' ANWAR ZAHEER JAMALI, J.---This High Court Appeal is directed against the judgment and decree respectively dated 16-5-2005 and 31-5-2005, passed in Suit No,612 of 1994.
2. Facts relevant for the disposal of this appeal are that the respondents Nos.1 to 3, being legal heirs of deceased Sher Azam Khan, had filed a suit for recovery of Rs,3.5 million as compensation under Fatal Accidents Act, 1855. They had stated in the plaint that their late father Sher Azam Khan was driver on a PIA van on contract basis. On the fateful day, i.e, 11-4-1993 at 5-30 a.m. He was taking three Airhostesses in the said van from the Airport to their homes, when he reached near Muhammad Ali Housing Society, his van met with an accident with N.L.C. Trailer, which was coming from opposite direction in a rash and negligent manner, driven by respondent No,5. In the result, Sher Azam Khan and three Airhostesses in the said van died.
3. On institution of suit, notices were issued to appellant and respondents Nos.4 to 6, being defendants in the suit. The appellant and respondents Nos.4 and 5 in their joint written statement did not deny the fact of accident caused by NLC Trailer driven by respondent No,5. However, they attempted to shift the responsibility of accident at respondent No,6, as at the place of occurrence, the repairing work of road was in progress, due to which only one track of road was being used for passing of traffic from both the sides. The respondent No,6 in their separate written statement also did not deny the fact of accident and the loss of four precious lives, including the death of deceased father of respondents Nos.1 to 3. However, they also attempted to shift the responsibility of accident on appellant and respondent No,5, as the repairing work of Shahra-e-Faisal was being carried out at the place of occurrence with all precautionary measures at the site.
4. From the pleadings of the parties, following issues were framed in the suit: "(1) Whether the death of the deceased Sher Azam Khan was caused by the composite negligence and wrongful act of the defendants, if so, its effect?
(2) Whether the defendants are liable to pay the compensation to the plaintiffs and other legal heirs, if so, to what extent?"
5. From the side of respondents Nos.1 to 3, their mother Mst. Naseem Akhtar examined herself as Exh.l/2 and produced documents Exh.P/1 to Exh.P/11. She further examined other witnesses Muhammad Ihsanul Haque, (Exh4/1), Muhammad Iqbal, A.S.-I. Of Police Station Bahadurabad.
(Exh.3/1), who produced the site sketch, post-mortem report and certified true copy of the judicial enquiry report into the cause of death, and Abdul Razzak Shaikh, (Exh.4), Accounts Officer of PIA, who produced revised salary slip of the deceased (Exh.4/1) and the service contract of M/s Farhan Enterprises with PIA (Exh.4/2), being employer of the deceased. None of the four defendants in the suit, who are appellant and respondents Nos.4 to 6 in this appeal, bothered to lead any evidence in the suit.
6. Learned Single Judge after careful scrutiny of evidence, adduced before him from the side of respondents Nos.1 to 3, duly supported with documentary evidence, came to the conclusion that the accident had occurred due to common negligence of appellant and respondents Nos.4 to 6 and thus, they were jointly responsible to pay compensation to the bereaved family of deceased Sher Azam Khan. For this purpose, the principle of composite negligence was taken into consideration by the learned Single Judge, with reference to some cases from Indian jurisdiction and the conclusion, thus, recorded, was that all of them were jointly responsible for payment of such compensation.
7. We have heard Mr. Mukhtiar Ahmed Kuber, learned counsel for appellant and Mr. Nasir Maqsood, learned counsel for respondents Nos.1 to 3 and carefully perused the case record.
8. Learned counsel for appellant has not disputed that on material points the evidence led on behalf of respondents Nos.1 to 3 remained uncontroverted from the side of appellant and respondents Nos.4 to 6 and further no evidence in rebuttal was adduced by any of the defendants in the suit. He however, contended that the negligence of the driver of appellant was not established from the record rather it was proved from the record that it was mismanagement of respondent No,6, that due care and caution was not taken by them while undertaking repairing work of main Shahra-e-Faisal, thereby closing one side track of the road, which ultimately resulted in the accident.
9. In the context of such submission of the learned counsel, we have perused the case record and seen that the assertion of the learned counsel is not substantiated from the record, rather from the record, as recorded by the learned Single Judge, it was proved beyond any reasonable doubt that not only respondent No,6 was responsible and negligent in the performance of its legal obligation but the appellant and their driver respondent No,5 were also equally responsible, as the NLC Trailer was driven by respondent No,5 in a rash and negligent manner, on the wrong side of the road due to repairing work but even then he did not bother to take care of these facts and to slow down the speed of the vehicle. Thus, we affirm the view taken by the learned Single Judge in the suit that all the four defendants in the suit i.e, appellant and respondents Nos.4 to 6 are jointly liable for payment of compensation to the bereaved family of deceased Sher Azam Khan.
10. As regards awarding of compensation, we have perused the material placed on record and the evidence brought on record and seen that the compensation awarded to the respondents Nos.1 to 3 and the widow of the deceased in terms of para. 18 (a)(b) and (c) is appropriate and, thus, it requires no interference. However, awarding of compensation to the minor children of deceased at the rate of Rs,300,000 per child as per para. 18(d) seems to be on much higher side. In the other cases, this Court has been normally awarding such compensation in the sum of Rs,100,000 per child. We, accordingly, reduce and modify such relief granted under para. 18(d) of the impugned judgment to Rs,100,000 per child. Further, it has not been disputed by Mr. Nasir Maqsood, learned counsel for respondents Nos.1 to 3 in this case, that the compensation/amount of Diyat awarded to respondents Nos.1 to 3 in terms of para. 18(e) of the judgment was not claimed, therefore, there was no occasion for awarding of such compensation while determining the compensation claim of respondents Nos.1 to 3 under the Fatal Accidents Act, 1855. Accordingly, such claim awarded in the impugned judgment is also set aside.
11. Before parting with this judgment, we may further observe that the learned Single Judge while passing the impugned judgment and decree against the appellant and the respondents Nos.4 to 6 has not passed any appropriate order for securing the interest of respondents Nos.1 to 3, who are minor children of deceased Sher Azam Khan. To overcome this deficiency, we further order that the share of minor respondents Nos.1 to 3 from the total claim of compensation awarded, as per judgment and decree, be deposited with the Nazir of this Court, which shall be immediately invested in some profit bearing government saving scheme for the benefit of the minors till they attain the age of majority.
12. With these modifications in the impugned judgment and decree this appeal is dismissed.