(i) Average life span in Pakistan in view of the preponderance of judicial pronouncement70 years
(ii) Age of the deceased at the time of accident: 33 years
(iii) Loss of pecuniary benefits to the beneficiaries (70- 51):19 years
(iv) The deceased in question was skilled theatre technician and was doing job at the Abbasi Shaheed Hospital and was getting the Gross salary of Rs,5966 as per LPC Exh.P/8-A which had not been questioned the annual income on this basis comes to (5966 x 12)Rs,71,592JUDGMENT KHILJI ARIF HUSSAIN, J.---The plaintiff filed suit for recovery of Rs,1,22,54,000 under the provision of Fatal Accidents 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 DefendantNo,1 driving the said truck at the time of accident. The deceased leftA behind him plaintiff Akhtar Ali father and Mst. Shazia Javed widow of the deceased. The plaintiff claimed following amounts:--
(v) The aggregate loss of pecuniary benefit for over all 19 years comes (71,592 x 19)Rs,19,60,248 ADD
(vi) 20% chances on the agreement income of over all years (13,60,2485)Rs, 2,72,050 (vii)The gross loss of pecuniary benefits may be obtained by adding aggregate loss and chances of increment (13,60,248 + 2,72,050):Rs,16,32,298 LESS (viii)Personal expenses at 1/3rd (Rs,16,32,298 - 3) Rs,2,72,050
(ix) Net loss of pecuniary benefits 16,32,298 - 5,44,0999)Rs,10,88,198 Further Add:
(a) Funeral expenses Rs,10,000
(xi) Total loss of pecuniary benefits(10,88,198 + 10000) Rs,10,98,198 ' 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 injureds and as a result two alleged injureds received injuries.
2. ' 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?
3. ' On behalf of the Plaintiff, Akhtar Ali Khan, filed affidavit in evidence, and produced Exh.P.W.1 to P.13.
4. P.W.2 Abdul Ghaffoor, Investigating Officer, also produced Exh.P.W.2/l 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.
5. ' 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 to 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 Stationary cycles bearing Nos.
6. 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. Witness further
(i) Average life span in Pakistan in view of the preponderance of judicial pronouncement70 yearsstated that due to impact of collision, owing to excessively high speed motor-cyclists namely Saleem Javed, Ali Asghar, Sohail and Javed Akhtar respectively got severe injuries on their bodiesand 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 Ali 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 motor-cycles ahead of him which was also in stationary 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 be stopped and hit the injured as a result two persons received injuries in the leg and pelvic bones as per x-ray report.
7. ' 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.
8. ' 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 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 the life of citizen. The duty to take reasonable care increases many-fold when State engaged in the business or 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.
9. ' The issue is answered in affirmative. Issue No,2: ' 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 hisemployment, therefore, defendants are jointly and severally liable to pay the compensation. Issue No,3: ' The question now remains is for what amount plaintiff is entitled in the circumstances of the case.
10. 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:--
(ii) Age of the deceased at the time of accident: 33 years
(iii) Loss of pecuniary benefits to the beneficiaries (70- 51):19 years
(iv) The deceased in question was skilled theatre technician and was doing job at the Abbasi Shaheed Hospital and was getting the Gross salary of Rs,5966 as per LPC Exh.P/8-A which had not been questioned the annual income on this basis comes to (5966 x 12)Rs,71,592
(v) The aggregate loss of pecuniary benefit for over all 19 years comes (71,592 x 19)Rs,13,60,248 ADD
(vi) 20% chances on the agreement income of over all years (13,60,2485)Rs, 2,72,050 (vii)The gross loss of pecuniary benefits may be obtained by adding aggregate loss and chances of increment (13,60,248 + 2,72,050):Rs,16,32,298 LESS (viii)Personal expenses at 1/3rd (Rs,16,32,298 - 5,44.099)
11. Further Add:Rs,10,88,198
(a) Funeral expenses Rs,10,000
(xi) Total loss of pecuniary benefits(10,88,198 + 10000) Rs,10,98,198 ' Accordingly, plaintiff suit is decreed in the sum of Rs,10,98,198 with interest at the rate of 12 per cent per annum from the date of decree till its realization. The decree shall be satisfied within a period of (sic) days.