1. 'The plaintiff has filed this suit for recovery of Rs,3,50,000, under the provisions of Fatal Accidents Act, 1855.
2. ' The case of the plaintiff is that his son Bakht Rehman died on the 7th December, 1986, as a result of the accident with a bus belonging to the defendant No,1, which was at the time of the accident, being driven by the defendant No,2, who was a driver of the defendant No,1. It is alleged that the death of the deceased was caused by negligence, default and wrongful act of the defendant No,2 who was a servant of the defendant No,1. It is further alleged that the deceased, at the time of this death, was earning Rs,950 per month; and that he was in good health.
3. ' Defendants Nos.1 and 2 filed separate written statements taking same pleas and admitting that the defendant No,1 was the owner of the bus in question and the defendant No,2 was the driver of the defendant No,1 at the time of the accident; and alleging, in para. 3 of their written statement that "at the material time the said bus was moving at a very slow speed. The deceased who was on the embankment of the drain, much higher than the road, holding a big size goat, suddenly ran down the embankment in speed and hit near the rear wheel of the said bus receiving injury in the head". It is further alleged that the death of the deceased was caused by his own neglect, default and wrongful act. The remaining allegations in the plaint with regard to the earning capacity of the deceased and the claim of the plaintiff have been denied.
4. ' Upon pleadings of the parties the following issue were settled:--
(1) Whether the death of the deceased Bakht Rehman was caused by rash and negligent driving of the Bus No,846-915, on 7-12-1986 by the defendant No,2, the driver/servant of the defendant No,1 the owner of the said bus?
(2) Whether the defendants are liable to pay compensation/damages to the plaintiff and other dependant legal heirs as claimed jointly and severally?
(3) Whether the plaintiff is entitled to cost and interest as claimed?
(4) What other relief or reliefs the plaintiff entitled to?
(5) What should the decree be?
5. ' I have examined the record and proceedings in the suit and heard the learned counsel for the parties; and my findings on the issues are as follows:- ' ISSUE No,1: ' On this issue the plaintiff has examined Sher Khan (P.W.2) who, in his examination-in-chief, has stated that on the 7th December, 1986, Bus No,846-915 was travelling on Mirza Adam Khan Road from Meeran Naka towards Bihar Colony and as it approached a place opposite Qazi Clinic, it was travelling at great speed. He has further deposed that the deceased and he were, at that time, standing on the footpath and the bus knocked down the deceased who came under the front wheels of the bus; and that the deceased died instantly as a result thereof. The witness denied the suggestions in the cross-examination that he did not witness the accident and that he had been offered money to give evidence. There is no cross-examination challenging the version of the witness; but an attempt was made to impeach his credit. Mr. Siddiqi submits, apparently seriously that, because the witness admitted that he had appeared to give evidence at the instance of the counsel for the plaintiff and because he did not take any photograph of the deceased or the bus, and because he did not arrest the driver or lodge an F.I.R., his evidence cannot be believed. The submission is utterly without merit. I see nothing wrong in a person coming forward to give evidence at the instance of a party to the suit and, in fact, except in the cases of some reluctant witnesses who have to be summoned, that is quite usual; and the submission that the omission on the part of the witness to take photographs and to arrest the driver of the bus somehow rendered his testimony doubtful is indeed extraordinary. I fail to understand how a person witnessing an accident by chance is expected to be equipped with a camera and to immediately start taking photographs of the victim of the accident or of the bus and then to go and lodge and F.I.R. The evidence of the witness has, in the circumstances, not been successfully challenged and has sufficiently established negligence on the part of the defendant No,2.
6. Mr. Akhlaq Ahmad Siddiqi then submits that the plaintiff, having admitted that he did not see the accidents, his version thereof cannot be- relied on. In that submission, he is, of course right; and the plaintiff's evidence on the point being hearsay is not, by itself either admissible or sufficient to prove the negligence of the defendant. The negligence, however, has been proved by the witness Sher Khan.
7. ' It may, in this connection be noted that the defendants have not produced any evidence to support the plea that the accident was caused by the negligence of the deceased; and, in fact, the defendant No,2 in his evidence took an about turn and denied that the accident had occurred at all. His evidence apart from contradicting his express plea in the written statement, was obviously false.
8. ' ISSUE No,2: ' In view of the finding as to the negligence and in view of the admitted fact that at the time of the accident the defendant No,2 was driving the bus in the course of his employment as a driver of the defendant No,1, both the defendants are liable to pay compensation to the plaintiff and to Deval Bal, the mother of the deceased. As for the amount of compensation, it is in evidence that the deceased was employed by Diamond Rubber Mills and that he was earning Rs,974 per month; and further that after three years he would have earned Rs,1,800 per month. That evidence has not been questioned although some attempt was made by the defendants to show that the employment was temporary. With regard to the period for which the plaintiff and his wife have been deprived of the pecuniary benefit by the death of the deceased, the national identity cards of the plaintiff and his wife (Exhs. 5/2 and 5/3 respectively) show that at the time of the accident, they were respectively, 51 and 45 years old; and, on the basis that they can expect to live up to the age of 70 years, they have been deprived of the benefit for a period of 25 years. They have, thus, been deprived of and are entitled to recover pecuniary benefit amounting to Rs,3,93,536 worked out as follows:-- {{TABLE}}
(A) Income at the rate of Rs,974 per month for three years... Rs,35,064.00
(B) Income at the rate of Rs,1,800 per month for 22 years... Rs,4,75,200.00
(C) Increase at 20% of Rs,4,75,200 Rs,95,040.00 Gross Income Rs,6,05,304.00
(D) Less
(i) Deduction of 1/3 of gross income for personal expenses of the deceased. Money received by plaintiff from Insurance company... Rs,2,01,768 Rs,10,000 Rs,2,11,768.00 Rs,3,93,536.00 {{TABLE}} ' ISSUE No,3: ' The plaintiff is obviously entitled to costs of the suit. As to interest, Mr. Siddiqui submits that it should be awarded from the date of the decree and not from the date of the suit. He has, however, advanced no reason in support of his submission; and I am of the view that the plaintiff is entitled to interest from the date of the suit.
9. ' ISSUE No,4: ' Mr. Nasir Maqsood submits that in the circumstances of the case, the plaintiff is entitled to compensatory costs. The accident occurred on the 7th December, 1986 and the suit was filed on the 6th December, 1987. The defendants, in their written statement, took the plea that the accident was caused by negligence of the deceased but that plea was abandoned when evidence came to be recorded; and the defendant No, 2 stated in his evidence that no accident had occurred. The plea in the written statements of the defendants was, therefore, either false or vexatious to their knowledge; and, in consequence of that plea the plaintiff and his wife have been deprived until now of what was justly due to them.
10. ' The conduct of the defendants, in the circumstances, has been quite reprehensible. Such conduct has been condemned by the Supreme Court and this Court.
11. ' In Pakistan Steel Mill Corporation v. Nazir Hussain Shah (1990 CLC 515), a Division Bench of this Court, after referring to several cases from the Indian jurisdiction, observed:-- "In the above cases, inter alia, it has been observed that the public body should resist the temptation to litigations like cantankerous litigants for insignificant amount, raising technical pleas and that it should not compel the handicapped to fight litigation against his formidable adversary.
12. There cannot be any cavil to the propositions of law propounded in the above cited cases. We are also inclined to hold that a public functionary particularly, in Pakistan which is an Islamic State is enjoined not only by, our Constitution but also by tenets of Islam that it should act in aid of advancing the cause of justice and not to frustrate or defeat it. It is indeed a deplorable act when a public functionary in order to resist a genuine claim arising out of fatal accident spends considerable amount on litigation instead of settling the matter with the dependents of the deceased."
13. ' The present defendant No,1 was a party to that case which had also arisen out of a fatal accident.
14. Its conduct there was deplored by this Court but obviously the defendant No,1 has remained immune to the criticism.
15. ' Again, in Karachi Transport Corporation v. Latif-ur-Rahman (1993 SCM R 1149), it was observed by the Supreme Court:- "We may also observe that a Government Department/functionary is not expected to raise frivolous pleas in an action brought by a citizen for recovery of his lawful claim, with the object to deny it or to prolong litigation in respect thereof. Such a practice is to be deprecated in strongest terms. The officials responsible for the same should be made accountable for their above uncalled for and unjustified approach, particularly in cases arising out of fatal accidents, the approach of the Government Department/functionaries should be human and pragmatic, all efforts should be directed to ensure that an aggrieved person gets his reasonable, admissible claim promptly; without loss of any time."
16. ' It does not appear that any functionary of any Government Department has been made accountable for indulging in false and vexatious litigation to the detriment of the citizens of this country; and it appears also that it Would be too optimistic to expect that such an action will be taken in the foreseable future. In the meantime litigants continue to suffer on account of false, frivolous and vexatious defences set up by such departments/ functionaries; and there is not method of adequately compensating them for the misery and financial burden and loss which the prolonged litigation entails.
17. ' It is true that section 35-A of the Civil Procedure Code provides for payment of compensatory costs; but in many cases even the maximum amount of such costs is not adequate to compensate the litigant who has been subjected to prolonged, false, frivolous and vexatious litigation. The limit of Rs,25,000 set by section 35-A, therefore, needs to be raised substantially.
18. In the present case, the plaintiff and his wife are poor people and have lost their young son in consequence of the fatal accident caused by the negligence of defendant No,2 who is a driver of defendant No,1: The defendant No,1, instead of admitting the just claim of the plaintiff, chose to contest the claim, without a shadow of justification, and set up an obviously false defence; and even that defence was abandoned at the trial. Meanwhile, the plaintiff continued to suffer for almost nine years. In the circumstances, I consider that he is entitled to the maximum amount of compensatory costs allowed by law. I, therefore, hold that the plaintiff is entitled to Rs,25,000 by way of such costs.
19. ISSUE No,5: 'The plaintiff and Mst. Deval Bal are entitled to decree for Rs,3.93,536. They have, however, claimed only Rs,3,50,000. The suit is, therefore, decreed against the defendants jointly and severally in favour of the plaintiff and Deval Bal for Rs,3,50,000 with interest thereon at the rate of 14% per annum from the date of the suit till payment and costs of the suit; and for Rs,25,000 on account of compensatory costs. The decretal amount shall be shared equally by the plaintiff and Mst. Deval Bal.