' ATTA-UR-REHMAN, J.---This judgment will dispose of the suit filed for recovery of Rs.35 lacs under the Fatal Accident Act, 1855, by the legal heirs of Malik Saeed Ameer Awan, a Traffic Police Inspector who died in a traffic accident on 13-5-1991.
2. It is stated in the plaint that on 13-5-1991 at Shahra-e-Faisal the bus No.JA-5106 owned by the defendant No.1 being driven by Muhammad Nawaz, the defendant No.2, an employee of the defendant No.1 caused the death of Malik Saeed Awan due to rash and negligent driving.
3. All the defendants were served. The defendant No.1 filed the written statement on 22-3-1992 and denied the case put up by the plaintiff in the plaint.
4. On 22-3-1992 the Court framed the following issues:--
(1) Whether the death of deceased Saeed Ameer Awan was caused on 13-5-1991 due to rash and negligent driving of the defendant No.2, while driving the bus No.JA-5106 or Shahrah-e-Faisal, during the course of employment of the defendant No.1? If so, what is its effect?
(2) Whether the defendants are liable to pay the compensation/damages to compensate the plaintiffs and other legal heirs, if so, to what extent?
(3) Whether the plaintiffs are entitled to cost and interest, as claimed?
(4) What other relief or reliefs, this Honourable Court may deem fit.
5. On 13-3-1997 Government of Sindh through an agreement executed between it and the defendant No.1 took over the assets and liabilities of the defendant No. 1 . The Government of Sindh was therefore, allowed to be joined as defendant No.3 in the suit. The defendant No.3, however, did not file any written statement and were debarred from doing so by order, dated 21-12-1998. On 8-2- 1999 after the Government of Sindh was impleaded as defendant No.3, the following additional issue was. Framed:- "Whether the defendant No.3 has taken over the liability to pay the compensation to the plaintiff and other statutory beneficiaries by virtue of Clause 4(k) of the Memorandum of the Agreement, dated 13-3-1997 entered into, inter alia, between defendant No.1 and defendant No.3, if so, to what extent"?
6. The evidence was recorded on commission. The plaintiff was examined P.W.1 Ghulam Shabbir Awan who produced Exhs.P/1 to P/14(v), Nazeer Ahmed as P.W.2, Imtiaz Hussain Shah as P.W.3 and he produced Exh.P/16, Abdul Latif, and S.-I. Saddar Police Station as P.W.4, he produced Exhs.P.17 to Exh.P.22. The defendant examined, Gul Muhammad Soomro Manager Legal of Karachi Transport Corporation as D.W. Who produced letter of authority, dated 16-8-1990 as Exh.D/1 and an agreement, dated 13-3-1997 between Karachi Transport Corporation and Government of Sindh as Exh.D/2.
7. Heard learned counsel for the parties. Issue-wise findings are as under:
8. Additional Issue: The Government of Sindh has not filed any written statement, however, D.W.1 deposed that the Government of Sindh has taken over all assets and liabilities of the Karachi Transport Corporation, i.e. Defendant No.1 and he produced Exh.D/2 i.e. An agreement, dated 13-3- 1997 executed between Karachi Transport Corporation and Government of Sindh. No rebuttal has come on this account from the defendant No.3, therefore, the additional issue is answered in affirmative.
9. Issues No.1 & 2: These issues are inter-connected and are taken together. In support of issue No.1, P.W.2 Nazeer Ahmed an eye-witness and P.W.4, A.S.-I. Abdul Latif of Saddar Police Station were examined. In their deposition they supported the case of the plaintiffs as stated in the plaint. P.W.2 in the cross-examination, however, said that he could not say as to the breaks of the bus may have failed causing the accident. P.W.4 A.S.-I. Abdul Latif another eye-witness also supported the fact of accident and produced the F.I.R. No.168/91 as Exh.P/17, memo of site inspection as Exh.P/18, order of release of bus as Exh.P/19, superdaginama of bus as Exh.P-21 and post-mortem report as Exh.P/22.
Exh. P-21 Motor Vehicle Report was produced by him that shows the vehicle was tested and found mechanically fit. This witness was also cross examined. In the cross-examination, he stated that the driver, the defendant No.2 in the criminal case was acquitted under section 265-K, Cr.P.C. P.W.1 Ghulam Shabbir Awan was examined who had also supported the statement made in the plaint.
He was cross examined but nothing material has been brought on record except to the fact that he was not present at the place of incident. It has also come on record that the bus after the accident was found mechanically fit and nothing is on record to show otherwise. Thus the plea of failure of breaks as advanced by the learned counsel for the defendant does not sustain and is devoid of any force. The defendants have not brought anything on record to rebut the documentary evidence produced by the plaintiff. As held in the case of Mirza Muhammad Qasim Baig v.
Government of Sindh (2000 YLR 1669) under Articles 70 and 72 of Qanoon-e-Shahadat documentary evidence cannot be rebutted by mere oral assertions. This judgment was upheld in the High Court Appeal No.67 of 2000 and petition for Leave to Appeal No. 321 of 2000 filed before the Hon'ble Supreme Court was not pressed and was withdrawn.
10. I examined the evidence of these witnesses, it is established that a bus owned by the defendant No.1 driven by their employee the defendant No.2 rashly and negligently, caused the accident whereby killed the deceased Malik Saeed Awan, a Police Traffic Inspector who was riding on official motorcycle. In the circumstances, it is held that the defendants Nos.1 to 3 are liable for the accident and so liable for payment of compensation to the plaintiff.
11. In view of the above it is to be considered as to what extent the compensation is to be awarded to the plaintiffs. The learned counsel for the plaintiff has submitted a revised statement of claim S. No. Name Relation
1. Shaukat Hayat Son
2. Fakhr Hayat Son
3. Yasir Arafat Son
4. Waqar Haider Son
5. Sultan Khazar HayatSon
6. Rukhsana BegumWifewhich reads as under and after examination is found to be fair and reasonable:-- Statement of Claim
(i) Amount claimed and assessed: Rs. 35,00,000
(ii) Name and age of the deceased: Malik Saeed Ameer Awan (39 years)
(iii) Surviving Beneficiaries entitled for Compensation:-- Quantum of Damages (a)Average life span in Pakistan.70 years.
(b)Loss of pecuniary benefits for (70-39)31 years.
Source of Earning
(a) The deceased was working as Sub-Inspector with Traffic section of Karachi Police and was earning a sum of Rs.2408 per month as proved by the evidence of P.W.3 vide Exh.P/16. It was also avowed that deceased could have got quick promotion in near future and his income could have been double which was not shaken in the cross-examination. However, a moderate average income on the lower side @ 4000 per month is being taken which is more or less around the minimum wages in Pakistan and as such the deceased was excepted to continue with the. Job till the age of 60 years. Which is excepted age of superannuation in government service and as such for 21 years at the rate of (12 x 4000 = 48,000) per annum comes to Rs.10,08,000
(b) With regard to his income on attaining the age of 60 years, he being of robust health would have his own Provisional Store or on the worst would have joined some manual job he would have been in a position to conveniently earn on the very low level a sum of Rs.3500 per month which is the minimum wages of unskilled labour in Pakistan and as such at this rate for remaining ten years it comes to (3500 x 12 x 10)
Rs.4,20,000
(vi) Aggregate loss for 31 years comes to (10,08,000 - 4,20,000) Rs. 14,28,000 ADD:
(vii) 20% increment to comprehend the advancement and promotion in life over all aggregate income Rs.2,85,000.
(viii)Gross loss of pecuniary benefits (14,28,000 + 2,85,000) Rs.17,13,000 LESS:
(ix) 1/6th on account of personal expenses (17,13,000 - 6) Rs.2,85,000 Net loss of pecuniary benefits Rs.14,28,000.
12. Mr. Chaudhry Iqbal submitted that the claim made by the plaintiff is false and frivolous according to him the driver was not guilty of any rash and negligent driving and further in any case plaintiff cannot be allowed compensation more than what has been prescribed for such cases in Pakistan Panel Code. Mr. Nasir Maqsood in reply submitted that this is a case under Fatal Accident Act and not under Pakistan Panel Code and therefore, the criteria for assessing the damages cannot be governed by the law laid down under the Provisions of Pakistan Panel Code. It is noted that the compensation in the form of Diyat as allowed under section 320, P.P.C. Is restricted to the persons who actually causes the Qatl-e-Khata and cannot be stretched to include the employer or the insurance company. In this case admittedly no Diyat has been paid. I agree with Mr. Nasir Maqsood and do not find substance in the contention of Mr. Ch. Iqbal. The above issues are answered in affirmative.
13 Issues No.3 and 4; In the circumstances, the plaintiff are entitled to compensation for a sum of Rs.14,28,000 from the defendants jointly and severally.
14. The suit is therefore, decreed in the sum of Rs.14,28,000 with cost and markup at the rate of 6% per annum from the date of filing of the suit till realization.
15. Under section 82, C.P.C., the defendant 3 is directed to satisfy the decree within a period of 6 months.