' KHILJI ARIF HUSSAIN, J.---The plaintiff, widow of deceased Major Wajid Hussain, has filed the suit for damages amounting to Rs,78,88,391 under Fatal Accidents Act, 1855.
' Briefly the facts are the plaintiff is the widow of Major Wajid Hussain, who died in a road accident on 26-10-1989, with a bus, bearing Registration No,965-157, driven by defendant No,3, owned by defendant No,2 within the control of defendant No,1. It is alleged in the memo. Of plaint that defendant No,3 while driving bus, bearing Registration No,965-157, on 26-10-1989 at about 1600 hours in rash and negligent manner while going from Karachi to Hyderabad on Super Highway, when, reached near 30 K.Ms. Away from the Toll Plaza dashed the car of the plaintiff coming from Hyderabad to Karachi, in a bid to overtake other vehicles in a vary fast speed and consequently Major Wajid Hussain and his wife, i.e, plaqintiff two minor children got severe injuries, and Major Wajid Hussain succumbed to the fatal injuries caused to him in the accident. The car of the deceased was also got damaged completely. It is alleged that the death of the deceased was caused by the actionable wrong, negligence, default and wrongful act of the defendant No,3, servant/employee of defendant No,2, financed by defendant No,1 and as such defendants Nos.1 and 2 are legally and vicariously liable to pay the compensation to the plaintiff and other legal heirs. The deceased at the time of death was 35 years' old. The plaintiff claimed following amounts as compensation: (1)Earning per month at the rank of Major for two years, i.e, till 37 years: (7417.33x12x2) .......Rs,1,78,015.92 (2)Earning per months at the rank of Colonel for five years from 37 years of age i.e, till the age.Rs,6,00,000.00 (10,000x12x5) .....
(3)Earning per month at the rank of Brigadier for eight years from 42 years the age of 50 years at(15,000x12x8) .........Rs,14,40,000.00 (4)Earning per month at the rank of General for next 12 years i.e, 62 years from the age of 50 years earning per month at Rs,20,000 (20, 000x12x12) .........Rs,28,80,000.00 (5)Earning Rs,25,000 per month after retirement till age of 75 years at least for 10 years from the age of 65 years with three years preparation period for farming.....
TotalRs,30,00,000.00 Rs,68,02,015.00 Less personal expenses at 1/6th on the total for 40 years ......
Net Total .......Rs,11,33,623.00 Rs,56,68,351.00 (6)Damages on account of loss of bright career of the minor children due to loss of paternal care, assistance, guidance and training by minor children .........Rs,10,00,000.00 (7)Damages of consortium and loss of association by the widow .....Rs, 10,00,000 .00 (8)Damages of Sunnay Nissan car ....... Rs,2,00,000.00 (9)Funeral Expenses Grand Total .........Rs,20,000.00 Rs,78,88,391.00 ' On behalf of the defendants Nos.2 and 3 filed their separate written statements and denied their liabilities. It is alleged by the defendants that accident was occurred due to rash and negligent acts of the deceased and the deceased without having notice of clearance of his side overtook fodder grass trucks and suddenly appeared on the wrong side and dashed his car with the bus of the defendants and accordingly they are not liable to pay any compensatibn. On the basis of pleadings between the parties the following issues by consent of the parties were framed:--
(1) Whether the death of deceased Maj. Wajid Hussain was caused by the actionable wrong, negligence and default of defendant No,3 or he died due to his own act of negligence and rash driving?
(2) Whether defendant No,3 was driver of defendant No,2 and employee of defendant No,1 at the time of accident (while driving the Bus No,965-157)?
(3) Whether the defendants are liable to pay the damages/compensation to the plaintiff and other legal heirs jointly or severally?
(4) Whether the plaintiff is entitled to cash and interest/profits as claimed?
(5) What should the decree be?
' On behalf of the plaintiff the plaintiff appeared in witness-box and produced Nikahnama as Exh.6/P-1, Death Certificate as Exh.6/P-2, F.I.R. As Exh.6/P-3, national identity card of the deceased as Exh.6/P-4, national identity card of the plaintiff as Exh.6/P-5, Birth Certificate of Shehmeer Hussain and Mehwish, son and daughter of deceased, as Exhs.6/P-6 and 6/P-7 respectively. Pay Bill of deceased Major Wajid Hussain as Exh.6/P-8 and copy of letter dated 18-1-1993, awarding Sitara- e-Basalat to deceased Major Wajid Hussain, as Exh.6/P-9. Plaintiff also examined Muhammad Ismail, Inspector at Police Station Gulberg and Khalid Dad, Deputy Superintendent, Rangers, who produced Pay Bill as Exh.8/1, Inquiry conducted by them as Exh.8/3, Photographs of the vehicles involved in the accident as Exhs.P-10 & P-11. Plaintiff also examined Muhammad Ismail, Investigation Officer (P.W.2) and Khalid Dad (P.W.3), who produced gross salary bill as Exh.811, Pay Bill as Exh.812 and Investigation Report as Exh.8/3.
' On behalf of the defendant one Muhammad Bachal and defendant No,3 appeared in the witness- box and were cross-examined by the plaintiffs as D.W.1 and D.W.2.
' Heard Mr. Dilawar Hussain, learned counsel for defendant No,2 and my findings on the issues are as under:-- ISSUES NO.1 & 2: ' The plaintiff Mst. Feroza Wajid widow of Major Wajid Hussain in her statement stated that her husband was driving the car and she was sitting by the side of her husband on the front seat and on the back seat her two children, namely , Shehmeer Waijd and Mehwish were sitting, when they were coming to Karachi from Hyderabad the said witness further stated that bus, bearing Registration No,965-157, which was coming from Karachi to Hyderabad, dashed with their car. The plaintiff stated that the bus was being driven at a very high speed rashly and negligently in a zigzag manner and the accident had occurred due to the negligence of the driver of the said bus.
The plaintiff further stated that the driver of the bus overtook the other vehicles on the road at the time and came on the wrong side and dashed with their car, in which the plaintiff along with her deceased husband was travelling, resulting that the deceased died on spot and plaintiff along with two minor children were injured. In cross-examination the plaintiff stated that there was traffic on the road and her husband was driving towards his side. The witness denied the suggestion that there were two trucks of fodder ahead of their car coming towards Karachi. The witness further stated in her cross-examination that the bus in question was coming towards the left hand and their car was going towards right hand side and denied the suggestion that the car, in which the plaintiff was travelling, tried to overtake the trucks of fodder and after taking over two trucks same was hit with the bus. The witnesses stated that the buss and the car after the accident were at the right hand side and denied the suggestion that they were on left hand side of the road. The witness denied the suggestion that the accident had occurred due to the negligence of deceased.
' Muhammad Ismail, Inspector of Police Station Gulberg examined as Exh.7 and in his statement he stated that he lodged F.I.R. No,213/89 under sections 304-A, 279, 337, P.P.C. In his cross-examination he stated that the SRTC Bus, i.e,, the bus in question, was standing on the extreme left portion of the road which was katcha. In reexamination the witness stated that when he visited the site, bus was standing on the left katcha portion of the road, however, if an accident takes place on the main road, the traffic authority move the vehicles, from the main road to the side to enable smooth flow of traffic.
' From the evidence of the said witness one cannot say whether the accident had taken place due to any act of negligence on the part of A the deceased or defendant.
' In the evidence of Mr. Khalid Dad, Deputy Superintendent Rangers, Exh.8, produced Investigation Report as Exh.8/3. From perusal of Exh.8/3, it appears that about five witnesses were examined by the Committee constituted for holding the inquiry and they also visited place of incident. In the said Inquiry Report, defendant No,3 in answer to a question stated that he was driving initially at 100 to 110 Km per hour, but on seeing the car he applied the brake, whereupon the speed reduced to 40 Km per hour. The witness further stated that "After covering a distance of about 42 Km on Super Highway I saw a truck loaded with grass approaching I started overtaking the vehicle in the front of me while I was in the process of overtaking I suddenly saw a car trying to overtake the grass loaded truck".
' One Major Afzal Hussain was also examined before the Inquiry Committee, who arrived immediately after the incident and he stated that though I reached few minutes after the accident took place, but it appears that the accident took place due to over speeding of SRTC Bus, bearing Registration No,965-157.
' This Inquiry Committee gave finding that the deceased tried to avoid accident by giving emergency horn to bus driver by applying brakes and moving car to the left side but was helpless and the driver of the bus in the process of overtaking the bus at very high speed even resulting into accident with the car of the Officer.
' On behalf of the defendant one Muhammad Bachal (D.W.2/1), conductor in the Corporation of the defendant and Din Muhammad, defendant No,3, were examined. Muhammad Bachal in his evidence stated that at present he is working as conductor in the defendant corporation and stated that he was standing at the front gate of the bus in question at the time of accident and defendant No,2 was on his sideline, but towards opposite direction loaded fodder grass truck were coming and defendant suddenly appeared on the wrong side thereby dashed his car with the bus driver defendant No,3 He further stated that bus driver defendant No,3 applied brakes, took all precautions remedy so he avoided the collision. Almost identical evidence was given by defendant No,3. Once the accident is admitted the presumption of negligence arises, the question is who was at fault due to which accident occurred.
From the evidence on record it is very difficult to give a definite finding that on account of whose negligence accident in question occurred. The plaintiff was travelling along with deceased in car stated that while overtaking the bus came on the side of the car resulting accident whereas the defendants stated that bus was going towards Hyderabad at normal speed, but the deceased, who was driving car in high speed while overtaking grass fodder trucks hit the bus. The burden of proving the contribution leading to the accident rests upon the defendants. The findings recorded in the Inquiry Report cannot be relied upon unless author of the report himself appear in the witness-box and give evidence. The defendants' witness in his evidence stated that while overtaking the truck, the deceased hit his car with the plaintiff's bus, whereas plaintiff stated that defendant was driving bus in zigzag manner and hit the car of the plaintiff.
' For the foregoing reasons in my humble view possibility of negligence on the part of the deceased as well as driver, defendant No,3, cannot be ruled out but if defendant would have been driving bus at the normal speed then it was not difficult for defendant No,3 to avoid such major accident.
ISSUES NOS.3, 4 AND 5: ' In view of my findings on Issue No,3, the defendants are jointly and severally liable to pay compensation to the plaintiff and legal heirs of the deceased.
' As regard the compensation, the deceased left a widow, nne son, one daughter, father and mother. The deceased at the time of incident was drawing Rs,7,599 per month (Exh.6/P-8) and was of 35 years of age. The average span of life is taken as 70 years, therefore, he would have been in funding position for the next 35 years. The plaintiff also claims damages amounting to Rs,20,00,000 on account of loss of career of the minor children, due to loss of paternal care, assistance, guidance and loss of association by the widow/plaintiff.
' In the case of Abdul Kadeer Ebrahim Sura and another v. Koshinath Moreshwar Chandain AIR 1968 Bombay 269, it was held as under:-- "The next question is whether applicants No,1 in both the cases are entitled to damages on the ground of loss of consortium. Under common law, a husband can always bring an action from compensation from 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 of her society and service, that is consortium-et servitium. However, in the case of death no claim on this ground could be made and, therefore, if death ensued, the husbands claim for loss of consortium-et servitium is limited to the interval between her injury and her death. But then by the Fatal Accidents Act, the common law itself was modified and action came to be permitted even where a person died by the wrongful act of another. The section as worded clearly entitles all those for whose benefit the action is brought to an award of damages for the injury suffered by anyone of the claimants. The word injury is a word of large import and cannot be restricted to mean monetary injury only. If this is so, apart from claiming monetary damages that the claimant has suffered, the claimant would also be entitled to compensation in respect of any other injury suffered, and one of the heads of such injury would be the loss of society of the deceased. Mr. Pagnis contended that there is no decision, which has recognized this right under the Fatal Accidents Act. It may be that because of the position obtaining in common law, a specific claim may not have been made in England. It may be that it may have been Made and allowed and the cases have not been noticed. No case has defined and limited the heads under which under section 1 of the said Act such claim could lie. In Barry v.
Humm, and Co. 1951-1 KB 627 Secrutoon negatived a contention that under section 1 compensation only for pecuniary loss was available to the relatives. The learned Judge said: "I can see no reason in particular why such pecuniary loss should be limited to the value lost, or the money value of things lost, as contributions of food or clothing and why, I should be bound to exclude the monetary loss incurred by replacing services rendered gratuitously by the relative, if there was reasonable prospect of their being rendered freely in future but for the death."
' In as much as the section does not limit the claim only to pecuniary losses, but enables the claimant to make the claim in respect of the injury sustained by the claimant, it seems to us that the applicants are entitled to make a claim on its ground also."
' This Court also grants damages for the deprivation of love, affection in association, a Division Bench of this Court in the case of Karachi Water and Sewerage Board v. Muhammad Moosa (2001 CLC 221), held as under:-- "As to the quantum of compensation the learned Single Judge has awarded the amount of Rs,50,00,000 for deprivation of the love and affection that the parents of the child suffered on account of the tragedy. It has been observed that loss of human life cannot be measured in terms of coins. Moreover, when deprivation of life is caused by a public functionary on account of breach of a public duty perhaps exemplary or penal damage can also be awarded. In the circumstances we are not inclined to interfere with the findings of the learned Single Judge on this score. "
' No evidence has been produced about the value of car or repair and accordingly claim in this regard cannot be allowed.
For the foregoing reasons the plaintiff is entitled for the following compensation:--
1. Earning per month at the rank of Major at the time of his death Rs,7,599 per month as shown by Exh.6/P-8 for eight years till 1997 [7599x12x8] Rs,7,29,504..........Rs,7,29,504 2. The deceased would have started earning Rs,12,773 on the same rank without promotion had he remained alive and not died in the accident as shown in Exh.8/2 and thus out of his 25 years remaining service till the age of 60 years after deducting the above 8 years he will be left with 17 years more to work on with the said salary coupled with the chances of promotion as shown in the evidence and thus on moderate scale..........Rs,26,05,692 and on average the prospective loss of income at the monthly income of Rs,12,773 Would turn to be [12,773/x12x17].
3. For remaining 10 years after the retirement as shown in the evidence he could have done the work for cultivation and would have earned a sum of Rs,10,000 on average though stated to be 35,000 in evidence which was not challenged but for carrying a sum of Rs,10,000 is being taken to be earn for further 10 years till the age of 60 years which comes to [10,000x12x10]..........Rs,12,00,000
4. Aggregate loss of pecuniary benefits for 35 years comes to [7,29,504 + 26,05,692 + 12,00,000]...........Rs,45,35,196
5. 20% advancement in income [45,35,196- 5]..........Rs,9,07,039
6. Gross loss of pecuniary benefits [45,35,196 + 907,039]..........Rs,54,42,235
7. Personal expenses at the rate of 1/6th as per 1997 CLC 955 [54,42,235-5]..........Rs,9,07,039
8. Net loss of pecuniary benefits 54,42,235 - 9,07,039]..........Rs,45,35,196
9. Damages on account of loss of bright career of the minor due to loss of paternal care, assistance, guidance and training by minor children @ Rs,200,000 per child as per 2005 MLD (sic)..........Rs .4,00,000 (10)Damages for consortium and loss of association by the widow Total pecuniary loss Less 25% Grand Total ...........Rs,1,00,000 ..........Rs,50,35,196 ..........Rs,12,58,799. ..........Rs,37,76,397 ' As I have held hereinabove that accident has been caused due to negligence of deceased and defendants No,3, I reduce the damages on the account by 25 % (reference is made to the reported case of Arifuddin v. Government of Sindh (PLD 1991 Karachi 291). Thus the suit of the plaintiff is decreed against the defendants in the sum of Rs,37,76,397 with the profit at the rate of 10% per annum from the date of decree till recovery of the amount with no order as to costs. The decree shall be satisfied within a period of 30 days.