ABDUL RASHID Versus SHAUKAT ALI KHAN

AJMAL MIAN, J.‑‑ This appeal is directed against the judgment‑decree dated 11‑10‑1987 passed by a learned Single Judge in Suit No. 70 of 1984 decreeing the suit of the respondents for a sum of Rs. 1,37,200 (after adjusting a sum of Rs. 14,000 received by them under section 67 of the Motor Vehicles Ordinance) for a period of 18 years at the rate of Rs. 700 per month.

2. The brief facts leading to the filing of the above appeal are that deceased Nargis Sultana aged 16 years who was the daughter of Respondents 1 and 2 while travelling on 5‑1‑1953 in the bus belonging to the appellants was killed on account of rash and negligent driving by Respondent No. 3, who was employee of the Appellants and was driving the bus. It was the case of respondents 1 and 2 that respondent No. 3 was racing with another bus at the lime of the fatal accident and did not stop at the usual bus stop and then on a turning all of a sudden applied brakes and because of the jerk, the deceased had fallen outside the bus and was crashed into the wheels.. The above suit was resisted by the present appellants. The learned Single Judge on the basis of the pleadings of the parties framed four issues. All the issues were decided by the learned Single Judge against the appellants. The appellant being aggrieved by the above judgement/decree have filed the present appeal.

3. In support of the above appeal, Mr. M.(;. Dastgir learned counsel for the appellants has urged as follows:‑‑

(i) That since respondents 1 and 2 have received a sum of Rs. 14,000 in full and final settlement of the claim under section 67 of the Motor Vehicles Ordinance, hereinafter referred to as the Ordinance, the suit was not competent.

(ii) That negligence was not proved.

(iii) That even otherwise the quantum of damages awarded by the learned Single Judge was on the high side.

4. Adverting to the first submission of the learned counsel for the appellants, it may be observed that the learned Single Judge has rightly relied upon the case of Mohammad Younus Khan V. K.R.T.C. 1984 CLC 230 and the case of Qaisar Ali v. K.R.T.C. reported in P L D 1986 Kar. 489. In both the above cases the learned Single Judge of this Court has taken the view that an action under the Fatal Accidents Act is different from a claim under Section 67 of the A Ordinance. We may also refer to a judgment dated 31‑1‑1988 given by one of us (Ajmal Mian, J.) in R.A. No. 378 of 1986 (National Construction Company (Pak) ; Ltd. v. Mst. Bhaghari), in which the deceased had died while in the employment of the petitioner on account of accident. The petitioner had deposited the amount of compensation under the Workmen's Compensation Act in discharging their statutory obligation. After that the suit was filed by the mother of the deceased. It was urged by the petitioner that the respondent after having received the amount of compensation under the Workmen Compensation Act was not competent to maintain an action under the Fatal Accidents Act. The above contention was rejected and it was held that an action under the Fatal Accidents Act is different and distinct from the statutory liability of an employer under the Workmen's Compensation Act. The above case also supports the conclusion arrived at by the learned Single Judge in the above case.

As regards the second submission of the learned counsel for the appellants that there was no reliable evidence to prove that respondent No. 3 was driving the bus rashly and negligently, it may be observed that the learned Single Judge has rightly relied upon P.W. Mohammad Akram on the above point who was a student and was travelling in the same bus. There was no reliable evidence in rebuttal to the above testimony. We, therefore, concur with the finding of the learned Single Judge on this point.

Reverting to the question of compensation it seems that the deceased was a girl of 16/17 years and was a student of Inter Science. According to the evidence of respondents 1 and 2 she was planning to become a Doctor. The learned Single Judge has assessed the amount of pecuniary loss at the rate of Rs. 700 per month for a period of 18 years after taking 60 years as the expected span of life of respondents 1 and 2.

5. We are inclined to hold that the monthly pecuniary loss Assessed by the learned Single Judge at the rate of Rs. 700 appears to be on the high side keeping in view the fact that the deceased after some time would have got married and would have been living with her husband and might have been supporting her own family. We, would, therefore, reduce the amount from Rs. 700 to Rs, 500 per month. Accordingly the decretal amount is reduced namely, Rs. 500 x 12 x 18 = 1,08,000 minus Rs. 14,000 being the amount of compensation already received by respondent 1 and balance of Rs. 94,000 (Rupees ninety four thousand only).

With the above modification the judgment and decree is maintained in all respects including the amount of interest.

A.A./K‑105/K

Order accordingly.