TASSADUQ HUSi 4 JILLANI, J.- For the reasons given in the C.M. It is allowed and C.P. No. 4081 of 2001 is restored to its orginal number.
Main Case
2. Through this petition, petitioner seeks leave to appeal against the judgment of the learned Lahore High Court in terms of which the judgment and decree of the Trial Court was maintained.
3. We have heard -petitioner's learned counsel and have given anxious consideration to the submissions made in the light of the evidence on record and the findings rendered by the High Court.
4. The Court of plenary jurisdiction having appreciated the evidence on record with regard to the claim made by the respondent-plaintiff had decreed the suit to .The extent of Rs. 11,20,000/-. In appeal filed by the petitioner before the High Court, the Court considered every piece of evidence led by the parties and proceeded to maintain the judgment and decree of the Trial Court. The learned counsel for the petitioner has not been able to point out any non- reading or misreading of evidence on record to warrant interference. No question of law of public importance has been raised either to interfere with the concurrent judgments and decrees. We may also observe that in assessing the damages and cost the Courts have not been too liberal, It is high time that the Courts of law should promote the Law of Torts and come to the rescue of citizens.
5. For what has been discussed above, we do not find any merit in this petition which is dismissed and leave refused. _____________________________ CH. IJAZ AHMAD, J. - I have gone through the proposed judgment/order of my leamed brother Mr. Justice Tassaduq Hussain Jillani, J. As the important legal issue arises in this case having public importance, therefore, I consider it appropriate to record my view separately.
2. Brief facts out of which present petition assessee are that respondents filed a suit for recovery ot Rs 59,65,000/- as damages/compensation against the petitioner in the Court of Civil Judge It Class, Lahore. Contents of plaint reveal that cause of action was claimed to have arisen to the respondents on 30.8.1985 when petitioner's bus being driven by his employee rashly, carelessly and negligently and on the wrong side of Multan Road, rammed into Car No. FDH-7111 occupied by respondent's family consisting of respondents Nos. 1 and 2, husband of respondent No. 1 (Dr. Muhammad Afzal deceased) and a child (Bilal Afzal deceased). Due to the aforesaid accident husband of respondent No. 1 and father of respondent No. 2 namely Dr. Muhammad Afzal of Okara and minor Bilal Afzal died on the spot. Respondent No. 2 also sustained grievous injuries and the car was severely damaged. The respondents also claimed to be totally dependent upon the late Dr. Muhammad Afzal and on account of death of Dr. Muhammad Afzal. And minor Bilal Afzal, following amounts were claimed as damages and compensation: -
(1) Loss of income of late Dr. Muhammad Afzal for next 30 years. Rs. 30,00,000/-
(2) Damages on account of death of husband No. 1 Rs/ 10,00,000/-
(3) Compensation for the death of the son of plaintiff Nc. 1 Rs. 10,00,000/-
(4) Compensation for the death of father of plaintiff ' No. 1. Rs. 10.00 000/-
(5) Compensation for the death of brother of plaintiff No. 2. Rs. 5,00,000/-
(6) Loss of Car. Rs. 1,50,000/-
(7) Medical expenses. Rs. 15,000/-
(8) Mental torture for both the plaintiffs. Rs. 3,0, 000/- Total: Rs. 59,65,000/-
3. Petitioner/defendant filed written statement controverted the allegations levelled in the plaint.
Out of the pleadings of the parties Trial Court framed the following issues:-
(1) "Whether the plaint is under value for the purposes of Court and is written upon insufficiently stamped paper? OPD
(2) Whether the suit is not maintainable? OPD
(3) Whether the accident was caused due to rash and negagent driving of defendant No. 2? OPP
(4) Whether the accident was caused due to rash and negligent driving of Dr. Muhammad Afzal?
(5) Whether the plaintiffs are entitled to recover curettages from the defendants? If so what should be the quantum? OPP
(6) Relief."
4. The Trial Court decreed the suit vide judgment dated 27.11.199t and awarded damages amounting to Rs. 11,20,000/- from the petitioners/defendants. Petitioners being aggrieved filed RFA No. 34/1992 in the Lahore High Court which was dismissed by the Division Bench vide impugned judgment dated 24.10.200I-: It is pertinent to mention here that both the Courts below had given concurrent findings of fact against the petitioner that driver of the vehicle had driven the vehicle at relevant time on the wrong side of the road with high speed, that vehicle in question was driven by the driver of the petitioners negligently, carelessly due to which two innocent persons died and car of the respondents was damaged whereas the vehicle of the petitioners was not damaged. The finding of facts were given by both the Courts below against the petitioner after proper appreciation of evidence. The question of law was decided by Lord Wright in Davies v. Powell Duffau Associated Congeries Ltd. (1942 AC 602). The relevant observation is as follows:-- "That quantum of damages because of death of the plaintiffs son, husband or father in an accident cannot be awarded merely on the basis of expectation of the life of the' deceased and the assessm ent is to be made for the period for which the plaintiff is expected to live, is no doubt a sound rule pronounced by various judicial authorities on the question."
5. The aforesaid proposition of law was considered by this Court in Jalil Ahmad Khan' v. Mst.
Kulsoom and another (1969 SCM R 448) and in Sri Manmatha Nath Kuri v. Moulvi, Muhammad Mokhlesur Rehman (PLD 1969 SC 565). The relevant observation in latter case is as follows:- "Thus 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 society which they would have enjoyed if the father had lived and maintained the income which had died with him. The basis of the assessment 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."
6. Reference can also be made to the judgment of this Court in Karachi Transport Corporation v.
Latif-ur- Rehman and others (NLR 1993 Civil 254).
7. It is settled proposition of law that claim for compensation is projected determination of compensation as to be made on the basis of average expectancy of life in the community as a whole. The question of law had also been considered in Pakistan Steel Mills Corporation v. Nazar Hussain (1990 CLC 515). The relevant observation is as follows:-- "We are also inclined to hold that the public functionary particularly, in Pakistan which is an Islamic State is enjoyed not only by our Constitution but also by the tenets of Islam that it should act in aid of advancing the cause of justice and not to frustrate or defeat it. It is indeed a deplorable act when a public functionary in order to resist a genuine claim arising out of fatal accident spends considerable amount on litigation instead of setting the matter with the dependents of the deceased."
8. The aforesaid proposition j/vas considered by this Court in Karachi Transport Corporation v.
Latif-ur- Rehman (1993 SCM R 1149). The relevant observation is as follows:-- "We may also observe that a Government department/functionary is not expected to raise frivolous pleas in an action brought by a citizen for recovery of his lawful claim, with the object to deny it or to prolong litigation in respect thereof. Such practice is to be deprecated in the strongest terms. The officials responsible for the same should be made accountable for their above uncalled for and unjustified approach, particularly in cases arising out of fatal accidents, the approach of Government departments/functionaries should be human and pragmatic, all efforts should be directed to ensure that an aggrieved person gets his reasonable, admissible claim promptly, without loss of any time."
9. It is a settled proposition of law that it is the duty of the plaintiff to prove the factum of accident whereafter the burden is shifted upon the defendant to prove that the accident occurred not due to his or their negligence. In the present case burden is shifted upon the petitioners/defendants to prove that the deceased died not because of their negligence but the petitioners failed- to discharge their onus in accordance with law, therefore, both the Courts below were justified to grant damages to the respondents which is not only in accordance with the evidence on record and is also in accordance with the law laid down by this Court in various judgments including the following judgments:-
(1) Mst. Kamina and another v. A1-Amin Goods Transport Agency and two others (1992 SCM R 1715).
(2) Karachi Transport Corporation and others v. Mukhtar Begum and others (1998 SCM R 807).
10. The superior Courts laid down following principles to be kept in view while awarding damages in case a person has died on account of accident due to the negligence of the driver of the petitioner's vehicle which causes death of the victim:- "(i) the position of each dependent of the deceased should be considered separately;
(ii) the damages are not to be given as solatium but should be calculated with reference to a reasonable expectation of pecuniary benefit from the continuance of the life of the deceased.
Damages claimed by dependents of their own pain and suffering or for the loss occasioned to them due to the death of the deceased which is not referable to the expectation of any such pecuniary benefit is outside the scope of the Act;
(iii) the deceased need not be earning or the dependents need not be actually deprived of benefit.
Reasonable expectation of such earning or benefit is enough;
(iv) the pecuniary loss due to the death should stem not from a mere speculative possibility of pecuniary benefit from the continuance of the life of the deceased but only from a reasonable possibility of such benefits;
(v) where the actual extent of such pecuniary loss cannot be ascertained accurately, the sum may be an estimate or partly a conjecture;
(vi) in assessing the damages all circumstances which may be legitimately pleaded fn diminution of the damages should be considered;
(vii) the pecuniary loss of each dependent should be ascertained by balancing on the one hand the loss to him of future pecuniary benefits and on the other any pecuniary advantage which from whatever source comes to him by reason of death."
11. The Constitution of a country is a kind of social contract which binds people, society and a state.
The terms of the contract foster feelings of interdependence of belonging to an entity and of adherence to law. An honest commitment to the goals set out in the Constitution ensures promotion of nationhood and stability of the system, In view of Article 4 read with Article 5(2) of the Constitution, it is the duty of each and every organ of the State and people of Pakistan to work within the framework of Constitution and law as law laid down by this Court in the following judgments:--
(1) PLD 1975 SC 383 (Ch. Zaheer Elahi's case).
(2) PLD 1995 SC 530 (Zahid Rafiques case).
12. Our Constitution contains Chapter 2 relating to "Fundamental Rights" in which life of human being is given due importance, It requires every one to work for the welfare of the people of Pakistan but a person who is violating the law and Constitution works against the welfare of the people that is why it is high time to promote the law of tort so that the people must understand that we cannot live as a nation without performing our duties within the framework of law. As in the present case admittedly the driver had driven the bus in violation of the mandatory provisions of Motor Vehicle Ordinance, 1965 and rules framed thereunder thus causing fatal injuries to the innocent citizens.
13. It is pertinent to mention here that mere framing of law does not provide good results unless the law is strictly implemented by al| the sections of the society in letter and spirit without fear, favour of nepotism as envisaged in "Sura-e-Baqra" of Holy Quran. To achieve the goal of ensuring every citizen and organ of the state on a right path the nation a whole has to honour the commitment of terms of the Constitution and law. One of the modes to achieve this goal is to i.e a suit for damages against the offenders by the aggrieved persons, It is the duty of the members of * . Bar Association and Bar Council to educate the people and to i.e suits for damages against the offenders apart from the criminal proceedings, It is also the duty and obligation of media to provide to cultivate awareness of rights specially law of tort which will ultimately bring/compel every authority and functionary including the Chief Executive of the country to work within the framework of law and Constitution.
14. In view of what has been discussed above, this petition has no merits which is dismissed and leave refused.