to 28‑4‑53 and thereafter took treatment from Dr. Ronald Symcox at Karachi. He has claimed Rs. 2,00,000 (Rupees two lacs) as general damages and another sum of Rs. 1,00,000 as special damages as detailed below:-- Rs. (1) Medical expenses, etc . ... ... ... 5,000 (2) Loss to two crops of Rabi and Kharif ... 95,000 But the trial Court had allowed him Rs. 2,000 only towards the medical expenses and Rs. 10,000 in respect of loss to two crops. This is in addition to another sum of Rs. 1,00,000 allowed as general damages. He had examined Dr. Noorul Hassan Siddiqi and Dr. Mumtaz Ali Taj. Dr. Symcox had opined that the intellectual powers of Mir Allahbachayo had been diminished and he had developed severe insomnia on account of the shook. He had further added that his chest is more liable to respiratory upsets and infectious like pleurasy. Dr. Siddiki had opined about his nervousness as a result of this accident. The last medical witness in this case is Dr. Mumtaz Ali Taj. His evidence shows that Mir Allahbachayo Talpur was suffering from insomnia and frequent attacks of nights mares. Night mare is a dangerous dream in which the man gets up and shouts, having been frightened and then suffers from the shock and collapses for a pretty long time". He has lost his general health after this accident and was not able to concentrate or work properly and nor he could move in social circles freely. In this case the trial Court has taken into consideration three factors for awarding this amount and these are: (1) Personal suffering and loss of enjoyment of life. (2) Actual pecuniary loss resulting to and expenses reason ably incurred. (3) The probable future loss of income by reasons of incapa city for work. In this respect Bashir Ahmed, who manages the lands of Mir Allabbachayo Khan Talpur has been examined arid he had given evidence on the basis of record which he had brought to the Court. Apparently Mir Allahbachayo Khan is entitled to the medical expenses. As he had failed to lead sufficient and satisfactory evidence, the trial Court had awarded him a sum of Rs. 2,000 only. Apparently this is not heavy or unreasonable amount. In addition to it Mir Allahbachayo Khan Talpur is allowed damages for loss on account of future earning capacity and reduced efficiency as well as general damages for pain and suffering of body and mind. The assessment of damages as already pointed out by us is primarily the work of the trial Judge whose discretion should not be lightly interfered in an appeal (62 I C 72 and A I R 1926 P C 27). Kameshwara Roy in his book the Law of Damages and Compensation (III Edn.) on page 1104 has also summarised the purport of these two rulings to the same effect. We, therefore, find no material or substance in Appeal No. 23/1961, which is accordingly dismissed with costs. The judgment and decree in Suit No. 34/54 is accordingly confirmed.

19. The result is that the judgment and decrees in Suits Nos. 33/1954 and 34/1954, are confirmed and the two Appeals Nos. 22 and 23 of 1961, are accordingly dismissed with costs. Appeal No. 15/1961, is disposed of with the modification stated above. Each party to bear its own' costs. K.B. A. Appeal partly accepted.