1. ' Plaintiff No,1 is the father and plaintiff No,2 is the mother of one Mst. Razia Begum, who died in a road accident on 3-10-1984, allegedly, as a result of rash and negligent driving of truck No, 840- 049, driven by the defendant No,1 and owned by the defendant No,2. The deceased, victim of the alleged rash and negligent driving of the defendant No,1, is stated to have been employed as a nurse in Civil Hospital, Karachi, and was earning monthly emoluments of, approximately, Rs,1,011.
2. Plaintiffs claim compensation, by way of damages, in relation to the rash and negligent act attributed to the defendants, in the sum of Rs,4,50,000 with 13 per annum interest on such amount from the date of suit till realization.
3. ' Only the defendant No,2 submitted his written statement, while the defendant No,1 was declared ex parte. In such written statement the defendant No,2 admitted the ownership of the truck and the defendant No,1 being his employee, as driver of such truck, but denied that the truck was being rashly or negligently driven. It was also denied that the deceased earned the monthly emoluments as alleged or that the plaintiffs Nos.1 and 2 were her parents.
4. ' On 14-2-1988 this Court adopted the following issues:-- "(1) Whether deceased Mst. Razia Begum died in an accident on 3-10-1984 due to the rash and negligent driving of Truck No, 840-049 by the Defendant No,1?
(2) Whether the plaintiffs were dependents of the deceased Razia Begum. If so, from whom and to what extent they are entitled for compensation/ damages?
(3) What should the decree be?"
5. ' Findings on such issues are recorded below: ' Issue No,1.---On this issue plaintiffs Nos.1 and 2 have examined themselves as also their son Muhammad Haroon. The burden of such evidence is that deceased Mst. Razia, who was 25 years of age, was crushed to death under the wheels of Truck No,840-049, driven by the defendant Not on 3-10-1984 and this happened while she was crossing the road through the Zebra Crossing near Kala Board. The accident was witnessed by her brother Muhammad Haroon, who is a polio patient, was dependent on her and used to see her off each day she left for joining her duty. The truck driver was prosecuted and convicted, on pleading guilty. The defendants in reply have examined no evidence of their own and the learned counsel for the defendant No,2, who appeared at the stage of arguments, stated that he had completely lost contact with that defendant. On this evidence, I find that the fatal accident occurred as a result of the rash and negligent driving of the aforesaid truck by the defendant No,1 at a time when such defendant was, admittedly, in the employment of the defendant No,2, the owner of the truck.
6. Issues Nos.2 and 3.---Plaintiffs' unrebutted evidence, on these issues also, is that the plaintiffs Nos.1 and 2, father and mother of the deceased, were respectively 75 and 59 years of age in August, 1988, when the evidence was recorded and correspondingly would have been 71 and 55 years of age on 3-10-1984, when the accident occurred. Photostat copies of their identity cards have been produced together with that of the deceased and, apart from oral evidence, such documents also duly establish the projected relationship between the parties. It is brought out in evidence that the deceased was unmarried and intended to remain so because of a polio stricken brother. She also used to give all her earnings to her parents, herself depending on extra earnings from administering injections etc. To private patients. The plaintiff No,1 in his evidence has maintained that there are unusually long spans of life in their family. The claim for compensation is projected on that basis. Normally, such a factor cannot be considered in isolation and determination of compensation has to be made on the basis of average expectancy of life in the community as a whole. Till lately, the usual average age limit accepted by the Superior Courts was 65 years.
7. However, in some recent decisions, I have ventured to take a view that on account of changing times with concomitant advanced medical and other facilities, higher standards of living and the fact that the deceased person, had he or she lived, would have so lived in future when such advantages, as aforesaid, would have registered further improvements, the average life expectancy in Pakistan, much like that in India, our immediate neighbour, should be about 70 years. It will be useful here to reproduce some excerpts from these decisions. Thus, in Naseer Khan and another v. Md. Yousuf and another (Suit No, 880 of 1986) (1989 CLC 1970), decided on 27-4- 1989, after making reference to Iftikhar Hussain v. Karachi Electric Supply Corporation Ltd. (PLD 1959 Kar. 550), Ursulina D' Lima and others v. Orient Airways Ltd. And another (PLD 1960 Kar. 712), Bashir Begum v. Muhammadali Premji (PLD 1960 Kar. 785), Kulsoom v. Jalil Ahmed Khan and another (PLD 1964 Kar. 72), Menmatha Nath Kuri v. Muhammad Mokhlesur Rehman (PLD 1963 Dacca 290), Manmatha Nath Kuri v. Muhammad Mokhlesur Rehman (PLD 1969 SC 565), Punjab Road Transport Board v. M. Muhammad Sadiq (1987 CLC 933), Moinuddin v. Karachi Transport Corporation and another (1987 CLC 1554) and Vicar Ahmed and others v. Messrs Blue Line Air- Conditioned Coach Service and another (1989 CLC 229) this is what was said:- "8. However, after all these years, time may now be ripe to take note that the rule of 65 years was deduced more than a quarter century ago and in the altered circumstances of a comparatively advanced society with better medical facilities, know how and health care and generally an improved standard of life an ordinary citizen may actually, on an average, live longer than 65 years, as earlier determined. Compulsions for such rethinking may be reflected in advancements, as a consequence whereof, heart ailments are no longer incurable, typhoid is controllable, tuberculosis and leprosy have virtually been eradicated and diabetes relegated to the status of a mere nuisance. Implications of this change, inter alia, have been recognised in altering the retirement ages of Government Servants from 58 years to 60 years and of Judges of the High Courts themselves from 60 to 62 years and, unquestionably, the age of retirement is never taken as the terminal point of life. Besides, in the case of women-folk, as the plaintiff No,2 is, it is now well- established, all the world over, that expectancy of life of females is higher than that of men. Add to this the circumstance that what is to be assessed as probable expectancy has greater nexus with the future than with the past and it goes without saying that the conveniences, facilities and technical advancements the future promises are likely to be in the nature of foreseeable improvements. It may, therefore, be more in line with present day conditions to adopt a rule of 70 years average age in the matter of fatal accidents but as this question has not been raised and does not arise in this case, I would prefer to defer it for another occasion and time."
8. ' In Nafeesa Begum v. Muhammad Ismail and another (Suit No,814 of 1984) the question of probable everage age arose more directly and this is what I had occasion to record in adopting the 70 years' average rule:- "16. Coming to the question of expectancy of life, the normal rule in this country, to start with, was held to be 45 to 60 years. But it seems, that the law on such subject has evolved slowly though surely. Thus, in the case of Iftikhar Hussain v. Karachi Electric Supply Corporation Limited, PLD 1959 Kar. 550, Qadeeruddin Ahmed, J., as he then wasp declared normal expectancy to be 65 years, Waheeduddin Ahmed, J., in the case of Ursulina D'Lima and others v. Orient Airways Limited and another, PLD 1960 Kar. 712 and in Basheer Begum and others v. Muhammad Ali Premji and another PLD 1960 Kar. 785, holding it to be around 55 years, and a Division Bench of the Dacca High Court in the case of Manmatha Nath Kauri v. Muhammad Mokhlesur Rehman, PLD 1963 Dacca 290, found the same to be 60 years. Qadeeruddin Ahmed, J., in Kulsoom v. Jalil Ahmed Khan and another, PLD 1964 Kar. 72, placing reliance on the referred Karachi decisions, reaffirmed it to be 45 to 65 years.
9. Subsequently, the quoted decisions of the Dacca High Court and of Qadeeruddin Ahmed, J., were approved by the Hon'ble Supreme Court in Manmatha Nath Kauri v. Md. Mukhlesur Rehman, PLD 1969 S.C. 565 and in Jalil Ahmed v. Kulsoom CAK-44/69. In the meantime, Fakhruddin G. Ibrahim, J., in Miss Shamsun Nissa and another v. Karachi Road Transport Corporation and 3 others, PLD 1975 Karachi 914, held such expectancy to be 60 years, Mushtaq Ali Kazi, J., in Rukayabai and 5 others v.
10. Secretary of Defence, Government of Pakistan, Islamabad and 4 others, PLD 1976 Kar. 131, determined it to be 65 years, and Ajmal Mian, J., as he then was, in Muhammad Siddique and another v. Gul Majced and two others, PLD 1980 Kar. 78, found the same to be 60 years.
11. Saceduzzaman Siddiqui, J., in Mst. Nasreen Muhammad Naseem and 4 others v. M/s. Quality Steel Works Ltd. PLD 1981 Kar. 561, and Saleem Akhtar, J., in Mrs. Gul Bano. And 4 others v. Muhammad Ramzan and another, 1982 CLC 1120, also held such expectancy to be 60 years. On the other hand, Nasir Aslam Zahid, J., in Mst. Sharifan and 5 others v. Karachi Electic Supply Corporation Ltd., PLD 1981 Kar. 701, Mst. Sharif Bibi and 3 others v. Mehmood and another, 1980 CLC 1057 and some other cases, after holding it to be 60 years, modified his view to declare such expectancy to be 65 years in the cases of Barkat Ali Khan and another v. Karachi Electric Supply Corporation Ltd., PLD 1983 Kar. 453, Qudsia Kishwar and 7 others v. Hakim and Company Travel Bus Service and 10 others, 1985 CLC 211, and Ghiasul Mansoor and another v. Naik Mohammad and 2 others, 1985 MLD 487. Similar dicta of 65 years duration is attributable to K.A. Ghani, J., in Mrs. Asma Ibrahim and 2 others v. Sindh Road Transport Corporation and another, PLD 1982 Kar. 236, to Ibadat Yar Khan, J., in Moinuddin v.
12. Karachi Transport Corporation and another, 1987 CLC 1554, to a Lahore Division Bench of Abaidullah Khan and Qurban Sadiq Ikram, JJ., in Punjab Road Transport Board v. M. Mohammad Sadiq and another, 1987 CLC 933 and to S. Abdul Rehman, J., of this Court in Vicar Ahmed and others v. Messrs Blue Lines Air-Conditioned Coach Service and another, 1989 CLC 229.
17. On the other side of the border, Courts in Indian jurisdiction have, for quite sometime, been allowing 70 to 75 years by way of life expectancy. Reference in this connection may, conveniently, be made to some of the earlier decisions from that jurisdiction on which the current and prevalent trend is based. Thus, is Shiv Prasad v. S.M. Sabir, AIR 1968 All. 186, T.V. Gnan Avclu v. D.P. Kannayya, AIR 1969 Mad. 180 and the State of Bihar v. Sishir Kumar Mukherji, AIR 1976 Pat. 24 etc. The Indian Courts, having found that life span of the citizens of that country was showing an upward trend, determined the same ranging between 70 and 75 years.
18. Now, the acknowledged position is that the level of economic prosperity and advancement in life styles (having direct nexus with life expectancy) in this country compares favourably with that prevailing in India and, in addition, the people of Pakistan proudly claim themselves to belong to a Martial Race, involving a more sturdy breed. Besides, in direct proportion to the availability of modern facilities of life we, in this country, have evolved a society where diseases like tuberculosis and leprosy have become stories of the past, where heart and kidney transplants etc. Arc no longer part of the world of fantasy, where bypass surgery is resorted to not infrequently, where standards of nutrition have markedly improved and where, generally, better facilities of livelihood are available as compared to the past decades. It would be unjust not to recognize such or similar realities and to adhere to old rules of the thumb. This is all the more so because a deceased person, if he were to live, would have lived in future, when like circumstances and benefits, would, in the ordinary course, have shown further improvements and advancements. It must also be remembered that average life span has only an outside relevance in these matters as such average is invariably affected by mortality rate upon child-birth and infant mortality, included in such averages, tends to blur the picture. Therefore, on the view I venture to take, time has come when the rule as to the expectancy of life must be reviewed and revised. It is not a rule of law but only one of practice. It must change and evolve with the changing times."
13. The above principles on the question of average life expectancy, would be applicable to this case as well.
14. As to the claim in suit itself, the accident having come about during the course of employment of the defendant No,1 with the defendant No,2 and being attributable to a rash and negligent act of the first defendant, the second defendant is, vicariously and to the same extent and degree, liable for loss or damage flowing therefrom in terms of the Fatal Accidents Act. However, founded C upon conditions appearing in the same enactment, only plaintiffs Nos. 1 and 2 would be entitled to compensation since plaintiff No,3, Mohammad Haroon and plaintiff No,4, Mst. Khushnuma, though said to be dependent on their deceased sister, do not qualify as beneficiaries under the Fatal Accidents Act, 1855, that advantage being confined to parent(s), spouse and children, if any, as defined, if the victim, in relation to whom the claim is lodged.
15. As regards the plaintiffs Nos.1 and 2 themselves, as seen, life expectancy, on average, being assessable at 70 years, there would be no problem in so far as the plaintiff No,2 is concerned for she would be entitled to compensation for 14 years or so from the date of the accident till she attains the age of 70 years, aforesaid. However, as regards the plaintiff No,1 he was 71 years of age when his daughter was fatally run over by the truck in question. He had come to be 75 years of age when he was examined in Court in August, 1988 and should be 77 years now, for he is still said to be alive. Plainly, he is already entitled to compensation for the past six years. It will amount to negating all rules of justice and fair-play if inflexibility or fixity is allowed to creep into the notion, which governs the concept of average life expectancy recognised in Courts. Room must be left open for variations in specific cases warranting such course. As a special case, therefore, and on the unrebutted evidence that family members of plaintiff No,1 have enjoyed, abnormally, long spans of life and since he himself is still alive at 77, I am of the view that the plaintiff No,1 should be provided compensation and be held entitled to it till he attains the age of 80 years, irrespective of his actually doing so, for future, patently, cannot be foreseen. Thus, whereas on such basis the plaintiff No,1, father of the deceased, would be entitled to compensation for a period of 9 years from the date the deceased breathed her last, plaintiff mother, being in accordance with the N.I. Card, 55 years (7 months) of age at the time of the demise of Mst. Razia Begum, would be entitled to compensation for 14 years and 5 months taking her probable maximum age, on general average, to be 70 years. The salary of the deceade, on evidece, being Rs,1000 p.m., which she used to give, in its entirety, to her family, total compensation, worked out, for the first two plaintiffs, divisible equally in the ratio of their respective life expectancies, would be Rs,1,73,000, for which amount I decree the suit against the E defendants. It may be observed that, in so far as the defendants are concerned, their liability, in this case, would not be affected on account of percieving and presuming a longer life span for the plaintiff No,1 than the average, as the liabilities of those defendants should continue to accrue past the expected life span of the plaintiff No,1, since the plaintiff No,2 is assumed, though notionally, to live longer and has to be all through provided for by the two defendants jointly and severally.The difference, if any, would be confined to the plaintiff No,2 alone who will have to share in the relief with the plaintiff No,1, her husband, longer than could otherwise be anticipated. Further, to make the matter simpler neither any deductions have been allowed (for the deceased was stated to be living on her additional earnings) nor any advancements in life and increased emoluments for the deceased have been gone into (largely because there was scanty evidence on the point). The decree would carry costs, but, in view of what has been said in the case of Aijaz Maroon v. Inam Durrani (PLD 1980 Kar. 304), there would be no interest allowable on the decretal amount. Decree accordingly.