' MRS. QAISER IQBAL, J.---The plaintiffs have filed suit for recovery of Rs,55,00,000 against the defendant under the provision of Fatal Accidents Act, 1855.
' The facts leading to the case are that Muhammad Naveed aged 27 years died on 18-11-2000, on account of fatal injuries caused to him in the traffic accident occurred on 8-11-2000, within the territorial jurisdiction of Napier Police Station Karachi South. The deceased left behind the plaintiffs, all are minor daughters, as surviving legal heirs, besides widow Mst. Bilqees and his parents Abdul Sattar and Mst. Zohra, statutory beneficiaries entitled for compensation under Fatal Accident Act, 1855, (hereinafter referred to "Act 1855") for the sake of brevity. The plaintiffs through their next friend Muhammad Hanif had resorted to file suit for their benefit as well as for the benefit and interest of the legal heirs of the deceased. Defendant No,2 is the registered owner of the Trailer bearing No,JT-6006, as per record of the Excise and Taxation Department, Motor Registration Wing, Karachi, same was plied remained under the control and possession and management of the defendants Nos.1 and 2, the defendant No,3 was the servant of the defendants Nos.1 and 2 and was plying trailer, on the fateful day, during the course of his employment fatal accident took place, resulted in the death of plaintiff's father. The incident occurred due to rash negligent and careless driving of the trailer by the defendant No,3 at Napier Road on its way towards the Denso Hall when reached opposite Al-Hussaini, Pan Shop, at 1915 hours wrongfully dashed a motorcycle, as a result, a motorcyclist Muhammad Naveed got fatal injuries shifted to Civil Hospital in critical condition and succumbed to the injuries sustained by him. The defendant No,3 was booked by the police of Police Station Napier, in FIR No,81/2000. It is alleged that the defendant No,3, during the course of S.No.DESCRIPTION AMOUNT (RS):
1. Monthly income of the deceased was Rs.6,000 per month, who was working as outdoor Incharge with M/s. Kohi Noor Traders, Jodia Bazar, Karachi, its minimum income would be taken at Rs.5,000 annual pecuniary benefits would be Rs.5,000 plus 12 = 60,00060,000.
2. The average life span in view of the preponderance of authority25,80,000.employment of the defendants Nos.1 and 2, on account of negligence and wrongful acts had caused accident resulted in the death of Muhammad Naveed, therefore, vicariously liable to pay the compensation to his legal heirs. Deceased Muhammad Naveed was aged about 27 years enjoying good health, he ought to have survived to the age of 70 years, on account of the long life in his family pedigree, expected to earn pecuniary benefit to the extent of Rs,55000, as deceased was working as outdoor Incharge with M/s. Kohi Noor Traders, Jodia Bazzar, Karachi, earning Rs,6000 per month at the time of his death. Deceased was the man of high competence intended to start his own trading work, with the passage of time he would have earned plenty of the money as well as increment in his employment at the rate of 13% per annum, sufficiently be assumed.
Deceased was anxious to educate the plaintiffs/his minor daughters but his sudden death spoiled their future. It is urged that widow Mst. Bilqees was deprived of association of her deceased husband and was compelled to live in odd circumstances, therefore, she claimed Rs,2,00,000 under the head of consortium and Rs,10,000 is claimed on account of the funeral expenses, the plaintiffs claimed a sum of Rs,5,00,000 each for the loss of chances for better prospectus of future and better merital chances. The plaintiff has prayed for the judgment and decree as under:--
(a) A decree in the sum of Rs,55,00,000 against the defendants jointly and severally to pay the said sum of damages/compensation to the plaintiffs or any other amount this Hon'ble Court may deem fit under circumstances of the case.
(b) Profit/mark-up at the rate of 15% per annum on the amount claimed in Clause (a) above from the date of filing of the suit till the date of realization of the decretal amount which the plaintiffs would have earned had the defendants paid the said amount.
(c) Cost of the suit may be awarded to the plaintiffs.
The defendants did not contest the suit and were declared ex parte, consequent thereof affidavit- in-ex parte proof was filed by the plaintiff's next friend Muhammad Hanif. The learned counsel appearing for the plaintiffs has contended that the facts of consulting the offence are uncontroverted and unchallenged. The affidavit in evidence filed by the next of kin of the plaintiff shows that a trailer was involved, owned by the defendant No,1, managed by the defendants Nos.1 and 2 jointly and was rashly and negligently plied by the defendant No,3, which resulted in the accident of deceased Muhammad Naveed, consequent thereof, he expired. This factum is proved first through F.I.R. Placed on record, wherein the defendant No,3 was booked for the commission of the crime. As the question of the legal heirs of deceased are concerned he had left behind the plaintiff minor daughters, widow, father and mother. This fact also remained uncontroverted.
Deceased at the time of his death was drawing Rs,6,000 per month, who was aged about 27 years with an expectancy of life of 70 years, as per past history of his family, therefore, the claim of the plaintiff under the Act, 1855, is IA calculated as under:-- initiated by this Court is upto 70 years so as loss of death was for 43 years, which comes to Rs.60,000 plus 4 = 25,80,000
3. In addition to above 20% advance income was payable to the deceased Muhammad Naveed, which comes to Rs.5,16,000.5,16,000
4. Gross loss of pecuniary benefits Rs.25,80,000 plus 5,16,00030,96,000
5. The learned counsel for the plaintiff has contended that the plaintiff's minor daughters due to death of their father has sustained loss of comfort, better education and position in society, loss to better matrimonial prospectus, which they have enjoyed in the lifetime of their father and cannot be deprived of due to untimely death become Rs.20,000.20,000
6. Rs.20,000 on account of association and consortium by the widow as claimed in the plaint Rs.200,0002,00,000
7. Rs. 10,000 on the funeral expenses as claimed in the plaint10,000 Total Rs.
22,10,000 ' The total loss of benefits on account of wrongful death comes to Rs,30,96,000 plus Rs,22,10,000, totaling Rs,53,06,000.
The Fatal Accidents Act, 1855, did not lay down any principle for calculating the measure of loss but an estimate is made by the Courts, therefore, the award of damages vary from case to case. The apex Court of Pakistan in case of Sri Manmatha Nath Kuri v. Moulvi Muhammad Kokhlesur Rehman (PLD 1969 SC 565) laid down the dictum that the determination of the quantum must be liberal not niggardly, since the law values life and limb in generous scale. The Court should not attach weight to the technicalities, the damages in favour of the children due to death of their father are also recoverable for the loss of education comfort and position in society, which they would have enjoyed in the lifetime of their father. Deceased Muhammad Naveed, at the time of his death was survived two daughters aged three years and one year, while one child took birth on 13- 9-1992, after four months of his death and at the time of the filing of the suit the child was only 10 days old thus the newly born child was deprived of the care education, comfort and disposition in society. It is held in PLD 1969 Supreme Court referred (supra) "as the parents may recover for the loss of the probability that the deceased child would have contributed towards their maintenance and children may recover for the loss of education, comfort and position in the society, which they would have enjoyed if the father had lived and maintained the income which had died with him.
The basis of assessm ent 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 . "
' The above view was fortified in case of Saghir Ahmed Ansari v. Karachi Electric Supply Corporation (2001 YLR 788) and Raghunath v. G.I.P. Rly. Col. (AIR 1968 Bombay 269 Para.II) in the above cited case the question considered was, whether the applicant No,1 in both the cases entitled to damages on the ground of loss of consortium. Under common law a husband can always bring an action for compensation for loss of consortium for physical injury caused to his wife and also the wife could. The husband could sue the wrong doer for the loss in society and service, i.e,, consortium and seriatim, however, in the case of death no claim on this ground could be made, therefore, if death ensued, the husband claim for loss of consortium and seriatim is limited to the interval between her injury and her death. But under the fatal accident act the common law itself was modified and action claims to be permitted where a person died by the wrongful act of another this section is worded clearly and entitles all those :for Whose benefit the action is brought award of the damages for the injury suffered by anyone of the claimant.
' In case of Muhammad Moosa v. Karachi Water and Sewerage Board (1997 CLC 925) it was observed that:- "In the aforesaid circumstances the question relating to her approximate income is not free from difficulty. However, as the loss of human life could be weighed in golden scales and deprivation of love and affection of minor child on the part of her parents could be measured in terms of coins ends of justice would be sufficiently served by awarding a lump sum amount of compensation to the extent of Rs,500,000 to both of them for the shock sustained by them and deprivation of love and affection, association and company of the minor baby."
It is well-established principle of law when the factum of accident is proved which resulted in the accident of deceased and consequent death. The defendants remained absent for one or the other reason, therefore, the onus shifted upon the defendants was not discharged. The defendants are liable to pay compensation to the plaintiff and legal heirs of the deceased for the damages sustained by them.
' It is established law that no hard and fast rule has been set for arriving at the conclusion regarding assessm ent of damages as contemplated under Act, 1855, each case is decided on its own facts and circumstances, however, the guideline in case of Pakistan Steel Mills Corporation Limited v. Malik Abdul Habib (1993 SCMR 848), Mst. Farzana Shabbir v. Islamic Republic of Pakistan (2005 MLD Karachi 401). It is revealed "that by way of legal precedents, some guidelines/Principles could be deduced which could be followed/taken into consideration in each case for determining more rational and appropriate claim of compensation".
The evidence brought on record is not controverted from the side of the defendants, it will be just and proper to hold that deceased father of the plaintiffs would have survived upto the age of 70 years, could have earned Rs,6,000 per month as average income, which could increase upto 20% to 30% in the coming years and deceased ought to have spent 1/5 on his personal expenses. After deduction of the expenses to the tune of 1/5 of the amount earned by the deceased, the remaining amount would be claim of the compensation payable to the plaintiffs under the Act, 1855, comes to Rs,47,80,420.
In view of above discussion, the suit filed by the plaintiffs is decreed in a sum of Rs,47,80,420 with cost. The aforesaid sum of recovery shall be apportioned amongst the plaintiff's, widow and parents of Muhammad Naveed, according to Sunni, Hanafi law of inheritance. To secure the interest of minor plaintiffs, it is ordered that after the recovery of decreetal amount their share shall be deposited with the Nazir of this Court, who shall invest the same in a profitable saving scheme of government for the benefit of minors.