' C.A. RAHMAN, J.--This regular first appeal has arisen out of a suit instituted by Sardar Muhammad respondent in forma pauperis on 16-6-1972 for recovery of Rs,1,27,200 by way of compensation for the death of his son Javed Iqbal caused by rash and negligent driving of tractor alongwith trolly by Ashiq Hussain appellant on 16-2-1972. Ch. Abdul Latif appellant was impleaded as defendant by the respondent as he was the owner of the aforementioned tractor, while Raja Munawwar Ahmad appellant was sued in his capacity as the Managing Director of Asian Mutual Insurance Company Limited with whom the tractor in question was insured. The facts of the case as stated by the respondent' in the petition for leave to sue in forma pauperis were that on 16-2-1972 at 7-30 p.m.
His two sons Javed Iqbal aged 18 years and his younger brother Farooq Ahmad were standing alongwith- their Rehri away from the road near the boundary wall of Crescent Textile Mills, Faisalabad, when Ashiq Hussain appellant came from the other side driving tractor No,6727-LR alongwith a trolly loaded with sugarcane. He was driving the tractor at a high speed as a result of which the loaded trolly got disconnected and moving at a fast speed hit the Rehri and the respondent's sons Javed Iqbal and Farooq Ahmad. Javed Iqbal succumbed to the injuries before he could be provided with any medical aid while Farooq Ahmad was admitted in the hospital in injured condition, where he remained -under treatment for some time. According to the respondent Ashiq Hussain appellant, who was driving the tractor in question, and Ch. Abdul Latif, owner of the tractor, were liable to pay compensation to him and his wife for loss occasioned by the death of Javed Iqbal. He claimed Rs,1,15,200 on account -f loss of earning, which Javed Iqbal would have made in future. He also Claimed Rs,7,000 as damages for mental shock caused by the death of Javed Iqbal in addition to Rs,5,000 by way of special damages. The suit contested by all the three appellants. Abdul Latif and Ashiq Hussain appellants filed joint written statement wherein they stated that the respondent alone was not competent to file the suit; that the civil Court had no jurisdiction to try the suit in view of the provisions of section 67 of the Provincial Motor Vehicles Ordinance, 1965; that the death of Javed lqbal was the result of an accident and that Ashiq Hussain appellant was neither negligent nor he was driving the tractor rashly, when the trolly got disconnected after connecting hook had broken; and that the amount of compensation claimed by the respondent was neither reasonable nor proper. The suit was also contested by Raja Munawwar Ahmad on behalf of the Asian Mutual Insurance Company Limited. Meanwhile respondent's son Farooq Ahmad also instituted suit against the appellants claiming Rs,13,000 as damages for the injuries sustained by him as a'result of the rash and negligent driving of tractor by Ashiq Hussain appellant. This suit too was contested by the appellants. The learned trial Court consolidated the two suits and framed the following issues: -
(1) Whether the plaintiff has no locus standi to file the present suit?
(2). Whether the civil Court has no jurisdiction to try this suit in view of the provisions of section 67 of the Motor Vehicles Act?
(3) Whether the defendants or any of them ar e liable to pay the suit amount to the plaintiff?
(4) Relief.
2. The parties led evidence in support of their respective contentions. The respondent examined as many as eight witnesses including himself while the appellants produced five witnesses including Ashiq Hussain and Abdul Latif appellants. Learned trial Court after evaluating the parties evidence came to the conclusion that the death of Javed Iqbal had been caused by the rash and negligent act of Ashiq Hussain appellant and that Abdul Latif appellant being the employer of Ashiq Hussain was vicariously liable for the rash and negligent act of Ashiq Hussain appellant. The insurer of the tractor being driven by Ashiq Hussain appellant at the time of occurrence was also held liable to pay compensation to the respondent. The learned trial Court assessed the amount of compensation at Rs,96,000 on the basis of average yearly income of Rs,3,000 of Javed Iqbal and accordingly decreed the two suits against the appellants. Legal objections raised by the appellants which gave rise to issues Nos.1 and 2 were rejected by the learned trial Court while granting decrees to the respondent and Farooq Ahmed.
3. Learned counsel for the appellants has contended that the fatal accident in which Javed Iqbal lost his life was not due to rash and negligent driving of the tractor by Ashiq Hussain appellant as the trolly pulled by the tractor was disconnected after the connecting hook had broken. There was no mechanical defect in the tractor as deposed by Dildar Muhammad Mechanic, who was examined as D.W.1. The connecting hook had suddenly broken for which neither Ashiq Hussain appellant nor Abdul Latif appellant was responsible. The accident had occurred as a result of vis major and as such the appellants were not liable to pay compensation to the heirs of Javed Iqbal deceased. Learned counsel has further submitted that there is evidence to show that after the trolly had got disconnected there was hue and cry and persons standing near the road including Javed Iqbal deceased and Farooq Ahmad were warned to save themselves from the trolly. On hearing the noise Javed Iqbal had moved away from his Rehri, when he saw the trolly coming towards him but later on he came back to remove the Rehri to a place of safety when the trolly struck the Rehri and as a result thereof caused injuries to him. In this connection he has referred to the statement of Muhammad Aslam D.W.2, who was sitting alongwith Ashiq Hussain appellant on the tractor, when the latter was driving the tractor. According to the learned counsel the above evidence clearly showed that Javed Iqbal was guilty of contributory negligence as he could have saved himself if he had not returned to the place, where the Rehri was standing to save it.
4. The respondent's case, on the other hand, is that Ashiq Hussain and Abdul Latif appellants are liable to pay compensation on account of the death of Javed Iqbal because the accident had taken place on account of rash and negligent act of Ashiq Hussain appellant, who was driving the tractor with high speed. The connecting hook had broken on account of the excessive speed of the tractor and overloading of the trolly. The mere fact that no mechanical defect was found in the tractor after the accident, would not absolve the appellants of their liability to pay compensation, because Javed Iqbal had lost his life in the accident, which was the direct result of the rash and negligent act of Ashiq Hussain appellant. Learned counsel for the respondent has refuted the appellants' contention that Javed Iqbal deceased was guilty of contributory negligence because none of the witnesses, who had seen the occurrence, has admitted that Ashiq Hussain appellant had raised any alarm after the disconnection of the trolly and that Javed Iqbal deceased had in the first instance retreated from the place, where the Rehri was parked, but later on had returned to that place to retrieve the Rehri.
5. We have carefully considered the submissions made by the learned counsel for the parties. The admitted facts of the case are that the trolly loaded with sugarcane got disconnected after the connecting hook had broken. It is also admitted that the trolly was disconnected while it was in motion. Evidently there was no one to control the trolly after it got separated from the tractor and it was moving when it hit the Rehri of Javed Iqbal deceased and Farooq Ahmad. It is inconceivable that the boys had first retreated from the place, where they had parked their Rehri on seeing the trolly coming towards them, but immediately thereafter had returned to that place to retrieve the Rehri. The occurrence of the accident itself indicates that there was hardly any chance for the boys to move from the place, where they were standing near their Rehri. Under the circumstances the question of contributory negligence on the part of Javed lqbal deceased does not arise. The facts of the case brought out on the record do not show that Javed Iqbal deceased could have avoided the accident resulting in his death. The immediate and approximate cause of the accident was the rash and negligent act of' Ashiq Hussain, who has failed to prove that he had taken all reasonable precautions and had satisfied himself that apart from the fact that there was no mechanical defect in the vehicle, its connecting hook was safe and sound and would withstand the load to be carried in the trolly. The rule of vas major would have been attracted if Ashiq Hussain appellant had produced evidence that before driving the tractor he had inspected the connecting hook and had found it strong enough for carrying the trolly loaded with sugarcane.
6. Learned counsel for the appellants has also referred to section 8 of the Punjab Highways Ordinance, 1959 and has argued that Javed Iqbal and his brother had violated the aforementioned provisions by parking their Rehri by the roadside. On going through the above provisions, we have found that restriction has been placed on constructing or laying out any means of access to or from the highway and from erecting any building upon land within two hundred and twenty feet from the middle of the highway. There is nothing in these provisions, which forbids a person from parking any vehicle by the side of a highway.
7. The main question for determination in the present appeal is the assessment of compensation payable to the respondent. As noticed earlier learned trial Court has assessed annual earning of Javed Iqbal deceased as Rs,3,000 and the compensation payable to the respondent has been calculated by multiplying the above figure with 32 i.e. The probable life expectancy of Javed Iqbal deceased. Learned - counsel for the appellants has contended that the Court, while determining the amount of compensation payable to the beneficiary under section 1 of the Fatal Accidents Act, 1855, has to keep in view the life expectarticy of the beneficiary also because the life expectancy of the deceased alone would not help the Court in determining the amount of compensation for the loss resulting from the death. In the present case the learned trial Court should have considered the life expectancy of the respondent for determining the amount of compensation payable to him. Learned counsel for the respondent, on the other hand, has submitted that the amount of compensation under section 1 of the Fatal Accidents Act of 1855 is to be calculated on the basis of pecuniary loss resulting from the death of the person, which can be determined only by keeping in view the life expectancy of the deceased.
8. The leading authority on the above question is Man Matha Nath Kuri v. Muhammad Mukhlesur Rehman PLD 1969 SC 565. The following observations made at page 576 are relevant and are reproduced as under: "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 of a "mere speculative possibility": Thus parents may recover for the loss of the probability that the deceased child would have contrThuted 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."
' It may be seen that the pecuniary loss sustained by the parents as a result of the death of their child can be determined on the basis of life expectancy of the parents.. This principle has invariably been followed by the Court in determining the amount of compensation. Reference in this connection may be made to Mst. Sharif Bibi and others v. Mahmood and another 1982 CLC 1057; Muhammad Siddique ,v. Gul Majid PLD 1980 Kar. 78; Mrs. Asima Ibrahim v. Sind Road Transport Corporation PLD 1982 Kar. 236 and Muhammad Nawaz v. Altaf Rasul PLD 1985 Kara 353. The only evidence brought on the record regarding life expectancy of the respondent is the statement of the respondent himself, in which he has given the average age of a male member of his family between 70 and 75 years. According to him his father died. At the age of 85, while his grandfather was 105 years old at the time of his death, but there is no corroboration of the above deposition.
Reliance will have to be placed on judicial decisions with regard to the average span of life of a person in our country. In Punjab Road Transport Board v. Abdul Waheed PLD 1980 Lah. 584 the normal expectancy of the life of a person was considered to be 65 years. The Supreme Court in an unreported case Jalil Ahmed v. Kalsoom (C.A. No,K-44/69) had held that according to the judicial decisions the expectancy of life ranges from 45 to 65 years. In Mrs. Asima Ibrahim v. Sind Road Transport Corporation the Court had found 65 years of age as normal expectancy of life. In view of the above judicial decisions we consider 65 years as reasonable expectancy of life in the case of the respondent. He was about 50 years age, when the accident took place, and his son Javed lqbal died. He, therefore, expected financial assistance from the deceased for 15 years. The deceased used to earn Rs,10 daily by working part-time at the Rehri of his father. The appellants have not produced any evidence, to rebut the statement of the respondent about the aforementioned daily earning of his deceased son. The learned trial Court has properly assessed the yearly income of the deceased as Rs,3,000. On the basis of this income the amount of compensation payable by the appellants is determined as Rs,45,000. It is conceded amongst the appellants that the liability of Insurance Company represented by appellant No,2 is restricted to Rs,20,000, which amount shall be payable by appellant No,2. The balance amounting to Rs,25,00 shall be the liability of Abdul Latif and Ashiq Hussain appellants.
9. The learned trial Court, while disposing of the two suits, instituted by the respondent and his son Farooq Ahmad, remarked in the last paragraph of the judgment that both the suits were being decreed. The amount of Rs,96,000 decreed by the learned trial Court, however, related to the respondent's suit only. No separate reference to the claim of Rs,13,000 made by Farooq Ahmad in his suit was made in the concluding paragraph of the judgment. Farooq Ahmad filed an appeal 'before the District Judge contending that the learned trial Court had failed to pass separate decree in his case though his suit as well as that of his father Sardar Muhammad respondent had been disposed of by single judgment. The learned Additional District Judge, to whom the above appeal was entrusted, dismissed it on 27-4-1983 on the ground that the impugned judgment of the learned trial Court was the subject-matter of an appeal before the High Court and the appellant should seek his remedy from the High Court. Farooq Ahmad, however, did not approach this Court after the dismissal of his appeal. The appellants also have not challenged that part of the judgment of the learned trial Court, wherein it has been observed that the suit of Farooq Ahmad is also decreed. Evidently some confusion has been created by the learned trial Court by disposing of the two suits instituted by Farooq Ahmad and the respondent against the appellants by single judgment but without making specific reference to the claim of Farooq Ahmad in the judgment, while decreeing his suit. Since Farooq Ahmad's claim against the appellants decreed by the learned trial Court is not subject-matter of the instant appeal it is not proper to pass any order regarding this claim while disposing of the instant appeal. Farooq Ahmad may, if so advised, seek rectification of mistake or error in the trial Court's judgment, dated 27-10-1980 if legally permissible by filing application under sections 151, 152 and 153, C.P.C.
The upshot of the above discussion is that the appeal filed by the appellants is partly allowed. The amount of Rs,96,000 awarded as compensation by the learned trial Court for the death of Javed Iqbal is reduced to Rs,45,000. The Asian Mutual Insurance Company Limited represented by Raja Munawwar Ahmad appellant No,2 shall be liable to pay Rs,20,000 out of the aforementioned amount of compensation while the remaining amount of Rs,25,000 shall be paid by Abdul Latif and Ashiq Hussain appellants Nos.1 and 3 respectively. The respondent shall also be entitled to recover proportionate costs. As the suit, out of which this appeal has arisen, was instituted in forma pauper's court-fee payable on the plaint shall be recoverable from the decretal amount as being the first charge. Copy of the decree sheet shall be forwarded to the Collector, District Faisalabad, for necessary action.