GUL KHAN Versus KARACHI TRANSPORT CORPORATION

This is a suit filed under Fatal Accidents Act, 1855 for recovery of Rs.15,00,000 by father of deceased Pir Wali Khan, who died in traffic accident on 26th July, 1988 at Habib Chowrangi Site, Karachi. This suit is filed by the plaintiff for his benefit as well as for, the benefits of the following persons, who are the legal heirs of said deceased:‑‑

S. No. NAME RELATION AGE

(i) Pershama Mother 38 yrs.

(ii) Mehbooba Widow 26 yrs.

(iii) Hazrat Wali Son 11 yrs.

(iv) Shahnaz daughter 10 yrs.

(v) Khan Sali Son 8 yrs.

(vi) Haft Ali Son 6 yrs.

(vii) Noor Son, 1 yrs.

(viii) Gul Khan Father 46 yrs.

(plaintiff)

2. The case of the plaintiff is that deceased Peer Wali Khan was his son who, on 26th July, 1988 was driving mini‑bus bearing No.855‑218 when it was coming from Bilal Colony towards Faquir Colony but before reaching Habib Chowrangi another bus bearing No.879‑572 belonging to defendant No. l driven by the defendant No.2 dashed with the mini‑bus of deceased, as a result of which the mini‑bus twice turned turtle. It is further the case of the plaintiff that due to this rash and reckless driving of the defendant No.l, the plaintiff's son died and, therefore, the plaintiff alongwith persons named above are entitled for monetary compensation. The age of the deceased is shown as 28 years in the plaint and it is claimed that he was earning around Rs.500 to Rs.600 per day at the time of his death. The plaintiff has also claimed Rs.200,000 on account of loss caused to the mini‑bus due to the above accident.

3. Defendant No. l had filed its written statement denying the accident and has denied that the defendant No.2 was their driver. It is also pleaded that he was not driving the said bus on the date of the alleged accident. The income of deceased as well as entitlement to claim compensation by the plaintiff for himself and for the legal heirs of deceased was denied. It is pertinent to note that in paragraph 6 of the written statement it was claimed by the defendant No.l that deceased himself contributed to the negligence. In other words a case, of contributory negligence was pleaded in the written statement.

4. On 9th December, 1990 consent issues proposed by the parties were adopted. However, during the course of arguments, by consent of the parties following issues were reframed:‑‑

(i) Whether on 26th July, 1988 the alleged accident Was caused by the rash, negligence and wrongful act or by default of the defendant No.2. If so, its effect?

(ii) Whether the plaintiff and other legal heirs of the deceased Pir Wali Khan as mentioned in paragraph 1 of the plaint are entitled for any monetary compensation from the defendants. If so, up to what extent?

(iii) What should the decree be?

5. Plaintiff, Gul Khan, has examined himself as toibit 5 and has produced photo copies of four national identity cards including identity card of the deceased as Exhibit 6 to Exhibit 10, Licence of deceased vYas also produced as Exhibit 9. Form 'B' was also produced by the P.W. 1 in order to show that the persons mentioned in paragraph 1 of the plaint are survivors of deceased Pir Wali Khan. P.W. 2 Toor Wali, who was conductor of the mini‑bus at the relevant time, was examined as Exhibit 12. P.W. 3 Muhammad Rasheed, who was the Sub‑Inspector of Police and Investigating Officer of the criminal case was examined as Exhibit 13, who has produced several documents, such as, F. I. R., site plan of place of incident, report of Motor Vehicle Inspector, release order of ‑ District Magistrate as Exhibits 14 to 17 respectively, acknowledgement/Superdaginama of defendant No.l and memo. of site inspection as Exhibit 19. P.W. 4 Salahuddin Qureshi, Inspector Excise and Taxation Department, Motor Registration Wing, Karachi, was examined as Exhibit 20, who has produced copy of the registration certificate as Exhibit 29. In defence, the defendant No.l has examined Azmatullah, Deputy Manager (Administration) as Exhibit 22. On 23rd September, 1990, the defendant No.2 was declared ex parte. I have heard Mr. Nasir Maqsood, for the plaintiff and Mr. Shafaat Hussain, for the defendant No.l and have also perused the entire record.

6. It is vehemently contended by Mr. Shafaat Hussain, learned counsel for defendant No.l, that the plaintiff has failed to prove all the above three issues and, therefore, the suit is liable to be dismissed. On the other hand, Mr. Nasir Maqsood, for, the plaintiff has taken me through the entire evidence and documents produced by the plaintiff and defendant in order to show that the evidence and documents produced by the plaintiff have gone unchallenged and unrebutted. My findings on the above issues are as follows:‑‑----

7. ISSUE NO. 1.

It is strenuously contended by Mr. Shafaat Hussain that the plaintiff has failed to discharge his burden to prove this issue. This argument is not tenable. Perusal of written statement, filed by defendant No.l, indicates that except alleging ill‑will and mala fides of the plaintiff, the entire contents of the Plaint were evasively denied. The defendant No .l has denied accident, death of deceased, involvement of KTC bus and even went to the extent of denying that defendant No.1 was its driver. After taking such pleas I am of the view that the defendant No. l is not entitled in law to take another plea which is mutually destructive to its earlier stand. Now, the argument of Mr. Shafaat Hussain that the accident of KTC bus took place due to the negligence and wrongful act on the part of the deceased do not merit consideration. It is also pertinent to note that D.W. 1, who was produced in evidence, has not deposed a single word in defence of the allegations of wrongful act, negligence and default attributed to the defendants. All these facts lead to the conclusion that the deceased died due to the collision between the KTC bus and mini‑bus and due to the wrongful and negligent driving of defendant No.2.

8. It is not denied that Pir Wali Khan died as a result of collision between the mini‑bus being driven by the deceased and bus being driven by the defendant No.2. The only point remains to be determined is whether at the time of accident defendant No.2 was driving this bus rashly and negligently and whether deceased died due to wrongful act, negligence and default of the defendants. In this connection, evidence of P.W. 2 Toor Wali is enough as he is the only eye witness of the incident. He has deposed that he was the conductor of the said mini‑bus when the accident took place that some forty paces before reaching Habib Chowerangi the KTC bus which was coming from Valika Road and while turning towards left side it dashed with the mini‑bus of the deceased; that as a result of accident the mini‑bus twice turned turtle; that deceased Pir Wali Khan was stuck up with the steering of the mini‑bus and was taken out after cutting a part of the body of the mini‑bus; that he came to know later on that the KTC bus was driven by its employee Muhammad Mobiri, the defendant No.2. In cross-examination no material contradiction was brought out. In his cross‑examination this witness has again stated that the KTC bus took wrong turning on the Chowrangi which resulted in collision. Only one suggestion was put to this witness by the defendant No. l that the KTC bus was in slow speed which was denied otherwise no suggestion was put in order to deny that the mini‑bus twice turned turtle due to the impact/force of collision. This fact has also been deposed by P.W. 3, who is the Investigating Officer, and who recorded statements of several eye‑witnesses and the injured. The defendant witness has not uttered a single word in defence of the allegation of rash and negligence which amounts to admission of plaintiff's version. It was argued by Mr. Shafaat Hussain that the deceased did not die due to the rash and negligent act of the defendant No.2 and, therefore, none of the defendants are liable for the so‑called alleged act of negligence or default. However, he was not able to show from the evidence that it was the deceased who contributed towards the accident and that the defendant No.2 adopted all due and care in order to avoid the accident. It is an admitted fact that the mini‑bus driven by the deceased was hit by the bus of KTC which was at such a speed that after dashing with the mini‑bus it resulted in twice time turning of the mini‑bus. If the KTC bus would have been in normal speed then there was no occasion of causing such an impact on the mini‑bus.

9. In the above circumstances, I am of the view that the plaintiff has successfully proved that deceased Pir Wali Khan died due to rash and negligent driving of defendant No.2 the employee of the defendant No.l and due to wrongful act and default of the defendants.

ISSUE NO.2:

10. In view of my affirmative findings on Issue No. l I am of the well- considered view that the plaintiff and the persons named in paragraph 1 of the plaint are entitled for monetary compensation. The plaintiff has successfully discharged his burden to prove this issue. It is established that the defendant No.2 was in employment 'of the defendant No.l on the day of accident, therefore, the result which would follow in view of this finding is that both the defendants are vicariously responsible for the act of defendant No.2. The defendant No.l being master of the driver (defendant No.2) is bound by the act of its servant. Now, I am left with the question as to what should be the quantum of compensation. It is argued by learned counsel for the defendants that while assessing the quantum of damages to be awarded, the life expectancy of the plaintiff and beneficiaries as well as their earning capacity are to be considered. In other words, it is stated by him that in case if a male child attains the age of majority or if a daughter of deceased got married then he/she became disentitled for any compensation. In support, Mr. Shafaat Hussain has referred to the case of Din Muhammad and 3 others v. Faqir Muhammad and 2 others (PLD 1970 Lahore 442) where a learned Division Bench of Lahore High Court while allowing an appeal granted compensation to the beneficiaries of the deceased in the following manner:‑‑

(i) Father for 10 years;

(ii) Widow, who was young at the time of death of her husband was granted compensation for 35 years;

(iii) Two children, who were of ages 7 and 2 years were granted compensation for 10 years and 16 years respectively.

11. Mr. Shafaat Hussain has also referred to the case of Mst. Zainab Bibi and others v. Muhammad Saeed and others (1983 CLC 1321), where a learned Single Judge of this Court calculated the quantum of compensation at Rs.200,000 and distributed the same among the beneficiaries in a manner whereby widow was granted financial help till the age of 65 years, children. of the deceased were granted financial compensation till the age of 22 years on the ground that by that time these male children would have started earning and may become financially independent and that the daughters would have expected to become financially dependent on their husbands and not expecting any financial assistance from their deceased father. In this reported case father of deceased, who was plaintiff No.2, was not granted any compensation as his other sons were supporting him.

12. Mr. Nasir Maqsood, Advocate for the plaintiff, has referred to the case of a Full Bench of Supreme Court Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman and another (PLD 1969 SC 565) where their Lordships have laid down the criteria for estimating the expected pecuniary loss caused due to death, in the following terms:‑‑

"No definite or hard and fast rule can, as such, be laid down as to the matters which should be taken into account. But this such can be said that only such damages can be given as can be shown to have been financially suffered by those who bring the action. In estimating such damages the Court will, no doubt, take into account the age of the deceased, his or her health, earning capacity and even the chances of advancement. These must, however, be evidence of reasonable expectation or pecuniary advantage and not of a 'mere speculative possibility'. Thus parents may recover for the loss of the probability that the deceased child would have contributed towards their maintenance and children may recover for the loss of education comfort and position in society which they would have enjoyed if the father had lived and maintained the income which had died with him The basis of the assessment is not the requirement of plaintiff but the money value of the assistance which the deceased might probably have given had he continued to live."

Mr. Nasir Maqsood, has further invited my attention to the case of Punjab Road Transport Board v. Abdul Wahid Usmani and others (PLD 1980 Lahore 584) where, before a learned Division Bench of Lahore High Court the cases of Din Muhammad and others and Sri Manmatha Nath Kuri (supra) were cited. It was contended by the appellant that the principle of family dependency is to be considered while awarding damages. The learned Division Bench disagreed with its earlier view (PLD 1970 Lahore 442) and followed the rule laid down in the case of Sri Mamnatha Nath Kuri with the following observations:‑‑

-----------------Even otherwise, the principle known as family dependency in foreign jurisdiction is somewhat differently applicable in our society because there is no disassociation amongst the parents and children merely upon the latter's attaining the age of majority. Generally parents in Pakistan do not discontinue the assistance to their children simply on their ceasing to be minors. Further they earnestly, wish and make efforts in finding a respectable position for their children in the society and for that all possible financial assistance is made available. In the instant case the deceased was a Professor and if he had lived it would have been his wish to see his sons to be highly educated and well settled in life. All this is not possible on attaining the age of eighteen years and to materialise his wish he would have to continue to impart education beyond the ages of 18 years and marrying them afterwards. Undoubtedly all this would entail financial assistance. We are, therefore, not inclined to hold in this case that the view as expressed in PLD 1970 Lahore 442 debar the dependents from the damages as assessed by the learned trial Court..."

13. The provisions of the Fatal Accidents Act, 1855 empowers a Court to give such damages as it may think proportionate to the loss resulting from the death to the parties for whom and for whose benefit such action was brought. It further envisages that the deductions are to be made for all cost and expense incurred on the deceased and thereafter it should be divided amongst the parties entitled to such claim. Section 4 of the Act, 1855 has defined parents as father and mother and even included grandfather and grandmother. The word 'child' is defined inclusive of sons and daughters and grandsons and granddaughters including step‑sons and step‑daughters. Nowhere any bar or prohibition is imposed in this definition disentitling the parents or child to receive compensation after attaining the age of majority or after becoming capable of earning livelihood. If the argument of Mr. Shafaat Hussain is up‑held then it would amount to add something in the Act, 1855 which is not provided therein. I, therefore, while following the cases of Sri Manmatha Nath Kuri and of Abdul Wahid Usmani overrule the objection of Mr. Shafaat Hussain and make the following assessment for damages:

14. It is established that deceased Pir Wali Khan died at the age of 37 years as per Exhibit 9 (driving licence). The normal expectancy of life in Pakistan is now treated to be of 70 years (For reference see Pakistan Steel Mills Corporation Ltd. and another v. Malik Abdul Habib and another (1993 SCMR 848), Mst. Bibi Surat Jan v. Mir Azam Khan and 2 others (PLD 1993 Kar. 168), S. Iqbal Hussain Jaffery v. KESC (1994 CLC 1903), Shadman v. KTC (1995 CLC 1714). Therefore, it could be safely held that the deceased would have lived for approximately 33 years more. It has come in evidence that the deceased was earning nearly Rs.800 per day and was paying Rs.6,000 as monthly instalments for the purchase of his mini‑bus. There is no documentary evidence in respect of his monthly income except words. Therefore, in my considered opinion Rs.5,000 per month would be just and reasonable earning of the deceased. Thus the total income of the deceased comes to Rs.60,000. The amount of loss, calculated for the next 33 years comes to Rs.19,80,000. I would like to add 20% on the aggregate amount of income as an amount of expected increase in the future income of deceased. Out of this final amount of deceased income, one sixth of his income is liable to be deducted on account of personal expenses of deceased. I am fortified in my view by the case of Punjab Road Transport Board (supra) wherein a Division Bench of Lahore High Court while computing the question for awarding compensation made 1/4th deductions as personal spending in the case of deceased, who was survived by a father, a mother, a widow and two minor sons. In the case (Zaibun Nisa Begum v. Pakistan Coast Guards and another (1987 MLD 883) this Court deducted 1/6th from the prospective earnings of deceased while awarding compensation. In this reported case one of the deceased Aziz Ahmed died as a result of accident, who at the relevant time was aged about 43 years and was survived by widow Zaibunnisa Begum. In one of the recent cases Ameena v. Government of Pakistan, Ministry of Defence and another (1995 MLD 1922) another learned Judge of this Court G.H. Malik, J., (as he then was) allowed deduction of 1/6th in the matter of several deceased, who all died as a result of the crash of an aircraft in the area of S.I.T.E. Police Station, Karachi. Thus the final tabulation would be as follows:‑‑

(a) Gross income for 33 years Rs.19,80,000.00 calculated on the basis of

Rs.5,000 per month.

(b) Plus 20% on the aggregate Rs. 3,96,000.00 income on account of ------------------ expected increase in Rs.23,76,000.00 income. ------------------

(c) 1/6th deducted from the (Less) Rs.3,96,000.00 total income on account of ------------------ personal expenses of the Net Total: Rs. 19,80,000.00 deceased. ------------------------------------

The defendants are liable to pay compensation to the plaintiff and other legal heirs an amount mentioned above in the column of net total. Issue No.2 is accordingly answered.

15. ISSUE N0.3

The suit is decreed for Rs.19,80,000 (Rupees nineteen lacs eighty thousand) with 14% interest per annum from the date of suit till realisation and with cost. The beneficiaries and the plaintiff shall be entitled for their respective shares in the decretal amount according to the ratio of their entitlement as per their shares, according to Mohammaden Law of Inheritance. In case of realisation of decretal amount, the plaintiff, mother and widow of the deceased are directed to deposit the shares of minor with the Naazir of this Court. They shall be entitled for withdrawal of a part amount from the minors' shares on account of maintenance. Nazir is directed to deposit the shares of minors, if realised from the defendants, in some profitable scheme of the Government.

16. With the above observations the plaintiff's suit stand decreed.

A.A./G‑22/K Suit dismissed.