' MUHAMMAD ZAHOORUL HAQ, J.--These are the reasons of the short order passed by me on 16-5- 1985 decreeing the suit in the sum of Rs,4,00,000 with costs.
2. The relevant facts are that one Saqib Alvi who was driving his car was hit by Bus No,850-532 driven by defendant No,2 at about 6.00 p.m. On 16-12-1982 on National Highway near Mehar Cinema, Ksraehi. As a result of which the deceased died after some time on the same day. The other occupant of the car Pervaiz also died on the spot. Still two other occupants of the car namely, Abdul Aziz and Abdul Hafiz received injuries but they survived.
3. The bus involved in the accident belonged to the defendant No,l. It was claimed by the plaintiff that the bus was rashly and negligently driven at a very fast speed by defendant No,2 during the course of his employment with defendant No,1 and that it hit the car of the deceased after the bus had gone on the wrong side. The plaintiffs are the widow, minor daughter, minor son and the father and mother of the deceased. They filed the suit for damages arising out of the fatal accident under the Fatal Accident Act, 1855 for recovery of Rs,20,00,000. It was stated that the deceased was a contractor and was earning 25,000 per year and he was expected to live for 70 years while at the time of accident he was 31 years old and he was in good health.
4. The suit was resisted by the defendant No,1 who denied the allegations contained in the plaint and asserted that the bus was driven at normal speed and that the deceased's car all of a sudden appeared and colided with the bus and thus the accident was not a mistake or negligence on the part of the driver of defendant No,l. Expectancy of 70 years of the deceased was denied. No written .Statement was filed by defendant No,2.
' Two consent issues were framed on 5-8-1984:-
(1) Whether the death of deceased Saqib Alvi was caused due to rash and negligent driving by defendant No,1?
(2) To what relief, each of the plaintiffs are entitled, if any, and against which defendant?
5. The plaintiffs examined P.W.1, Abdul Aziz and P.W.2, Abdul Hafiz and P.W.C in respect of rash and negligent driving of the bus by defendant Nb.2. Abdul Aziz had stated that he was sitting in the same car and when they reached near Mehar Cinema of National Highway he saw a bus coming from Karachi proceeding towards Steel Mills. The said bus attempted to overtake' another car and while doing so it dashed against the donkey-cart. The driver of the bus was driving at a great speed and went on the right side of the road. Saqib Alvi who was driving his own car took his car in the Katcha on the left side of the road but the bus came even on that side and dashed against the car. Other occupants were Aijaz, Abdul Hafiz and Pervez. Every one received injuries. The bus was driven at a great speed about 55-60 miles per hour. The driver was rash and negligent and carelessly overtook, the car which was going ahead of it. The legs and ribs and hands of Saqib Alvi were broken and he also received grievous injuries on the chest. The deceased was taken to the hospital but he died. He found the bus driver missing from the scene after the accident. He stated that the bus belonged to defendant No,l. He had also suffered injuries. Saqib Alvi, deceased, was a man of good habits, sound health and was aged about 30 years. He was a contractor. The witness had never found him ailing during the period from 1976-82. The witness had a sub-contract in respect of masonary work with the deceased. He denied that Saqib Alvi was driving the car at a great speed. He also denied that Saqib Alvi had no driving licence. He had produced his own medical certificate, Exh.6, and the M.L. Certificates of the deceased as Exh.7 and Exh.8 and death certificate of the deceased Exh.9. He also produced the National Identity Card of Saqib Alvi showing his date of birth as 1-10-1951 and also the photostats of pages 2 and 3 of the passport of Saqib Alvi showing the same date of birth. He also produced photo of Saqib Alvi holding his small child in his hands which shows the deceased to be a young man of reasonable good health. P.W.2, Abdul Hafiz supported the statement of P.W.1 in all necessary details. He was also the occupant of the same car and had suffered injuries. He denied that Saqib .Alvi was driving his car at great speed. On the other hand, he asserted that the bus was coming at 40-50 miles per hour like a "Toofan Mail". He stated that Saqib Alvi had taken his car on the left side in katcha to avoid the accident but his car was hit by the bus. His own medical certificate is Exh.16.
6. P.W.6, Dr. Khalil Ansari had examined Saqib Alvi on 16-12-1982 and he confirmed that Saqib Alvi died on account of the injuries sustained by him on account of the accident. P.W.7 Muhammad Shafi who was Sub-Inspector of Police stated that he had made enquiries in the accident and he inspected the site and had prepared site memo, Exh.34, on the basis of the marks present on the road. He stated that the car at the time of the accident was being driven on its proper course and that the bus had gone on the wrong side and hit the said car. He stated in cross that the bus driver had absconded. He had also stated that the bus was owned by Karachi Transport Corporation, Defendant No,l. He had submitted the challan. The sketch Exh.34 prepared by him shows that car No,071-429 (belonging to the deceased) was five feet on the left side on the main road. The place of accident was shown on the main road and the arrows indicate an erratic route adopted by the bus. He produced Exh.44 which is a motor driving licence of Saqib Alvi issued on 4-11-1968.
7. There is evidence of P.W. Muhammad Wajihullah Alvi, a Doctor, aged 76 years, who stated that his brother Mashhoodullah is 82 years old and living while his own father had died at the age of 68 and his mother lived for about 80 years .While plaintiff's wife mother of Saqib, was living at 63 years of age. He is plaintiff No,4. He gave the expectency of life in their family 60-70 years. He is the father of Saqib Alvi and stated that Saqib was looking after his parents and his family. He stated that Saqib Alvi was a graduate from Karachi University and was earning between Rs,3,000 to Rs,4,000 per month and was partner in three firms of Al-moin Engineers, Jamila Squares and Haroon Esse Associates. The deceased was doing construction business. The deceased, had one wife and two children. He stated that his son Saqib Alvi was very hard working boy and his income would have increased with the passage of time. He stated that Saqib had good and sober habits and was expected to live upto 75 years. In cross-examination he admitted that he had no documentary evidence in respect of expectancy of the life of deceased person. He asserted that Saqib Alvi was a great asset to him as he was looking after his house and maintenance of car. He admitted that deceased had not obtained any technical education. He asserted that his son had never suffered any loss in his business. He produced the certificates of registration of the three firms of deceased Exhs.18 to 20. He also produced the copies of the F.I.R. And challan submitted against defendant No,2 by the police in the Court of A.C.M. II under section 304-A, P.P.C.
' Plaintiff No,1, Ayesha Alvi, who is the widow of the deceased, stated that she went to the site of the accident and saw the car of Saqib Alvi on the left side of the road. The car was badly smashed on the right side. Saqib Alvi was aged about 31 years and enjoyed good health and was a man of sober habits. They were married on 4-4-1974 and during all this time Saqib Alvi never fell ill. Saqib Alvi was partner in three construction Companies and, had constructed multi-storied buildings known as Al-Moin, Jamila Square and Shalimar Gardens consisting of respectively 100 flats, 32 flats and 20 shops. She stated that deceased used to give her Rs,2,000 to 2,500 per month three to four years before his death and it was increased gradually over the years and at the end of 1982 he was giving her Rs,4,000 to Rs,5,000 per month for household and family expenses. He was an assessee paying income tax. She produced the assessment orders Exh.26, 27 and 28. She stated that she belonged to the same family as that of Saqib. They have been deprived of the financial benefits which they used to receive from deceased during his life time. Their daughter was six years old and son was two years old. She spent Rs,2,000 on the education of the children. The bus which caused the accident belonged to defendant No,1 which was driven by defendant No,2. She stated that her husband was a cautious driver. She claimed Rs,2,00,000. In cross she stated that her husband never fell ill. She stated that, apart from partnership business, her husband also constructed one unit house in Defence Society. She admitted that the flats and tenements of the buildings constructed by her husband which were not disposed off are being booked and she was receiving accounts for the same. She denied that she had not been deprived of the financial benefits which she used to receive from her husband. She stated that she was teaching in Tiny-Tot School which she started after the death of her husband. She admitted that there is a pending claim of Rs,50,000 to 70,000 in respect of Grid Station at Mirpur Sakro which was completed after the death of her husband.
8. The defendents produced Muhammad Shafi, D.W.1, who was Station Superintendent of the defendant No,1. He stated that on 16-12-1982 the conductor Muhammad Aslam of the bus inv,olved in the accid,ent informed him that his bus was involved in an accident with a car on the National Highway. He went to the place of accident; saw the car involved lying on the left side of the road in the katcha. He prepared a sketch-map but he was not permitted to file the same. To a question from Court he replied that the services of the driver and the conductor of the bus involved in the accident were terminated by defendant on account of retrenchment. He admitted the name of the driver to be Hasan Ali son of Ghulam Muhammad. He is not an eye-witness and, therefore, his evidence is of no use in respect of the state of driving. D.W.2, Masood Siddiqi is a Traffic Manager of the defendant No,1 who stated that he submitted report of accident to the higher authorities and he called driver and conductor of the bus but he found them innocent. He admitted in cross- examination that defendant No,2 remained in service for about a week after the accident and thereafter their services were terminated due to the retrenchment. Qazi Iqbal Ahmed, D.W.3, was a witness of the plaintiff but he was given up by the plaintiff and then examined by the defendants.
He stated that he was partner with Saqib Alvi in firms Haroon Essa Associates and Jamila Square while Saqib was also a partner in Al-Moin Engineers and the projects of these three firms were completed and the firms were wound up in 1973 and accounts settled and profits distributed. He stated that few shops and flats in two apartments are yet to be sold and the firm would earn about fifteen lacs of profits out of which the share of Saqib Alvi would amount to Rs,4,00,000 which shall be payable to his widow. He further stated that the widow of Saqib Alvi had been paid about Rs,1,00,000 after the death of Saqib Alvi. In cross-examination he stated that he found Saqib Alvi to be very energetic, capable to control labour and carry out construction. He had his own house constructed by Saqib Alvi. He stated that they were fully satisfied with the work done by Saqib Alvi and that Saqib Alvi would have been a successful contractor if he had lived and that he would have earned more than Rs,50,000 per year as he remained alive. He admitted that Saqib Alvi was carrying on construction works in Defence Society, Nazimabad and other places apart from the partnership work. He admitted that they were keeping Chowkidar and maintenance staff for the buildings and the expenses of maintenance staff and salaries of Chowkidar are to be deducted from Rs,15,00,000 which was the expected profit out of the buildings and that capital gain tax would have also to be paid from the sale proceeds. He admitted that there was slump in the market and they were waiting for the purchasers for three years, He could not say if on sale they could expect loss or profit at this stage.
9. It appears to me that from the evidence and the eye-witnesses produced by the plaintiffs it is quite clear that the car of the deceased was hit by the bus of the defendant No,1 driven by their employee defendant No,2 at a very high speed and that the deceased was hit while he was on his own side of the road while the bus had come on the wrong side and he died as a result of those injuries sustained by him. The evidence of three defendant's witnesses produced by the defendants are of no consequence as they are not eye-witnesses of the accident.
10. The fact that the father and .Mother of the deceased Saqib Alvi are living at an age of 72 and 63 years shows that the deceased could be expected to live upto very advanced age. He was the man of sober habits as stated by his father Wajihullah and by his wife Mst. Ayesha. The P.Ws. 1 to 4 have all stated that he was in good health. His age has been proved to be of 31 years at the time of his death as he was born on 1-10-1951 according to the National IdentityCard. P.W. 3 had also stated that there was long expectency of life in the family and I have, therefore, no hesitation in coming to the conclusion that the deceased could have lived upto the age of 65 years and thus he would have contributed to the income of family for another 34 years if he had not died as a result of the accident.
At the age of 31 years the deceased was doing substantial business as he was partner in three construction firms and had participated in the construction of three multi-storeyed buildings which had fetched him a sum of Rs,25,382 in one year of assessment of 1981-82 as per assessment order of the Income Tax Authorities. Not only this but the P.W.3 has admitted that there was prospect of Saqib Alvi's share in the projected sales of the remaining flats and shops to be in the neighbourhood of Rs,4,00,000. This shows that deceased Saqib Alvi had already achieved considerable success in life even at the age of 31 years and with the passage of time it could be expected that he would have gained further experience and could have achieved greater success in life. It has been admitted by D.W.3 that Saqib Alvi was a hard working man and he was capable of controlling labour which is one of the prime factors for the success of a contractor. It is in evidence that he had his own car which was smashed and it was Toyota Mark-II which is a fairly expensive car and therefore, it is apparent that he had achieved considerable progress even before his death. It is reasonable to expect that he had a reasonable future but the family has been deprived of his earning for the next 34 years.
11. Since he was earning Rs,25,000 per year at the time of his, death I would consider it reasonable to expect that he should be making at least the same amount for another four years thereafter and in the' next five years he could be easily earning Rs,30,000 per year and in the next ten years thereafter, he could very well be earning about Rs,36,000 per year and in the next ten years, thereafter, his income could have risen to Rs,42,000 per year and during the last five years of his expected life he should be easily earning about Rs,48,000 per year I would emphasize that I have been rather conservative in makin the assessment of the expected income of the deceased and it could well be that he might have earned more than the figures estimated b me. But in any case, I have to make a rough estimate.
' By this process we reached the conclusion that the deceased would have earned about Rs,12,70,000 in the next 34 years of his expected life. Since he was a man of sober habits and was lookin after the family and as stated by Mst. Ayesha he used to go out with the family in the evenings one can safely assume that he was spendin most of his income on the family. However, about 1/4th of his projected income he would have used on his personal self and, therefore, I would exclude about Rs,3,18,000 from the projected income towards the personal expenses of the deceased. We have the evidence of D.W.3, who was partner of the deceased, where he has said that the share of the deceased from the expected sale of the flats and shops could be about Rs,4,00,000 which could be appropriated by the plaintiffs. He has further stated that one lac of rupees has been paid to the widow of the .Deceased after the death of Saqib Alvi on account of the sales of flats and shops. This would mean that the family of the deceased had already received a benefit of Rs,1,00,000 and further expect to, receive a benefit of Rs,4,00,000 which have to be deducted.
12. Mr.Shaikh Haider wanted me to reduce the projected profits on account of the expenses involved but there is no reason to discredit the statement of D.W.3 and, therefore, in my view it is appropriate to consider a figure of Rs,4,00,000 as the expected profits to be reasonably expected by the deceased's family. We have further to add a sum of Rs,50,000 which is expected to be realized by plaintiff,No,1 from the grid station constructed by the deceased at Mirpur Sakro and therefore, I estimate that the family would be receiving a benefit of about Rs,5,50,000 from the projects which the deceased had completed. And thus the expected benefits which the plaintiffs could have expected in the sum of Rs,9,52,000 in the 34 years to come from the deceased towards the family, shall have to be reduced by a figure of Rs,5,50,000 which is the expected and projected profit. It was in view of the figures that I had calculated on 16-5-1985, that I had awarded a decree of Rs,4,00,000 to he plaintiff.
13. Mr. Raza Haideri had submitted that the prospect of receiving a lump sum payment and its investment by the plaintiffs should go towards further reducing the amount of damages but I am of the view that in view of the depreciating value of the currency and also in view of the fact that the deceased Saqib Alvi had made a rapid stride in life and having earned Rs,25,000 per month at the age of 31 with a further prospect of making about Rs,5,50,000 in the near future of his death, it would be unfair to the plaintiffs to reduce the figure of Rs,4,00,000. On these considerations the suit was decreed for Rs,4,00,000 with costs It would be necessary to take note of the submission made by Mr. Raza Haideri on the point that 60 years should be considered as the expected life span of the deceased for which he had relied upon PLD 1973 Kar. 636 but against that Mr. Shaikh Hyder had relied upon PLD 1980 Lahore 584 and PLD 1969 SC 565 where 65 years of expected life was considered. In my view, the expectency is a rough estimate and since the father and mother of the deceased are still living and the deceased was a man of sober habits and good health and was devoted to the family, therefore, 65 years of expectency of life in his case is reasonable.
14. The suit was accordingly decreed on 16-5-1985 in the sum of Rs,4,00,000 with costs against both the defendants. It may be stated here that the defendant No,2 has failed to defend the suit and it has been proved that he had caused the accident in his capacity as the employee of defendant No,1.
Since the plaintiffs No,4 and 5 have relinquished their shares in favour of the other heirs of Saqib Alvi, therefore, I apportion the decree of Rs,4,00,000 between the planitiffs Nos. 1 to 3 as under:-
1. Begum A yesha Widow of Saqib Alvi.Rs.1,00,000
2. Aliya Farheen D/o Saqib Alvi. Rs.1,00,000
3. Amir Alvi son of Saqib Avli. Rs.2,00,000 ' The amount of decree when realised will be appropriated in the above portions. The amount of the minors shall be deposited through the Nazir of this Court in Khas Deposit Certificates and the six monthly interest accruing therefrom will be paid to the plaintiff No,1 for the day-to-day expenses incurred by her for the minors.