PAKISTTAN STEEL MILL CORPORATION LIMITED Versus NAZIR HUSSAIN SHAH

AJMAL MIAN, CJ .‑This High Court Appeal is directed against the judgment and decree dated 28‑11‑1988, passed by a learned Single Judge, in Suit No.68/1986, decreeing the suit to the extent of Rs.2,36,800 against the claim amount of Rs.5,00,000, with the direction that the respondent/plaintiff and his three minor children, namely, Muzaffar Hussain Shah, Zaima Hussain and Munawar Hussain would get equal share amounting to Rs.59,200 from the above decretal amount, with the further direction that the respondent would be entitled to withdraw the amount of his share, whereas, the shares of the minors are to be deposited by the Nazir in Khas Deposit Certificates.

2. The brief facts leading to the filing of the above appeal are that Mst. Khatija Begum wife of the respondent aged 28 years died on 20‑5‑1985 while she was driven by the respondent in Suzuki Car bearing No.845‑339 as Bus bearing No.803‑531 belonging to appellant No.l/defendant No.l driven by appellant No.2/defendant No.2, while overtaking the Suzuki Car struck the latter behind and thrown it to the right side of the road because of negligence on the part of appellant No.2, near Model Village, National Highway and because of the impact deceased Khatija Begum and her one year's old child were thrown out of the vehicle on the road. The deceased succumbed to her injuries in Jinnah Hospital, Karachi. The aforesaid suit was filed by the respondent on the basis of averments that the deceased had been engaged in tailoring work at her home and had been earning Rs.1,600 per month by working day and night, so that she could give education to her children and that was because of the fact that the respondent's income was not sufficient. The above suit was resisted by the appellants. On the basis of the pleadings of the parties, following issues were framed:‑

"(1) Whether the death of the deceased Khatija Begum was caused by the rash and negligent driving of the Bus No.803‑531 by the defendant No.2 driver employee of the defendant No.l.

(2) Whether the defendant No.1 is vicariously liable to pay the compensation/damages to the plaintiff as claimed for the actionable wrong of their driver or are the defendants jointly and severally liable to pay the compensation to the plaintiff or to other dependent legal heirs?

(3) Whether the plaintiff is entitled to interest and cost as claimed?

(4) Whether other relief the plaintiff is entitled to?"

The learned Single Judge after recording the evidence and hearing the parties decreed the suit in the above terms. The appellants being aggrieved by the judgment and decree have filed the present appeal.

3. In support of the above appeal, Mr. Azhar Ali Siddiqui, learned counsel for the appellants, has urged as follows:‑‑

(1) That there was no reliable evidence to prove negligence on the part of appellant No.2 as to entitle to the decree.

(2) That there was no evidence that the members of the deceased family had slong spans of life and, therefore, the learned Single Judge was not justified in granting the damages on the assumption that the deceased would have lived upto 65 years.

(3) That the damages should not have been assessed on the basis of expectancy of the respondent's life and that in any case the children could not have been granted any compensation beyond the age of 21 years.

(4) That the amount of loss assessed at Rs.800 per month is also not reasonable.

4. On the other hand, Mr. Muhammad Maqsood, learned counsel appearing for the respondent, has vehemently urged as under:‑

(1) That the appellant No.l being a Government Corporation should not have filed the above appeal against the decree, as the Government is under obligation to protect and help its citizens and not to harass.

(2) That there was sufficient evidence on record to prove negligence on the part of the appellant No.2.

(3) That the expectancy age of 65 years assumed by the learned Single Judge is just and proper in the instant case.

(4) That the compensation amount is to be assessed on the basis of the expectancy of the age of the deceased and not the expectancy of the ages of next‑of‑kins of the deceased.

(5) That the amount of Rs.800 per month which has been made the basis of the amount of compensation is on the low side.

5. It may be pertinent to take up the first submission of Mr. Mohammad Maqsood, as he has argued the same with full vehemence. In support of his above submission that the appellant No.l being a Government Corporation should not have filed the above appeal against the decree, as the Government is under obligation to protect and help its citizens and not to harass, it may be observed that he has referred to the cases of The Punjab Road Transport Board and another v. Mst. Naziran Bibi and another reported in P L D 1983 SC 340, and Abdul Latif v. Faisalabad Development Authority reported in 1988 M L D 2200. In the first case, the Hon'blc Supreme Court while dismissing the petition for leave against the judgment of the Lahore High Court, passed by a learned Single Judge in Civil Revision observed that the amount awarded to the widow and the minor daughter ‑on account of fatal accident in which the husband/father had died was very meagre and that the petitioner attitude to rile petition for leave is not only deplorable but against the spirit of speedy and inexpensive justice which is the declared policy of Government. In the second case, a Division Bench of the Lahore High Court while remanding the case to the Managing Director of the respondent depricated the tendency to increase litigation and to make the poor people run on roadside and knock from door to door.

6. The learned counsel for the respondent has also referred to the following cases of the Indian jurisdiction, namely, (1) Shiv Prasad Gupta Agarwala v. S.M. Sabir Zaidi (A I R 1968 Allahabad 186), (2) TN.Ganavelu and another v. D.P. Kannayya and others (A I R 1969 Madras 180), (3) Smt. Shanti Devi v. General Manager, Punjah Roadways, Ambala and others (A I R 1971 Punjab & Haryana 13), (4) The Trustees of Port of Bombay v. The Premier Automobiles Ltd. and another (A I R 1974 SC 923), (5) Sindhu Mohanty and another v. Gour Krushna Mohanty and another: (A I R 1976 Orissa 213), (6) State of Haryana v. Sint. Dabshana Devi and others (A I R 1979 SC 855), (7) M/s. Concord of India Insurance Co. Ltd. v. Sint. Nirmala Devi and others (A I R 1979 SC 1666), (8) The Rajasthan State Road Transport Corporation, Jaipur v. Narain Shanker and another etc. etc. (A I R 1980 SC 695), (9) N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal and others etc. (A I R 1980 SC 1354), (10) Sint. Nand Kaur and others v. Sukh Raj and others (A I R 1981 Delhi 319), (11) Sint. Krisha Segal and others v. U.P. State Road Transport Corporation and others (A I R 1983 Allahabad 159), (12) Gurmail Singh v. Sint. Surjit Kaur (A I R 1983 Punjab & Haryana 289), (13) Lanka Sharma v. Rajendra Singh and others (A I R 1984 Andhra Pradesh 32), (14) Rajasthan State Road Transport Corporation v. Jhami Bai Kanhiyalal and others (A I R 1987 Rajasthan 68) and (15) The Assam and Megha Layya State Road Transport Corporation, Gauhati v. Abdul Razak (A I R 1988 Gauhati 57).

7. In the above cases, inter alia, it has been observed that the public body should resist the temptation to litigations like cantankerous litigants for insignificant amount, raising technical pleas and that it should not compel the handicapped to fight litigation against his formidable adversary. There cannot be any cavil to the propositions of law propounded in the above cited cases. We are also inclined to hold that a public functionary particularly, in Pakistan which is an Islamic State is enjoined not only by our Constitution but also by the tenets of Islam that it should act in aid of advancing the cause of justice and not to frustrate or defeat it. It is indeed a deplorable act when a public functionary in order to resist a genuine claim arising out of a fatal accident spends considerable amount on litigation instead of settling the matter with the dependants of the deceased.

8. Having dealt with the above submission, we may revert to the submissions made by the parties on the merits of the case.

9. Adverting to the first submission of Mr. Azhar Ali Siddiqui, learned counsel for the appellants, that there is no reliable material on record to prove negligence on the part of appellant No.2, it may be observed that in support of his above submission, he has pointed out that the description as to how the accident occurred is not plausible. The above contention is devoid of any force. The respondent's P.W.1 Sher Ali and P.W.2 a Chowkidar, who was standing at a nearby Bus Stop, have proved the factum of negligence on the part of appellant

No.2. The evidence produced by the appellants in defence has not shaken the above evidence of the respondent/plaintiff. We cannot overlook the fact that the B accident took place all of a sudden and minor variation or discrepancy cannot he. fatal to the case.

10. As regard the second submission of the learned counsel for the appellants that there was no evidence that the members of the deceased family had long spans of life and, therefore, the learned Single Judge was not justified in, granting the damages on the assumption that the deceased would have lived upto 65 years, it may be observed that, it is true that no evidence has been produced by the respondent on the question that the members of the deceased family had enerally long spans of life, however, in our view this is not fatal to the case. This Court as well as some other superior Courts have granted damages in fatal accident cases on the basis of 60 years of age as well as on the basis of 65 years of age. It has been vehemently contended by Mr. M. Maqsood that on account of improvement of hygienic conditions and medical assistance normally span of life has increased and, therefore, this Court should make 65 years of age as the basis which is also on the low side. He has referred to inter alia the cases of Sindh Road Transport Corporation v. Jaffar Ali and 3 others reported in 1981 C L C 1166, Ali Gohar v. Mohammad Hanif and 3 others reported in PLD 1975 Kar. 432 and unreported judgment in Suit No.880/1986 (Naseer Khan and another v. Mohammad Yousaf and another) decided by a learned Single Judge on 27‑4‑1989‑‑1989 C L C 1970. In our view, the question, whether 60 years or 65 years of age should be made the basis for computing the amount of damages will depend on the facts of each case. In the instant case the deceased was the wife of the respondent. Generally, in our society a woman is not expected to support the family but it is the legal and religious duty of a husband to support his children and wife. At the time of the accident the age of the deceased was 28 years only, whereas the age of the respondent was more than 40 years. Even if we were to take expectancy age of the deceased at 60 years the respondent's expectancy age would be 72 years, whereas, the three children who were aged 12 years, 8 years and 2/1‑2 years would be getting pecuniary compensation up to their ages of 44 years, 40 years and 34 1/2 years respectively, i.e. expectancy age of the deceased 60 years minus 28 years 32 years, 32 years plus 12 years, 32 years plus 8 years, 32 years plus 2/1‑2 years. Keeping in view the above fact, we woutd reduce the expectancy age of the deceaded from 65 years to 60 years in the instant case.

11. Reverting to the third submission of Mr. Azhar Ali Siddiqui, learned counsel for the appellants, that the damages should not have been assessed on the basis of expectancy of the respondent's life and that in any case the children could not have been granted any compensation beyond the age of 21 years, it will suffice to refer to the case of Ali Gohar v. Mohammad Hanif (P L D 1975 Karachi 432) and the case of Punjab Road Transport Board v. M. Sadiq (1987 C L C 933). In the first case, a learned Single Judge awarded damages in a fatal accident case for a period of 30 years to the father of the deceased though the age of the father was 65 years, whereas, in the second case, a Division Bench of the Lahore High Court allowed the, compensation for a period of 41 years irrespective of the fact, whether the parents would have lived or not for the said period. If we were to adopt the basis, which have been urged by Mr. Azhar Ali Siddiqui, it may be difficult in all the cases to work out the expectancy of age of each of the dependents of the deceased. Additionally, we find that this point was not urged before the learned Single Judge and we are not inclined to change the basis at the C appellate stage in a fatal accident case. The above contention may be examined in some other case more in detail.

12. We are not impressed by the submission of Mr. Azhar Ali Siddiqui that the amount of Rs.800 per month which has been made basis for. computing the amount of compensation is on the high side. The evidence that the deceased was doing tailoring work has not been shaken. The amount of Rs.800 estimated by the learned Single Judge seems to be reasonable in the instant case.'

13. The upshot of the above discussion is that the above appeal is allowed to the extent of modifying the decretal amount from Rs.2,36,800 to Rs.2,07,200 minus 1/3rd (Rs.1,02,400) being the amount which the deceased would have D spent on herself, balance Rs.2,04,800. The above modified amount will be distributed/invested in terms of the judgment of the learned Single Judge.

14. The appeal stands disposed of in the above terms with no order as to costs.

A.A./P‑127/K Decree modified.