ZULJAN Versus TARIQ AHMED
ANWAR ZAHEER JAMALI, J. ‑‑ ‑This appeal under Article 3 of the Law Reforms Ordinance, 1972, has been directed against the judgment and decree dated 2‑7‑1992 and 2‑5‑1993 respectively, passed in Suit No. 1174 of 1989, whereby suit for recovery of Rs.20,00,000 under the Fatal Accident Act, 1855, instituted by the appellant was dismissed by learned Single Judge of, this Court.
2. Relevant facts leading to this litigation are that on 17‑10‑1988 the father of the appellant, named. Tawakkal Khan, while standing on road side‑near Al‑Aisha Square, Gizri Road, was hit by Car No.040‑084 and after remaining unconscious for three days he succumbed to such injuries in the hospital on 21‑10‑1988. According to the case of the appellant, the car involved in the accident belonged to respondent No.1 while it was driven rashly and negligently by respondent No.2, which resulted in the accident.
3. In paragraph one of the plaint, list of the legal heirs of deceased Tawakkal Khan has been given, which shows that the deceased, who died at the age of 25 years, had left behind father, mother, widow, plaintiff (appellant) daughter aged about 3 years and son Jamal Khan, who was born posthumous. It has further been stated in the plaint that deceased was maintaining good health, in the normal course of life he would have survived upto the age of 75 or 80 years and would have given pecuniary benefits to his legal heirs to the extent of 119.20 lacs. Details about the jobs undertaken by the deceased have also been given in the plaint to disclose his monthly income from various sources.
4. It seems that after service of summons in the suit, both the respondents remained absent and thus suit proceeded ex parte against them. At the stage of evidence, the appellant examined her uncle Durdana Khan (P. W .1), who reiterated the contents of the plaint on oath; Eye‑witness of the incident Muhammad Aslam (P.W.2) who in his affidavit‑in‑evidence, disclosed that he is eye‑witness of the accident and gave the details of the accident, as a result of which, due to the rash and negligent driving of Car No.040‑084 by respondent No.2, deceased Tawakkal Khan, who was sanding on road side, died in the accident. The appellant also examined another witness Sabir Khan, who deposed about the income of the deceased Tawakkal Khan. The evidence of all these witnesses remained un‑controverted, as both the respondents (defendants) remained ex parte and died not come forward to cross examine them.
5. The learned Single Judge while passing the impugned judgment and deciding the fate of the suit, framed following points for determination:
1. Did Tawakkal Khan die in a road accident?
2. Was Car No.040‑084 involved in the accident?
3. Was the said car owned by defendant No. 1?
4. Was the said car being driven by Defendant No.2 at the time of the accident?
5. Was defendant No.2 driving the car in a rash and negligent manner at the time of the accident?
6. What was the monthly income of the deceased?
7. Who are the beneficiaries of the deceased?
6. On Points Nos. 1, 2 and 4, learned Single Judge recorded his findings in the affirmative, while on Points Nos.3 and 5, he recorded his findings in the negative which resulted in the dismissal of the suit.
7. Mr. Nasir Maqsood, learned counsel for the appellant vehemently contended that since both the respondents in the suit had chosen to remain absent, therefore, the whole case of the appellant and the evidence adduced from her side on all material points had remained un‑controverted/un‑challenged from any corner and, in such circumstances, the case of the appellant was fully proved, but it was illegally dismissed by the learned Single Judge. He made specific reference to the observations of the learned Single Judge in the impugned judgment, which are available at page 5 of the judgment and read as under:‑‑
"Now, when a car is driven rashly and negligently it is not driven by the side of the road. It must, per force, be driven in the middle of the road or at least a good deal away from the side of the road (touching the foot‑path). Besides, side of the road is not meant for standing. If at all the deceased had any need to "stand" he should have stood on the foot‑path not on the side of the road."
And contended that such findings are not only conjectural but based on patent misreading of the evidence. He made specific reference to the evidence of P.W. Durdana Khan and Muhammad Aslam to show that the statement of both these witnesses about the rash and negligent driving of Car. No.040‑084 had gone unchallenged and unrebutted and thus the learned Single Judge had no valid and lawful justification to discard such evidence on mere presumptions and conjectures. He further contended that the discrepancies in the depositions of witnesses highlighted in the impugned judgment were not material to decide the claim of the appellant, Moreso, when the witnesses belonged to the poor illiterate labour class.
8. We have carefully considered the arguments advanced by the learned counsel and also gone through the evidence available on record, which fully support the submission of learned counsel for the appellant that from the statements of witnesses examined from the appellant side, facts that the car involved in the accident was owned by respondent No.1; it was driven by respondent No.2; respondent No.2 was driving the car in rash and negligent manner, which resulted in the accident of the deceased and his consequent death, were fully proved. In view of this position, we arc inclined to held that the findings of the learned Single Judge on Points Nos.3 and 5 are based on misreading of evidence and the same are liable to be reversed and these points are to be answered in the affirmative.
9. Coming to the question of legal heirs of the deceased and his income, it may be observed that the claim of the appellant that the deceased left behind father, mother. widow, appellant (daughter) and son, who was horn after his death, has remained un‑controverted, so also other evidence as to the average income of the deceased ranging from Rs.3,000 to Rs.3,500 per month. In view of the above, we are inclined to work out the claim of the appellant under the Fatal Accident Act, 1855, in the following manner.
Monthly income at Rs.3,000 per month ‑‑ Rs.14,40,000 i.e. Rs.36,000 per year X 40 years.
20% expected increase in the income ‑‑ Rs.2,88,000
Total Rs.17,28,000
Less 1/6 of the income towards the ‑‑ Rs.2,88,000 personal expenditure of the deceased
‑‑ Rs.14,40,000
Funeral expenditure of the deceased. ‑‑ 15,000
Claim Total Rs.14,55,000
10. In addition to the above sums, following the rule laid down in the cases, (a) Sri Man Matha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman, PLD 1969 SC 565, (b) Saghir Ahmed Ansari v. KESC, 2001 YLR 788 and (c) Muhammad Moosa v. KW&SB 1997 CLC 925, and looking to the facts and circumstances of the case, more specifically the age of the widow and the .two minors, we are also inclined to allow Rs.1,00,000 each to the widow of the deceased and his two minor children, the appellant and son Jamal Khan due, to loss of the affection and association of the deceased which would have otherwise played important role in their lives.
11. In view of the above discussion, the impugned judgment and decree passed by the learned Single Judge is set aside and the suit filed by the appellant is decreed in the sum of Rs.17,55,000 with 6% markup from the date of the decree. The aforesaid sum when recovered, may be apportioned among the legal heirs of the deceased in the following manner:‑‑
(a) Father 10%
(b) Mother 10%
(c) Widow 10%
(d) Daughter (Appellant) 30%
(c) Son 40%
12. Upon realization the shares of the minors, i.e. appellant (daughter) and‑son Jamal Khan shall be deposited with the Nazir of this Court, who shall invest, the same in some profit bearing Government saving scheme for the benefit of the minors.
H.B.T./Z‑13/K Suit decreed accordingly.