(i) Average life span in Pakistan in view of the preponderance of judicial pronouncement:70 years
(ii) Age of the deceased at the time of accident:35 years
(iii) Loss of pecuniary benefits to the beneficiaries (70-35):35 years
(iv) The deceased in question was Electrician and was operating an electric shop and earning a sum of Rs.450 per day on average and thus was earning a sum of (450x30) =1,62,000JUDGMENT ' KHILJI ARIF HUSSAIN, J.---The plaintiff filed suit for recovery of Rs,1,22,54,000 under the provision of Fatal Accident Act, 1855.
1. The brief facts for the purpose of deciding the Suit are that on 24-6-2003 deceased Javed Akhtar Khan aged 35 years died on account of fatal injuries suffered by him in a traffic accident which took place on 30-5-2003 by a Truck bearing No,GP-2187 owned by the defendant No,1 and assigned to defendant No,2 who was employee of defendant No,1 driving the said truck at the time of accident. The deceased left behind him plaintiff Akhtar Ali father and Mst. Shazia Javed widow of the deceased. The plaintiff claimed following amounts:-- 13,500 and the annual income on the basis comes to (13.500 x 12)
(v) The above income average would have continued for two years and as such the loss of pecuniary benefits for two years (1,62,000 x 2)Rs.3,24,000
(vi) The deceased was expected to supplement his income by setting up a Electric Decoration Shop in addition to above income by enlarging his scope of work and would have started doing this as per his plan after two years so the income for the remaining 33 years would be calculated on the basis of enlarged/ supplemented income which was expected to be Rs.20,000 per month on average (20,000 x 33)Rs.79,20,000 (vii)The aggregate loss of pecuniary benefit for over all 35 years come to by adding v and vi (supra) [3,24,000 + 79,20,000]Rs.82,44,000 (viii)Add: 20% increment chances on the aggregate income of over all years (82,44,000+5):Rs.16,48,800
(ix) The gross loss of pecuniary benefits may be obtained by adding aggregate loss and chances of increment vide (vi + vii) 82,44,000 + 16,48,000:Rs.98,92,800 (x)Less Personal expenses at 1/6th (98,92,800+6)Rs.16,48,000
(xi) Net loss pecuniary benefits (98,92,800 - 16,48,800)Rs.82,44,000 (a)Further Add: Rs.10,00,000 for less expectation to raise generation and expected monetary benefit from child/children owing to untimely death of the deceased in questionRs.10,00,000
(b) Damages under the head of Consortium for the loss of association of the deceased in question by the spouse/widow.Rs.10,00,000
(c) Punitive and exemplary damages Rs.10,00,000
(d) Rs.500,000 to the plaintiff for compensating the loss and deprivation which he will experience in the shape of distress and disappointments in future life without their young son who could have been a further support to him in addition to rendering pecuniary assistance.Rs.10,00,000
(e) Funeral expenses: Rs.10,000 Rs.40,10,000 Total loss of pecuniary benefit: (82,44,000 + 40,10,000)Rs.1,22,54,000"
2. ' The defendant No,1 filed written statement and stated that defendant No,2 is a skilled HTV licence-holder driver of Pak PWD, working in the Directorate of Central Health Establishment, Karachi on detainment and was driving the garbage truck diligently, cautiously and when the garbage truck was running on the down side of the bridge, brakes could not work the same could not perfectly stopped and hit the injured and as a result two alleged injured received injuries.
3. ' On the basis of the pleadings following issues were framed:--
(1) Whether the death of the deceased namely Javed Akhtar Khan was caused on account of negligence of the defendant No,2 during the course of employment of defendant No,1 on 24-62003, if so its effect?
(2) Whether the defendants are liable jointly and severally to pay compensation to the plaintiff and another legal heir, if so, to what extent?
(3) What should the decree be?
4. ' On behalf of the Plaintiff. Akhtar Ali Khan, filed affidavit in evidence, and produced Exh.P.W.1/ to P/13.
5. P.W.2 Abdul Ghafoor, Investigation Officer, also produced Exh.P.W.2/1 to P/2/14, and one Ali Asghar was examined as P.W.3. On behalf of the defendant Mrs. Naseem Javed, Dy. Secretary Ministry of Health at Islamabad, filed affidavit in evidence.
6. ' Heard Mr. Nasir Maqsood learned Advocate for the plaintiff and Mr. Asghar Farooqui, learned Standing counsel, on behalf of the defendants. My findings on the issuses are as under:-- ISSUE NO.1: ' Defendants in his affidavit in evidence not disputed about the accident however stated that the accident caused due failure of the brakes. The plaintiff's witness in evidence categorically stated that on 30-5-2003 defendant No,2 while driving the Truck bearing No,GP-2187 on the main Sher Shah Soori Road on his way from Nazimabad towards Board Office via overhead bridge of Nazimabad No,7 when reached on the descending portion of the said bridge drew the said truck in such a rash, negligent and reckless manner and knocked down four stationaryMotorcycles bearing Nos. HDH-9757, MPS-1732, FDI-793 and KCI-6046 on their rear portion which were lying stopped ahead on the said truck waiting for the Board Office Signal to open as the same was closed.
7. Witness further stated that due to impact of collision, owing to excessively high speed motor- cyclists namely Saleem Javed, Ali Asghar, Sohail and Javed Akthar respectively got severe injuries on their bodies and these victims were evacuated to closely situated private hospitals for treatment. Out of four persons Saleem Ahmed and Javed Akhtar were fatally injured and motor- cyclist Saleem Ahmed died in Civil Hospital and Javed Akhtar expired in Abbasi Shaheed Hospital on 24-6-2003 after remaining in critical condition. The plaintiff's witness was cross-examined by the defendants but evidence of the plaintiff's Witness remained unshaken and during cross- examination even it was not suggested that the driver of the truck was not driving vehicles rashly, negligently. One All Asghar also filed affidavit in evidence as eyewitness stated that the accident was caused by the defendant No,2 who was driving the truck carelessly, rashly, and negligently hit the Motorcycle No,MPS-1732 and further dashed three motorcycles ahead of him which was also in
(i) Average life span in Pakistan in view of the preponderance of judicial pronouncement:70 years
(ii) Age of the deceased at the time of accident:35 years
(iii) Loss of pecuniary benefits to the beneficiaries (70-35):35 years
(iv) The deceased in question was Electrician and operating an electric shop and earning a sum of Rs.450 per day on average which had not been questionedRs.1,08,000stationary condition due to red traffic signal. The evidence of the said witness remained unchallenged. On behalf of the defendant Mrs. Naseem Javed. Dy. Secretary Ministry of Health filed affidavit in evidence and stated that defendant No,2 is a skilled licence-holder driver and was driving garbage truck diligently, cautiously as the brakes of the truck could not work he slowed down the truck by changing gear but due to running on the down side of the bridge the said truck could not perfectly stopped and hit the injured as a result two persons received injuries in the leg and pelvic bones as per x-ray report.
8. ' Under section 104 of the Motor Vehicles Ordinance 1965, any person who drives or causes or allow to be driven in any public place a vehicle while the vehicle has any defect which could have discovered by exercise of ordinary course which calculated to render the driving of the vehicles as a source of danger to persons and vehicle using such place, shall be punishable for imprisonment for a terms which may extend to One month or with fine. The defendant also failed to produce fitness certificate that the truck in question was fit to ply on road as required under section 3(ii) of the Prevention of Road Accident Ordinance, 1978.
9. ' The defendant has not only failed to examine defendant No,2, truck driver, but further failed to produce any evidence that they were properly maintaining the truck in question and accident was caused due to sudden failure of the brake. The defendant in discharge of his duties A has to operate numbers of garbage truck to ply on roads daily and it is their duty that before allowing any vehicle to leave station not only check engine oil, brake oil, etc. But also to satisfy that the same is fit for plying on road, as any vehicle on road not fit for plying can endanger thelife of citizen. The duty to take reasonable care increases many-fold when State engaged in the business either himself or through corporation or companies owned by the State as under Article 9 of the Constitution of the Islamic Republic of Pakistan it is the duty of the State not to deprive the life of a person except in accordance with law.
10. ' The issue is answered in affirmative. ISSUE NO.2.
11. ' In view of my findings on Issue No,1, it is proved that the accident has been caused due to negligence, diligent and wrongful act of the defendant No,2. The defendant No,1 not denied that the accident was caused by the defendant No,2 while discharging his duties under his employment, therefore, defendants are jointly and severally liable to pay the compensation.
12. ISSUE NO.3.
13. ' The question now remains is for what amount plaintiff is entitled in the circumstances of the case.
14. The plaintiff has claimed a sum of Rs,1,22,54,000 as damages as assessed by him. It is by now settled that average life span in Pakistan is about 70 years and at the time of his death deceased was 35 years of age. The deceased who was Electrician by profession and was operating Electric Shop and after taking into consideration evidence available on record I assessed the claim of the plaintiff as under:- but for the purpose of quantum, we can take the reasonable earning capacity of a skilled electrician at Rs.300 to 350 and hence on average a sum of Rs.9000 per month and the annual income on this/basis comes to (9000 x 12)
(v) The aggregate loss of pecuniary benefit for over all 35 years comes (1,08,000 x 35)Rs.37,80,000 (vi)Add: 20% increment chances on the aggregate income of over all years (37,80,000 - 5):Rs.0756,000 (vii)The gross loss of pecuniary benefits may be obtained by adding aggregate loss and chances of increment (37,80,000)Rs.45,36,000 (viii)Less Personal expenses at .1/6th 45,36,000 - 7,56,000)Rs.37,80,800 (a)Further Add: Funeral expenses:Rs.10,000 (xi) Total loss of pecuniary benefits: (37,80,000 + 10000)Rs.37,90,000 ' Accordingly, plaintiff suit is decreed in the sum of Rs,37,90,000 with interest at the rate of 12 per cent per annum from the date of decree C till its realisation.
15. The decree shall be satisfied within a period of days.