SALAHUDDIN PANHWAR, J.---Succinctly, facts set out in the plaint are that plaintiffs filed instant suit for recovery of Rs,139,026,000/- under Fatal Accidents Act, 1855 pleading that plaintiff No,3 is widow, plaintiffs Nos.1 and 2 are minor sons, and Zafar Khan and Nasreen are respectively father and mother of deceased Shamsher Khan aged 30 years (deceased) who died on 25.01.2013 on account of receiving fatal injuries in a traffic accident within the territorial jurisdiction of PS Darakhshan; that according to charge sheet No,47/ 2013, arose out of FIR No,33/2013, under sections 320/337-G/427, P.P.C., defendant No,1 was driving the vehicle bearing registration No,BC-6893 when fatal accident took place on the night of 25.01.2013 at crossing of Khayaban-e-Shujat and Khayaban-e-Tipu Sultan, DHA, Karachi, which caused death of deceased named above as well as of another person named in charge sheet and injured 17 other persons; that defendant No,2 is owner of the vehicle as per agreement produced in Cr. Misc. Applications Nos.1184 and 8 of 2014 under section 516-A, Cr.P.C. In which defendant No,2 attached sale agreement and claimed to be owner of the vehicle; that defendant No,3 stood surety for defendant No,1 in pre arrest Bail Application No,112/2013 by depositing title documents of her property; that death of deceased was caused by defendant No,1 while deceased was going in his Mazda No,JE-1354 with employees of Ambala restaurant, while crossing the intersection of Khayaban-e-Shujat and Khayaban-e-Tipu Sultan at DHA, Phase 8, Karachi at around 2.00 am the vehicle was hit by Toyota Land Cruiser Jeep bearing No,BC-6893 which seriously injured the deceased who died on the spot whereas another person Sikandar Ali got critical injuries and died in hospital, leaving 17 others with critical injuries; that despite clear visibility defendant No,1 was traveling very fast and hit the rear right part of minibus of the deceased with full force without applying any breaks and the minibus spin and leaned over to the right side while defendant No,1 remained unhurt due to safety features of Land Cruiser however his vehicle was badly damages; defendant No,1 absconded from the scene; that defendant No,1 owing to willful misconduct, reckless driving, carelessness and gross composite negligence of defendant No,2, owner of subject vehicle had given his Land Cruiser to defendant No,1 despite having knowledge of his behavior is equally guilty of causing death of deceased; that death of deceased was caused due to negligence, wrongful act and default on part of defendant No,1 during the course of employment of defendant No,2 who is also vicariously liable to payment of compensation to plaintiffs, who destroyed a happy family life of deceased who was earning good livelihood and could have survived upto 70 years and his family has been deprived of present and expected pecuniary benefits to an extent of Rs,139,026,000/- as deceased was skilled driver deriving salary of Rs,80,000/- per month inclusive other allowance/emoluments and getting increase of Rs,8,000/- every year; that sudden deprival of paternal support nice training, look after, proper nourishment, shelter and education etc. For children of deceased put them at the losses assessed to the tune of Rs,2,000,000/- each in addition to monetary loss, likewise deceased's widow claims a sum of Rs,500,000/- under the head 'consortium', parents of deceased claim aggregate sum of Rs,500,000/- as compensatory loss while plaintiff also claims a sum of Rs,20,000/- on account of funeral expenses; thus plaintiffs prayed to:-- a. Pass a decree in the sum of Rs,139,026,000/- (Thirteen crores ninety lacs and twenty six thousand only) 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 the circumstances of the case. b. Grant profit/markup at the rate of 12% per annum on the amount claimed in clause (a) above from the date of the 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. Cost of the suit may be awarded to the plaintiffs. d. Any other relief or reliefs that this honourable Court may deem just and proper under the circumstances of the case be granted.
2. The defendants despite service did not cause their appearance hence were declared ex parte vide order dated 26.01.2015.
3. It is a matter of record that the defendant (s), despite service, chose to remain absent meaning thereby that the defendant (s) deliberately avoided to avail the remedy of defence. Filing of written A statement is meant to provide an opportunity to deny claims of plaintiffs and to bring his own claim which give rise to framing of issues (controversies between parties), if any, but where there is an admission '35. The relationship that gives rise to vicarious liability is in of claim, it shall not require the Court to adopt procedure of trial which is only meant to determination of controversies (issues). Since availing of an opportunity of the defendant (written statement followed by trial) for defendant (s) in ordinary suits does not relieve the plaintiff (s) from proving their claim/allegation but situation in fatal accident cases would be different because the law is clear that the moment defendant (in fatal accident cases) denies allegation of negligence the burden shifts upon him (defendant). Reference can be made to the case of Anisur Rehman v. Govt. Of Sindh (1997 CLC 615) and Mst. Sakina v. National Logistic Cell (1995 M LD 633) wherein it was held that:- "The defendants having given a different version of the accident were burdened with to discharge the same and to.."
' In another case of Pakistan Steel Mills Corporation v. Malik Abdul Habib (1993 SCM R 848), it was held that:- "If defendant in the suit for damages took the plea that accident had occurred on account of negligence of deceased himself it was his duty to produce evidence to show that machine was in perfect order and there was no defect in the same and deceased died on account of his own negligence"
' In the instant matter, happening of the unfortunate incident, costing life of deceased in road accident is not disputed. Since, the defendant (s) have not chosen to deny the claim negligence on part of the defendant No,1 hence failure thereof (remaining absent despite service) shall lead to no other presumption but, the one that defendant(s) have nothing to shift the onus probandi to extent of happening of the accident as a result of negligence of the defendant No,1 (driver/employee of defendant No,2) hence claim to such an extent is taken as proved particularly when material in shape of FIR, charge sheet etc., establishing death of deceased in road accident are there as undisputed.
4. Now, there remains another question regarding liability of defendant Nos.2 and 3. There has been produced documents on record including the one which the defendant No,2 himself produced in Cr.M.As. Nos.1184 and 8 of 2014 whereby acknowledging the ownership of the vehicle. The defendant No,2 at no material times attempted to deny such status nor even has withdrawn the benefit of such claim i,e, restoration of custody of vehicle by the Court. Without diving into much debate and to make question of vicarious liability clear, Reference can be made to the case of the Catholic Child Welfare Society v. Various Claimant (FC) the Institute of the Brothers of the Christian Schools (2013 SCM R 787) wherein it is held: the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicarious liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied:
(1) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;
(ii) The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;
(iii) The employee's activity is likely to be part of the business activity of the employer;
(iv) The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;
(v) The employee will, to a greater or lesser degree have been under the control of employer.'
In the instant matter there can be no denial to the fact or legal presumption that: i) defendant No,2 has means to compensate and not the defendant No,1 (employee); ii) the defendant No,1 was driving the vehicle of defendant No,2 at time of accident being employee; iii) the act of defendant No,1 plying/running the vehicle 4 was part of employment activity of the defendant No,2; iv) it was the defendant No, 2 who by allowing the defendant No,1 to ply the vehicle on road has knowledge of creation of any tort by its (defendant No,2's) employee i,e, defendant No,1; v) the defendant No,1 (being employee) was under direct control of the defendant No,2.
Accordingly, it is safe to say that all above conditions stand established hence it is not difficult to conclude that the defendant Nos.1 and 2 are jointly and severally liable for the tort in question.
However, the act of standing surety for release of vehicle on superdari basis shall not put the defendant No,3 under any liability for an act of defendant No,2 as she is neither employer nor defendant N0.1, as driver, was not under control of defendant No,3, hence claim of the plaintiff regarding vicarious liability of the defendant No,3 cannot be stamped to be sustainable.
5. Now, the last and crucial question is to be addressed which has nothing to do with absence of the defendant but has to be proved by the plaintiffs themselves i,e, 'compensation amount'.
6. To substantiate the claimed compensation, the plaintiffs have not produced any material which could legally justify the award of claimed compensation of Rs,139,026,000/- (Thirteen crores ninety lacs and twenty six thousand only). The record however shows that the plaintiffs specifically pleaded that deceased was a healthy person; was earning sufficient amount for his family by drawing handsome salary. The plaintiffs however produced nothing on record to substantiate the average life in the family so also monthly income and chances of increase but the defendants have also brought nothing on record to prove otherwise. In such eventuality it would be appropriate to take guidance from Honourable Apex Court hence I would like to refer the operative part of the judgment of honourable Supreme Court, reported as 2011 SCM R 1836 which reads as:- "Besides, the above we would add here, that when a person has surmounted his teenage, and the early youth and enters into his practical life by joining an employment or a business etc., it can be legitimately expected that he shall complete his inning by attaining the age of his normal retirement from such practical life, meaning thereby, that he shall remain engaged in some gainful activity, obviously till the time he in the ordinary course, is mentally and physically fit and capable.
Such an age on the touchstone of 'reasonable standard' can be termed to be somewhat around sixty five to seventy years; to support the above age limit there is preponderance of judicial view in our jurisdiction, that it should be seventy years; some of the judgments in this behalf are Hassan Jehan v. Islamic Republic of Pakistan .
The deceased died at the age of 30 years hence has surmounted his teenage and has joined the practical life. Therefore, following the above principle, I would also take the age of the deceased for compensation/damage as 'seventy years'. It is pleaded that the deceased was working as a driver but against handsome salary (as claimed) but in absence of any proof thereof I would take it at Rs,25,000 per month because average monthly income of the deceased as driver could not be believed to be less than this in a city like Karachi. Therefore, the ID compensation/damage is awarded as:-- Loss of pecuniary benefits to plaintiffs/L.Rs, of deceased (40 x 12 x 25,000/-)Rs,12,000,000/- ADD 10% increase chances on the aggregate income of over all years:1,200,000/- Thus TOTAL amount comes to: 13,200,000/- LESS: Personal expenses at 1/6th i,e.:2,200,000/- Net loss of pecuniary benefits: 11,000,000/- In result of the discussions, the suit of the plaintiffs is decree in above terms. Let such decree be drawn. However, parties are left to bear their own costs.