1. ' The present suit has been filed under the Fatal Accidents Act, 1855 for compensation. On 24-5- 1980, according to the plaint, Syed Baqar Ali was run over by Bus No. 803-548 belonging to Defendant No.1, while he was crossing the road, due to rash and negligent driving by Defendant No.2. It is further alleged that the accident took place when Defendant No.2 was overtaking another bus. The deceased was taken to Jinnah Post Medical Centre, Karachi where he expired at about 11- 45 p.m. on the same day. The suit has been filed by the parents, two sisters and two sons of the deceased. The widow of the deceased has been joined as Defendant No.2; as according to the plaint the deceased had divorced her and since last six years she was living at Multan. It is stated that the deceased was employed in Pakistan Tobacco Company Ltd. and was getting Rs, 1,400 per month as his salary. He was aged 48 years and possessed good health. He used to maintain his parents i.e. Plaintiffs Nos. 1 and 2. It is alleged that Plaintiff No.3, was the unmarried sister of the deceased, and Plaintiff No. 4 was a widow and both were also being maintained by him and were dependent on the income of the deceased.
2. ' According to the plaint the deceased was expected to live upto 70 years and out of his monthly income, he used to give Rs, 1,000 to plaintiff No. 1 for the household expenses. The deceased would have lived for 22 years more and would have contributed Rs, 1,000 per month towards their maintenance. The plaintiffs would have thus received a sum of Rs, 2,64,000 from the deceased.
3. Since the Plaintiffs have been deprived of the aforesaid earnings of the deceased, the suit has been filed for the recovery of the said amount.
4. ' Defentant No. 1 has raised preliminary objection regarding maintainability of the suit on the ground of misjoinder of plaintiffs. It is denied that the said defendant was owner of Bus No. 803-
548. The occurrence of the accident is also denied and so also the death of the said Syed Baqar Ali due to rash and negligent driving. It is denied that the plaintiffs are entitled to the amount claimed in the plaint. In short it has assailed all the averments made in the plaint. Defendant No. 3 has also filed written statement in which she has denied the allegation of divorce to her and has averred that she was living with the deceased Syed Baqar Ali. It is averred that when the accident took place she had gone to meet her parents, alongwith her two sons. Plaintiffs 1 and 2 did not inform her about the death of her husband in time, therefore, she reached Karachi after burial. She has denied that the deceased used to give Rs, 1,000 p.m. to Plaintiff No.
1. She has asserted that the deceased used to contribute entire income towards family expenses.
5. The rest of the allegations made in the plaint have been denied. However, it has been denied that the sisters of the deceased were dependent on the income of the deceased or they are entitled to compensation. On the pleadings of the parties the following issues were framed:---
(1) Whether the plaintiffs have locus standi to file the suit?
(2) Whether the suit is maintainable under the Fatal Accidents Act?
(3) Whether deceased Syed Baqar Ali died in accident involving Bus No. 803-546 as alleged?
(4) Whether at the time of his death the deceased was earning Rs,1,400 per month and was maintaining the plaintiffs as alleged?
(5) Whether the age of the deceased at the time of his death was 46 years?
(6) To what relief? if any, are the plaintiffs or any of them entitled?
6. ' The plaintiffs examined P.W. 1 Mst. Mubarak Bano, plaintiff No.2, P.W. 2 Muhammad Ishaque, the Police Constable, who produced the F.I.R. pertaining to the accident as Exh. 6/1, Mansoor Ahsan, an officer of Pakistan Tobacco Company Ltd., who produced the Chart of service of the deceased, containing the wages earned by him from the date of his employment till his death. Defendant No.3 examined her Attorney, Syed Shahid Mehdi Jaffri. Defendants Nos.1 and 2 did not tender any evidence.
7. ISSUES NOS.1 AND 2: ' With regard to Issues Nos.1 and 2, it was contended by the learned counsel for defendants Nos.1 and 2 and so also by the learned counsel for defendant No.3 that the sisters of the deceased are not covered by section 1 of the Fatal Accidents Act for award of compensation and as such they have been wrongly joined as parties. The contention on the face of it is correct. It is, therefore held that Defendants Nos.3 and 4 have.no locus standi to file the suit and that they are not entitled to any compensation.
8. ISSUE NO.3: ' It is established from the evidence of Mst. Mubarak Bano, Muhammad Ishaque and Mansoor Ahsan that the deceased was run over by Bus No.803-546 on 24th May, 1980 and subsequently died on the same day in Jinnah Post Medical Centre, Karachi. F.I.R. No.89 of 1980 was registered at Airport Police Station, Karachi on 25-5-1980 at 0045 hours. Mst. Mubarak Bano in her evidence deposed that the deceased was run over by the said bus while he was standing on the bus stop and as she disclosed, such information was conveyed to her. Though she has given different version with regard to the accident from the one stated in the F.I.R., but this discrepancy is to be over looked keeping in view the fact that she had not witnessed the accident and was of about 65 years of age, when her deposition was recorded. Since the defendants 1 and 2 have not given any evidence to rebut the occurrence of the accident due to the rash and negligent driving by defendant No.2, there is no escape fiom the conclusion that the deceased had died as a result of injuries caused to him due to rash and negligent driving of the said bus by defendant No.2. Issue No.3, is therefore, answered in affirmative.
9. ISSUE NO.4: ' According to the plaint the deceased was earning Rs,1,400 per month out of which he used to contribute Rs,1,000 towards maintenance of the plaintiffs. However, Mansoor Afsan deposed that at the time of his death, the deceased used to draw total emoluments of Rs,1,196 per month. He further deposed that if the deceased had continued to live, his emoluments would have been between Rs,2,500 to Rs,3,000 per month. Since the above statement has not been challenged, it is held that the income' of the deceased at the time of his death was Rs,1,196 per month and that in case he had survived he was expected to get annual increment of Rs,100. He died in the year 1980. In the year 1992 his salary would had been Rs,2,400 per month. According to the aforesaid witness the deceased would have retired at the age of 55 years and would have been entitled to extension of 3 years in his service, if he had enjoyed good health and service was found to be unblemished. With regard to the health of the deceased it has been deposed by Shahid Mandi Jaffri that he was enjoying very good health. Exh.7/1 discloses that the deceased was given cash reward of Rs,200 in the year 1979 in recognition of his overall contribution to the company during the year 1978. It will be therefore reasonable to infer that deceased would have been given extension and would have retired at the age 58 years.
10. ' Mst. Mubarak Bano, the mother of the deceased in her evidence stated that the deceased used to pay Rs,400 per month to her and Rs,300 to 400 per month to his wife. The deceased thus used to contribute nearly two-third of his income towards maintenance of his parents, wife and children and spend one-third thereof on himself. The issue is decided accordingly.
11. ISSUE NO.5:.
12. ' Mst. Mubarak Bano deposed that deceased was 48 years old at the time of his death and attorney of defendant No.3 disclosed the age of the deceased to be about 45 or 46 years at the time of his death. The service record shows that he was born in 1934, accordingly in the year 1980 when he died his age was 46 years. The issue, is, therefore, answered in affirmative.
13. ISSUE NO.6: ' In the plaint it has been stated that the deceased would have lived till the age of 70 years. In the amended plaint it is stated that the father of the deceased had died at the age of 83 years. The mother of the deceased at the time of her statement was recorded as 65 years old and it had been stated at the Bar, at the time of arguments, that she died about four years back i.e. in or about May 1988. Her statement was recorded on commission in the year 1986, that is to say, she died approximately at the age of 67 years. In view of the above life span of the parents of the deceased, it was contended that he would have lived at least for 70 years. The above factor by itself cannot be made basis of life expectancy of the deceased and the same is to be determined on the basis of average expectancy of the life in the community as a whole.
14. ' Mr. Khursheed Anwar Shaikh, Advocate has relied on the case of Rashid Abdul Hafeez and 3 others v. Ahmad and another 1991 CLC 370 wherein my learned brother Wajihuddin Ahmad, J. adopted the rule of seventy years average age in the matter of fatal accidents, after considering the case law extensively and elaborate deliberations on the scientific advancements in the medical field and facilities as a consequence whereof the life devouring ailments, have been either eradicated or are no longer incurable, and the future promises of advancements in the said directions, coupled with national economic prosperity and advancement in life style. I am in respectful agreement with the rule laid down in the said case. It is, therefore, held that the deceased would have lived till attaining the age of seventy years, had he not died in the accident.
15. Had the deceased survived, he would have contributed towards the maintenance of his parents a sum of Rs,400 per month i.e. Rs,200 for each. The father of the deceased died in September, 1985.
16. The deceased would have contributed towards his maintenance from June, 1980 to September, 1985 i.e. for 5 years and 4 months. He would have contributed towards maintenance of his mother from June, 1980 to May 1988, i.e. for 8 years.
17. ' Plaintiffs Nos.5 and 6, sons of the deceased in the year 1986, when the amended plaint was filed, were said to be 8 years and 6 years old respectively. The deceased would have continued to maintain them till completion of their education i.e. till they had attained the age of about 22 years.
18. Since the deceased was 46 years old at the .time of his death, he would have lived for about 24 years more.
19. ' It is stated above that the deceased would have continued in service till the age of 58 years and earned annual increment of Rs,100 during 12 remaining years of his service and thus his last salary would have been nearly Rs,2,400 per month. The mean income of the deceased during the expected twelve years of service would be Rs,1,700 per month and his contribution towards his family would be about Rs,1,200 per month i.e. nearly two-third of his income. After retirement it is reasonable to infer that the deceased would have kept himself gainfully employed and earned at least Rs,1,500 per month and would have contributed two-third thereof towards expenses of the family. If the contribution by the deceased towards his family is worked out on the above basis it would be more than the amount claimed in the suit i.e. ' Rs,2,64,000. In this view of the matter the amount claimed in the plaint, is found just, fair and reasonable.
20. ' The widow Mst. Anwar Fatima has claimed 1/8 share.
21. ' After deducting the compensation payable to the parents of the deceased and the widow, as stated hereinabove, the balance shall go to the two sons of the deceased in equal shares. Since the sons of the deceased are still minor, Nazir will invest the aforesaid amount in any Government Security Scheme, yielding monthly profit, together with the amount inherited by the said minors from their grand-parents. Monthly profit shall be paid to the widow of the deceased, mother of the minors for their maintenance, till their attaining age of majority.
22. ' The suit is, therefore, decreed as above with costs.