' JALALUDDIN AKBARJI, J.---Mst. Gul Zarina widow, her three daughters of deceased Mukarram Khan, Darya Khan, son, Mst. Sardara, daughter of Habibullah, father of deceased Mukarram Khan, plaintiff-respondents herein, instituted on 18-11-1982 suit versus Road Transport Board, Peshawar through its Chairman, General Manager, Government Transport Service Peshawar, Hassan Shah, driver of the bus, and now Road Transport Board and General Manager, defendant-appellants herein, for recovery of Rs,5,40,000 @ Rs,1,500 per month for a period of 30 years commencing from 2-6-1980 as damages for the death of Mukarram Khan due to negligent, careless and rash driving of the driver of GTS Bus No, 1258 on 2-6-1980 on the highway near about Bakhshi Pul, Tehsil and District Peshawar. The learned Judge of the trial Court after the trial in the suit by a judgment dated 16-3-1992 favoured the plaintiff-respondents by grant of decree for recovery of Rs,3,60,000 as compensation and hence this appeal by the contesting defendant-appellants.
2. The plaintiff-respondents in the plaint have alleged that on 2-6-1980 GTS Bus No, PRB 1258 was driven by Hassan Shah, its driver, and due to negligence, carelessness and rash driving the bus went out of control of the driver and ran over Mukarram Khan, who was standing in his husk toll; Mukarram Khan was fatally injured who was taken to the hospital in injured condition wherein he expired and the driver was arrested on the spot by the police; the deceased was aged about 40 years and the only bread-earner of the plaintiff-respondents having life expectancy of 30 years with earning capacity of Rs,1,500 per month. The suit was contested by the defendants-appellants only and it was pleaded that the accident was "Act of God. Witnesses have consistently stated that the driver of the bus was negligent, rash and careless in driving the bus. The driver of the bus was arrested after the accident and the challan of the case has been put in the Court and according to the statement of the driver of the bus he was acquitted of the charges of rash and careless driving.
The driver of the bus has neither produced the judgment of the criminal Court nor even the site- plan of the occurrence which must have been prepared by the Investigating Officer just after the occurrence which may according to the driver of the bus point out to the contributory negligence of the deceased and furthermore the defence failed to produce any independent witness to prove the bus was driven with all care and caution and there was no negligence on the part of the driver of the bus. A vehicle plying on a public road causing injury to a person cannot be (Act of God) and rather it is negligence resulting into accident causing injury to affected person or persons. The negligence of a mortal human being cannot be an attribute of God. There is no evidence in file to suggest that there was earthquake, storm, substantial damage to the road or floods resulting into accident causing injuries and damage to the persons and property. The defence of the appellants in the case and as well in this appeal is preposterous.
6. It is admitted and proved that the passenger bus was playing on a public road and the deceased was run over by the bus resulting into his death. The facts and circumstances of the accident is sufficient prima facie evidence from which an inference of negligence can reasonably be drawn on the rule of res ipsa loquitur (the thing speaks for itself). This rule of evidence comes into play in cases where the exact cause of accident is not known and the res can speak for itself so as to throw the inference of negligence or laches upon the defender. Facts and circumstances of an accident may by themselves lead to a reasonable inference of negligence although there may not be direct proof of negligence. The rule has been applied in such like cases in the judgments reported in Gwalior and Northern India Transport Co. Ltd. And another v. Dinkar Durga Shankar Joshi and another (AIR 1955 M.B. 214), S. Nagamani and another v. Corporation of Madras (AIR 1956 Madras 59), Municipal Corporation, Delhi v. Sobhag Wanti etc. (AIR 1960 Punjab 300), upheld in judgment reported in AIR 1966 SC 1750 and another judgment State of Punjab and another v. Mst. Champa Magat Ram (AIR 1971 Punjab & Haryana 373).
' The defendant is not only to rebut the presumption of negligence but also to prove that the bus was driven with all care and caution. The defendants have A not rebutted the presumption and the negligence in driving the bus is presumed which has resulted into the death of the deceased.
7. The learned Judge of the trial Court has granted the decree for compensation. A cause based on .Compensation is not ordinary used as equivalent for damages. The compensation is awarded for atonement or solatium to a person to whom an injury is caused in relation to a lawful act. Such like compensations are provided by particular statutes. The term "damages" is used in reference to pecuniary recompense rewarded in reparation for a loss or injury caused by wrongful act or omission. However, loss has been caused to the plaintiffs by an injury due to unlawful act of negligence of the defendants, therefore, they will be entitled to maintain the cause for damages.
8. The learned Judge of the trial Court has not applied his mind to the quantum of damages to be paid by the dependents and to which of the plaintiffs. Mst. Gul Zarina and her 3 daughters, plaintiffs, were dependents of the deceased. Darya Khan and Mst. Sardara, son and daughter of Habibullah, father of the deceased, are not the dependents of the deceased. The damages awarded in the case is not a devoluation of property by inheritance but is pecuniary recompense which is to be paid to the immediate dependents of a deceased person in a cause based on tort.
Therefore, Mst. Gul Zarina and her 3 daughters will be entitled to the damages only. The evidence in the case suggest that the deceased was aged 40/42 years and his eldest daughter was of 30/32 years age. The age of the deceased at the time of the accident could not be 40/42 years and with all the allowances given to the witnesses because of their ignorance about the age, it can be only inferred from the evidence that the deceased was aged 50 years. It is in evidence that the deceased was earning between Rs,1,000 to Rs,1,500 per month. The age factor for earning capacity in the circumstances of this case will be 15 years. The earning capacity of the deceased is stated to be variable and on the unrebutted evidence it is fixed at Rs,1,200 per month. The dependents of the deceased would thus be entitled to the damages of Rs,2,16,000 (Rs, two lac sixteen thousand only).
In the plaint it is stated that the two daughters are minors. Mst. Gul Zarina will be entitled to receive the damages of Rs,1,62,000 and Mst. Bakht Zari--Rs,54,000. The decree of the learned Judge of the trial Court as to the amount of damages is varied accordingly. The judgment of the learned Judge of the trial Court on negligence is predicated.
9. The lis has taken more than 12 years for payment of damages which should have been paid at the earliest to the dependents. The judgment-debtors are to pay average of inflation/devaluation @ 6% per annum from the date of decree of the learned Judge of the trial Court dated 16-3-1992 on Rs,2,16,000 till the payment of the same to the plaintiffrespondents/decree-holders.
' The appeal is dismissed with costs in the terms stated above.