' These are seven (7) suits bearing Nos. 492, 593, 541:542, 544, 545 and 547 of 1984 filed on 28-4- 1984 under Fatal Accidents Act, 1855 for recovery of damages in the various sums of money by and on behalf of the legal heirs of 7 deceased persons, as plaintiffs. The common facts relating to the above suits, briefly stated, are that on 27-4-1983 at 11-30 p.m., driver Mumtaz Hussain, an employee of the defendant, while driving the defendant's bus No, 839-90e (hereinafter referred to as the defendant's bus) on route No, 16-E, going towards Quaidabad on National Highway reached the centre of Malir Bridge in a rash and negligent manner and dashed the other bus coming from Steel Mills side (hereinafter referred to as the 'contract bus') and fell down in the dry bed of Malir river from the said bridge on its right side. Consequently, 11 persons travelling by defendant's bus including the deceased Hoor Jehan in Suit No, 492/84, Ulfat Hussain in Suit No, 539/84, Abdul Wahid in Suit No, 542/84, Muhammad Ishaque in Suit No, 544/84 and Shaukat Ali in Suit No, 547/84 and two persons travelling by the contract bus, namely, Syed Lutf Ali Shah in Suit No, 841/84 and Muhammad Irfan in Suit No, 545/84 died on the spot. The first information report No, 135/83 was lodged on 28.4.1983 at 12-30 p.m. At Quaidabad Police Station by one Asif Ali. The case was registered against Mumtaz Hussain, the deceased driver of the defendant's bus, but since both the drivers had died on the spot, no challan was submitted by the police to the Court.
2. The plaintiffs, without serving any notice on the defendant, straightaway filed the above suits against the defendant. The defendant filed its written statements in all the suits. The ownership of the bus has not bees denied by the defendant. It is also not denied that the said bus was being driven by its employee Mumtaz Hussain at the time it met the accident. It was, however, alleged that the accident took place due to the negligence of the driver of the contract bus, Lutf Ali
3. Issues were framed separately in all the suits. However, at the time of arguments, they were discussed with counsel and consolidated as under :-
(1) Whether the suits are time-barred and bad for non-joinder or misjoinder of the parties?
(2) Whether the plaintiffs are entitled to file the suits as guardian ad litem?
(3) Whether the plaintiffs have any cause of action against defendant?
(4) Whether the death of deceased was caused due to rash and negligent driving of the Driver of defendant's Bus No, 839-906 or due to the rash and negligent driving of Contract Bus of Steel Mills?
(5) Whether the plaintiffs have suffered any pecuniary loss due to the death of the deceased.
(6) Whether the plaintiffs are entitled to claim any compensation; if so, to what extent?
(7) Whether the plaintiffs are entitled to interest?
(8) What should the decree?
(9) Cost of the suit.
4. The,plaintiffs examined themselves. Besides, the evidence recorded in Suit No, 547 was, by consent, ordered to be read as evidence in Suits Nos. 492, 539 and 541 to 545. The defendant examined four 'witnesses on its behalf.
5. My findings on the above issues are as follows :-
6. Issue No, I.-All the 7 suits have been filed on 28-4-1984, Article 21 of the Limitation Act. 1908 prescribes the period of limitation as one year for a suit under the Fatal Accidents Act, 1855. The period into run from the date of the death of the person killed. The death in all the suits occurred on 27-4-1983. The date of death will be excluded for computing the period of one year as provided under section 12 of the Limitation Act. The suit was, therefore, to be filed on or before 27-4.1984 The learned counsel for the plaintiffs submitted that there being Friday on 27-4-1984 and the Court was closed on that day the suits were filed on the following day i,e, on 28-4-1984: He produced a diary for the year 1984, which supports his submission. Therefore, 27-4 1984 is to be excluded as provided under section 4 of the Limitation Act. These suits are thus held to be within time. The finding on the first part of the issue is therefore in the negative.
7. As regards the second part of the issue that the suit is bad for misjoinder and non-joinder of the parties, Mr. Raza Hussain Haideri, learned counsel for the defendant submitted that the suit is bad as the owner of 'the contract bus' was not joined as co-defendant. Since the plaintiffs have made a definite allegation that the accident took place on account of the rash and negligent driving of the driver of the defendant's bus, the owner of the contract bus does not appear to be a proper or necessary party to the suits. The defendant also did not file any application for impleading the owner of the contract bus as co-defendant. The finding on the second part of issue No, 1 is also in the negative.
8. Issue No, 2.-The suits . On behalf of the minors have been filed through next friend as provided under Order XXXII, rule 1, C. P. C. The contention of the learned counsel for the defendant that the suits should have been filed through guardian ad litem seems to be misplaced. The suit by minors is to be tiled by next friend as provided under Order XXXII, rule 1, whereas a suit against a minor defendant is to be filed through a guardian ad Nem as provided under Order XXXII, rule 3, C. P. C.
Since the suits are by minors and have been filed through their mother or father or grand-father as next friends, they are held as proper. Finding accordingly.
9. Issue No, 3.-It has been admitted by the defendant that the bus in question was owned by the defendant and the driver of the said bus was its employee at the time of accident, the cause of action has accrued against the defendant to the plaintiffs, who are the persons, namely, wife, husband, parents and children for whose benefit the suits have been filed as provided under section 1 of the Fatal Accidents Act, 1855. Finding is in the affirmative.
10. Issue No, 4.-Mr. Mir Raza Hussain Haidri, learned counsel for the defendant contended that the onus of proof of this issue entirely rests with the plaintiffs. In support of his contention he placed his reliance on the cases of Seethamma and others v. Benedict D'sa and others (I) Marimba and others v. M. M. Ispahani Ltd. And antoher (2) and Ghi'lam Muhammad v. The Crown (3).
11. In the first-named case (AIR 1967 Mys. 11) for compensation. Under Motor Vehicles Act, 1939, it was observed that in a proceeding like
(1) AIR 1967 Mys. 11 (2) PLD 1965 (W. P.) Kar. 59
(3) PLD 1953 Lah. 260 the one before the Division Bench in which compensation was claimed on the ground of negligence on the part of the driver who drove the motor vehicle, the burden of proof was entirely upon the claimants. In the second-named case (PLD 1965 (W. P.) Kar. 59) it was observed-"It is the plaintiffs who have alleged negligence and it is they who have asked for damages on account of the negligence. The burden therefore is on them to show as to whether there was any negligence on the part of the defendants on account of which the plaintiffs would be entitled to any damages."
In the third-named case (PLD 1953 Lah. 260), it was observed "whether or not the petitioner was rash and negligent is a question of fact about which the Court has to form an opinion, on considering the entire material on the record."
12. There can, thus, be no cavil for the proposition that the onu of proof lies on a person who asserts a claim in his favour and want the Court to believe it. This proposition is very well-founded in th first part of the Hadith of our Holy Prophet Muhammad (Sallallahu Ealaihi Wasallem) some 1400 years ago, which reads as{{ARBI TEXT}} the proof is on the person who is a claimant and oath is on the person who repudiates it. Elaborating the first part of the above quoted narration, which is relevant for the purpose of deciding this issu and giving the word {{ARBI TEXT}}" its widest connotation that it means and includes oral testimony of a witness, circumstantial evidence and documentary evidence it is held that the onus of proof of issue No, entirely lies on the plaintiff. It is for the plaintiffs to prove the act o rash and negligent driving and so the question is whether it has been proved in this case.
13. According to para. 3 of the plaint, on 27-3-1983 the deceased Mumtaz Hussain, driver of the defendant, driving bus No 839-906 in a rash and negligent manner on National Highway mien reached the Malir Bridge, in an attempt to overtake another bus, dashed the contract bus of the Steel Mills from the wrong side and consequently the bus of the defendant fell down from the bridge on the ground and the deceased Hoor Jehan in Suit No 492/84 and other 8 persons including late Mumtaz Hussain driver of the defendant bus died on the spot. Two persons from the contract bus including the driver also died on the spot. F. I. R. No 135/1983 was lodged with Police Station, Quaidabad on the following day and the police registered the case under section 304-A, Cr. P. C. Against the deceased Mumtaz Hussain, the driver of the defendant bus.
14. The defendant submitted in para. 3 of its written statement that the deceased driver of the contract bus Ulfat Ali Shah was contributory to the alleged accident, which was caused due to his fault, negligence and carelessness, by coming from the opposite side of the defendant bus, which was being driven at the high speed. It was alleged that the defendant's bus was at a very slow speed moving towards Steel Mills at the Malir Bridge. The driver of the contract bus driving in high speed whirled against the right side portion of the defendant's bus with such a pressure that the lyre of the right side got burst and the bus turned in the right of the Bridge and fell down, which resulted in the accident.
15. The plaintiffs have examined Hashmat Ali Exh. 5 in Suit No 547/ 84, a co-passenger in the defendant's bus and an eye-witness whose evidence by the consent of the counsel for the parties was treated as evidence in all the other suits. The relevant portion of his deposition reads as under :- "I and my family members boarded the bus of K. T. C. Of Route No, 16-E at Colony Gate. Apart from me, the others, who boarded the bus alongwith me, were my deceased son Shaukat Ali, his wife Hoor Jehan, my wife Mst. Sara Bi (plaintiff No, 2), my grandson, Qaiser All (plaintiff No, 3) and ahother daughter-in-law of mine by the name of Farzana. In all six of us had boarded the bus in question. The bus started at a great speed and the bus was going very fast and the driver of the bus was driving the bus very rashly. The passengers as well as the conductor of the bus had been requesting the driver off and on to go slowly but the driver did not pay any heed to this request and he went on driving the bus at a very fast speed. He stopped at two stops namely Wireless Gate and Stop No,
15. While he was on the Malir Bridge, he overtook several vehicles at a great speed and then collided with another bus coming from the opposite side, which was said to be the bus of Steel Mill. The bus of Steel Mill was coming on its correct side, whereas our bus was en the wrong side. Our bus overturned on account of this accident. My son Shaukat Ali died on the spot. My daughter-in-law, Hoor Jehan also died on the spot in the said accident. All the others received injuries in the said accident. I produce certified copy of the F. I. R. Lodged against the driver of the bus as Exh. 5/1."
16. The defendant examined Abdul Jamil Khan Exh. 6 and Noor Muhammad Exh. 7, who are Conductor and Security Guard respectively of the defendant. The relevant portion of the deposition of Exh. 6, reads as under :- "When our bus reached the middle of the bridge, a private bus, coming from the opposite side, while overtaking another vehicle, struck our bus on the wrong side. As a result of this accident, the driver of our bus died on the spot. At the time of the accident, our bus was travelling on its correct side i,e, the left hand side. The private bus hit the door of our bus where the driver sits. On account of this accident, our bus fell from the bridge into the dry bed of Malir River."
17. Noor Muhammad Exh. 7 deposed in his evidence that :- "Our bus was going, on the Malir Bridge on its correct side i,e, the left-hand side. On the opposite side two buses were coming sideby-side. Both were private buses. One bus was overtaking the other bus. It came on the wrong side and hit the door of our bus where the driver sits. He further stated that : "On account of the accident the tyre of our bus burst and that is why it swerved on the right and fell on the right hand side of the Bridge."
18. Defendant also produced its Works Manager, Misbahur Rehman Exh. 8, who deposed that : "After examination of our bus which was lying in the Malir River I came to the conclusion that the bus had fallen up-side down in the Malir River bed from the bridge and was lying up side down. My examination of our bus also showed that the impact of the accident was on account of tyre bursting."
' He further deposed that "My assessm ent was that the accident had not been caused on account of any negligence of the driver of our bus and that our bus had fallen into the river bed from the bridge on account of the tyre bursting."
19. As regards the plea taken by the defendant that a tyre on right side of its bus burst due to the dashing of the contract bus against the defendant bus, the evidence of Conductor is completely silent on this aspect of the matter and so of the Security Guard in his examination-in-chief. About the tyre got burst, as alleged, no question seems to have been asked from the plaintiffs' witness in the cross-examination. Moreover, had the tyre burst, as alleged, the Motor Vehicle Inspector, in his usual inspection report of the bus after accident must have mentioned the said fact in his report. It was for the defendant to prove the alleged fact of the bursting of the tyre through the report of the Motor Vehicle Inspector. Neither the said report has been produced nor any one from the Police Department has been examined, particularly the S. I. Who investigated the case after the accident as per F. I. R. Exh. 5/1.
20. Even if it is assumed, for the sake of argument, that the right side tyre of the defendant's bus had burst, it is of little significance as the fact remains that it burst if at all, subsequent to the dashing of the defendant's bus by its driver against the contract bus which, it seems, was the result of the act of rash and negligent driving of the defendant driver. Had the tyre of the defendant's bus burst before its dashing against the contract bus due to some mechanical reason, it could, perhaps, be described as a pure accident which is not the case here.
21. It appears from the evidence of the plaintiff Exh. 5, whose evidence seems to he natural, that the deceased driver of the defendant bus tried to overtake the other bus. The deposition of the defence witness, Norm. Muhammad that "on the opposite side two buses coming side-by-side one bus was overtaking the other bus it came on the wrong side and hit the door of our bus where the driver sits, is not believable as it was the defendant's bus, which was on the wrong side at the time of accident as it fell down from the bridge on wrong side. It is. Therefore, clear that it was the driver of the defendant's bus who overtook the other bus going ahead of it and dashed against the contract bus. It appears that he was at that moment rash and negligent in his driving: with the result that he could not stop his bus, which ultimately fell down from the bridge to the dry bed of the river killing the driver of the contract bus and one passenger, sitting on his right side in the contract bus, besides killing nine other persons sitting in the defendant's bus, including the deceased seven persons whose legal representatives have filed the above suits for compensation under the Fatal Accidents Act, 1855. The statement of defendant's witness Misbahur Rahman Exh. 8 as to his assessm ent that the accident had not been caused on account of any negligence of the driver of the defendant's bus, cannot be considered as relevant unless it is covered by sections 45 to 51 of the Evidence Act, 1872 (corresponding to the provisions of sections 59 to 65 of the Qanun-e- Shahadat, 1984). The question before me is not of foreign law, or of science, or art, or as to the identity of handwriting, or finger impressions and, therefore assessment of D. W.
(Exh. 8) that the defendant's driver deceased Mumtaz was not rash and negligent does not fall within the provisions of the sections referred to above. Had the contract bus hit the defendant's bus, being driven on the wrong side rashly and negligently, the contract bus would have fallen on the ground from the Malir Bridge on the other side, and not the defendant's bus. There is no doubt in my mind that the circumstances in which the defendant's bus bad fallen on its wrong side from the Malir Bridge, the driver of the defendant's bus had dashed against the contract bus from the wrong side driving the same rashly and negligently,
22. Furthermore, I would say that F.
1. R. No. 135/83 was lodged with the Police Station by a stranger. The said F.
1. R. Exh. 5/1, and the investigation made thereon, was not challenged by the defendant. F Had the accident been caused due to the negligence of the contract both the defendant ought to have lodged the F. I. R. Which it failed. It has also failed to take any step against the owner of the contract but or claiming compensation for the damage caused to their bus. None of the defendant's witness has stated anything about lodging of the F. I. R. By defendant or any step taken by it against the contract bus. The defendant has also given no explanation by way of justification as to why it has not taken any step against the person or persons, who are alleged t. Have caused loss to their bus as per their own version.
23. As to the issue whether the death of the deceased was caused due to the rash and negligent driving of the driver of defendant's bus or due to the rash and negligent driving of the contract bus, my finding is that the death of a deceased was caused due to the rash and negligent driving of the driver of the defendant.
24. Issue No. 5.-The plaintiffs and the persons for whose benefit the suits have been filed have been shown to be the dependents of the deceased. The plaintiffs who are the deceased's wife, minor children and the aged parents will suffer pecuniary loss due to the death of the deceased. They have been shown to be dependents and making their livelihood on the earning of the deceased. Pecuniary loss caused to them due to the deaths of the deceased is apparent which has also been proved by the plaintiffs as stated before the Court in their evidence. Finding is, therefore, in the affirmative.
25. Issue No. 6.-Mr. Mir Raza Hussain Haidri, learned counsel for the defendant, inter alia, contended that a sum cf Rs. 16,000 has been paid to the plaintiffs in Suits Nos. 492, 539, 542. 544 and 547 of 1984 in full and final settlement of the claim of the said plaintiffs in the said suits. He referred to a number of affidavits produced by the defendant while deposing in the suits. These affidavits are Exhs. 9/4, 9/5, 9/6 and 9/12, which pertain to the claims in Suit Nos.
492. 542, 544 and 547 of 1984. No affidavit has been filed in respect of Suit No.
539. However, the receipt of compensation at the rate of Rs. 16,000 each in the suits mentioned above including Suit No. 539/84 is admitted by Mr. Muhammad Maqsood, counsel for plaintiff. The question arises as to the effect of the receipt of' the above payments by the plaintiffs concerned.
Mr. Muhammad Maqsood, counsel for the defendant relies on section 67 of the Motor Vehicles Ordinance, 1965, substituted with effect from 28-2-1978 by Ordinance VIII of 1978, and is thus applicable to the present case, as the accident took place on 27-4-1983, much after the promulgation of the said Ordinance, 1978. The section reads as under :- "Section 61. Compensation for the death of or injury to, a passenger.-(1) In the case of death of, or injury to a passenger in a stage carriage or a contract carriage, other than a contract carriage constructed, adapted or used to carry not more than six passengers including the driver, arising out of the use of such carriage, there shall be paid, if a permit has been granted in respect of that carriage, by the holder of the permit, and, if no permit has been so granted, by the owner of the carriage, as compensation the amount specified in the thirteenth schedule,-
(a) in the case of death of a passenger, to the legal representatives of the deceased passenger, and
(b) in the case of an injury to a passenger, to the injured passenger.
(2) The compensation payable under subsection (1) shall be in addition to any sum which the person entitled to receive compensation may receive or be eligible to receive under a policy of insurance under the provisions of section 95 of the Motor Vehicles Act, 1939 (IV of 1939).
(3) Any contract for the conveyance of a passenger in a stage carriage or contract carriage, other than a contract carriage constructed, adapted or used to carry not more than six passengers including the driver, in respect of which a permit has been issued under this chapter, shall, so far as it purports to restrict the liability of any person, or to absolve any person from his liability in respect of any claim made against that person in respect of the death of, or injury to, the passengers who is being carried in, entering or alighting from the vehicle, or purports to impose any conditions with respect to the enforcement of any such liability, be void."
As it would appear from subsection (2) of section 67, of the Provincial Ordinance, the compensation payable under subsection (1) is in addition to , any sum which a person entitled to receive compensation may receive or be eligible to receive under a policy of insurance under the provisions of section 95 of the Motor Vehicles Act, 1939.
26. In the matter of Islamization of the Motor Vehicles Act, 1939 and the Motor Vehicles Ordinance, 1965 the Federal Shariat Court as reported in PLD 1983 F SC 29 at page 31 observed that :- "This provision does not affect a person's right to take proceedings under the Fatal Accidents Act or in tort against the person responsible for any accident which causes the death or injury to a passenger. It is merely a compensation payable to a passenger in order to alleviate immediately the suffering of the family of the deceased or of an injured person by helping them financially.
Looked in this light it is a salutary provision introduced in the public interest and for the good of the travelling public. Secondly it also puts the owner and driver of the vehicle to more caution so that as far as possible the transport business may be accident free. The Government has the right not only to regulate such business as the transport business in public interest but also to make laws for the greater benefit of the customers or other members of the public affected by such business."
27. Mr. Muhammad Maqsood has also placed his reliance on the case of Muhammad Younus Khan and 3 others v. Karachi Road Transport Corporation and another (1), wherein it has been held that section 67 of 1965 Ordinance does not prevent an aggrieved party from persuing remedy available to it under other laws. The said Ordinance does not override specifically the provisions of Fatal Accidents Act.
28. Another connected question before me is whether paragraph No. 6 of the affidavits wherein it has been solemnly affirmed that "the plaintiff will not pursue the case with the police or any Court of law" prevents the said plaintiff from filing the case under Fatal Accidents Act or not? The answer is readily available in paragraph No. 3 of the affidavits themselves which clearly mention that "the K. T. C. (defendant) agree, through mural negotiation to pay the said sum of Rs, 16,000 under Motor Vehicles Ordinance as amended from time to time towards compensation." The above term contained in para. 6 will, therefore, be read in the context that the plaintiffs' receiving the compensation under the Motor Vehicles Ordinance, 1965 will not persue their cases before the police or any Court of law persuant to the provisions of section 67 of the said Ordinance, under which the compensation has been paid to them, and not under the Fatal Accidents Act, 1855.
Furthermore, subsection (3) of section 67 of the said Ordinance may also be referred to with advantage which provides that any contract for the conveyance of a passenger in a stage carriage or contract carriage, other than a contract carriage constructed, adapted or used to carry not more than six passengers including the driver, in respect of which a permit has been issued under this chapter shall so far as it purports to restrict the liability of any person or to absolve any person from his liability, in respect of any claim made against that person in respect of the death of, or injury to the passenger who is being carried in, entering or alighting from the vehicle, or purports, to impose any condition with respect to the enforcement of any such liability, be void.
There is, therefore, no force in the contention of the learned counsel for the defendant that the plaintiffs who have received compensation from the defendant, as referred to above, are barred from persuing their remedy under the Fatal Accidents Act, 1855. The receipt of payment under section 67 of the Motor Vehicles Ordinance, 1965 does not, ipso facto. Prevent the legal representatives of the deceased from persuit their remedy under the Fatal Accidents Act, 1855, after having received the compensation under the said Motor Vehicles Ordinance, 1965. However, the compensation received by the several plaintiffs under section 67 of the Motor Vehicles Ordinance, 1965 will have a bearing on the quantum of compensation to be awarded to such plaintiffs in proceedings under Fatal Accidents Act, 1855.
29. Having dealt with this preliminary question, as raised by Mr. Haidri to the award of compensation, I proceed to consider Issue No. 6 in each suit separate as facts relating to the quantum of compensation are different in each suit, but before doing so I would like to decide the question of expectancy of life of the deceased in the cases before me.
30. The learned counsel for the defendant has submitted that the expectancy of life of the deceased should be held up to 60 years of age. In support, he has placed reliance on Abdul Kadir v.
Mir Ashraf All Khan
(1) 1984 CLC 2830 and 2 others (1), Miss Shansun Nissa and another v. Karachi Road Transport Corporation and 3 others (2), Aft. Koshalia and another v. Riaz-udDin and others (3). In the first two cases the expectancy of life has been held up to 60 years of age, whereas in the 3rd case it was held to be up to 55 years.
31. On the other hand, learned counsel for the plaintiffs has relied on a large number of cases, namely, Iftiqar Hussain and another v. Karachi Electric Supply Corporation (4), Ursulina v. Orient Airways Limited and others (5), Basnir Begum and o hers v. Muhammad Ali Premjee (6), Manmatha Nath Kuri v. Mokhlesurehman (7), Nusrat All v. U. K. Construction Company and others (8), Kulsoom v. Jalil Ahmed Khan and others (9), Muhammad Raza Khan v. Pakistan (10), Din Muhammad and 3 others v. Faqir Muhammad and 2 others (11), Miss Shamsunnisa and others v Karachi Road Transport Corporation (12), Mr. Gohar v. Muhammad Hainif and others (13), Rukaya Bai and 5 others v. Secretary of Defence, Government of Pakistan, Islamabad and 4 others (14), Nusrat Jehan v.
Karachi Metropolitan Corporation and 2 others (15), Muhammad Siddique and others v. Gul Majeed and 2 others (16), Mrs. Dianat Fatima and another v. Mir Abbas Khan and 2 others (17), Mst.
Warkhema and 4 others v. Abdul Rasheed and 2 others (18), Jaffar All and another v. Sind Road Transport Corporation and another (19), Gul Bano and 4 others v. Muhammad Ramzan and others (20), Mrs. Asma Ibrahim and 2 others v. S. R. T. C. And another (21), Adam Hussain and others v.
Muhammad Ayub (22), Mst. Zainab Bibi and others v. Muhammad Saeed and others (23), Barkat Ali Khan and others v. Karachi Electric Supply Corporation Ltd. (24) and Nimmi Francis (Airs.) and others v. Muhammad Saeed Qureshi and another (25).
32. There seems to be difference of opinion, which is quite natural, in the matter of giving a judicial finding as to the expectancy of life to a certain age. In the cases mentioned at serial Nos. 1, 6, 11, 13, 16, 18, 19, 20 and 21 the expectancy of life was held as 65 years of age. In cases mentioned at serial Nos. 3 and 5 the expectancy of life has been held to be of 55 years of age, whereas in the case mentioned at serial No. 3 it was held to be of 53 years and in another case at serial No. 10 it was determined at 48 years. In the rest of the cases mentioned at serial Nos. 4, 7. 8, 9, 12. 14, 15. 17 and 22 the expectancy of life of the deceased was fixed at 60 years. A study of the cases cited at the bar shows that in most of the cases the expectancy of life has been determined at 60 years.
(1) 1982 CLC 110
(3) AIR 1936 Lah. 362 (5) PLD 1960 Kar. 712 (7) PLD 1963 Kar. 90 (9) PLD 1964 Kar. 72
(11) PLD 1970 Lah. 442
(13) PLD 1975 Kar. 432
(15) PLD 1980 Kar. 158
(17) PLD 1980 Kar. 271
(19) 1981 CLC 1106
(21) PLD 1982 Kar. 236
(23) 1983 CLC 1321
(25) 1982 CLC
(2) PLD 1975 Kar. 913 (4) PLD 1959 Kar. 550 (6) PLD 1960 Kar. 785 (8) PLD 1963 Kar. 844 (10) PLD 1965 Kar, 244 (12) PLD 1975 Kar. 914 (14) PLD /976 Kar. 139 (16) PLD 1980 Kar. 78 (18) 1981 CLC 944
(20) 1982 CLC 1120 (22) 1983 CLC 2054 (24)p L D 1983 Kar. 453 1703 The determination of the expectancy of life largely depends on the life conditions of the deceased and his family background and on factors of general physique and the ratio of deaths in the pedigree of the deceased and the ages of the persons alive in the family. The evidence adduced by the plaintiffs on the question of expectancy of life in all the suit before me is very much scanty. I, therefore, fix the expectancy of the ages of the deceased at 60 years of age in all the suits. Now I proceed to consider the quantum of compensation to be awarded in each sui separately.
33. Suit No. 492 of 1984 and Suit No. 547 of 1984: ' Suit No. 492/84 is for recovery of Rs. 2,00,000 filed by grandfather as next friend of the three minor sons of the deceased Hoor Jehan. Hoor Jehan, the deceased was of 30 years of age at the time of her death as stated in para. 5 of the plaint, which has been denied by the defendant for want of knowledge. There is no evidence as to the age of the deceased. Witness Hashmat All examined in this suit is completely silent on this point. The names of her legal heirs, the plaintiffs, and their ages have also not been proved by evidence in this suit.
33. Mr. Muhammad Maqsood, however, submits that the same witness has been examined separately in Suit No. 547/84. In Suit No. 547 of 1984, Shaukat Ali the deceased husband of floor Jehan had died in the same accident. I, therefoie, decide Issue No. 6 in both the suits together.
34. Suit No. 547 of 1984 is for recovery of Rs. 4,00,000. Hashmat Ali, father of the deceased, who has also been examined in tnis suit as a witness has stated that the deceased Shaukat Alt left behind 3 sons Qaiser Ali, Haider Ali and Zafar Ali aged 8, 6 and 4 years respectively. About the deceased Shaukat Ali he stated that he was about 32 years of age at the time of his death. The age of the deceased Shaukat All has, however, peen stated as 33 years in para. 1 of the plaint. The plaintiff in Suit No. 547 of 1984 has not cared to establish age of the deceased Shaukat Ali, which could have been proved by either producing his Identity Card or service record from the office of the Rice Export Corporation, where the deceased was employed. However, the witness who is the father of the deceased has stated himself to be of 55 years of age in the cause title of plaint, but has stated in his deposition to be of 45 years of age. There seems to be some discrepancy in the age of plaintiff No. 1 and thus Court is left in result with no direct evidence as to the age of deceased. On facts and circumstances of the case, however, I take it that the plaintiff No. 1, the father of the deceased Shaukat Ali was 55 years of age in 1984. He has stated on oath that deceased Shaukat Ali was born in February, 1949. His age, therefore, at the time of his death comes to about 35 years.
35. As to the earning of floor Jehan in Suit No. 492/84, there is no evidence except the word of her father-in-law that she was earning about Rs. 800 to 900 per month. It was stated by the said witness that she used to teach her children and also the children of neighbouring area and was also used to do stitching work, but this has been challenged by the defendant in cross- examination. No evidence has been produced to substantiate the allegation about the earning of the deceased, Hoor Jehan. At least, evidence could have been led by producing the persons whose children she used to teach at her home and paid the fees to her. Not even a word has been said about her educational qualification. I am, therefore, not convinced that the deceased lady was earning her livelihood by teaching or stitching.
37. Mr. Muhammad Maqsood, however, submitted that even if it is not proved that she was earning, she will be deemed to be an earning member of the family as it cannot be denied that she must be doing her domestic work which has monetary value. In support of his submission, he placed his reliance on Malik Raza Khan v. Pakistan (1), Manmatha Nath Kuri v. Muhammad Mokhlesur Rahman and another (2), Muhammad Nawaz and 4 others v. Altaf Rasul and 2 others (3).
38. In the first-named case (PLD 1965 Kar. 244), the deceased was a young man of 26 years of age. No proper means of earning by the deceased was established. Nevertheless, a compensation on the basis of average income of Rs. 100 per month was assessed. In the second-named case (PLD 1963 Dacca 290) the deceased was a girl of about 6 years of age. It was observed by the Division Bench that the child would have assisted her mother in the household work. It was thus inferred that rendering of such service, having a monetary value, the parents have been deprived of prospective pecuniary advantage. The learned Judges, therefore, held that "her income" may be taken at the average of Rs. 170 per month from the age of 12 years of age, out of which she could have spared about Rs. 100 per month for her parents and the decree of Rs. 10,000 awarded by the Subordinate Court was maintained. The matter went up in appeal. The hon'ble Supreme Court, by its judgment reported in PLD 1969 SC 565, upheld the decision. In the third-named case (PLD 1985 Kar. 353), the deceased was a boy of 8' years of age, without earning anything. It was observed, that it was not necessary that the child should have actually been earning. It was thus held that "the deceased on coming of age, might have easily earned Rs. 200 per month and would have spent at least half of the amount on the parents."
39. It can, therefore, be reckoned that the deceased Hoor Jehan might have earned as a part-time domestic servant and would have provided additional comforts, by way of contributing towards maintenance of her children. A sum of Rs. 300 would be a reasonable amount of earning out of which she would have spent a sum of Rs. 200 on her children. Although her age has not been specifically proved but her husband's age has been determined to be of 35 years in Suit No. 547/84. As generally a wife is younger in age than her husband in our Society. I accept, therefore, the age of the deceased to be of 30 years as stated in the plaint and calculating compensation at the rate of Rs 200 per month for 20 years as last child Zafar Ali aged 5 years would have started earning after attaining the age of 25 years, in normal case, the total compensation amount comes to Rs. 48,000. The plaintiff having already received Rs. 16,000 from the defendant, as compensation under Motor Vehicles Ordinance, 1965, the net amount of compensation comes to Rs. 32,000.
40. As far as the earning of her husband, deceased Shaukat Ali in Suit No. 547/84 is concerned, the witness Exh. 5 has produced last pay certificate Exh. 5/2 which shows that the deceased was drawing a sum of Rs. 2,163 as monthly salary inclusive of all allowances. However, conveyance allowance at the rate of Rs. 185 and tea allowance at the rate of Rs. 15 is to be excluded. The monthly pay with dearness allowance local compensatory allowance and house rent allowance thus
(1) PLD 1965 Kar. 244 (2) PLD 1963 Dacca 290 (3) PLD 1985 Kar. 353 comes to Rs. 1,813 p.m. The youngest child Zafar All aged 5 years at the time of accident could have remained dependant on the deceased for 20 years, the amount of compensation on the basis of Rs. 1,813 per month for 20 years comes to Rs. 4,35,120. The deceased had a wife, parents, 3 sons (one son having died during pendency) who have been shown as dependants on his earning. Having deducted 1/3rd towards his personal expenses and expenses for his deceased wife and son the net amount comes to Rs. 290,080 and after deducting the sum of Rs. 16,000 paid by the defendant under section 16 of the Motor Vehicles Ordinance, 1965 and Rs. 14,000 by his employer the net amount of compensation comes to Rs. 2,60,080 payable to the plaintiffs which is decreed against the defendant.
41. Suit No. 539/84.-It is a suit for recovery of Rs. 2,10,000 filed by the father of the deceased Ulfat Hussain, who left behind, besides him, widow and one daughter born after his death. The deceased Ulfat Hussain was working in the defendant Corporation. It has been alleged that he was 28 years of age at the time of his death. Fazal Elahi, father of the deceased has so stated in his examination- in-chief, which has not been controverted by the defendant in the cross-examination. I, therefore, take the said age to be proved. It has been alleged that he was getting Its. 850 per month from the defendant Corporation. I, therefore, fix is to be the monthly earning of the deceased. Calculating at the said rate for 32 years, having already held 60 years of age as expectancy of life, the total amount of compensation comes to Rs. 3,26,400. After deducting 1/3rd M on account of personal expenses of the deceased the balance amount come to Rs. 2,17,600. Again, after deducting Rs.
16,000 paid by the defendan under section 67 of the Motor Vehicles Ordinance, 1965, the amount come to Rs. 2,01,600. The amount of Rs. 2,01,600 is, therefore, decree against the defendant.
42. Suit No. 541/84.-It is a suit for recovery of Rs. 2,50,000 filed by the widow, one son and one daughter of the deceased Lutf Ali Shah. The deceased was 52 years of age at the time of accident, as stated by his wife, Mst. Sardar Bibi in her evidence (Exh. 5), which has gone unchallenged in the cross-examination. The age of the deceased Lutf All Shah is therefore proved to be 52 years at the time of his death. As regards earning of the deceased, be was working as driver of the contract bus and was earning Rs. 1,500 to Rs. 1,600 per month as alleged by his wife. None has been produced from the firm of the Bus Contractor of the Steel Mills, where he was employed. I am not going to believe the oral testimony of the witness when direct evidence was available and could be produced. As admitted by the defendant in Suit No. 539/84 that the salary of a helper in the defendant's Corporation is Rs. 850 per month, the driver's salary must be on a higher side. In the absence of the direct evidence, I determine the salary of Rs. 1,000 per month for driver, He being of 52 years of age at the time of death, the amount of compensation for 8 years comes to Rs. 96,000.
The Contractor of the Bus, where the deceased was employed has, however, paid a sum of Rs. 10 000 towards compensation. After having deducted the said sum of Rs. 10,000N it comes to Rs.
86,000. After deducting 1/4th for personal expenses, the net amount comes to Rs. 64,500 which is awarded as compensation to the legal heirs of the deceased against the defendant.
43. Suit No. 542/84.-It is a suit for recovery of Rs. 1,50,000 filed by widow and daughter of the deceased Abdul Wahid. The age of the deceased Abdul Wahid at the time of accident was 55 years, which has not been controverted by the defendant in the cross-examination. I, therefore, hold that the deceased was 55 years of age at the time of the accident. It has been stated in the plaint that the deceased Abdul Wahid was working as Pesh Imam in the Mosque and was earning Rs. 860 and other facilities in the sum of Rs. 500 per month. No certificate regarding salary or the facilities has been filed which could very easily be done by summoning someone from the defendant Corporation and producing service record of the deceased. D. W. 4 Jehangir, Secretary of the defendant Corporation has, however, stated that Abdul Wahid was working as a fitter at the time of his death. Mr. Muhammad Maqsood, submits that the defendant's witness (D. W. 4) has admitted in his statement that the salary of the deceased was Rs. 1,000 per month. I am afraid, this statement is not correct. In fact, the witness stated that "On an average, the salaries of helper or fitter are in the region of Rs. 1,000 per month which include all emoluments." It cannot be said that the defendant's witness has admitted the salary of Abdul Wahid as Rs. 1 000 per month. I, therefore, hold the salary of the deceased to be at the rate of 860 per month, as stated in the plaint. Since no evidence has been led on the facilities amounting to Rs. 500 per month, it stands not proved. The age of the deceased has been shown to be 55 years, as also held by me. Compensation equal to the earning of 5 years only is awarded, and after deducting Rs. 16,000 as has already been paid to the legal heirs of the deceased by the defendant Corporation under Motor Vehicles Ordinance, 1965, it comes to Rs. 35,600. The amount equal to 1/3rd is also to be deducted from the salary towards personal expenses of the deceased and the balance comes to Rs. 23,733 which is decreed against the defendant.
44. Suit No. 544/84.-It is a suit for recovery of Rs. 4,00,000 filed by legal heirs of the deceased Muhammad Ishaque who left behind one widow, 4 minor sons and 4 minor daughters. The age of the deceased at the time of his death has been shown in the plaint as 40 years as also stated by Mst. Rashidan, his widow, in her examination-in-chief, which has not been admitted by the defendant as is evident from the cross-examination. No Identity Card or service record from the employers, as to the proof of age, has been produced. There is, therefore, no evidence on record except the bare statement of the plaintiff No. 1 to prove the age of the deceased. The age of the eldest child has been stated to be 17 years, but, against, no proof of the age of the eldest child, has been produced. Mr. Muhammad Maqsood submits that the Identity Card of the widow Mst.
Rashidan was shown to the counsel for the defendant, which was issued on 21-5-1974 stating the age of the said witness as 28 years. Since the Identity Card was issued in 1974 the age of the widow on the date of accident will be of about 38 years. No evidence as to the year of her marriage or birth of thefirst child has been produced. Looking to the facts and circumstances of the case, I hold the deceased to be of 45 of age at the time of his death. As to his salary, it has been stated in the evidence of the widow to be Rs. 2,000 per month but no proof of the same has been produced, which was easily obtainable by the plaintiff by summoning the employer, where the deceased was working as driver. In the absence of the evidence, 1 fix Rs. 1,000 per month as his salary, as also held by me in Suit No. 539/84. Calculating earning of the deceased at the rate of Rs. 1,000 per month for 15 years his total P earning comes to Rs. 1,80,000. In all Rs. 30,000 has been received by legal representatives of the deceased, which will be deducted from the amount of compensation awarded in this suit. After having deducted the said sum of Rs 33,00) it to Rs. 1,50,000 only, and after deducting 1/10th of the salary towards personal expenses of the deceased the net amount comes to Rs. 1,35,000 which is decreed against the defendant.
45. Suit No. 545184.-The deceased Muhammad Irfan left behind one widow, 3 sons and two daughters. The widow has died during the course of trial of the suit and one daughter Tahira also died after the filing of the suit. The deceased was 32 years of age as stated in para. 1 of the plaint. As to the proof of age the plaintiff has produced extract from the register of deaths showing the age of the deceased as 30-35 years. He was serving as driver in the Steel Mill. Tne plaintiff has failed to produce any evidence as to his age by producing record of the Steel Mill, where the deceased was working as driver. The plaintiff also failed to produce any Identity Card. However, I hold that the deceased was 35 years of age at the time of accident.
46. As to his salary the plaintiff has produced Exh. 5/1 dated 17th July, 1983, which is a letter, showing the payment of dues in respect of the deceased. This letter contains statement of account. Three days' salary has been deducted from 28-4-1983 as Rs.
162.95. It is, however, not shown as to what is the basic salary and what allowances are included in it. Item No.
3. However, shows an amount of Rs.
609.97 which has been paid to the deceased for 27 days for leave encashment, which payment, perhaps, has been made on the basis of basic salary. This letter does not prove satisfactorily as to what the basic salary and what were the allowances payable to the deceased. The amount of Rs.
600.97 awarded as. 27 days' salary for leave encashment to the deceased as per Exh. 5/1 leaves a room for doubt as to how three days' salary of Rs.
162.95 has been calculated. The plaintiff has not cared to produce any witness on behalf of the Steel Mill to prove the salary of the deceased. This letter is, in fact, merely a photostat copy an inter-departmental note. This state of evidence does not prove salary of the deceased to the satisfaction of this Court. The salary of the deceased who was a driver in the Steel Mill, in the circumstance, is fixed at Rs. 1,000, per month. Computing his salary at the rate of Rs. 1,000 per month for 25 years, the total amount comes to Rs. 3,00,000. After deducting 2/5th amount of his salary towards personal expenses and also the maintenance amount of the widow and the daughter who died during the course of these proceedings, the amount of compensation which is awarded in this suit comes to Rs. 1,80,000 and it is decreed accordingly.
47. As to apportionment of the above sums among the various plaintiffs, the question has arisen as to it basis. The learned counsel for the plaintiffs has referred to the case of Mst. Zebunnisa and others v. Sind Road Transport Corporation and another (1), wherein it has been observed by my learned brother Mr. Justice Saleem Ak htar that "while apportioning the share of the plaintiffs I have not strictly followed the principles of Muslim Law mainly for the reason that the compensation awarded to the plaintiff is not an estate inherited by the plaintiffs.
48. I may, however, refer to the decision given by Fakhruddin G. Ebrahim, J. Of this Court (as he then was) reported as Mst. Qudsia 8egum v. Younus and 4 others (2), wherein it was observed that "the
(1) 1982 CLC 1228 (2) PLD 1973 Kar. 636 amount awarded (under Fatal Accidents Act as damages) will be divided between the plaintiff and her four minor children in accordance with their shares under Muslim Law."
49. Transfer of property under Islamic Law is of two kinds or forms: One is voluntary and the other is involuntary. Transfer of property that takes place voluntarily is either with or without consideration.
Transfer of property with consideration is generally called "sale", and without consideration in one's own lifetime is called Hiba (gift) and if it is made effective after one's death it is called Wassiyyat (will). The other kind or form of transfer, being the involuntary devolution of property by which the estate of a deceased person gets automatically transferred to his heirs, is called "inheritance."
50. "Estate of the deceased" may, thus, be defined as anythin that belongs to a man or woman in his or her lifetime and what he or she leaves behind on his or her death, whether it be the movable or immovable properties or rights pecuniary in nature. Thus, the estate o deceased is that property or proprietary rights, which the deceased leaves behind after him. That is why it is called Wirtha, or Tarika, which literally means 'balance' or 'left over'. If a person dies, during the course of his employment and his heirs are paid a compensation by his employe or a person dies of an accident during his journey by rail or air due to negligence of the air company or the railways and his heirs are coin pensated under law of the land, or an innocent person is killed in riot the Government pays some compensation to the heirs, or a person is killed on account of rash and negligent driving of a motor vehicle the owner/ driver is required to pay damages to the legal representatives of the deceased. In all these cases the amount received by the heirs may not be regarded as the estate of the deceased, in its strict sense, in the eye o Shari'ah. Thus, the Islamic Law of inheritance, in all its detail, is no to be applied. It may further be stated that the West Pakistan Musli Personal Law (Shariat) Application Act, 1962 (Act V of 1962) provide that notwithstanding any custom or usage, in all questions regarding succession whether testate or intestate the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal (Shariat) in cases where the parties are Muslims". The damages to be awarded under the Fatal Accidents Act, 1855, cannot be held to be the estate of the deceased as the same cannot be said to have been left behind by the deceased. Apparently it was non-existent at the time of his death. The provisions of Islamic Law of Succession cannot therefore, be made applicable to it. I may, however, mention paragraph No. 91, at p. 96 of Khutbat-i-Bahawalpur by, a renowned and pion Muslim Scholar, Dr. Muhammad Hameedullah, wherein the learned author has quoted a directive of the Holy Prophet Muhammad (Sallalah Alaihi Wasallam). In a matter of blood money) the Qazi, following the custom prevailing in the Arab Society, had awarded the blood money of the deceased to male heirs (Asbat) only i.e. Son, fathe etc. On coming to know of this, the Holy Prophet (Sallalaho Alaihi Wa sallam) wrote to Hazrat Zahak (bin Sufyan), the then Governor o Yaman that the widow of the deceased should also be paid in accordanc with her share in the inheritance. The tradition also finds place in Sunan, Abu Da'ud, as Tradition No. 1163 wherein it is narrated by Sa'id tha Umar bin Khattab used to say that the Diyat is for ilgilah and wido will not inherit anything from the Diyat of her husband. Then, Zahba bin Sufyan told him (`Umar) that the Prophet of Allah (SallalahoAlehay Wasallam) wrote to him that widow of Ashyam al Zubabi, be paid Diyat of her husband 'according to her share from the inheritance'. Tnen, `Umar resiled from his earlier statement. It shows that after Umar bin Khattab came to know of the said tradition that the Diyat is to be pail to heirs of the deceased, whether males or females, including widows, `Umar resiled from his earlier statement as it had no binding force in presence of the tradition of the Holy Prophet (Sallalaho-Alehay Wassallam). It is also stated in Fatawa Hindiyyah (Urdu translation of Fatawa Alamgiriyya), Lucknow, 1932 Kitab-al-jinayat, Vol. IX, Chapter III, p. 303 that to claim the Qisas is the right of all heirs of the deceased and so is the rights of all the heirs to receive the Diyat. I may also refer to the provision of law as contained in the Draft Ordinance relating to the provisions of law of Qisas and Diyat prepared in June, 1981 and submitted to the Federal Government by the Council of Islamic Ideology. It is stated in the said provision that "The aiyat shall be disbursed among the heirs of the victim according to their respective shares in inheritance". This provision of law, among others, was approved by the Majlis-e-Shoora, in its last Session held in July, 1984. I am also conscious of the legal position that Islamic Law of Qisas and Diyat, in the matter of compensation, in several respects, is distinguishable from the Fatal Accidents Act, 1855 Firstly, section 1 of the Fatal Accidents Act restricts that a suit for damages shall be for the benefit of the wife husband, parent and child, if any, of the person whose death has been so caused. It implies that in case there is no wife, husband, parent or child of the deceased, no suit for damages under Fatal Accidents Act will be maintainable even if the other heirs of the deceased, for example brother and sisters or distant kindred (Zawil Arham) are living, who may otherwise be entitled to inherit the estate of the deceased under Islamic Law. Secondly, the Diyat in the case of Qatl-i-Khta (causing death by mistak or negligence), according to the traditions of the Holy Prophet (s. a. And his reverend companions, is fixed as 100 camels, or 1000 dinars (of gold) or 10,000 dirhams (of silver) or value thereof, whereas in a case under the Fatal Accidents Act the damages are determined by the Court that have accrued to the bereaved legal representatives of the deceased for his sudden death, which are generally determined on the basis of proof-of earning and future prospect of the deceased and dependency of the legal representaives. Thirdly, in a case of Diyat, Aqilah (Asbat), in certain circumstances, may be made liable to pay the amount of Diyat, whereas under the Fatal Accidents Act, liability is restricted, and fourthly, the State is liable to pay the diyat in case the offender is not known. I am, therefore, clear in my mind that so long as the Islamic Law of Qisas and Diyat is not in force, and the Fatal Accidents Act, 1855, continues to hold the field, the case will be governed by the provisions of Fatal Accidents Act, 1855. The relevant part of section 1 thereof is reproduced as under :- "and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought: and the amount so recovered, after deducting all costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct."
51. I may also refer to a decision of the honourable Supreme Court reported as Sri Manmarha Nath Kuri v. Moulvi Muhammad Mokhlesur Reitman (1), wherein it is observed:- "That under section 1, the pecuniary loss will be loss resulting to the parties beneficially entitled as consequence of the death. The Act itself does not, however, lay down any principle for calculating the measure of sun loss but an estimate has still to be made by the Court, which has also been apportioned the sum so determined between the beneficiaries and proportionately according to the nearness of their relationship and the interest which of them had in the life of the deceased. 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 to be same extent a rough and approximate in nature based more or less on guesswork, for it may well be impossible to accurately determine the loss."
52. Mr. Muhammad Maqsood submitted that on apportionment the widow should get the major share of the compensation as compared to her children, because she maintains them also. In support, he referred to the cases of Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd., Syed Nusrat /1/i v. Messrs U. K. Construction Co. And another, Malik Raza Khan v.
Pakistan, Din Muhammad and others v. Faqir Muhammad and 2 others and list. Warkhema and 4 others v. Abdul Rashid and 2 others v. Muhammad Saeed and another.
53. In all these cases, I find, the widow has been awarded bigger share than the other heirs including parents of the deceased. On rough calculation of the percentage in the above-cited cases, it seems that in the first-named case (PLD 1959 Kar. 550) widow was awarded at the rate of 45% approximate, whereas the younger son was awarded 33% and the elder son was awarded 22%. In the second-named case (PLD 1963 Kar. 841) the widow was awarded 48 %, the son was awarded at the rate of 9% and the father was awarded at the rate of 13%. In the third-named case (PLD 1965 Kar. 244), the widow was awarded 25% and the father and mother of the deceased were awarded 25% each and the remaining 25 % was awarded to two sons jointly. In the fourth- named case (PLD 1970 Lah. 442) the widow was awarded about 50%, the father was awarded 12% and the two children were apportioned the remaining 38%, the younger son to get more and the elder to get less at the rate of 23 % and 15% respectively. In the fifth-named case (1981 CLC 944) the widow was awarded about 51 %, whereas the balance 49% was apportioned between three sons and one daughter. In the last mentioned case (1983 CLC 1321) the widow was awarded 45% and the balance was to go to the rest of the heirs, who, besides father, were 10 sons and daughters.
54 1 may also refer "The Quantum of Damages-Fatal Injury Claims" by Kemp & Kemp, published by Sweet & Mawell Limited, London (1962, 2nd Edn., Vol. 2, page 25) wherein it has been stated by the learned authors that :- "Apportionment is normally made by the jury's verdict or in the course of judgment.
' Where there is apportionment between widow and children, "the practice is to award the greater part of the total to the widow, on
(1) PLD 1969 SC 565 the reasonable assumption that she will maintain the children so long as they are dependent, and to award comparatively small sums to the children. Usually, though not always, a younger child is awarded more than an older child because the period of expected dependency is greater."
' The learned authors have also mentioned a number of cases, showing the amounts apportioned between members of the family and summarised on the point as under :- {{TABLE}} Names Award Apportionment Zinovieff v. British Transport 33,000 Widow ... 21,000 Commission Parents ... 7,000 Two children aged 19 and 16 each 2,500 Sainsbury v. Wakeman Bros The 8,000 Widow ... 7,000 Times, 20th October, 1959. Two children aged 6 and 2i-each 500 O'Neill v. Smith & Co. (Bride- 6,998 Widow . 6,618 ford) Ltd. Two children each 175 Eifert v. Holt's Co. Ltd. 6,400 Widow aged 2,000 23 Son aged 1 4,400 Causer v. Erith & Co. 6,000 Widow aged 39 4,500 Two children aged 11 and 7-each... 750 Heatley v. Steel Company of 6,000 Widow... 5,000 Wales Ltd. Son aged 17 150 Daughter 200 Two youngest children- Total... 650 Donlon v. Clarke, Chapman & 5,600 Widow aged Co. (1953) C L Y 962. 24 2,600 Three children aged 5, 4, 3-each 1,000 Holtum v. W. J. Cearns (1953) 4,000 Widow... 3,000 C L Y 962 Eight children aged under 16- between them 500 Lwwin v. Ribble Motor Services 3,750 Widow aged Ltd. 46 3,300 Son aged 11 200 Daughter aged 10 250 Bain v. Moss Hutchison Line 3,500 Widow aged Ltd. 45 2,900 Son aged 16 200 Daughter aged 12 400 Swift v. Reardon Smith Line 3,160 Widow aged Ltd. 37 2,750 Daughter aged 22 10 Daughter aged 20 50 Daughter aged 13 150 Grandson aged 1 200 Griffiths v. J. Arthur Rank 2,750 Widow... 1,750 Productions (1954) C L Y Son aged 885 14 500 Daughter aged 12 500 Woods v. W. H. Rhodes & 2,558 Widow aged Sons Ltd. 40 2,058 Four children ages not stated 75 75 150 200 Walshe v. Mc. Alpine & Sons 2,500 Widow... 1,750 Ltd. The Times, July 28, 1959. Girl aged 9 200 Boy aged 7 250 Boy aged 5 800 Rohdes v. War Office (1954) 2,000 Widow C L Y 885. Aged 27 1,850 Son aged 8 15,150 Son aged 5 200 Son aged 4 200 Daughter aged 3 200." {{TABLE}}
55. As a result of the above discussion and particularly in the light of the observation of the honourable Supreme Court (PLD 1969 SC 565) already quoted, the apportionment of the amount of compensation among the several plaintiffs in the suit appears to have been left by the statute to the discretion of the Court. The discretion is, however, to be exercised in a judicious manner, which is different from case to case.
56. In some of the cases, however, as would appear from the above chart, one fails to understand the propriety of apportionment from Islamic point of view for the reason that the widely received English principles of inheritance and will, working as background. It is not only true to the, English decisions but also some of the Pakistani decisions, referred to above.
57. Generally speaking, the Courts of Pakistan, while interpreting certain principles in a given case including those which relate to the matter of discretion, adhered to the principles of English Common Law. The reason is obvious. It is due to the supremacy of Anglo-Saxon law and its system, which is being practised in this sub-continent for about one and half century but, now, in the Islamic Society of Pakistan all such laws and principles, as are found repugnant to Islamic Law, have to vacate their place for the Islamic Common Law and its principles, so as to make room for their enforcement with the Constitutional backing for the Islamization of Law through Courts, for which reference may be made to the judgment of Mr. Justice Muhammad Afzal Zullah of the then Lahore High Court (now Judge. Supreme Court of Pakistan) in Haji Nizam's case (1) relevant paragraph whereof is reproduced as under: -- "All doubts in interpretation of law and appreciation of evidence would be resolved in manner consistent with Islamic principles and jurisprudence in preference to any contrary norm. Courts for which law declared by a superior Court is binding as law, when faced with any of the above situation qua precedent binding law, would treat it as if written law but, in order to assist and act in aid of the superior Courts which laid down the precedent might, with respect, deliberate Islamic point of view which would in turn help reappraisal and reinterpretation on Islamic lines. Such points would ordinarily have to be raised and canvassed formally so as to take advantage of. The controversy in each case would have to be specified after due study with the help of the bar. This would help the entire judicial system to develop on the pattern envisaged in the Constitution."
' For further support of this view, though indirect, reference may also be made to the Supreme Court case of Hameeda Begum (2) Muhammad Bashir (3) and A. M. Qureshi (4).
8. According to me, in so far as the Islamization of the enacted lawss concerned, a mechanism has been provided in the Constitution itself, but in so far as the field presently unoccupied by legislature is concerned i.e. The judicial norms, practice and principles, Courts of Pakistan cant certainly seek guidance from the Holy Qur'an and Sunnah and apply' the Islamic principles, as applicable in a given case.
(1) PLD 1976 LA. 930 (2) PLD 1975 SC 624
(3) PLD 1982 SC 139 (4) PLD 1981 SC 377
59. I, therefore, consider it proper that in the matter of apportion. Ment of the shares among the various plaintiffs/legal heirs in the above suits, the principle of Islamic law be followed, instead of applying the English principles which are influenced by different considerations, for example, the English law of inheritance provides for widow a larger share than it is provided in Islamic Law, so much so that in English laeven the entire property can be willed away in favour of the wife, which is not permissible under Islamic Law in the presence of other heirs. Furthermore, there are concepts different to each other, regarding the right of guardianship of minors as to their person and property in both the systems, and so are the dissimilarities on the question of the responsibility of the heirs of the deceased for providing maintenance to orphan children. Although the compensation awarded under the Fatal Accidents, Act is not, strictly speaking, a wirtha or tarika 1. e. The property' left by the deceased, but nevertheless it is the property which has accrued to the heirs of the deceased for their benefit on account of his death. The diyat in Islamic Law and the compensation under Fatal Accidents Act, in their nature, are the same as both are blood money and ensue from the wrongful act of the kilter. Islam in the matte of distribution of the property directs us to follow the principle of showing compensation to relation by womb {{ARBI TEXT}} Allah the Almighty in Hi Wisdom has prescribed the shares of all the heirs of the deceased by way inheritance, and His Prophet Muhammad (Sallalaho Alaihi Wasallam) has directed as that the blood money of man or woman killed by mistake, is to be distributed among the heirs of the deceased in accordance with their shares in inheritance. If this principle is adopted it will, firstly, leave no room for subjective determination of apportionment by a Judge; secondly, it will not vary from case to c se; thirdly, it will give uniformity and stability to the law, which is to be given due protection; fourthly, it will not create bad blood among the various legal heirs by increase or decrease of their shares, and lastly it will foster goodwill and strergthen human behaviour and social relationship towards each other among the legal heirs to the welfare of the family which is the cornerstone of development and prosperity of society in general. Therefore, adhering to the said principle of Islamic Law, I am of the view that in the matter apportionment of the amount of compensation among the various plaintiffs/ legal representatives of the deceased, the discretion of the Court must be guided by the principle of Islamic Shari'ah as embodied in the Holy Qur'an and Sunnah of the Holy Prophet and his reverend companions.
60. In this view of the matter, it is, therefore, ordered that the amount awarded by me in the above suits will be divided among the various plaintiffs in accordance with their shares as fixed under th Islamic Law of inheritance, as detailed below:-
(i) In Suit No. 492/84, the decretal amount of Its. 32,000 will
(ii) divided equally between the two sons (Qaiser Ali and Zafar Ali).
(iii) In Suit No. 547/84 the amount of Rs. 2,60,080 will be divided a 1/6 share to go to the father (Hashmat Ali), 1/6 to the mother (Sairah Bibi) and the balance will be distributed between the two sons of the deceased (Qaiser Ali and Zafar Ali) in two equal shares.
(iv) In Suit No. 539/84, the amount Its. 2,01,600 will be dividediw
(v) as 1/6 to go to the father (Fazal Ilahi), 1/8 to the widow (Salmal
(vi) Perveen), one-half will go to the daughter (Tehsin Ulfat) and the balance shall revert to the father of the deceased.
(vii) (iv) In Suit No. 541/84, the decretal amount of Rs. 64,500 will be distributed as 1/8 to go to the widow (Sardar Bibi) and th balance to the son (Syed Nadim Hussain Shah) and the daughte Farzana in the manner that the son takes double the share of th daughter in proportion.
(viii)(v) In Suit No. 542/84 the amount of Rs. 27,733 will be distributed as 1/8 to the widow (Mgt.
Bakht Zaiba) and the balance to th daughter (Ms/. Perveen).
(ix) (vi) In Suit No. 544/84 the amount of Rs. 1,35,000 will b distributed as 1/8 to the widow (41st.
Rashidan) and the balanc among the 3 sons and 5 daughters in the proportion that the each son takes double the share of each daughter.
(x) (vii) In Suit No. 545/84 the amount of Rs. 1,80,000 will b distributed among the surviving 3 sons (Rizwan, Suleman and Zeshan) and one daughter (Tasleem) in the proportion that each son takes double the share of the daughter.
(xi)
61. It may, however, be stated that the defendant in a suit fo damages under Fatal Accidents Act will have little concern with this aspect of the matter.
(xii) Issue No. : (xiii)61. The suits were filed without any prior notice to the defendant Corporation. The damages have been decreed under no contractual obligation. There was no previously fixed or determined amount against the defendant. The liability of the defendant has been determined in tort. In the facts and circumstances of the cases I, therefore, do not consider it proper to award any amount by way of interest to the plaintiffs. Finding in the negative.
(xiv)Issue No. 8:
(xv)
61. To sum up, the above seven suits are decreed to the extent of the various amounts awarded in the said paragraphs Nos. 39, 40, 41, 42, 43, 44 and 46 hereinabove.
(xvi)Issue No. 9: (xvii)61. There will be costs in the suits against the defendant which will be paid to plaintiff No. 1 in every suit.
(xviii)62. Before parting with these cases, I would like to observe shat the Fatal Accidents Act, 1855, enacted some 130 years ago, has a limited scope which, in view of the society and Peoples of Islamic Republic of Pakistan needs to be amended so as to include all cases of deaths, caused by accident, negligence and mistake, of persons earning as well as non-earning, and the category of the beneficiaries may also be widened so as to include all the heirs of the deceased, whether dependents for their x livelihood on the deceased or not The Fatal Accidents Act takes only a material view in the matter of compensation, whereas Islam in such cases takes into account not only the material aspect but the whole social context which includes moral, spiritual, economic, and psychological support and backing which the legal heirs of the deceased have been deprived of. If, however, the Ordinance of Qisas and Diyat which, in the matter (xix)
(xx)
(xxi)
(xxii)
(xxiii)
(xxiv)
(xxv) of Diyat, is applicable to Muslims and non-Muslims alike, is enacted the Fatal Accidents Act, 1855 may be said a good-bye. But till such time that the said law is not enacted, the Fatal Accidents Act may be modified as observed above. In this respect, assistance, may, perhaps, be had from the Draft Law of Qisas and Diyat, as approved by the Majlis-i-Shoora of Pakistan. Let the Registrar of this Court send a copy of this judgment to the Secretary, Ministry of Justice and Parliamentary Affairs, Government of Pakistan, Islamabad.