' MS. RUKHSANA AHMAD, J.---Through this judgment, I would like to dispose of the present suit, which was filed on 13-11-2002 by the plaintiff for recovery of Rs,5,000,000 under the provision of Fatal Accidents Act, 1885 with the following prayers:--
(a) A Decree in the sum of Rs,5,000,000 against the defendants jointly and severally to pay the said sum of damages/ compensation to the plaintiff or any other amount this Honourable Court may deem fit in circumstances of the case.
(b) Profit/mark-up at the rate of 21% per annum on the amount claimed in clause (a) above from the date of filing of the suit till the date of realization of the decretal amount which the plaintiff would have earned had the defendants paid the said amount.
(c) Costs of the suit may be awarded to the plaintiff.
(d) Any other relief(s) that this Honourable Court may deem just and proper under the circumstances of the case be granted.
2. The facts leading to the filing of the present suit are that plaintiff's husband namely Saleh Khan had died due to a road accident on 14-9-2002, whereby the motorcycle of the deceased was hit by the Mazda of the defendant No,2 which was being driven by the defendant No, 1 . However, the defendant No,2 was arrested by the police and an F.I.R. Was lodged under section 320, Qisas and Diyat Ordinance on the same day. According to the plaintiff the deceased was aged about 45 and was maintaining good health. However, according to the calculation made in the suit, the plaintiff is shown to have been deprived of the expected pecuniary benefits to the extent of Rs,5,000,000 as according to her at the time of death deceased was drawing net salary at the tune of Rs,8181 per month from Pak-Libya Holding Company (Pvt.) Ltd., where he was employed as Messenger since 1- 1-1983 and further the deceased was also drawing Rs,3700 per month from the said company on account of utility disbursement, hence the earning of the deceased was shown to be Rs,12,000 per month. However, the plaintiff further claimed a sum of Rs,1,000,000 for herself as well as for her children, as according to the plaintiff, the deceased was the only earning member of their family.
She further claimed exemplary and punitive damages in addition to the aforesaid compensation for pecuniary loss in the sum of Rs, 1,000,000 and further sum of Rs,30,000 was claimed by the plaintiff on account of transportation and funeral expenses, hence a total sum of Rs,5,000,000 has been claimed by the plaintiff through the present suilt.
3. On 2-6-2004 the defendant No,2 filed his statement in which he has admitted the ownership of vehicle but he denied that the accident occurred due to the rash and negligent driving of the defendant No, 1 . However, he also denied the claim of the plaintiff.
4. On 27-9-2004, the Court framed the following issues:--
(i) Whether on 14-9-2000 Mazda bearing No,JF-0390 (Route N-4) dashed the deceased (Saleh Khan)?
(ii) Whether the accident taken place on 14-9-2000 due to the rash, negligent driving of defendant No,2?
(iii) Whether the deceased's motorcycle was hit by the defendant's Mazda?
(iv) Whether the deceased (Saleh Khan) caused accident and expired due to his own rash the negligent driving of motorcycle?
(v) Whether the plaintiff is entitled of any claim?
(vi) What should the Decree be?
5. In support of her version, one Raees Khan Special Attorney of the plaintiff filed his affidavit in evidence, who produced the same as Exh.P.W.1./1, copy of F.I.R. No,237/2002 as Exh. P.W.1/2, copies of death certificate, dated 5-10-2002, Registration Certificate, dated 8-2-2000 and Service Certificate dated 6-11-2002 as Exh.P.W.1/3 to P.W.1/5. Therefore, the side of the plaintiff was closed. However, he was not cross-examined and his evidence remained unshaken. Issue No, 1.
6. The P.W.1. Raees Khan, Special Attorney of the plaintiff was examined to prove the accident as claimed in the plaint. The said witness has filed his affidavit-in-evidence, wherein he supported the case of the plaintiff regarding the rash and negligent driving of the defendant No,2 resulting into death of the deceased Saleh Khan on 14-9-2000. This P.W. Was not cross-examined by the defence Advocate as such his statement remained unrequited. Thus omission to cross-examination on this material aspect of the evidence lead to conclusion that the defendants have admitted the veracity and truth of the said statement. In such circumstances, the statement of P.W.1. On the material aspect of rash and negligent driving would be deemed to have been admitted and would be relied upon by the Court. My finding, therefore, on the Issue No,
1. Is in affirmative.
Issues Nos. 2 to 6.
7. The issues can be dealt with together as they were connected with each other. Since the finding of the Issue No,1 is in affirmative and it is proved that accident took place as claimed by the plaintiff and thus the defendants are, therefore, liable for payment of compensation to the plaintiff jointly and severally.
8. Mr. Younus Inayat learned counsel for the plaintiff submits that according to the preponderance of authority life expectancy in Pakistan is to be taken at 65 years and I would, therefore, proceed in accordance with preponderance of authority, on the basis of life expectancy of 65 years,
9. The counsel of the plaintiff also submitted a written arguments in support of the above issues as well as a statement, dated 9-1-2004 and according to him the pecuniary loss to the plaintiff which arose out of accidental death of deceased Saleh Khan comes as under:-- 1. Amount claimed under the provisions of Fatal Accidents Act,Rs.50,00,000 1855
2. Amount received as gratuity and benevolent fund of deceased by his legal heirs (Annexure-A)Rs.320,979
2. Amount expected to be incurred by the deceased on his own person for the remaining life period of 30 years @ Rs.1500 per monthRs.540,000
4. Total deduction as per order of the Court.Rs.860,979
5. Claimed amount after deduction. Rs.41,39,021
10. The above calculation is not questioned by the defendants. Since the plaintiff has prayed for a decree merely in the sum of Rs,41,39,021. In view of the fact that the evidence of the plaintiff on the factum of the ages of plaintiff and deceased on the point of present and expected earning capacity of the deceased forming the basis of the claim is not rebutted and controverted, nor defendants have led any evidence to prove diminution of plaintiff's claim. I, therefore, decree the suit of the plaintiff against the defendants in the sum of Rs,41,39,021 with profit at the rate of 10% per annum from the date of Decree till recovery of the amount with no order as to costs. The Decree shall be satisfied within a period of 60 days.