ZIAUDDIN KHAN Versus MUHAMMAD AZIM

1. AJMAL MIAN, J.‑‑ This appeal is directed against the judgment and decree passed by a learned Single Judge dated 14‑10‑1987 in Suit No.778 of 1987 decreeing the suit of the plaintiff for a sum of Rs.4,36,350 against the appellant (Defendant No.1) and respondent No.2 (Defendant No.2) with costs and against respondent No.3 (Defendant No.3) for a sum of Rs.20,000. 1t was also ordered that the plaintiff would be entitled to interest at 10%. The appellant being k aggrieved by the above judgment and decree has filed the present High Court Appeal. A pre‑admission notice was issued, in response to which Mr.Dastgir Ghazi has put in appearance for respondent No.1.

2. The brief facts leading to the filing of the above appeal are that Asif: Javed, a son of the plaintiff (now deceased) on 25‑11‑1980 alongwith his colleague Ali Asghar was proceeding to join his duty on his ship on a motorcycle which was driven by him 'and his colleague was sitting behind him. It seems that when they reached near P.N. Air Store Depot on the Stadium Road, Truck No.180‑615 owned by the appellant and driven by respondent No.2 suddenly without warning turned left towards the depot and overran the deceased. The deceased and All Asghar sustained injuries and were removed to the Naval Medical Centre Karsaz and then to Shifa where deceased expired on the same day at about 0945 a.m. At the time of his death he was 27 years old and was working as Chief Petty Officer in Pakistan Naval Submarine. He left behind his father respondent No.1, mother, four brothers and one sister. The father filed the aforesaid suit for the recovery f the aforesaid sum namely Rs.4,36,350.

3. The above suit was resisted by the appellant. Respondent No.3 also filed written statement stating therein that their liability was only to the extent of Rs.20,000. A learned Single Judge of this Court on the basis of the pleading of the parties framed the following Issues:‑

(1) Whether the accident took place in which Asif Javed died, due to the alleged rash and negligent driving of the truck in question by defendant No.2?

(2) Whether persons for whose benefit the suit has been brought are beneficiaries under the Fatal Accidents Act?

(3) Whether the plaintiff is entitled to the damages claimed or any damages?

(4) Whether the truck in question stood insured on the date of the alleged accident with defendant No.3?

(5) What is the extent of liability, of defendant No.3 in case the suit is decreed?

(6) Relief?

4. Respondent No.1 in support of his suit examined himself and Ali Asghar, the injured eye‑witness who was travelling with the deceased on the same motorcycle and Muhammad Rahman, an Executive Officer, in the Pakistan Naval Submarine Ghazi. The learned Single Judge after hearing the parties decreed the. suit in the above terms.

5. The appellant being aggrieved by the above judgment and decree his, filed the present appeal.

6. We have heard Mr.Habibur Rehman, learned counsel for the appellant and Mr.Dastgir Ghazi, learned counsel for respondent No.1.

7. We are inclined to maintain the findings of the learned Single Judge on the above Issues Nos.1, 2, 4 and 5 as there is sufficient evidence to prove negligence on the part of respondent No.2 who was driving the truck owned by the appellant but we are of the view that the decretal amount is on the high side. As observed hereinabove that the deceased at the time of his death was drawing salary of Rs.1,325 per month in addition to free medical facilities, conveyance allowance of Rs.90 per month in lieu of ration which was Rs.5.30 per day children free education in Pakistan Navy Schools and free accommodation. The learned Single Judge assumed that the deceased would have been promoted in the normal course and would have been drawing salary of Rs.5,300 per month as a Sub‑Lieutenant though at the time of his death he was Chief‑Petty Officer as stated hereinabove. After having assessed the above monthly income the learned Single Judge was of the view that the deceased would have provided financial assistance to his parents to the extent of Rs.2,500 per month out of the average monthly salary of Rs.5000. We are inclined to hold that the above figure is not reasonable and is on the high side as in normal course the deceased would have got married and would have a family to support. In our view Rs.1,250 would have been a reasonable figure of the monthly financial assistance by the deceased to his parents. We would, therefore, substitute the above figure in place of Rs.2,500 er month. Keeping in view the evidence on record as to the history of long ages min the family of respondent No.1, we concur with the finding of the learned ~Single Judge as to the 70 years as the expected span of life. The respondent No.1 was aged 55 years whereas his wife was aged 52 years at the time of the death of the deceased. Accordingly the respondent No.1. would have received financial assistance for a period of 15 years whereas the deceased's mother would have received financial assistance for a period of 18 years. Therefore, the deceased's mother would be entitled to an additional amount for a period of three years at) the rate of Rs.675 per month being the half of the above monthly amount assessed i.e. Rs.675x12x3‑Rs.24,300. Whereas respondent No.1 and his wife at the rate of Rs.1,250 per month for a period of 15 years are entitled to 4 Rs.1250 x 12 x 15 = Rs.2,25,900. We accordingly decree the suit against the appellant/defendant No.1 and respondent No.2/defendant No.2 for a sum of Rs.2,50,200 (i.e. Rs.2,25,900). However, in respect of respondent No.3 defendant No.3 we maintain the decretal amount Rs.20,000 as was decreed by the learned Single Judge which amount will be adjusted against the above decretal amount of Rs.2,50,200 in case it is recovered from respondent No.3/defendant No.3. The 4zrespondent No.1/plaintiff will also be entitled to proportionate costs and 10% interest on the decretal amount as decreed by the learned Single Judge.

8. The appellant has given undertaking to pay, the decretal amount within 6 weeks and has also given undertaking not to dispose of his Bungalow, bearing No39 situated in Banglore Town, Karachi‑8 till the payment of decretal amount. We hereby attach the above bungalow till the above decretal amount etc. is paid by the appellant.

9. With the above modification the judgment and decree are maintained, the appeal is disposed of in the above terms.

10. H.B.T./Z‑51/K Order accordingly.