1. ' The plaintiffs have filed these suits, under the Fatal Accidents Act, 1855, against the Government of Pakistan and Pakistan Air Force for recovery of damages for the deaths of their respective relatives as a result of the crash on the 6th July, 1988, of an aircraft belonging to the defendants in the area of S.I.T.E. Police Station, Karachi. The suits are stated to have been filed for the benefit of the plaintiffs as well as of the dependant legal heirs of the various deceased persons respectively.
2. ' It is alleged by the plaintiffs in all the suits that the deaths were caused "by falling of one of the aircraft of the defendants during its flying negligently and without due care"; that the defendants "committed the act of negligence, default, lack of prudence and reasonable foresight in flying the aircraft over the populated area knowingly and deliberately in very rash and negligent manneRs, The aircraft was either defective or the pilot, who was flying the said aircraft, was not piloting and flying the same with care, prudence and diligence and was acting with negligence and default which caused serious loss of lives of peoples...."; and that the death of the deceased was caused by actionable wrong, wrongful act, negligence, default, malfeasance, non-feasance, misfeasance and lack of reasonable foresight" of the defendants.
3. ' The deaths of the several persons mentioned in the plaints as a result of the crash of their aircraft is not denied by the defendants who have, however,. Denied the allegations of negligence, default, etc. Their plea in their written statement is that the aircraft in question was "declared serviceable by the concerned authorities and there was no fault or operational defect in the said aircraft and further the pilot, who was detailed for this mission, was also declared fit physically and mentally for flying." The further plea of the defendants, in this connection, is that the "occurrence had taken place due to some uncertain reasons which were beyond the imagination and control of the defendants".
4. ' The plaints contain allegations with regard to the relationship of the deceased in each case with the plaintiffs respectively; the income or earning of the deceased at the time of their respective deaths; and the amount of damages claimed by the plaintiffs. The plaintiffs in Suits Nos.729, 730, 731, 732, 733 and 734 of 1988 are alleged to be, respectively the daughter of the deceased Maryam, widow of the deceased Jai Ram, father of the deceased Murad An, sons and daughters of the deceased Ahmed Ali, son of the deceased Chimney Khan and widow of Syed Amjad Ali. In Suits Nos. 729 of .1988 and 730 of 1988 the following issues were framed by consent:---
(1) Whether the suit is maintainable against the defendants under the Fatal Accidents Act?
(2) Whether the plaintiff is entitled to file and pursue the suit on behalf of the dependents of the deceased?
(3) Whether the suit is liable for payment of court-fee?
(4) Whether the death of the deceased was caused by the actionable wrong, wrongful act, negligence, default, non-finance, malfeasance, and lack of reasonable foresight of the defendants?
(5) Whether the plaintiff is entitled to the compensation claimed?
(6) Whether the plaintiff is entitled to costs and interest?
(7) What should the decree be?
5. ' The issues in the remaining suits are identical except that issues Nos.2 and 7 do not occur therein.
6. ' The following witnesses have been examined by the plaintiffs:--- (i) Suit No,729/88 -- Plaintiff herself and Umer Rasheed. Suit No,730/88 ' Plaintiff herself and Muhammad Ali.
(iii) Suit No,731/88 -- Plaintiff himself and Ajmal Yousuf Farooqi. (iv) Suit No,732/88 Mul).,in mad All and Ajmal Yousuf Farooqi.
(v) Suit No,733/88 -- Plaintiff himself, Umer Rasheed and Sardar Ali.
(vi) Suit No,734/88 -- Plaintiff herself, Ajmal Yousuf Farooqi, Imtiaz Ahmed and Umer Rasheed.
7. ' The defendants examined Tahir Mahmood and Hafizullah. The evidence of Hafizullah was recorded in Suit No,729 of 1988 and was, by consent, adopted as his evidence in the remaining cases.
8. ' By order, dated the 22nd October, 1989, all these suits have been consolidated and will be disposed of by this judgment. .' I have examined the records in each of the suits and have heard the learned counsel for parties.
9. My findings on the issues are as follows:- ' ISSUE NO,1.---This issue arises from the plea in para. 3 of the written statement of the defendants in Suit No,729 of 1988, which is as follows:- "The suit does not come under the purview of the Fatal Accidents Act as the maintenance of the defendant No,2 (i.e. Pakistan Air. Force) is sovereign function of the defendant No,1 and the defendants enjoy immunity from any action for damages and the rules for negligence are not applicable in these cases."
10. ' Mr. Umer Qureshi has made no submission on this issue and rightly so; but Mr. Badrudduja Khan insists that the suits are not maintainable. He is, however, unable to cite any provision of the Fatal Accidents Act or of any principle or authority in support of his plea. I, therefore, hold that the suit is maintainable.
11. ' ISSUE NO,2.---The plaintiffs in Suits Nos.729, 730, 731, 732, 733 and 734/88 are, respectively, the daughter, the widow, the father, the sons and daughters, the son, and the widow of the deceased persons respectively, on account of whose death the suits have been filed. Section 1 of the Fatal Accidents Act provides that every suit under that Act shall be for the benefit of the wife, husband, parent and child of the person whose death has been caused and shall be brought by and in the name of the executor, administrator or representative of the person deceased. It is not dispated that the plaintiffs in each of the cases are, respectively, the representatives of the deceased and the suits have been expressly filed for the benefit of the plaintiffs as well as other persons who fall within the ambit of the provision of section cited above. The issue is, therefore, answered in the affirmative.
12. ' ISSUE NO,3.---This issue is not pressed and it is conceded by the counsel for the defendant that no court-fee is payable on a suit under the Fatal Accidents Act.
13. ' ISSUE NO,4.---It is an admitted position that the death of the deceased in each of the cases was caused by the crash of an aircraft belonging to the defendants which at the relevant time was being flown by a pilot of the defendants. The deaths in such circumstances indicate that there was failure on the part of the defendants to take care; and the burden of proof, therefore, shifted to the defendants to show that they had taken all reasonable precautions to avoid the injury complained of. Mr. Badrudduja Khan submits that the duty of the defendants was to ensure that the aircraft was in sound condition and that the pilot was fit to fly it; and contends that the said duty was performed as shown by the following passage from the deposition of Tahir Mahmood-- "The Form No,781 comprising a series of forms is maintained at the base at the flight line and is completed before an aircraft is scheduled for the flight. All those personnel who do any checking and maintenance in this respect do sign the said series of forms. Pilot, before he takes the aircraft for flight, verifies from the said forms if proper checks and maintenance has been done by the technicians. In respect of the aircraft involved in the accident in present suit all such routine checks and verifications were done."
14. The Form No,781 referred to by the, witness has not been produced. There is, therefore, no evidence of any particular act or acts performed by the personnel of the defendants, let alone sufficiency of such acts, to ensure that the aircraft in question was, in all respects, airworthy. Besides, according to same witness, there are a number of pre-flight checks contained in the manual and those checks are so numerous that he could not remember them unless he saw the manual. Yet the manual was not produced and the witness has not even said that all the checks prescribed by the manual were carried out. The most crucial aspect of the case is that the statement' of the same witness was recorded in the departmental inquiry into the crash but the report of the inquiry has not been produced. The aircraft was, admittedly, in the sole Control of the defendants and it were the defendants alone who had the knowledge of its condition at the time of the flight. The inquiry was evidently held to determine the cause or causes of the crash and again it were the defendants alone who had the knowledge of such cause or causes; and yet the inquiry report has been withheld by them. The defendants have, therefore, failed to discharge the burden that they had performed the duty to take care which was cast upon them; and, in any event, their failure to produce the inquiry report raises the presumption that had it been produced it would have gone against them.
15. With regard to the pilot who flew the plane, the defendants' witness, Sqn. Ldr. Hafizullah, has deposed that he was a competent Pilot but has said nothing about his condition or health at the time of the flight in question; and in cross-examination he has admitted that "the statement in the written statement that Khalid Saifullah (the Pilot) was mentally and physically fit refers to his general condition and not to his condition when he flew the aircraft in question." There is, thus, no evidence of the physical and mental condition of the pilot at the relevant time.. Thus, in this respect to the defendants have failed to discharge the burden which lay upon them.
16. As stated above, the aircraft in question was under the sole management and control of the defendants and it is not their case that the accident could have occurred without their negligence.
17. They had, therefore, to persuade the Court that the accident did not occur on account of their negligence. This they have failed to do. The doctrine of res ipsa loquitor, therefore, applies.
18. ' It has, therefore, to be held that the accident and the consequent deaths in the present cases was caused by the negligence of the defendant.
19. ' ISSUES 5, 6 AND 7.---These issues relate to the compensation to which the plaintiffs in these suits are, respectively, entitled. That the amount of damages has to be calculated on the basis of life expectancy of the deceased, his income at the time of his death and probable increase in such income is not disputed. Mr. Nasir Maqsood submits that according to preponderance of authority life expectancy in Pakistan is to be taken at 70 yeaRs, Mr. Badrudduja Khan does not contest this position and says merely that in some cases life expectancy has been taken at less than 70 yeaRs, I would, therefore, proceed in accordance with the preponderance of authority, on the basis of life expectancy of 70 yeaRs, The remaining question, relating to the respective ages and incomes of the deceased in each case have to be dealt with separately and are considered below.
20. ' SUIT NO,729/88.---According to the averment in the plaint, the. Deceased Maryam used to earn Rs,1,500 per month as a sorter in a factory and the monetary value of the domestic chores performed by her at home came to Rs,1,500 per month. The allegation has been simply denied in the written statement. According to the National Identity Card (Exh.1/1) produced by the plaintiff, the deceased was born in 1933. She was, therefore, 55 years old at the time of her death in 1988. This is not contested. As for the income of the deceased at the relevant time, the plaintiffs evidence, in her examination inchief, is that the deceased used to work in a factory and used to contribute Rs,900 per month to household expenses. The suggestions to the contrary, in the cross-examination, were denied by her. Mr. Badrudduja Khan contends that there is only the oral evidence of the plaintiff with regard to the employment of the deceased in a factory and her income and that such evidence is not sufficient. However, according to the inspection report (Exh.2/2) produced by the witness Umer Rasheed parts of the aircraft fell inside the factory of Adil Industries due to which the building caught fire resulting in the death of Maryam. It is, therefore, clear that Maryam was present in the factory premises at the time of the accident and it is not the case of the defendants that she was there for any other purpose but to work there. As to Maryam's income, there is no reason to disbelieve the plaintiff's evidence that she used to contribute Rs,900 per month to household expenses.
21. ' Since the deceased, at the time of her death was 55 years old, the plaintiff and other heirs have been deprived, by her death, of pecuniary benefit for a period of 15 yeaRs, According to Mr. Nasir Maqsood, the amount of loss, calculated as follows, comes to Rs,2,36,200.
22. Gross Income: (i)For four years up to 1992 at the rate of Rs.900 per month - -Rs. 43,200 (ii)For eleven years from 1992 at the rate of Rs.1,500 per month (being the minimum Wage prescribed by law) Rs.1,98,000 (iii)Twenty per cent. of
(i) and (ii) above . on account of expected increase in income Rs. 48,240 TotalRs. 2,89,440 Less: (i)1/6 of Rs.2,89,440 on account of personal expenses of the deceasedRs. 48,240 (ii)Payment made by defendants Rs. 5,000 Rs. 53,240 NetRs.2,36,200 ' The calculation is not questioned by the learned counsel for the defendants. The defendants are, therefore, liable to pay the plaintiff and other heirs of the deceased the amount of Rs,2,36,200 for damages.
23. ' SUIT NO,730/88.---The deceased Jai Ram is stated, in the plaint, to have been earning Rs,1,000 per month, at the time of his death, by way of salary,-and a further amount of Rs,1,000 per month from part time work after office houRs, The income of the deceased by way of salary is not contested, nor is it in dispute that the deceased would have earned a salary of Rs,1,550 per month from 1992 onwards; but Mr. Badrudduja Khan submits that there is no evidence of part time work done by the deceased or any income from such work. However, the plaintiff has deposed in her examination- in-chief that the deceased used to earn Rs,1,000 per month from private work and has maintained that evidence during her cross-examination.
24. ' The deceased, according to his National Identity Card (Exh.5/1) was 35 years old in 1974. His age at the time of his death in 1988 was, therefore, 49 yeaRs, The plaintiff and other heirs of the deceased were, thus, deprived, by his death, of pecuniary benefit for a period of 21 yeaRs, According to Mr. .Nasir Maqsood, the amount of loss, calculated as follows, comes to Rs,6,11,200.
25. Gross Income: (i)For four years up to 1992 at the rate of Rs.1,000 per month.Rs. 48,000 (ii)For seventeen years from 1992 at Rs.1,500 per month.Rs. 3,16,200 (iii)For twenty-one years at Rs.1,000 per month from part time work. Rs. 2,52,000 (iv)20 % of (i), (ii) & (iii) above on account of expected increase in income. Rs. 1,23,200 TotalRs.7,39,200 Less: (i)1/6 of Rs.7,39,200 on account of personal expenses of the deceased..Rs. 1,23,200 (ii)Payment made by defendants.. Rs. 5,000 Rs. 1,28,200, NetRs. 6,11,000 ' The above calculation is not questioned by the learned counsel for the defendants. The defendants are, therefore, liable to pay the plaintiff and other heirs of the deceased the amount of Rs,6,11,000 for damages.
26. ' SUIT NO,731/88: ' It is alleged in the plaint that the deceased Murad Ali was, at the time of his death, working as an accountant for M/s. Karim Containers and earning a salary of Rs,2,500 per month and Rs,500 to Rs,600 per month by way of overtime. The defendants, in their written statement, have simply denied the allegation "for want of knowledge". Syed Ali, the father of the deceased has deposed that the deceased was working for M/s. Karim Containers and was, at the time of his death, earning Rs,2,526 per month. Ajmal Yousuf Farooqi, the Chief Accountant of M/s. Karim Containers, has in his evidence confirmed that the deceased was working as an accountant with Karim Containers and his salary, at the time of his death, was Rs,2,526 per month and has produced a salary certificate (Exh. 6/1) to that effect. Mr. Qureshi submits that since no letter of appointment of the deceased was produced, his employment with Karim Containers was not proved. He further contends that salary certificate Exh.6/1 was issued in May, 1993 whereas the deceased died in 1988 and was, therefore, "manipulated". The submissions are without merit. The evidence of Ajmal Yousuf Farooqi, on the points of employment and salary of the deceased, is very clear and has not been affected by cross-examination and merely because the letter of appointment was not produced is no reason for not believing the witness who had no reason to give false evidence. Similarly, the fact that the salary certificate was issued about five years after the death of the deceased does not by itself make it "manipulated" or doubtful; and it is clear that the certificate was issued only for the purpose of producing it in evidence in corroboration of the evidence given by the plaintiff. Mr. Nasir Maqsood submits that there is sufficient evidence to prove the employment and the income of the deceased and that in any case the denial, in the written statement, "for want of knowledge", is no denial so that the averment in the plaint with regard 'to the employment and the income of the deceased must be deemed to have been admitted. The submission is not without merit. I would, therefore, hold that the deceased was, at the time of his death, employed as an accountant, at a salary of Rs,2,526 per month, by M/s. Karim ContaineRs, The evidence with regard to income by way of overtime pay is not satisfactory and Mr. Nasir Maqsood does not press the claim.
27. ' It is not disputed that the deceased, at the time of his death, was 26 years old. Therefore, the plaintiff and other heirs of the deceased have, by the death of the deceased, been deprived of pecuniary benefit for a period of 44 years; and, according to Mr. Nasir Maqsood, the loss, calculated as follows, comes to Rs,10,95,000 ' Gross Income ' Salary for 44 years at #TBS Rs,13,20,000 #TBE rate of Rs,2,500 per month ...
28. Less:
(i) 1/6 of Rs,13,20,000 on. #TBS Rs, 2,20,000 #TBE account of personal expenses of the deceased ...
29. Payment made by the defendants ... Rs, 5,000 Rs, 2,25,000 Net: Rs,10,95,000 ' The calculation is not disputed by the learned counsel for the defendants. The defendants are, therefore, liable to pay the plaintiff and other heirs of the deceased Rs,10,95,000 for damages.
30. ' SUIT NO,732/88: ' The case of the plaintiff is that the deceased was _earning, at the time of his death, Rs,1,200 per month and that case is supported by the evidence produced by him. Mr. Badrudduja Khan, however, submits that the income of the deceased was Rs,650 per month as shown by the letter of appointment dated the 3rd October, .1985 (Exh.6/3); but that letter evidently says nothing about the income of the deceased at the time of his death. It is, therefore, not relevant.
31. ' It is not disputed that the deceased was, at the time of his death, 36 years old. The plaintiff and other heirs of the deceased were, therefore, deprived, by his death, of pecuniary benefit for a period of 34 years and, according to Mr. Nasir Maqsood, the amount of loss, calculated as follows, comes to Rs,6,10,600.
32. Gross Income: (i)Salary for four years, up to 1992, at Rs.1,200 per month Rs. 57,600 (ii)Salary for remaining 30 years at Rs.1,550 per month in view of evidence of P.W.2 and Exh.6/2 Rs.5,58,000 (iii)20% of (i) and (ii) above on account of aggregate increase in earnings Rs. 1,23,200 Rs. 7,38,800 Less: (i)1/6 of Rs.7,38,200 on account of personal expenses of the deceased.Rs.1,23,200 (ii)Payment made by defendants.Rs. 5.000 Rs.1,28,200 NetRs.6,10,600 ' The above calculation is not questioned by the learned counsel for the defendants. The defendants are, therefore, liable to pay the plaintiffs and other heirs of the deceased Rs,6,10,600 for damages.
33. ' Suit No,733/88: ' It is in evidence on behalf of the plaintiff that the deceased was, at the time of his death, earning Rs,3,212 per month and would, had he lived, earned Rs,3,264 per month from 1992 onwards. That evidence is not disputed on behalf of the defendants; nor is it disputed that the deceased, at the time of his death, was 40 years old. The plaintiff and other heirs of the deceased were, therefore, deprived, by his death, of pecuniary benefit for a period of 30 years; and, according to Mr. Nasir Maqsood, the amount of loss, calculated as follows, comes to Rs,9,78,840.
34. Gross Income: (i)Salary for four years at Rs.3,212 per monthRs. 1,54,176 (ii)Salary for 20 years at Rs.3,624 per month from 1992.Rs. 7,83,360 (iii)Earning at Rs.1,000 per month for 6 years.Rs. 72,000 (iv)20% of (i), (ii) and
(iii) above on account of aggregate increase in income Rs. 1,71,072 Rs.11,80,608 (i)1/6 on account of personal expenses of deceased Rs.1,96,768 (ii)Payment by defendants.Rs. 5,000 Total: Rs.2,01,768 Net:Rs.9,78,840 ' The above calculations are not disputed by the learned counsel for the defendants. The defendants are, therefore, liable to pay the plaintiff and other heirs of the dedeased Rs,9,78,840 for damages.
35. ' SUIT NO,734/88: ' It is in evidence that the deceased, at the time of his death, was 29 years old and that he was earning besides overtime, Rs,60 per day and would have earned, had he lived, Rs,80 per day from 1992 onwards. The plaintiff has deposed that the deceased used to pay Rs,2,000 per month for household expenses. In view of the evidence Mr. Nasir Maqsood submits that the loss to the plaintiff be calculated on the basis of Rs,1,500 per month for four years and Rs,2,000 per month for the remaining period of 37 years, The amount of loss, according to him, comes to Rs,9,55,000 as follows:-
(i) For four years, up to 1992, at Rs.1,500 per monthRs.72,000 (ii)For 37 years, from 1992, at Rs.2,000 per monthRs. 8,88,000 Total: Rs. 9,60,000 Less paid by defendantsRs. 5,000 Net:Rs.9,55,000 ' defendants. The defendants are, therefore, liable to pay the plaintiff and other. The above calculation is not disputed by the learned counsel for the beneficiaries of the deceased Rs,9,55,000 for damages.
36. ' The plaintiffs in all the suits have claimed interest from the date of the suit. They are obviously entitled to such interest and no argument has been advanced on behalf of the defendants why interest should not be granted.
37. In the circumstances, Suits Nos.729/88, 730/88, 731/88, 732/88, 733/88 and 734/88 are decreed for Rs,2,36,200, Rs,6,11,000, Rs,10,95,000, Rs,6,10,600, Rs,9,78,840 and Rs,9,55,000 respectively with interest thereon at 14% p.a. From the dates of the respective suits till payment and costs of each of those suits.
38. There remains the matter of apportionment of damages among the beneficiaries of the deceased persons. There is no evidence to indicate the portions of the income of the deceased persons which was given to or spent for the benefit of each of the beneficiaries; but, subject to variation in the facts and circumstances of each case, it would appear to be just and proper that the widow who would in any case be expected to provide for and look after minor children should have at least 50% of the benefits for the rest of her life as well as the amount left over after making allowances for other beneficiaries; that F the children should have about 30% of the benefits, in equal shares, till they attain the age of 22 years by which time the male children would be expected to become independent ache female children would be expected to be married and thus no Longer dependent on the deceased; that the parents should have the remaining. 20% in equal shares; and that, in the absence of a parent or parents their share should go to the children.
39. Further, the period for which the beneficiaries would be entitled to the benefits cannot go beyond the period up to which the deceased would have lived.
40. ' Following the principle set out .Above (except in Suit No,729/88) I would apportion the amount of damages among the beneficiaries in each of the suits as follows:--- ' SUIT NO,729/88: .
41. ' Ameena, Saldna and Hasina are the daughters of the deceased and are of more or less equal age. They should, therefore, share the amount of damages equally except that the seven minor children of Ameena should have 50% of her share to be distributed equally among them. The shares of the beneficiaries shall therefore be as follows: AmeenaRs. 39,350 Gul Bibi Noor Bibi Shahr Bano| MinorsRs. 6,575 each Zainab Zeenat Ghulam Hasan SakinaRs. 78,700 HaseenaRs. 78,700 SUIT NO,'730/88: Mst. Bhani.(plaintiff)Rs. 4,75,000 Dayal Rs. 43,660 Jamnadas (minor)Rs. 63,000 Rami Bai Rs. 29,540 SUIT NO,731/88: Plaintiff Rs. 60,000 Shah Bano Rs. 60,000 Nadia Murad (minor)Rs. 2,45,000 Hasina Rs. 7,30,000 SUIT NO,732/88: Asif (minor) Rs. 25,000 Kashif (minor) Rs. 24,000 Lubna (minor) Rs. 23,000 Humad (minor) Rs. 28,000 Syed Ali Akbar ShahRs. 20,000 Hamida Bi Rs. 490,600 SUIT NO,733/88: Muhammad ZahoorRs. 3,262 Muhammad MotabarRs. 6,525 Noorul Hudda Rs. 13,052 Akbar Khan Rs. 19,577 Nowar Paresha Rs. 7,57,969 Afzal Khan Rs. 20,208 Ajmal Khan Rs. 27,733 Jalal Khan Rs. 29,365 Fatima Bibi Rs. 30,99 Hameeda Bibi Rs. 34,260 Abdur Rahim Rs. 35.890 SUIT NO,734/88: Ishrat Begum Rs. 7,00,000 Rizwan Ali Rs. 94,475 Irfan Ali Rs. 1,12,840 Shahnaz BegumRs. 52,685 The decree in favour of each of the beneficiaries will be for the respective amounts mentioned above. The defendants shall deposit the entire decretal amount with the Nazir of this Court within two months from today. The Nazir will invest, separately, the shares of the minor beneficiaries in Defence Saving Certificates and shall pay the other beneficiaries the amounts due to them respectively.