SABIHUDDIN AHMED, J.--- Through this appeal the appellant has called in question the quantum of compensation granted by the learned Single Judge while decreeing, her suit for compensation under the Fatal Accident Act, 1855. Briefly the facts stated by the appellants is that her husband Musadiq Hussain aged about 30 years and being in stable physical state was driving his taxi on 11- 5-1985 when he was hit by an Oil Tanker being driven by respondent No,2 and belonging to A respondent No,1, which proved to be fatal. Musadiq Hussain was stated to be the sole bread-earner of family comprising of his wife (the appellant) and two minor daughters, aged about 6 and 3 years. It was alleged that the Oil Tanker was being driven in rash and negligent manner on Rashid Minhas Road, Gulshan-e-Iqbal, which hit the taxi of deceased and caused an injury which proved to be fatal. The appellant, inter alia, filed a suit for compensation claiming a sum of about Rs,8,00,000 by way of compensation.
2. A written statement was filed by the respondent No,1 i.e, the owner of the tanker, wherein the factum of accident was admitted. However, the liability to pay compensation was denied and it was asserted that there was no negligence on the part of the respondent No,2 and in fact the accident took place because of deceased own negligence in attempting to overtake the tanker. No separate written statement was filed on behalf of respondent No,2, nor a word was stated about the comprehensive medical insurance elver having been obtained for satisfying such claim in the written statement. The respondent No,1 however, subsequently moved an application under section 96, Motor Vehicle Act, 1939, contending that the risk and was covered by a comprehensive insurance policy issued by respondent No,3 and the said respondent rather than, the respondent No,1 were required to satisfy the appellant's claim. According the respondent No,3 was also joined as a party to the suit, but neither any written statement was filed by the said respondent nor were any other measure taken to defend the suit.
3. The learned Single Judge framed following issues for consideration:--
(1) Whether the death of deceased Mussadaque Hussain was caused by the rash and negligent driving of the Truck bearing No,BA836482-836539 by the defendant No,2 belonging to the defendant No,1.
(2) Whether the defendants are jointly and severally liable to pay the damages/compensation to the plaintiff and other dependant legal heirs.
(3) Whether the plaintiff and other dependant legal heirs are entitled to cost and interest as claimed.
(4) What other relief or reliefs the plaintiff and other dependant legal heirs are entitled to.
4. The learned Single Judge upon consideration of the pleadings and the evidence adduced held that the factum of rash and negligent driving on the part of the respondent No,2 and the liability of the respondents Nos.1 and 2 to compensate the appellant stood fully established. However, with respect to the quantum of compensation the learned Single Judge only granted a sum of Rs,2,08,000 instead of the amount of Rs,8,00,000 and the suit was decreed jointly and severally against the respondents Nos.1 and 2 only for the said amount.
5. Mr. Nasir Maqsood, learned counsel for the appellant urged that the amount of compensation decree by the learned Single Judge was hopelessly inadequate (questioned the impugned judgment and decree on the following grounds)?:--
(i) That the life expecting of the deceased was taken as 65 years as against 70 years recognized in several pronouncements of this Court, some of which have been upheld by the Honourable Supreme Court.
(ii) That the learned Single Judge erred in disbelieving the unrebutted evidence of the appellant to the effect that the deceased used to give Rs,2,700 per month to the appellant and his finding to the effect that compensation ought to be calculated only at the rate of Rs,1,000 per month was purely conjectural.
(iii) That learned Single Judge also failed to consider that the amount earned by the deceased at the time of a fatal accident is never treated as a constant but an expected increased of 20% per year always taken into consideration for the purposes of determining compensation.
(iv) That after reduction of the amount of compensation upon remarriage of the appellant was altogether unwarranted.
6. Mr. Abdul Rauf, learned counsel for the respondent No,1 mainly argued that the vehicles belonging to said respondent were comprehensively insured with the respondent No,3 and basically it was the respondent No,3 and not the respondent No,1 which was liable to compensate the appellant. Mr. Shoukat Hayat, learned counsel for respondent No,3, however, refuted, the above allegation, contending that the statutory liability of the respondent No,3 is only confined to Rs,20,000 per passenger and in any event no evidence as regards comprehensive insurance of the vehicle was placed before the trial Court. He pointed out that the insurance policy upon which the respondent No,1 was attempting to rely was never produced in evidence. Having carefully heard the learned counsel we would proceed to record our conclusion with respect to all the questions raised.
7. With respect to the question of life expectancy we have noticed that indeed Mr. Nasir Maqsood appears to be right in contending that in a large number of recent decisions the Courts have assumed that a normal healthy person is expected to live upto the age of 70 years. For the sake of reference one may mention Amina v. Government of Pakistan 1995 M LD 1922 and Dost v. Pakistan Steel Mill 1996 CLC 530. Indeed this is so because of general improvement in medical facilities and C quality of life. At the same time however, it is only a presumptive and such presumption could always be displaced through evidence in a particular situation. However, in the instant case the appellant while presenting her claim before the trial Court never calculated the basis of compensation upon the said rule and therefore, the respondents were denied an opportunity to lead evidence to the contrary. In the circumstances it cannot be treated as a pure question of law which coul be raised even in an appeal.
8. At the same time however, the reported cases only tend to show that the life expectancy of a beneficiary can be presumed by 70 years. Nevertheless it cannot be assumed (that the earning capacity of a person also remains steady or keeps increasing till his demise)?. We are, therefore, clearly of the opinion that though a person may be legitimately expected upto 70 years, there is no basis for assuming that he would also keep earning the same or a higher amount till he reaches such age. In the circumstances we find no substance in Mr. Nasir Maqsood contention.
9. However, we find force in Mr. Nasir Maqsood's second contention. Indeed the appellant had alleged that the deceased used to earn about Rs,3,000 and paid Rs,1,000 towards instalments for the taxi. At the same time she stated that he would pay her Rs,2,700 or Rs,2,800 per month.
Obviously if the instalments were paid out of the total earning of Rs,3,000 there could be no possibility of his paying Rs,2,700 to the appellant. Nevertheless the record shows that not a single effort was made to cross-examine the appellant for explaining any obvious discrepancy in her evidence, nor was any evidence led to show that the statement as regards the amount of money being paid to her was incorrect. On the other hand it was quite plausible to assume that the amount of Rs,3,000 stated to be the income of the deceased was calculated after deducting the amount being disbursed for purchase of taxi. Moreover, the learned Single Judge also omitted to note that the deceased not being a salaried employ but a self-employed person the appellant was far more likely to know the amount she was receiving rather than his varying earnings through his own business. When her evidence on oath was not even challenged in cross-examination and no evidence in rebuttal was adduced there appeared no justification for rejecting her testimony.
10. Mr. Nasir Maqsood further argued that the finding of the learned Single Judge to the effect that even after deduction of instalments from the amount of Rs,3,000 (stated to be the monthly income of the deceased) the finding to the effect that another Rs,1,000 must have been used by him for personal expenses including addiction to Naswar were purely conjectural and liable to be set aside. We are indeed aware of a large number of the cases where it has been presumed that when the deceased person starts earning he would spend 1/3rd of his potential earning on himself.
Nevertheless it needs to be kept in view that the rule is merely presumptive and cannot prevail over evidence to the contrary. While the appellant deposed on oath that the deceased used to give her a particular amount for her upkeep and that of their two daughters, her statement was neither challenged in cross-examination nor rebutted through evidence. Again learned counsel is right in asserting that the finding as to addiction to Naswar was purely conjectural and based on no material on record. In any event it is extremely difficult to believe that a person earning a meagre amount of Rs,3,000 would pay Rs,1,000 towards purchase of a capital asset (taxi) spend another Rs,1,000 on himself and only provide Rs,1,000 for the upkeep of his family.
11. Mr. Nasir Maqsood also appears to be correct in asserting that the possibilities of a person's advancement in earning capacities is always taken into consideration in cases of such kind and normally, in the absence of evidence to the contrary or to her unusual circumstances, his income is expected to increase at the rate of Rs,20% per year. Moreover, he pointed out that the learned Single Judge failed to take into consideration the fact that in case instalments were being paid for acquiring a capital assets for the deceased at one point of time the instalments could be no longer payable and his net income would increase.
12. Coming to the last question the learned Single Judge appeared right in holding that the liability to maintain the appellant after her remarriage no longer devolved on the deceased. Learned counsel however, referred to a judgment of this Court in Kulsoom v. Jameel Ahmad Khan PLD 1964 Kar. 72, wherein it was held that a wife contracting remarriage during the pendency of a suit was not in the circumstances of the case deprived of her share in compensation. Even without going into this delicate question where difference of opinion appears to exist it can safely be stated in principle that when one beneficiary ceases to exist, his share does not lapse but becomes distributable amongst survivors. Therefore, even if we agree with the learned Single Judge, the amount of compensation payable cannot be reduced but must pass on to the surviving daughters of the deceased.
13. For the foregoing reasons we would modify the decree to the following effect.
14. While Mr. Abdul Rauf learned counsel for the respondent No,1, did not seriously contest the contentions raised by Mr. Nasir Maqsood he confined his arguments to the effect that the vehicles belonging to said respondent were comprehensively insured with the respondent No,3 and said respondent was liable to settle all claims. Learned counsel is correct to the extent that by issuing a comprehensive insurance policy the insurer undertakes to bear the liabilities of the insured in terms of the policy and a decree can be passed against him. Though the factum of existence of such policy was not referred to in the written statement the record shows that an application under section 96 of the Motor Vehicle Act, 1939 was moved before the learned Single Judge on 18-2-1987 i.e, before framing of issues. Nevertheless it appears that the respondent No,1 did not even attempt to get a notice to respondent. No,3 issued under rule 168 of the Sindh Chief Court (O.S.) Rules or suggest an issue regarding liability of respondent No,3.
15. In any event when the suit was decreed against the respondents Nos.l and 2 only the respondent No,1 did not even care to file a cross-appeal. Moreover, Mr. Shoukat Hayat also seems to be correct in asserting that when insurance policy itself was not produced before the trial Court the Court could not be expected to pronounce a decree against the respondent No,3.In the circumstances we have no option to record our inability to examine the contentions raised.
16. In view of our clear finding to the effect that the evidence of the appellant regarding receipt of Rs,2,700 per month ought to have been accepted, that appropriate allowance for increasing the income of the deceased should have been made and after the remarriage of the appellant the compensatory benefit receivable need to be passed on to the surviving daughters, the suit should have been decreed in terms of the amount claimed. We would accordingly modify the decree. With respect of the distribution of share of compensation we consider just and proper to order of Rs,2,00,000 be paid to the appellant and Rs,3,00,000 to each, of the minors. The unpaid amount would be subject to a mark-up at the rate of 14% per annum with effect from this judgment.