' This suit has been filed for the recovery of Rs, 3,00,000 as damages under the Fatal Accidents Act, 1855, by the parents of the deceased against three defendants. Defendant No. 1 is Sind Road Transport Corporation, defendant No, 2 is Karachi Transport Corporation and defendant No, 3 is Akbar Khan son of Gohar Khan, driver of the bus. The case of the plaintiffs is that on 5th August, 1976 the deceased Amjad Ali with another by Mirza Ali Asghar were going on a cycle from Federal '13' Area, Karachi to the house of the plaintiffs in Liaquatabad. Near the bus stop of Block No, 4, bus bearing registration No, K. C. B.1034 of route No. 1-D and driven by defendant No, 3 in a rash, careless and negligent manner, dashed against the cycle on which these two boys were travelling from behind. Both the boys were injured on account of the accident and taken to Abbasi Shaheed Hospital. Mirza Ali Asghar was discharged after sometime but the deceased, who was seriously injured, expired in the hospital on 7th August, 1976 due to injuries received in the accident.
2. The plaintiffs had made Sind Road Transport Corporation as defendant No. 1, was at the time of the accident, this Corporation was the owner of the bus in question. Karachi Transport Corporation were joined as defendant No, 2 as, according to para. 3 of the plaint, since 1st January, 1977 they took over the Management and assets of defendant No. 1. As observed earlier, defendant No, 3 who is ex parte, was joined as the third defand ant as the driver of the bus.
3. Defendant No. 1 in their written statement have admitted the ownership of the bus at the time of the accident but denied that the accident took place as alleged by the plaintiffs. It was further pleaded that defendant No, 2 was the successor of defendant No. 1 by virtue of having taken over the assets and administration from defendant No. 1 with effect from 1st February, 1977.
' Defendant No, 2 in their written statement denied the facts relating to the accident for want of knowledge. It was, however, pleaded that they started their operations from 1st February, 1977 and had no concern with defendant No. 1.
5. On the pleadings of the parties, the following issues proposed by the learned counsel for the parties were adopted by the Court on 11th April, 1979:-
(1) Whether the defendant No, 3 driving bus No, K. C. B. 1034 rashly and negligently dashed Amjad Ali who was going on his bicycle accompanied by his friend Mirza Ali Asghar and caused fatal injuries to him ?
(2) Whether the defendant No, 2 has started operations with effect from 1st February, 1977 and had no concern with the defendant No. 1. The owner of the bus on 5th August, 1976 ? If so : what is the effect ?
(3) Whether the plaintiffs have been deprived of their present and future benefits due to the death of Amjad Ali ? If so, to what extent ?
(4) To what relief, if any, are the plaintiffs entitled ?
6. The following witnesses were examined on behalf of the plaintiffs :-
(1) P. W. 1 Mirza Ali Asghar (Exh. 6) the by who was riding the cycle at the time of accident with the deceased sitting on the iron frame in front.
(ii) P. W. 2 Dr. Abdul Majeed Khan, Police Surgeon (Exh. 7).
(iii) P. W. 3 S. Yadgar Hussain (Exh. 8) Sub-Inspector, Risala Police Station, who had put up the challan against defendant No, 3 in the Court of A. C. M., Liaquatabad, in respect of the criminal case under section 304-A, P. P. C.
(iv) P. W. 4 Muhammad Hanif (Exh. 9} eye-witness who ran a shop near the scene of accident.
(v) P. W. 5 Afzal Khan (Exh. 10) a vegetable hawker and an eyewitness.
(vi) P. W. 6 Khan Muhammad (Exh. 11) A. S. I. Who had carried out the investigation.
(vii) P. W. 7 Jafar Ali (Exh. 12) plaintiff No. 1 and father of the deceased.
' No witnesses were examined by defendant No. 1 and only one witness, D. W. 1 N. Baseer (Exh. 13) was examined by defendant No,
2. He is the Secretary of defendant No,
2. Defendant No, 3 did not enter the witness-box.
7. I have heard the arguments of Mr. Zafar Alam Khan, Advocate for the plaintiff, Mr. M. G. Dastgir, Advocate for defendant No. 1 and Mir Raza Hussain, Advocate for the defendant No,
2. I will now discuss the issues.
8. Issue No. 1 : "Whether the defendant No, 3 driving bus No, K. C. B.-1034 rashly and negligently dashed Amjad Ali who was going on his bicycle accompanied by his friend Mirza Ali Asghar and caused fatal injuries to him ?"
' The main eye-witness is the by Mirza Ali Asghar (Exh. 6) who has with clarity described the incident. He has stated in his evidence that he was riding the cycle on the fateful day with the deceased, his friend, sitting on the frame in front and when he took turn for going towards Lalukhet (Liquatabad) No, 4, bus No, K. C. B.-1034 belonging to defendant No. 1 struck them from behind and knocked them down and the bus dragged them for considerable distance. On account of this accident, both the boys were seriously injured. A nearby shopkeeper Muhammad Haneef (P. W. 4) took them to Abbasi Shaheed Hospital where the witness was discharged the same night but the deceased remained in the hospital and later on died on 7th August, 1976 on account of injuries received in this accident. According to this witness the registration number of the bus was noted by him and this was confirmed to him by P. W. Muhammad Haneef. He further deposed that the bus was coming at high speed and after striking them down it continued running for some distance and dragged them along. The cross-examination of this witness could not shake his testimony at all. P. W. 2 Dr. Abdul Majeed Khan (Exh. 7), the Police Surgeon, who had performed the autopsy of the deceased on 7th August, 1976, produced the post-mortem report and death certificate and gave evidence to the effect that the cause of death of Amjad Ali was shock and cerebral haemorrhage as a result of injuries on his person caused by some moving vehicle. P. W. 3 Sub- Inspector S. Yadgar Hussain (Exh. 8) had put up the challan of defendant No, 3 the driver in the Court of A. C. M. Liaquatabad, Karachi, in respect of accident case 423/76 under section 304-A, P. P.
C. Involving injuries to Amjad Ali son of Jaffar Ali. He produced a certified copy of the challan as Exb.
8/1. In the cross-examination, he stated that the criminal case was pending.
' P. W. 4 Muhammad Haneef (Exh. 9) is the other eye-witness. He owns a shop near bus stop No, 4, Liaquatabad opposite to the place of accident. He saw bus No, K. C. B.-1034 of route No. 1-D overtaking another bus, and in the process of overtaking, knocking down the boys. He rushed to the boys who were entangled in the front wheels of the bus and were seriously injured. He took the boys to the hospital and later on returned to his shop when the father had come to the hospital. He came to know after three or for days that the younger by whose name was Amjad All died. In cross-examination, the witness admitted that he had known plaintiff No. 1 for the last 7 or 8 years and he was a customer and used to purchase meat from the witness, His testimony regarding the accident could not be shaken and has also withstood the attacks during the cross-examination. P.
W. 5 Afzal Khan (Exh. 10), a hawker who used to sell vegetables on his cart, is another eye-witness of the accident. He saw a bus hitting the boys who were on a cycle and dragged the boys 10 to 15 paces. P. W. 6 A. S. I. Khan Muhammad (Exh. 11) has given evidence as the investigating officer. He produced a certified copy of the F. I. R. (Exh. 11/1) against the driver, defendant No, 3.
' The last witness on behalf of the plaintiffs is the father of the deceased and plaintiff No. 1 P. W. 7 Jaffar Ali (Exh. 12) had not seen the accident but as the accident had taken place near his house, some boys had come to his house and informed him about the accident. By that time the deceased had already been taken to Abbasi Shaheed Hospital where the witness saw his son lying injured. According to this witness, the accident had taken place on 5th August, 1976 and his son died in Abbasi Shaheed Hospital on 7th August, 1976.
9. The evidence abou t the accident that has come on the record is clear enough and learned counsel for defendant No. 1 could not refer to any contradictions in the depositions of the witnesses to pursuade me to disbelieve the account given by the witnesses. There are three eye-witnesses including P. W. Ali Asghar who was riding the cycle. The bus came from behind and hit the boys. The boys were dragged under the wheels for some distance. Defendant No, 3 has not come in the witness-box. According to the witnesses, the accident was caused due to rash and negligent driving of the bus, which at that time was driven by defendant No,
3. In the circumstances the only conclusion that can be reached is that the accident was caused on account of rash and negligent driving of bus No, KCB-1034 by defendant No, 3 and this resulted in injuries caused to the two boys with Amjad succumbing to his injuries in Abbasi Shaheed Hospital on 7th August, 1976.
10. Issue No, 2 : "Whether the defendant No, 2 has started operations with effect from 1st February, 1977 and had no concern with defendant No. 1, the owner of the bus on 5th August, 1976 ? If so, what is the effect ?"
It is an admitted position that on 5th August, 1976, the day of the accident, defendant No, I (S. R. T.
C.) was the owner of the bus bearing registration No, KCB-l034. From the written statements of defendants Nos. 1 and 2 and from the evidence of D. W. 1 N. A. Baseer (Exh. 13), Secretary of defendant No, 2, it has been established that defendant No, 2 commenced operations with effect from 1st February, 1977, that is after about six months of the accident. In the circumstances the burden of proving that defendant No, 2 took over the liabilities of defendant No. 1 is on defendant No 1 who has led no evidence. Deposition of D. W. 1 shows that defendant No, 2 has not taken over the assets and liabilities of defendant No. 1. There is no evidence to the contrary.
' Issue No, 2 is decided in the affirmative and the effect is that defendant No, 2 cannot be held liable for damages resulting from injuries/ death caused due to the accident by bus No, KCB-1034 on 5th August, 1976.
11. Issue No, 3 : "Whether the plaintiffs have been deprived of their present and future benefits due to the death of Amjad Ali ? If so, to what extent ?"
' The relevant evidence on this issue is that of P. W. 7 Jaffar Ali (Exh. 12), father of the deceased by. I consider it proper to reproduce here extracts from his deposition to appreciate the contentions of the learned counsel for the parties :- "My father is still alive. He is 80 years of age. My mother is also alive. She is about 64 years of age.
We are three brothers. One is elder and the other is younger to me. The elder is aged 45/46 years.
The younger brother is 39 years of age.
' My son had died in the bus accident in 1976 and at that time he was aged 14 years.
' At the time of the accident my son was in excellent health and was studying in 7th class. He was studying at that time in Ibrahim All Bhoy Government High School. Apart from the deceased son I have only 2 other daughters and no other issue. The two daughters are younger to the deceased.
After the birth of my 3 children including the deceased I had undergone an operation in connection with family planning and I cannot have any more children. I work in Pakistan Tobacco Company Limited where the retiring age is 58 years. I have still 17 years of service to go with my present employer.
' On the basis of ages in or family including the ages of my parents I can say that if my son Amjad All had not died in the unfortunate accident he would have definitely lived to the age of at least 65 years. My deceased son wanted to become an Engineer and I also wanted him to become an Engineer. In 9 years time he would have become an engineer, and at that time his age would have been 23 years. After having qualified as an engineer, if he had not died in the accident, I expect he would have been earning in the range of 2,500 per month initially and later on increasing to about Rs, 5000 per month.
' My total emoluments are Rs, 1,500 per month. I was spending Rs, 400 per month on his education and upkeep. My parents with my elder brother are still in India. My younger brother is in private service in Karachi. In India all of us used to live together as we have followed the joint family system. However on Partition, I migrated to Pakistan otherwise I would have been living with my parents, and on the other hand if my parents would have migrated they would have been also living with me in Karachi. I would have expected that after 10/12 years that is after he had become an engineer, he would have started spending at least Rs, 1,000 per month on myself, my wife and in connection with the marriage of my two daughters.
' Cross-examination to Mr. Dastgir : My younger brother stays in Dastagir Colony. He is married. My younger brother is a journalist. My first cousin Iftikhar Hussain is an engineer and works in Steel Mill.
None of my brothers or brothers-in-law is an engineer. I have stated in my examination-in-chief that at the time of the death of my son I was spending about Rs, 400 on his education and upkeep.
This figure would have gradually increased if my son had not died in the accident. It might have gone to Rs, 600 per month."
12. In the judgments delivered during the last decade, superior Courts of or country have taken the expected span of life as 60 or 65 years but the recent trend in the judgments is to accept the conservative figure of 60 years. In my view also the normal span of life in Pakistan should be taken as 60 years if there is no evidence on record that the deceased was suffering from any malady or disease which, on medical authority, was likely to curtail the life span of the deceased. In case, however, cogent and accurate evidence comes on record that in the family of the deceased the normal age in fact was more than 60 years, the Court would not be restricted to 60 years as the expected age of the deceased but may accept 65 years or even more depending on the assessm ent made on the evidence on record.
' In the present case the evidence is that the deceased Amjad Ali was a by in excellent health.
Evidence has also come on record that the normal age in the family is more than 65 years. The plaintiffs have, however, claimed damages on the basis of 65 years as the expected age of the deceased. In view of the evidence of plaintiff as regards the span of life in his family which has gone unchallenged, I accept 65 years as the expected age of the deceased as -well as the parents of the deceased, plaintiff in this suit.
13. The evidence shows that the deceased was the only male child of the plaintiffs, and after the birth of three children, the other two being daughters, plaintiff No. 1 had undergone an operate on so that he cannot have any more children. Evidence has also come on record to the effect that in this family joint family system was followed and, being the only son, the deceased would have lived with his parents. Even otherwise, on the facts of the case, it is reasonable to assume that the deceased, after he had started earning would have been a source of financial benefits to the plaintiffs. In the circumstances it has now to be assessed as to how much would have been the total benefit to the plaintiffs in terms of money had the deceased not died on account of the accident.
14. Plaintiff No. 1 has deposed that the deceased wanted to become an engineer and in 9 years time he would have become an engineer and at that time his age would have been 23 years. It was further deposed that plaintiff No. 1 expected his initial earning in the range of Rs, 2,500 per month and later on increasing to about Rs, 5,000 per month. Plaintiff No. 1 was expecting that after about 10/12 years the deceased, had he lived, would have started giving at least Rs, 1,C00 per month to the plaintiffs. Plaintiff No. 1 was spending Rs, 3/40 per month on the education and upkeep of the deceased which expense was likely to increase to Rs, 600 p. m. It, therefore, follows that plaintiff No. 1, whose total emoluments were Rs, 1,500 per month, was spending about 1/3rd on the education and upkeep of the deceased. In view of the evidence on record, I am of the opinion that after he had started earning, on an average the deceased would have been giving at least Rs, 500 per month to the plaintiffs during the remainder of their lives. I have taken this figure of Rs, 500 per month on the basis of the average expected future earnings of Rs, 2,000 per month of the deceased as an engineer. Had he lived, the deceased would have been expected to get married with every likelihood of getting children. Keeping all this into consideration and also the family custom, I/4th of the average monthly income comes to Rs, 500 which the deceased was most likely to spend on the plaintiffs or either of them.
15. At the time of the filing of the suit in 1977, plaintiff No. 1 was 39 years of age and plaintiff No, 2 was 30 years old. Lf, after 10 years, the deceased had started earning, plaintiff No. 1 would have been 49 years and plaintiff No, 2, 40 years of age. Plaintiff No. 1 then would have 16 years and plaintiff No, 2, 25 years left out of their expected span of lives. In my view, therefore, the plaintiffs, or either of them, could expect an income of Rs, 500 per month for 25 years and the total amount calculated thus comes to Rs, 1,50,000.
16. Mr. M. G. Dastgir, learned counsel for the defendant No. 1, had urged that from the total amount which was expected to be received by the plaintiff, the sum should be deducted which was likely to be spent on the education and upkeep of the deceased and which on account of the death of the deceased, plaintiff No, I has saved. According to learned counsel, this should be between Rs, 400 and Rs 600 per month for a period of 10 to 12 years. In my view, the contention of learned counsel is correct as in this case there is specific evidence that plaintiff No. 1 was spending this amount and was going to spend a substantial amount continuously till his son had qualified. I would accordingly deduct sum of Rs, 60,000 at the rate of Rs, 500 per month for a total of 10 years. As a result, the plaintiffs are entitled to a decree against defendants Nos. 1 and 3 in the sum of Rs, 90,000,
17. In reaching the figure of Rs, 90,000 as damages, to which the plaintiffs are found to be entitled under section 1 of the Fatal Accidents Act, 1855, I have no doubt relied upon the evidence on record but there has been an element of guesswork also. Assessment of damages in such a case is bound to be, to a certain extent, of a rough and approximate nature. This is so, as in such cases, the Courts are required to deal with certain uncertainties which inter alia include the age to which the deceased and the beneficiaries were expected to live, the future or expected earnings of the deceased, the approximate amount the deceased was likely to spend on or give to the beneficiaries, etc. In this regard I may with advantage refer to a passage from the judgment of or Supreme Court in the case of Manmatha Nath Kuri v. Muhammad Mokhlesur Rehman (I) Chief Justice Hamoodur Rehman, who delivered the judgment in that case observed at page 576 of the report as follows :- "The Act itself does not, however, lay down any principle for calculating the measure of such loss but an estimate has still to be made by the Court which has also to apportion the sum so determined between the beneficiaries proportionately, according to the nearness of their relationship and the interest which each of them had in the life of the deceased. Under this head legal liability alone is not the test of the loss. But even the reasonable expectation of pecuniary advantage which might have been derived from the deceased had he remained alive, may be taken into account, and damages given in respect of that expectation.
' Assessm ent of damages in such a case must, therefore, necessarily be to some extent of a rough and approximate nature based more or less on guesswork, for it may well be impossible to accurately determine the loss which has been sustained by the death of a husband, wife, parent or child.
' No definite or hard and fast rule can, as such, be laid down as to the matters which should be taken into account. But this much can be said that only such damages can be given as can be shown to have been financially suffered by those who bring the action. In estimating such damages the Court will, no doubt, take into account the age of the deceased, his or her health, earning capacity and even the chances of advancement. There must, however, be evidence of reasonable expectation of pecuniary advantage and not {{FOOT NOTE}}
(1) PLD 1969 SC 565 {{FOOT NOTE}} of a "mere speculative possibility". Thus parents may recover for the loss of the probability that the deceased child would have contributed towards their maintenance and children may recover for the loss of education, comfort and position in society which they would have enjoyed if the father had lived and maintained the income which had died with him. The basis of the assessment is not the requirement of plaintiff but the money value of the assistance which the deceased might probably have given had he continued to live."
18. Issue No, 4 deals with relief. In view of the above discussion and my findings on issues Nos. 1; 2 and 3, I decree the suit of the plaintiffs in the sum of Rs, 90.000 jointly and severally against defendant Nos. 1 and 3. Plaintiffs Nos. 1 and 2 shall be entitled to the decrial amount in equal shares.
Plaintiffs shall also be entitled to proportionate costs. Suit against defendant No, 2 stands dismissed.