PAKISTAN RAILWAYS Versus ABDUL HAQIQUE

AJMAL MIAN, .J.‑‑ ‑This appeal is, directed against the judgment/decree dated 11‑5‑1987 passed by a learned Single Judge in Suit No.555 of 1984 for sum of Rs.1,15,200 with interest at the rate of 10 per cent per annum from d date of suit, 17‑12‑1983, till recovery and cost. The appellants aggrieved the above judgment;/decree have filed the present appeal.

2. The brief facts leading to the filing of the above appeal are that respondent No.2, who is an employee of the appellant/defendant No.1 on 17‑12‑1982 at 7.30 a.m. while driving rashly and negligently Toyota Wagon bearing No.GP‑1814 belonging to the appellant/defendant No.1, on Business Recorder Road, Karachi, dashed against the deceased and consequently causing fatal injuries resulting into death. Respondents Nos.1 and 2 who are the father and the mother of the deceased, filed the aforesaid suit for recovery of Rs. five lacs. The above suit was resisted by the appellant and respondent No.3. On thc basis of the pleadings of the parties, following issues were framed.

"(1) Whether the death of the deceased. Nasib Khan was caused by the defendant No.2, the driver of the Wagon No.GP‑1814, belonging to the defendant No.1 due to rash and negligence driving?

(2) Whether the defendants are liable to pay compensation as claimed by the plaintiffs jointly and severally?

(3) Whether the plaintiffs are entitled to cost and interest at 19 her cent P.A. from the date of filing the suit Fill recovery of the decretal amount?'

3. In support of the claim in suit, Respondents 1 and 2 examined two witnesses which included rW.2 an eye‑witness, who proved the factum of rash and negligent driving, whereas P.W.2 proved the factum of income. Whereas the appellants examined Respondent No.3. The !earned Single ,fudge recorded the findings on the above Issues 1 and 2 in the affirmative and assessed the months income of the deceased at Rs.1,000 per month and awarded damages to the respondents 1 and 2 at the rate of Rs.600 per month for a period of 16 years as the age of respondent No.1 was 44 years whereas of respondent No.2 was 39 years. The appellants being .aggrieved by the above judgment/decree have filed the present appeal.

4. The above appeal` had come up for Katcha Peshi, inter alia, on 16‑12‑1987 and 21‑1‑1988 when the Advocate far the respondents 1 and 2 also appeared and on the latter date at the request of the learned counsel for the appellants the case was adjourned for today.

5. We have heard the learned counsel for the parties. We are inclined to concur with the finding of the learned Single Judge on above Issue No.1 as P.W.2 was not shaken in the cross‑examination and his testimony could have been relied upon by the learned Single Judge However, on the question of quantum of damages, we are of the view that since the deceased did not have any regular employment but was having irregular earning, being a hawker, the average A, monthly income should have been assessed at Rs.8W per month and the pecuniary loss to Respondents 1 and 2 to the extent of Rs.400 per month. Admittedly the deceased after getting married would have needed money for the support of his wife and children, if any, arid therefore; could not have given major r portion of his income for the maintenance of respondents 1 and 2.

We, therefore, accordingly modify the decree to the extent of fixing monthly income at Rs.800 and the loss to respondents 1 and 2 to the extant of Rs.400 per month. Thus the respondents 1 and 2 are entitled to the total sum of Rs.76,800 (Le. 400x12x16) and they will share in the same proportion as was fixed by the learned Single Judge, They will also be entitled to the interest at the rate of 10 per cent per annum from the date of suit till recovery and proportionate cost.

The appeal stands disposed of in the above terms.

These are the reasons in pursuance of a short order of even date.

M.Y.H./P‑59/K Order accordingly.