ROSHAN JAN Versus PAKISTAN

1. In this suit for recovery of Rs.10,50,000 under the Fatal Accidents Act, 1855, the fateful incident resulting into the death of deceased Muhammad Javed took place on .27‑4‑1988 at Karachi Air Port, Cargo Road. The deceased was employed as a salesman at Civil Aviation Authority's Refreshment Stall and earning Rs.1,500 per month. It is said that in addition to the above salary, he used to have commission on sales and tips from the customers ranging between Rs.500 to Rs.600 per month. It is alleged that the defendant No.3 during the employment with defendants Nos. l and 2 as a driver, drove vehicle No.GP‑2781 in a rash and negligent manner, dashing against the deceased from his back causing fatal injuries to him culminating into his death. The above vehicle was owned by defendant No.2 and used for mail service from Airport Cargo to G.P.O.

2. This suit was initially filed by Muhammad Siddique, father of the deceased, aged about 55 years on or about 3‑8‑1988 disclosing the names of Roshan Jan (mother) aged about 53 years, Naseeran Begum (widow) aged about 20 years, Ms. Abida Bibi (daughter) aged about two years and Aqib (son) aged about eight months as heirs and beneficiaries. During the pendency of the suit, Muhammad Siddique died a natural death on 21‑2‑1990 when the legal heirs referred to above, were substituted as plaintiffs for him.

3. Calculating the compensation at Rs.10,50,000 it has been urged that the deceased had completed the basic course of passengers/sales from P.I.A.Training Centre and was likely to become Traffic Assistant with emoluments of Rs.5,000 per month. Additionally, the deceased was an efficient typist with speed of 50 words per minute; that he was trying to join some firm as part time typist and could have earned a further amount of Rs.700 per month. He used to spend all his earning on the plaintiffs and was very sincere and faithful to his father as well as all other family members.

4. Defendants have filed a joint written statement and challenged the maintainability of the suit being barred by Order VII, tule 11, C.P.C. On facts, the whole incident including the driving of Vehicle No.GP‑2781 by defendant No.3 was denied. Strange enough, it was denied that defendant No.3 was the driver in employment of defendants Nos. l and 2 or that he drove the vehicle at all on the material day. The defendants who are represented and advised by the present counsel even denied the employment of the, deceased with Civil Aviation Authority, his emoluments and even his relationship with plaintiff Muhammad Siddique in the original plaint. They denied the accrual of cause of action as well.

5. On the pleadings of the parties following issues were settled:‑

6. "(1) Whether death of Muhammad Jawed S/o Muhammad Siddique on 27‑4‑1988 at Cargo Road Airport, Karachi was caused by worng ful act, neglect or default by defendant No.3 Muhammad Aslam in driving Postal Vehicle No.GP‑2781 rashly and negligently and in dashing the vehicle against Muhammad Jawed?

(2) Whether the defendant. No. l being owner of Postal Mail Vehicle No.GP‑2781 allowed the same to be driven on 27‑4‑1988 by its employee and driver Muhammad Aslam so rashly and negligently as to cause death of Muhammad Jawed by wrongful act, neglect or default?

(3) Whether the defendants Nos. l and 2 are responsible for act of their driver and employee Muhammad Aslam?

(4) Whether the suit is not maintainable without joining Government of Pakistan as a party?

(5) What was the age and life expectancy of deceased Muhammad Jawed?

(6) What was the average earning of deceased Muhammad Javed and what were the prospects of increase in his income?

(7) What should the decree be?"

7. In support of their case, plaintiffs examined Roshan Jan, P.W.1 Muhammad Siddique (eye‑witness), P.W.2, H.C. Aurangzeb, Airport Police Station, P.W.3, and Shekil Ahmad Manager Refreshment Counter, C.A.A. P.W.

4. On the other hand, defendants adduced the evidence of Rafi Ahmad Soomro, Deputy Controller Mail Motors Service, D.W.1 and Muhammad Aslam, driver, as D.W.2.

8. I have heard learned counsel for the parties and gone through the relevant evidence on record. My findings are as under for the following reasons:

9. Issue No. 1.

10. On this issue there is sufficient and satisfactoy evidnece furnished by P.W. Muhammad Siddique who has stated that on 27‑4‑1988 at about 15.00 hours he saw defendant No.3 Muhammad Aslam while driving vehicle No.GP‑2781 of defendants Nos.1 and 2 in a rash and negligent :manner who dashed deceased Muhammad Javed from the backside when the latter was riding on a cycle with the result that he got fatal injuries and died on the spot. The witness stated that the death of the deceased was caused by negligence, default and wrongful act of defendant No.3 who drove the above vehicle in a very rash and careless manner and committed negligence in hitting the deceased from the back side rashly. During his cross‑examination no material question was put to the witness thereby admitting the aforesaid version as true. The only question put to him was to the effect that he was a witness in the criminal case against Muhammad Aslam in respect of this incident which had not been decided till then and that he had appeared in this Court for the first time. It would appear that his statement to the effect that defendant No.3 was driving the vehicle owned by defendants Nos.1 and 2 during the course of his employment in a rash and negligent manner dashing against the deceased from behind and causing his death has not been disputed at all. It would further appear that his version with regard to the negligence default and wrongful act attributed to defendant No.3 has gone completely unchallenged and unrebutted.

11. The evidence of the mother of the deceased, namely, Roshan Jan, though not an eye‑witness, lends corroboration to the statement of P.W. Muhammad Siddique in all material particulars. Her statement on this issue has also not been challenged and by implication of law the same is deemed to have been admitted by the defendants. As regards the occurrence itself, P.W. Aurangzeb, H.C. working as Court Muharrir at Airport Police Station stated on oath that on 27‑4‑1988, F.I.R. No.72 of 1988 was registered at his Police Station in respect of the accident which took place on the said day at Cargo Road Airport; Karachi. A photostat copy of this F.I.R., Exh.12/6, has been brought on record through P.W Mst. Roshan Jan. In the absence of any convincing evidence to the contrary, I am inclined to accept the plaintiffs' evidence omits face value, notwithstanding dishonest and belated denial by the defendant No.3 in his evidence. Needless to mention, this witness admitted that he was serving as driver in the Post Office from 1984 to 1990 and his duty was to take the mail from G.P.O. to Airport and from Airport to G.P.O. His duty hours used to be from 2.00 p.m. to 10.00 p.m. He denied his presence at the place of incident but admitted that he 'was on duty on 27‑4‑1988, when according to him, no accident had occurred, while he was driving the Post Office van. It is well said, that truth always prevails, so the witness had to admit that he was informed by the Engineer of the Post Office that an F.I.R. had been lodged against him and he was summoned to Police Station in connection with an accident which occurred on 27‑4‑1988. He was further obliged to admit that he went to Police Station and told the S.H.O. that he had no knowledge of the accident but he was locked up and subsequently released on bail. During his cross‑examination, he admitted that Van No.GP‑2781 of defendant No.1 was impounded by Airport Police Station on 28‑4‑1988 and returned on 30‑4‑1980. Evidence recited above, in my humble view, is sufficient to answer the issue in affirmative and I hold accordingly. .

12. Issue No.2.

13. It is pertinent to note that the defendants mala fide and in utter disregard of the duty cast on them to speak the truth and to assist the Court in arriving at a just, proper and right conclusion denied the commission of incident, employment of defendant No.3 with them as driver and acting in a rash and negligent manner during the course of driving the official vehicle in their written statement. Their own witness, D.W. Raft Ahmad Soomro, was, however, constrained to admit in his evidence that the vehicle involved in the accident belonged to defendant No.l and that defendant No.3 was in their service as a driver at the time of the accident. During his cross examination he further admitted that defendant No.3 was still in the service of defendant No.1 but no inquiry was held by the department after the accident. Involvement of the defendants' vehicle in this accident is also proved by the evidence of H.C. Aurangzeb who produced the letter from defendant No.l requesting for the release of their vehicle detained due to the accident on 27‑4‑1988.

14. As regards improper and unreasonable approach of the defendants to this matter I am fortified in my view by a classic Judgment of the Supreme Court in the case of Karachi Transport Corporation v. Latifur Rehman and others (1993 SCMR 1149) where the Supreme Court observed as under:‑

15. "We may also observe that a Government Department/functionary is‑not expected to raise frivolous pleas in an action brought by a citizen for recovery of his lawful claim, with the object to deny it or to prolong litigation in respect thereof. Such a practice is to be deprecated in the strongest terms. The officials responsible for the same should be made accountable for their above uncalled for and urtjustifled approach, particularly in the cases arising out of fatal accidents, the approach of the Government Departments/functionaries should be human and pragmatic all efforts should be directed to ensure that an aggrieved person gets his reasonable, admissible claim promptly, without loss of any time."

16. Employment of defendant No.3 with defendants Nos.l and 2 being established this issue must be answered in affirmative and I hold accordingly.

17. Issue Ng.3.

18. In view of the findings on Issues Nos.l and 2 as a necessary corollary the natural conclusion would be that defendants Nos. l and 2 are vicariously responsible for the act of their driver and employee Muhammad Aslant. In fact, they being the masters of this defendant are bound by the act committed by their servant during the course of his employment.

19. Issue No.4.

20. This issue has become redundant in view of the order dated 6‑12‑1990 passed on Civil Miscellaneous Application 841 of 1990 whereby the plaintiffs were allowed to add the word "Pakistan" through Post Master‑General in the discription of defendant No. l in the title of the plaint.

21. Issue No.5.

22. In the light of evidence adduced by the mother of the deceased coupled with the National Identity Card of the deceased, Exh.12/3, it can safely be siad that he was aged about 22 years at the time of his death. As regards the life expectancy his mother Mst. Roshan Jan is aged 57 years while his father died at the age of 57 years. Normal expectancy of life in Pakistan in view of the D advancement in medical research and health awareness has been held to be 70 years. It can, therefore, be legitimately held that the deceased would have probably lived up to the age of 70 years.

23. Issue No.6.

24. Contrary to the averments in the plaint reproduced in the narrative of this judgment P.W. Shakeel Ahmad, Manager Refreshment Civil Aviation Authority has stated on oath that the deceased was getting Rs.1,000 per month as salary and that he used to earn around Rs.1,500 per month as commission. The certificate of employment, however, produced by this witness, Exh.6, under the signatures of Manager Terminal 2, Civil Aviation Authority tends to show that Muhammad Javed was earning Rs.1,500 per month including commission. On the other hand Mst. Roshan Jan has claimed that the deceased was earning Rs.1,500 per month in addition to the commission on sales and tips from customers. Taking a just and rational view of the matter, I would find that he was earning Rs.1,500 per month and calculating at this rate, his annual income would come to Rs,18,000. This income would have accrued to him for four years, i.e. from May, 1988 to April, 1992, It has been stated in the evidence of P.W. Shakeel Ahmad that the salary of salesman has been increased to Rs.2,000 per month. On the other hand mother of the deceased Mst. Roshan Jan has claimed that the deceased having completed basic course of passengers/sales from P.I.A. Training Centre was very soon likely to be Traffic Assistant in P.I.A. and could have earned Rs.5,000 per month, There is, however, no satisfactory and convincing evidence to conclude that the deceased had actually qualified this certificate course except a photocopy of an offer for participation in passengers/sales basic course commencing from 10‑1‑1988 to 11‑2‑1988. There is hardly any evidence on record to indicate that the deceased actually participated in this course or successfully completed the same. In this view of the matter, it cannot be said with an amount of certainty as to whether and from what date the deceased would have joined as Traffic Assistant in P.I.A. and earned a sum of Rs.5,000 per month. Assuming, however, that the deceased had continued as salesman with a salary of Rs.2,000 per month and Rs.500 .per month by way of commission on sales and tips he would have earned a sum of Rs.2,500 per month from May, 1992 onwards. In all probability he had, thus, 34 years of employment at his credit. In this manner, calculated at the rate of Rs.30,000, annually he would have earned a sum of Rs.10,20,000. Added to its income would be the income for the first four years amounting to Rs.72,000. For the last ten years in all probability and in view of the escalation in the cost of life and rise in earning the deceased would have earned at least Rs.3,000 per month. Calculated at this rate, his income for last ten years of life would come to Rs.3,60,000. the gross total earning would thus, come to Rs.14,34,000. Allowing a sum of Rs.4,34,000 for his personal expenses during his lifetime the E deceased would have spared at least a sum of Rs.10,00,000 and spent the same in order to maintain and look after his mother, his widow and two minor children.

25. Issue No.7.

26. In view of what has been found above, I decree the suit in the sum of Rs.10,00,000 with 14% interest from the date of suit till realization. The decretal amount shall be apportioned in equal shares, i.e. 25% by each of the plaintiffs. The amount falling to the share of minor daughter and minor son shall be invested in long term Saving Certificates, till they attain the age of majority.

27. A .A./R‑31/K Suit decreed.