MUHAMMAD AFSAR KHAN Versus SAMUNDAR KHAN

Plaintiffs being the legal representatives of deceased Dr. Azizur Rehman Abbasi brought this suit for damages to the tune of Rs.22,00,000 under the provisions of Fatal Accidents Act, 1855 in the following circumstances.

2. Unfortunate incident took place on 28‑11‑1981 at about 9‑00 a.m. on Sir Shah Suleman Road, Karachi when K.T.C. Bus No.KAZ‑9928 driven by defendant No.1 during the course of his employment with defendant No.2 dashed against the car bearing Registration No.038‑912 driven by the deceased who was on his way from Federal B Area to Mid East Medical Centre, Karachi. The deceased after obtaining M.B.,B.S. degree from Pakistan had been to England for post‑graduate studies and obtained higher degrees i.e. D.T.M. & H and M.R.C.P. He was employed as Senior Consultant Physician in the Mid East Medical Center w.e.f. 1‑11‑1981 at a salary of Rs.8,000 per month. According to the plaint, he was also entitled to 50 % of the total income from his practice which was Rs.16,000 and above per month. Since the death of the deceased occurred on account of rash and negligent driving of the bus with the result that not only the deceased was crushed but also his car caught fire causing his instantaneous death. He was 35 years of age at that time and pleading that normal life span of his parents being 70 to 80 years, he was reasonably expected to live till the age of 65 years, had it not been cut short by his premature death. Calculating his monthly income at the rate of Rs.8,000 as salary and Rs.8,000 by way of his share in the consultation fees, he would have earned Rs.s2,90,000 if alive but plaintiffs confined their claim to the tune of Rs.22,00,000.

3. Defendant No.1 did not contest the suit whereas the suit was contested by defendant No.2, who admitted the ownership of the bus and employment of defendant No.1 as driver with them but denied negligence on the part of their employee. Incident was not disputed but it was asserted that the deceased died due to his own negligence and carelessness for driving the car.

4. Pleadings of the parties were reflected in the following issues:

(1) Whether the death of the deceased was caused due to the negligence of defendant No.1 or on account of the negligence of the deceased himself?

(2) To what damages, if any, the plaintiffs are entitled? (3) Relief.

5. In support of their case, plaintiffs examined plaintiff Dr. Aziza Abbasi and Hafizur Rehman, brother of the deceased and attorney for defendants No.5 and 6 whereas defendant No.2 examined their Secretary, Karim Bux Siddiqui.

6. 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.

REASONS:

ISSUE No. 1

7. Unfortunate death of the deceased being not disputed in consequence of collision of his car with the bus belonging to defendant No.2 and driven by defendant No. l during the course of his employment sole point for consideration is that whether the death was on account of negligence on the part of defendant No. l or the deceased himself? It is common ground that no eye‑witness was examined in the suit but the incident being undisputed, it is of no consequence. In her evidence, Dr. Aziza Abbasi after narrating the events that preceded the employment of the deceased with Mid East, Medical Centre Karachi stated that his monthly salary was Rs.8,000 and if his income from treatment of patients in the Hospital exceeded ‑Rs.16,000 p.m., he was entitled to 50% of it. She stated on oath that on 28‑11‑1981 at about 9‑00 a.m. while he was driving his car from Federal B. Area on Sir Shah Suleman Road, a bus driven rashly and negligently by defendant No.1 dashed against his car with such high speed that due to its impact the car stuck with the bus. She maintained that the bus dragged the car up to a long distance which caused friction and the car caught fire resulting to the death of her husband who was driving the car on his left side.

8. The trend of the cross‑examination by learned counsel for defendant No.2 tends to show that her version relating to rash and negligent driving on the part of defendant No. 1, an employee of defendant No.2 resulting in death of the deceased was not controverted and more emphasis was on the circumstance that after the death of the deceased she had married and was living at Hyderabad while her second husband is settled at Karachi. Since the statement of the witness on material points was not challenged and rebutted in the cross-examination in the absence of any circumstance to the contrary it would be legally presumed to have been accepted by the defendants. On the other hand, though defendant No.2 in their written statement attributed carefree and negligent driving to the deceased not a single word was stated in the evidence of their witness, namely, Karim Bux Siddiqui. It is pertinent to observe here that the witness was not the author of the written statement which was signed by Mr. Ehsanullah, the then Secretary of K.T.C. In the circumstances of the case and analysis of the evidence of the parties coupled with lack of denial on the part of defendant No. 1, 1 am inclined to hold that the issue must be answered against this defendant who has not bothered, to appear and contest the claim. Expression of ignorance by defendants' witness whether defendant No. l was working with K.T.C. at the time of accident or that he had been removed from service speaks for itself as regards the truth of their stand which need not be commented further. The issue is answered accordingly.

ISSUE No. 2

9. In the written statement of defendant No.2, it is not denied that the deceased at the time of his death left the plaintiffs as his legal heirs/legal representatives. K.T.C. did not deny expressly that the plaintiffs suffered loss due to rash and negligent act on the part of defendant No. l and liability of both the defendants jointly and severally to compensate them. In the face of this situation, evidence of the widow of the deceased Dr. Aziza Abbasi to the effect that the deceased left herself, a daughter, namely, Samreen and two sons Sameer and Faisal and his father and mother, namely, Kazi Muhammad Akram and Mst. Lal Bibi must be accepted on the face of, it. It may be observed here that Mst. Lai Bibi mother of the deceased expired at the age of 67 years some times in 1988‑89 as disclosed by her son P.W. Hafizur Rehman while his minor son Sameer died in 1985 at the age of about 11 years leaving behind his mother, his sister, Samreen and his brother Faisal. It is in the evidence that the deceased used to maintain the plaintiffs from his income which in 1981 was not less than Rs.8,000 per month by way of salary. Evidence with regard to salary of the deceased in London in terms of pound stertlings was also led by his widow who also produced a Pay Slip Exh.5/1 but in my view it would not be relevant for the purpose of determining entitlement of the plaintiffs. Suffice to say that there is a Certificate Exh.6/6 from Mid East Medical Centre to show that the deceased was working with them as Senior Consultant Physician from 1st November, 1981 till the day he died in road accident on 28‑11‑1988. There is however no other evidence to indicate the income of the deceased from his consultation. His widow Dr. Aziza Abbasi in her evidence stated that besides his salary at Rs.8,000 per month he was entitled to 50% of his income from treatment of patients in the hospital if it exceeded Rs.16,000 per month.

10. In view of this statement by the widow of the deceased it was contended on behalf of defendant No.2 that the income of the deceased from consultation fees was not proved by any evidence muchless convincing and reliable evidence. There is considerable force in the submission of the learned counsel but this Court is competent to take judicial notice of the events taking place in the normal course of business. It is a matter of common knowledge that Mid East Medical Centre is a private hospital of high repute where Specialists working in different fields of medicine any surgery have been practising and attending a large number of patients with fees ranging from Rs.300 to Rs.500 per patient. No doubt, the scale of consultation fees may be on lower side in 1981 when the cost of life was not so high as obtaining this day probable and approximate average earning of the deceased throughout his career could not be less than Rs.8,000 per month at an average, taking into consideration day to day rising cost of life and corresponding scales of consultation fees.

11. As regards normal expectancy of life in Pakistan in a number of cases this Court has determined life expectancy up to the age of 70 years, but the plaintiffs have claimed damages showing the expectancy of life of the deceased up to 65 years of age. The expectancy of life shown in this case is neither unreasonable nor fanciful particularly because father of the deceased, namely, Kazi Muhammad Akram is still alive at the age of 78 years, as according to the evidence of Dr. Aziza Abbasi as well as P.W. Hafizur Rehman recorded in April, 1987 and September, 1990 respectively he was aged about 70 years. Allowing the margin of doubt to the defendants present age of the father of the deceased can be reasonably taken to be 75 years whereas mother of the deceased was 65 years of age in 1987. According to her son Hafizur Rehman she died at the age of 67 years in 1988‑89.

12. Adverting to the probable and approximate income of the deceased I am inclined to assess a sum of Rs.16,000 as his monthly income and allowing a margin of 50 % for his own expenditure in all probability he would be saved and spent a sum of Rs.8,000 per month for maintenance and upkeep of his family members, i.e. the plaintiffs. In fact there is no hard and fast rule or clear cut definite formula for assessment of damages as contemplated under section 1 of Fatal Accidents Act, 1855. Calculating his saving at the rate of Rs.8,000 p.m. his annual saving would come to Rs.96,000 and his saving for a period of 30 years i.e. up to the age of 65 years would come to Rs.28,80,000. The plaintiffs have, however, claimed a sum of Rs.22,00,000 by way of damages which on the face of it is just, fair and reasonable.

13. Learned counsel for defendant No.2 took an exception to the admission relating to second marriage by Widow of the deceased Dr. Aziza Abbasi in 1984 and contended that in law she would not be entitled to claim damages by way of maintenance after her second marriage. It may be observed here that no doubt, Dr. Aziza Abbasi admitted her second marriage during her cross‑examination but at the same time she explained that after her second marriage, her father‑in- law and mother‑in‑law had claimed the custody of her minor children which she was not prepared to surrender. She maintained that she, therefore, separated herself from her second husband and has been living with her children separately from him. No doubt, there has been no divorce between the parties, she clarified that she has been living at Hyderabad whereas her second husband is settled at Karachi. In this connection, learned counsel for the defendant No.2 referred to the case of The Oriental Fire and General Insurance Company Limited v. Shrimati Chandrawati and others AIR 1983 Allahabad 174 and State of Orissa v. Smt. Archana Nayak and others AIR 1987 Orissa 82. Both the cases deal with the entitlement of a Hindu widow on remarriage after the death of her previous husband and to my mind would not be attracted in the circumstances of the present case. Under section 22 of the Hindu Adoption and Maintenance Act, 1956, a widow ceases to be dependent on her first husband and thus if a widow remarries after the death of her husband, her dependency ends.

14. On the other hand, counsel for the plaintiffs has relied upon Karachi decision in the case of Mst. Kulsoom v. Jalil Ahmed Khan and another PLD 1964 (W.P.) Karachi 72. In this case, it was held by late Qadeeruddin Ahmed, J as his Lordship then was that a wife contracting a second marriage during pendency of suit under the Fatal Accidents Act could not be deprived of her share. This judgment was upheld in H.C. Appeal as well as in Civil Appeal No.K‑44 of 1969 by the Hon'ble Supreme Court.

15. Besides subsequent developments taking place after the institution of the suit cannot defeat the right accrued in favour of the plaintiff on the date of cause of action. This view was taken by Honourable Supreme Court in the case of the Province of East Pakistan, Major Nawab Khawaja Hassan Askary and others PLD 1971 SC 82 wherein the following rule was laid down:

"The ordinary rule is that the right of the party must be determined as on the date of the suit and not on the basis of right which accrued to them after the institution of the suit."

16. In the circumstances of the case I am inclined to the view that simply because plaintiff No.1 contracted a second marriage after the death of the deceased, this circumstance by itself would not deprive her of the benefits available to her under the law. Undoubtedly she was deprived of not only pecuniary advantage of the deceased but also his love and affection which she would have continued to enjoy but for his untimely death on account of negligence on the part of the defendant No. 1.

17. I am fortified in this view by the dictum laid down by the Honourable Supreme Court in the case of Manmatha Nath Kuri v. Muhammad Mukhlesur Rehman PLD 1969 SC 565 in which it was held that the basis of 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.

18. As regards apportionment of the amount, I would direct that 50% of the total amount be paid to the defendant No. l being her widow. A sum of Rs.2,00,000 shall be paid to the father of the deceased Kazi Muhammad Akram. Plaintiffs Nos.2 and 4, namely, Samreen and Faisal daughter and son of the deceased respectively shall receive a sum of Rs.3,00,000 each, while the balance amount of Rs.3,00,000 shall be paid to the legal representatives of plaintiff No.0 excluding plaintiff No.5 in equal shares.

19. At the close of the arguments, learned counsel for the plaintiffs Nos.1 to 4 prayed for award of interest from the date of suit till realization whereas Mr. Shamsuddin Khalid did not claim the same and rather stated at the Bar that plaintiffs Nos.5 and 6 are not interested in claiming any interest on the decretal amount. It may be observed that in the plaint drafted by Mr. Hussain Shah Rashdi, Advocate himself, no prayer for payment of interest was made. No doubt, the Court is competent to award interest notwithstanding any prayer in this behalf, in the peculiar circumstances of the case when K.T.C. is already faced with a lot of financial problems I am not inclined to award interest.

20. In the result, suit is decreed in the sum of Rs.22,00,000 with no order as to costs.

A.A./A‑50/K Suit decreed.