1. ' The plaintiffs have filed this suit for recovery of Rs,1,50,000 under the Fatal Accidents Act, 1855. The case of the plaintiffs is as under:- ' Firdausi Begum deceased aged 36 years was wife of the plaintiff No,1 and mother of plaintiffs Nos.
2. 2, 3 and 4. She died in an accident on 2nd Apri1,1980 while she was getting down from bus No,802- 437 belonging to defendant No,1 and driven by defendant No,2 as employee of the first defendant.
3. The deceased was getting down from the bus when, it is alleged by the plaintiff, the driver started the bus all of a sudden before the deceased could get down. Due to sudden start of the bus the deceased, who was on the footboard of the bus at that time, fell down and was crushed under its wheels and died on the spot. Defendant No,2 was prosecuted by the police for offence under section 304-A, P.P.C. The case was pending at the time when the suit was filed. It is alleged by the plaintiff that death was caused due to the negligence and carelessness of defendant No,2 who was acting in performance of his duties as employee of defendant No,1. The plaintiffs had filed claim before the Tribunal under section 67-A of the Motor Vehicles Ordinance, 1965 (hereinafter referred to as the said Ordinance). The Deputy Commissioner, acting as Tribunal under the said Ordinance, had awarded Rs,16,000 as compensation under section 67-C to the plaintiffs against defendant No,1. It is admitted by learned counsel for the parties at the bar that the plaintiff have received this compensation. Not satisfied with the amount of compensation received under the said Ordinance, the plaintiff filed the present suit for Rs,1,50,000 as damages and financial loss received by them as a result of death of Firdausi Begum. The plaintiffs have alleged that the deceased used to earn Rs,750 per month by doing tailoring work in her house. Plaintiff No,3 has already been working in a textile mills and earning about Rs,500 per month. Plaintiff No,1 the husband of the deceased, claims to be chronic patient of skin and heart diseases due to which he is not doing any job.
4. ' The suit was contested by defendant No,1 only. Defendant No,2 remained ex parte. It has been alleged by the contesting defendant in the written statement that Firdausi Begum had died due to her own negligence without any fault or negligence of the part of the driver. It is not denied that defendant No,2 was an employee of defendant No,1. It is further alleged that having received compensation under the Motor Vehicles Ordinance the claim of the plaintiff under Fatal Accidents Act is barred by res judicata. It is denied that the plaintiffs received any financial loss due to death of Firdausi Begum. Some legal pleas have also been raised in the written statement which will be evident from the issues settle by the Court. Following issues were settled by the consent of the parties:--
(1) Whether the suit, as framed is maintainable?
(2) Whether the suit is time barred ?
(3) Whether the suit hit by res judicata ?
(4) Whether the plaintiffs have no cause of action ?
(5) What it the effect of the plaintiffs having received compensation under section 67 of the Motor Vehicles Ordinance 1965 as amended ?
(6) Whether the death of the deceased Firdausi Begum was not caused by negligence and carelessness of the Defendant No,2 driving the bus No,803-437 belonging to the Defendant No,1 ?
(7) Whether the defendant No,1 as owner of the bus not liable to pay compensation/damages to the plaintiff for the actionable wrong of the defendant No,2 the employee of defendant No,1 or are the defendants jointly and severally liable ?
(8) Whether the plaintiffs are entitled to compensation as claimed by them for the loss of present and expected pecuniary benefits suffered by them ?
(9) Whether the plaintiffs are entitled to interest on the amount of claim from the date of suit still recovery of the said amount?
5. ' In support of the above issues the plaintiffs have examined Mst.Suria Exh.1, Muhammad Younus (husband of Firdousi Begum and plaintiff No,1) Exh.5, Alimuddin (Exh.7) and Muhammad Feroze (Exh.8). The defendants have not examined any witness in rebuttal. P.W. Suria is neighbour of the plaintiffs and has deposed that the deceased used to do tailoring work privately in her house and used to earn Rs,800 per month, that she had a son Zahid aged about 24 years and another Amir aged 7 years and a daughter Suria Begum aged 15 years. She further stated that plaintiff No,1 is not doing work on account of his illness but plaintiff Zahid Khan is an earning member of her family. In cross-examination she states that she had deposed about income of the deceased according to what the deceased had herself told her. The witness has no personal knowledge of payments made by the customers to the deceased for the tailoring work.
6. ' P.W. No,2 Younus Exh.5 is husband of the deceased. He has deposed that his deceased wife used to earn Rs,800 to Rs,900 per month by doing tailoring work and that she was the earning member of the family and maintaining the entire family. He admits that formerly he was working in a textile mill but now he is unable to do any regular work due to his illness. P.W. Alimuddin Exh.7 and Muhammad Feroze Exh.8 are on the point of accident. They have supported the case of the plaintiffs that Firdousi Begum died as a. Result of carelessness and negligence of the driver of the bus in which she was travelling. These witnesses have deposed that they were also travelling by the same bus and that when the bus had stopped, Firdousi Begum wanted to get down but before she could yet down, the driver started the bus all of a sudden which resulted in the fatal fall of the deceased who was crushed under the wheels of the bus.
7. Since the defendants have not produced any evidence, I have no reason to disbelieve the plea that the death of Firdausi Begum was the result of careless and negligent act of defendant No,2. Since the defendant No,2 was a regular employee of defendant No,1 and the wrongful act which had caused death of Firdousi Begum was committed during the performance of his duties as such employee, hence the defendant No,1 is much as liable as defendant No,2, for damages claimed by the plaintiff.
8. ' Before deciding the quantum of damages, it will be proper to take up the issues which have been settled in the suit.
9. ' Issues Nos.1, 2 and 4 have not been pressed.
10. ' Issue No,3.-- About issue No,3 it has been argued by the learned counsel for the defendant that since the plaintiffs have already received compensation under said Ordinance, the suit is barred by res judicata. The plea is misconceived because section 67(2) of the said Ordinance lays down that the compensation payable under subsection (1) shall be in addition to any sum which person entitled to receive compensation may receive or may be eligible to receive under the Policy of Insurance of under the provisions of section 95 of Motor Vehicles Act, 1930. It would appear that the section 67 does not prevent and aggrieved party from seeking remedy which is available to it under other laws on account of death of a person. There is no provision under the said Ordinance preventing the aggrieved party from pursuing a remedy under the Fatal Accident Act, after having received compensation under the said Ordinance.
11. ' Learned counsel for the defendant has relied on section 67-G of the 1965 6,-ordianance which is reproduced here under:-- "No civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by a Claims Tribunal and no injunction in respect of any action taken or to be taken by or before a Claims Tribunal in respect of any claim for compensation shall be granted by a civil Court."
12. It has been argued that reference to the above provisions that the present suit is barred. This argument is also misconceived because the envisaged in the above section only relates to adjudication of claim by a Claim Tribunal. What the section lays down is that the claim adjudicated by the Tribunal under section 67 shall not be challenged in civil Court. It does not prevent an aggrieved party from perusing remedy under the Fatal Accidents Act after having received compensation under said Ordinance. I, therefore, hold that the suit is not barred by the res judicata.
13. Issue No,3 is decided in the negative. For the same reason issue No,4 is also decided in the negative.
14. ' Issue No,5.-- It has already been held above that receiving compensation under section 67 of the 1965 Ordinance does not prevent an aggrieved party perusing remedy available to it under other laws. Section 67 of the said Ordinance does not overside specifically the provisions of Fatal Accidents Act. However, the amount of compensation received by the plaintiffs under section 67 of the said Ordinance shall be one of the factors to be considered for determining the quantum of compensation to be awarding to the plaintiffs. The issue is decided accordingly.
15. ' Issue No, 6.-- From the evidence of P.Ws. Aleemuddin and Muhammad Feroz referred to above, it is proved beyond any doubt that the death of Firdausi Begum was a result of negligence and carelessness on the part of driver (defendant No, 2) of the bus belonging to defendant No,1. Issue is, therefore, decided in the negative.
16. Issue No, 7.-- According to vide establish principal a master is liable to third person for every such wrong of his servant as is committed in the course of his employment, although the master did not authorise, or was not cognizant of, or had even expressly forbidden the act or omission in question; but a master is not liable for the torts or negligence of his servant in any manner beyond the scope of the employment, unless he has expressly authorised them to be done, or has subsequently adopted them for him own use and benefit. In the case of transport operators, when a driver is taking a vehicle on the road in the performance of his duty and for the purpose of the master's business, i,e,, carrying passengers or goods from one place to another he is acting in the course of his employment and for the master's benefit. If during the course of that employment, he acts rashly or negligently and does an unauthorised or wrongful act which is connected with the performance of his duty in the course of his employment, namely, driving the vehicle from one place to another on the master's business, the master must be held responsible in torts for the wrong done by the driver. This responsibility of the master is independent of any criminal liability which may be incurred by the driver by his rash or negligent act. See Government of West Pakistan v. Mst. Sakina Begum PLD 1962 Peh.70. The above view is supported by decision in the case of Miss Shamsun Nissa and another v. Karachi Road Transport Corporation PLD 1975 Kar.
81. In this case driver of the above Corporation .Was responsible for a fatal accident. It was held that the Corporation was vicariously negligent act of its employee. Consequently compensation was awarded against both the Corporation as well as the driver. I, therefore, hold that responsibility to pay compensation to the plaintiff is joint and several of both the defendants.
17. Issue No,8.-- There is evidence of P.W. 1 Suria Begum, Muhammad Younus plaintiff only on the point that plaintiff was the main earning member of the family and that she was maintaining the entire family. There is discrepancy in their evidence about monthly earning capacity of deceased Firdausi Begum. In the para. 7 of the plaint it is stated that Firdausi Begum had been earning Rs,750 per month. P.W. Suria states that deceased had told her that she was earning Rs,800 per month while P.W. Younus, the husband of the deceased, states that she used to earn Rs,800 to 900 per month.
18. He also admits that at the time of the accident the deceased was aged 35 years and the plaintiff himself was working in textile mill. He left service due to some illness. He has not produced any medical certificate to prove his illness or to prove the fact that he is completely incapacitated.
19. Again it is admitted in the plaint that plaintiff No,3, the son of the deceased, had been earning Rs,500 per month. In view of this evidence it cannot be said that the deceased was the main earning member of the plaintiff's family. It is not believable that the deceased was maintaining her husband.
20. Again due to inconsistent versions in the prosecution evidence about the actual earning capacity of the deceased, it is not possible to say definitely as to how much she was earning. Although she might be earning by doing private tailoring work in her house. Since the defendants have not produced any evidence in rebuttal, hence I hold that it will be reasonable to fix Rs,500 per month as earning capacity of the deceased. Now since the deceased has not been proved to be the sole earning member of her family, the plaintiff cannot be awarded compensation at the rate of Rs,500 per month which, according to the Court, is the tentative earning capacity of the deceased.
21. However, it will be reasonable to presume that after retaining some amount out of her earning, the deceased might be contributing at least Rs,200 per month towards her household expenses. The age of the deceased at the time of accident is not disputed. At the time of filing the suit she was 36 years as stated in para No, 1 of the plaint. This fact has not been challenged by the defendant.
22. Normal span of life, according to various decisions of our Court, has been taken to be between 58 and 65 years. In PLD 1968 Karachi 464, the normal life was taken at 60 years and so also in PLD 1975 Kar.
914. In PLD 1960 Kar. 712 normal life span pleaded by the plaintiff as 58 years, was accepted by the Court. In PLD 1960 Lah. 1184 the normal life span as 55 years pleaded by the plaintiff was accepted by the Court. In P L 0.1968 Kar. 376 the normal life expectancy of man was taken 55 years. However, in the case of Ruqqia Bai v. Government of Pakistan PLD 1976 Kar. 131 Mushtaq Ali Kazi,.J. Has taken 65 years as the normal life span of a person. Following the majority view, I hold that it will be appropriate to fix 60 years as the normal life expectancy of a person for the purpose of determining compensation under the Fatal Accidents Act. Thus, the plaintiff shall be entitled to compensation at the rate of Rs,200 per month for 25 years, which would come to Rs,60,000. Issue decided accordingly.
23. Issue No, 9.-- As the plaintiff has already received compensation from the Claims Tribunal under the Motor Vehicles Ordinance, it will not be just and equitable to award interest to the plaintiff on the amount of compensation. Issue decided in the negative.
24. ' In view of the above findings the plaintiff's suit is decreed for Rupees sixty thousand (Rs,60,000) with costs against the defendants jointly and severally. Decree to issue accordingly.