' In this suit for recovery of Rs,5,50,000 under the Fatal Accidents Act, 1855, the plaintiffs Nos.1, 2 and 4 are the minor daughters while plaintiff No,3 is the minor son of deceased Muhammad Amir aged about 50 years who breathed his last on account of traffic accident on 6-11-1988 as a result of rash and negligent driving of Bus No,844-046 driven by defendant No,2 in the employment of defendant No,1 .
2. It is the case of the plaintiff that the suit has been filed in a representative capacity under the Fatal Accidents Act, 1855 for the benefit of the plaintiffs and other legal heirs. It is stated that the deceased Muhammad Amin died while crossing the road near Dilshad Cinema on Estate Avenue Road from Sunset Chowrangi to Habib Bank when defendant No,2 was driving the bus in question at excessively high speed. It is further asserted that the death of the deceased was caused on account of actionable wrong, negligence, default and wrongful act of defendant No,2 who being employee of defendant No,1, both of them are liable to pay damages to the plaintiffs being legal heirs of the deceased. It has been contended in the plaint that the deceased aged about 50 years was quite healthy with simple habits and caring much for the plaintiffs and other dependant legal heirs. By reason of his untimely death, the plaintiffs and other legal heirs have been deprived of the expected pecuniary benefits to the extent of Rs,5,50,000 as the deceased was a fruit seller and used to sell fruit on a cart and earning Rs,100 to 120 per day. With the passage of time as his income could have been increased to Rs,3,500 to Rs,4,000 per month within a few years. He cared much for the plaintiffs in a befitting and a nice manner and wanted to provide good education to his children. Apart from the pecuniary loss, the plaintiffs have been deprived of better prospects in future specially the career of the minor daughters. He being in good state of health could have survived up to the age of 75 years and his business could have flourished and he could have earned Rs,5,000 to Rs,6,00 per month within the next few years. The deceased being a person of very modest habits used to spend only Rs,200 per month towards his personal expenses. Apart from the probable income of the deceased the plaintiffs have claimed a sum of Rs,25,000 on account of consortium and Rs,8,000 on account of funeral expenses.
3. The defendants could not be served in the ordinary manner, therefore, they were served by way of publication of summons in Daily "MASHRIQ", Karachi as well as affixation on the last known address of the defendants at the pointation of the representative of the plaintiffs. The service was held good and the suit has proceeded ex parte as none of the defendants has come forward to contest the claim.
4. This suit was filed on 14-1-1990 whereupon the office raised an objection that the suit was barred by time by reason of Article 21 of the Limitation Act. When placed before the Court, a learned Single Judge relying upon the judgment in Suit No,879 of 1986 directed that the suit be registered but subject to all just exceptions. In the suit referred to above, it was held that in cases where one of the plaintiffs is a minor and others are major, in view of the provisions of section 2 of the Fatal Accidents Act benefit of section 6 can be given to all the plaintiffs and suit will not be barred by time. It would appear from the title of the plaint that all the plaintiffs are minors and represented by a next friend whereas the widow of the deceased who is major and dependant on the deceased was not joined as one of the plaintiffs. In the absence of any ' circumstance to the contrary it would appear that the suit was filed within time within the meaning of section 6 of the Limitation Act.
5. In support of their case plaintiffs have filed an affidavit in ex parte proof of Muhammad Nazir uncle and next friend of the minor plaintiffs. In addition they have adduced the evidence of A.S.I..P Shoukat Ali of S.I.T.E. Police Station who has produced copy of the F.I.R. No,382 of 1988, Motor Vehicle Inspection report, sketch of the place of incident, Superdginama executed by defendant No,1 and copy of the order passed by A.C.M. Court No,I, Karachi (West) directing the release of the bus to its owner after due verification. Affidavit-in-evidence of Sardar Khan an eye-witness to the occurrence as well as Nazamuddin have also been filed.
6. I have heard learned counsel appearing for the plaintiffs and gone through the relevant evidence on record which has gone unrebutted and unchallenged.
7. From the evidence of plaintiffs' witnesses Muhammad Nazir, Nazamuddin and Sardar Khan I am convinced that the deceased died an unnatural death as a result of fatal accident on 6-11-1988 on account of rash and negligent act in driving the bus on the part of defendant No,2 F.I.R. No,382 of 1988 registered at P.S. SITE on 6-11-1988 soon after the occurrence would show that the deceased had received fatal injuries on the vital parts of his body resulting into his death. Besides there is a certificate dated 6-11-1988 issued by the S.H.O., S.I.T.E. Police Station certifying the death of the deceased in a fatal accident vide F.I.R. Referred to above and granting no objection to the carriage of the dead body to the native place of the deceased for burial which in my view is prima facie sufficient to conclude that the deceased died an unnatural death.
8. As regards his age, there is oral and unimpeached evidence on record to show that he was aged about 50 years at the time of his death. His National Identity Card issued in 1974, however shows his approximate age as 40 years. Calculating his approximate age on the basis of the entries in the National Identity Card he would be 54 years of age on the date of occurrence.
9. As regards the average monthly income of the deceased out of the business of fruit selling on a cart from the evidence of P.W. Muhammad Nazir, P.W.Nazamuddin and as well as Sardar Khan I find that they have stated in their respective statements on oath that the deceased was earning a sum of Rs,100 to Rs,120 per day permanently. They have expressed an opinion that this income could have increased with the passage of time and he would have started earning between Rs,3,500 to Rs,4,000 per month within a few years. They have further expressed the view that the deceased used to say that he would enlarge his business and he could have earned from Rs,5,000 to Rs,6,000 per month in near future. Taking an overall view of the fact there is unrebutted and unchallenged evidence on record I am inclined to hold that the average monthly income of the deceased was Rs,3,000. His annual income thus would come to Rs,36,000 accepting the normal expectancy in Pakistan up to 70 years as has been held in a number of judgments delivered by different Hon'ble Judges of this Court it can be safely concluded that the deceased in all probability would have lived for 16 years more and proved to be a helping hand and shelter for the minor plaintiffs as well as his widow. Calculating the income at the rate of Rs,36,000 per annum, the total amount comes to Rs,5,76,000. Allowing a margin of Rs,20% increase in the income which is otherwise just and fair with the passage of time, his total emoluments for a period of 16 years would come to Rs,6,93,000.
Allowing him personal expenses to the extent of 1/4th in view of his modest living, the balance amount would come to Rs,5,19,750. It is difficult to subscribe to the view of the plaintiffs that the deceased being a person of simple nature used to spend only Rs,200 per month towards his personal expenses in the present day high cost of living. In the circumstances of the case, I am not in favour of awarding a sum of Rs,8,000 on account of funeral expenses which would even otherwise be borne by the legal heirs of a deceased had he lived a natural life. I am unable to understand the claim on account of consortium to the tune of Rs,25,000 as claimed by the plaintiffs. In fact some compensation could have been claimed by the widow of the deceased for loss of consortium but for the reasons best known to the plaintiffs and their Advocate she has not been joined as one of the plaintiffs.
In view of the aforesaid discussion, I would decree the suit against both the defendants to the tune of Rs,5,19,750 with costs and interest at 14% from the date of suit till realization.