1. ' MRS. QAISER IQBAL, J.---The plaintiff has resorted to file suit for recovery of Rs,35,00,000 under the provision of Fatal Accidents Act, 1855, against the defendants.
2. ' The facts leading to the case are that the plaintiff is father of Syed Kashif Usman Hamid, aged about 13 years died on 10-1-1998 due to fall of a heavy iron advertisement signboard, owned by the defendants, due to their negligence. The deceased left behind his father aged 45 years and Mst.
3. Nighat Ara Parveen mother aged 45 years as his statutory beneficiaries entitled to compensation.
4. The defendants Nos.2 to 7 are joint co-owners, proprietor/partners of the defendant No,1 a travelling agency dealing in Air-Ticketing, which was newly established in the premises of ground floor of Rahimabad Flats, Block-14, F.B. Area, Karachi for the purpose of introductory advertisement for the establishment of office of defendant No,
1. The defendants Nos.2 to 7 got prepared a heavy iron advertising signboard about 500 kgs. Which was fixed in front of the office of the defendant No,
1. Temporarily with the support of a telephone pole without establishing its foundation under the ground for the purpose of strengthening the base, the defendants without taking into consideration the environmental circumstances, left signboard in such a unsafe condition, which resulted an accident. On 10-1-1998 at about 2100 hours, the minor son of the plaintiff across the office of the defendant No,1 along with his brother and cousins reached near the signboard temporarily erected in dangerous condition, all of a sudden fell down upon him, on account of heavy impact of the falling signboard a serious fatal injury was sustained on his head and he succumbed to the injuries.
5. The defendants after the incident approached to the plaintiff undertook to pay compensation, instead of settling their matter amicably, they threatened the plaintiff with dire consequences with the help of law forcing agencies in order to pressurize the plaintiff to refrain to take any action in respect of the accident. The plaintiff addressed a letter to the Chief Secretary, Sindh and various government agencies on 28-2-1998, mentioned the factum of the attitude of the defendants thereto. He received a letter from Mr. Jabir Hussain, Inspector Police, Karachi on 17-3-1998, he was summoned at Jouharabad Police Station, in connection with an inquiry into the incident. The plaintiff did not find favourable response regarding the pursuit of the grievance, lodged his protest before the Chief Secretary, Sindh the inquiry was marked to another police officer and consequent upon the said inquiry F.I.R. Was registered by Jouharabad Police Station against the owner, proprietor/partners of defendant No,1 M/s. Zohra. Travels, bearing No,265/1998. It is alleged that the death of Syed Kashif Usman Hamid occurred due to gross negligence on the part of the defendants, on account of lack of care as the signboard was erected without any foundation by affixing the same with the pole, the defendants ignored to take safety measures to save the public from untoward incident, therefore, the plaintiff has resorted to file suit seeking decree jointly and severally in the form of compensation under Fatal Accidents Act, 1855, on the premises that the plaintiff and his wife were deprived from pecuniary benefits to the extent of Rs,35,00,000. The deceased was a student of class-VI, in Civil School, Gulshan-e-Iqbal, Karachi expected to pass his Matric examination at the age of 17 years and was expecting to join Polytechnic Institute for getting the training of Air-conditioner's and Refrigerator's repairing work, thus at the age of 18 years the deceased could have become a skilled hand and started earning a sum of Rs,5000 per month. The father of the deceased intended to set up a workshop for the deceased at the age of 20 years and after the experience of two years deceased Syed Kashif Usman Hamid could have succeeded in commanding a good number of customers for his skill and would have started earning between Rs,10,000 to Rs,15,000 per month, expected to support his parents with 2/3 out of his income and would have retained 1/3 for his own personal expenses with the increment in income at the rate of 30% to 40% per annum.
6. ' The defendant No,5 was duly served, filed the written statement and denied the allegations contained in the plaint averred that he was neither proprietor nor co-owner or shareholder of the defendant No,1 company, namely, M/s. Zohra Travel Agency and was not liable to pay the compensation to the plaintiff, subsequent thereof the name of the defendant No,5. Was struck off from the array of the defendants vide order dated 14-4-2003, the rest of the defendants Nos.2. To 4, 6 and 7 were proceeded ex parte vide order dated 22-9-2005. The following issues require consideration:--
(i) Whether the death of Syed Kashif Usman Hamid was caused on account of negligence and default of the defendants, if so, its effect?
(ii) Whether the defendants are jointly and severally liable to pay the compensation to the plaintiff, if so, to what extent?
(iii) What should the decree be?
7. ' I have gone through the record of the case with assistance of the learned counsel for the plaintiff and my findings on the above issues are as follows:-- Issue No,1 & 2: Both the issues being inter related are discussed together. Death of Syed Kashif Usman Hamid is established from the letter addressed by the plaintiff to the Chief Secretary, Government of Sindh Exh.P/1. Which is explicitly specified that the plaintiff's son while passing near the office of the defendant No,1 M/s. Zohra Travel Agency, became the victim of signboard, which was not duly fixed but was temporarily set up by the defendants, which fell upon the plaintiff's son who died on the spot. An inquiry into the matter was held and F.I.R. No,265/1998 was registered against the defendant No,1, at police station Jouharabad, under section 319 of the P.P.C., which reflects the deceased has sustained serious head injury died on the spot. The defendant No,1 did not file the written statement to deny the factum of the death of the plaintiff's son nor produced evidence in rebuttal. There is overwhelming evidence on record to suggest that the factum of unnatural death of the deceased, was a result of a fall of an iron signboard, which resulted in the death of deceased, which was temporarily erected. It is also proved from the entry in the City Register of birth maintained with Karachi Metropolitan Corporation that deceased was born on 9- 3-1985.
8. ' The learned counsel appearing for the plaintiff referred the contents of the plaint to recapitulate the facts and circumstances, in which the deceased succumbed to the injuries sustained by him on account of accident. It is asserted by him that the material facts about the accident are not disputed by the defendants Nos.2 to 4, 6 and 7 about the minor, in which accident had occurred.
9. Adverting to the quantum of the monetary compensation claimed by the plaintiff, the learned counsel for the plaintiff has contended that the father and mother of the deceased are the sole surviving legal heirs, who are statutory beneficiaries ought to have been benefited if the deceased would have survived. The learned counsel for the plaintiff has referred to the doctrine Res ispa loquitur that once the accident has occurred and involvement of the defendant is proved, the burden had shifted upon them to show that, it was not due to their negligence but due to the negligence of the deceased that the accident has occurred. In support of the above contention reliance is placed on the case of Pakistan Steel Mills Corporation Limited v. Malik Abdul Habib (1993 SCMR 848) and Punjab Transport Board v. Abdul Wahid and others (PLD 1980 Lahore 584).
10. Since the defendant has chosen to remain absent, therefore, burden shifted upon them is not discharged. Conversely, there is overwhelming evidence from the plaintiff's side based upon the document, which suggests the manner in which the accident occurred. Deceased Syed Kashif Usman Hamid at the time of his death was studying in class VI in Civic School, Gulshan-e-Iqbal, Karachi. The learned counsel for the plaintiff has contended that on account of past pedigree of the deceased; he was expected to servive upto 70 years and his parents were also expected to survive for 70 years, in view of the long span of live in their family, advancement in medical facilities and availability of medical treatment. The legal heirs of the deceased would be deprived of expected pecuniary benefits to the extent o Rs,35,00,000 because after passing of the Matric examination at the age of 17 deceased son of the plaintiff was expected to join Polytechnic Institute for getting training of Air-conditioner's and Refrigerator's repairing work at the agt of 18 he would have been a man of skilled and had started earning a sum of Rs,5000 per month in initial period.
11. While at the age of 20 the deceased would have succeeded in commanding and acquiring a good number of customers for his skilled service and his income would have increased to the extent of Rs,10,000 to Rs,15,000. As per family tradition and customs the parents were expected to receive 2/3 of the deceased income and income of the deceased ought to have increased at the rate of 20% to 30% on aggregate income. Thus the loss of pecuniary benefits is as follows:-- S.No. Description Amount (Rs): 1 Loss of pecuniary benefits at the rate of Rs.5,000 per month for 13 years comes to Rs.18,00,000.18,00,000 2 The increment at the rate of 20% per annum if added to comprehend the advancement of the life.36,000 3 Aggregate loss of income and pecuniary benefits for 30 years comes to Rs.18,00,000 + 36,00,00021,60,000 4 Less deduction a sum of rupees 1/3 will be deducted on account of personal expenses Rs.216000 3 =7,20,000 5 Net loss of pecuniary benefits14,40,000 The plaintiff father had claimed the above referred compensation, his statement was not rebutted from the other side. It is an established law that no mathematical formula has been set up by Courts to arrive at the factum of compensation on the basis of the assessment based upon the case to case. The plaintiff's deceased son ought to have survived upto age of 70 years and could have earned Rs,4500 as an average income, which would have been increased upto 20% in the coming years, out of which he would have spent 1/3 of his income towards his own personal expenses. It is worth to be noticed that the defendants affix the signboard at the place of the incident if the signboard would have been affixed under the ground the accident would not have occurred, the accident took place on account of gross. negligence on the part of the defendants, as they did not strictly adhered to the procedure to safeguard the interest of others. The defendants have undertaken an activity, which resulted in negligence and carelessness on their part under the law. It is a case of gross negligence, if the defendants had taken reasonable care, the incident ought to. Have -not occurred.
12. The upshot of the above discussion, that deceased was survived by the plaintiff father and mother, namely, Syed Hamid Karim and Nighat Ara Parveen, therefore, they are entitled to receive the compensation. The defendants did not contest the suit, therefore, the factum of the quantum of the income of the deceased average span of life, increment of income have gone unchallenged and unrebutted.
13. In the light of the above circumstances, Issues Nos.1 and 2 are answered in affirmative. Issue No,3:-- The plaintiff's suit is decreed against the defendants Nos.1 to 4, 6 and 7, in the sum of Rs,14,40,000 with cost and 6% mark-up from the date of the decree till the realization of the decretal amount.
14. The amount of the compensation upon recovery shall be distributed amongst the legal heirs of the deceased according to Sunni Muhammadan Law of inheritance.