1. This is a suit filed by the plaintiff for recovery of Rs.10,00,000 under the Fatal Accidents Act, 1855. The suit was originally filed by Muhammad Usman the father of the deceased Shahid Usman.
2. Subsequently Muhammad Usman died and the present plaintiff, the mother of the deceased, was substituted in his place. The case of the plaintiff is that her son, Shahid Usman, aged 18 years, died on the 13th October, 1987, at about 1800 hours as a result of the accident with Bus No.844-031 owned by the defendant No.1 and driven, at the time by the defendant No.2. It is alleged that the defendant No.2 was driving the bus in a rash and negligent manner on Gizri Road going towards Gizri and, consequently, dashed against Motorcycle No.KCH-5694 on which the deceased was riding. It is further alleged that the deceased was very healthy and had very simple habits and was a student of Inter Commerce and was earning more than Rs.1,000 per month by giving tuitions. It is averred that the deceased intended to set up a tuition centre and expected to earn therefrom Rs.2,500 per month and thereafter, intended to do M.B.A. So that he could have obtained a better employment and could have earned Rs.5,000 to Rs.8,000 per month.
3. The defendant No.1 has filed written statement denying the allegation of the negligence and alleging that "the accident occurred due to negligent/rash driving of the motorcyclist who himself hit the bus near the rear wheels and/or his motorcycle skid." The defendant No.2 has adopted the written statement of the defendant No. 1.
4. Upon the pleadings of the parties the following issues were settled:-- "(1) Whether the accident was caused due to negligence, default or wrongful act of defendant No.2?
(2) What the earning capacity and expectancy of age of the deceased?
(3) What is the expectancy of age of the plaintiff and the alleged beneficiaries? ,
(4) Whether due to the death of the deceased the plaintiff and the alleged beneficiaries have been deprived of any pecuniary benefit if so to what extent`?
(5) Whether the plaintiff and other claimants are entitled to the amount claimed if so to what extent?''
(6) Whether the plaintiff is entitled to cost and interest as claimed?
(7) What should the decree be?
5. The plaintiff has examined Muhammad Usman (P.W.I), Abdul Majid (P.W.2) and Zaheer Ahemd (P.W.3), and the defendants have examined Mansoor A.I (the defendant No.2).
6. I have examined the record and proceedings and have heard the learned counsel for the parties; and my findings on the issues are as follows:- Issue No.1.--On the question of the alleged negligence, the plaintiff has examined Abdul Majid (P.W.2) and the defendants have examined Mansoor A.I. Abdul Majid has stated, "the bus dashed against a boy, going on motorcycle from its side. The boy riding motorcycle fell down alongwith motorcycle. The bus was in fast speed." He has further stated that "the boy was at left side of the road. The bus was coming from behind." The statement of this witness with regard .To the speed of the bus and the relative positions of the bus and the motorcycle have not been challenged in cross-examination; and Mr. Akhlaq Ahmed Siddiqui quite fairly concedes that there is nothing in the cross-examination of the witness to challenge above statements. Besides, Abdul Majid was an independent witness and he saw the accident from the distance of about 30 paces, as stated by him in cross-examination. The evidence of Abdul Majid, therefore, has not been rebutted and is, even otherwise, worthy of credit. The defendants' witness Mansoor A.I is defendant No.2 in the case.
7. He has stated in his examination-in-chief:----- "I was driving the bus of Pakistan Steel from Pakistan Steel to P.N.T. Colony. When I reached my scheduled stop in P.N.T. Colony I felt a sound and stopped the vehicle, applied the handbrake and got down when I saw a motorcycle under my vehicle at its left rear side. I saw a child lying there in an injured condition. The age of the said child/boy would be about 17 years. At the time I had entered P.N.T. Colony I was not driving at any fast speed and had stopped the bus at the scheduled stop. The motorcyclist had hit the bus from the rear side and not from the front side. "
8. It is clear from the above statement that Mansoor A.I, while driving the bus, was not even aware of the presence of the deceased motorcyclist on the road and was driving the bus unmindful of his surrounding and the traffic on the road. He simply did not see the accident and, therefore, his version of it cannot be believed.
9. Taking the evidence as a whole, it would appear that the deceased motorcyclist was travelling on the left side the road in the vicinity of the stop for the defendants' bus when the defendant No.2, in order to reach the stop, swerved the bus to high left unmindful of the presence of the motorcyclist and in the process the latter was hit by the left side of the bus. Assuming that the motorcycle and the deceased were found lying at the left rear side of the bus and not somewhere near the front of it, that fact is entirely consistent with the version of the plaintiff's witnesses Abdul Majid because the bus after the impact with the motorcycle must have travelled at least few feet before coming to a complete stop so that the final position of the motorcycle would be a few feet behind the place where the collusion had occurred.
10. Issue No.2.--With regard to the earning capacity of the deceased, the averments in the plaint and the deposition of Muhammad Usman, P.W.2, and Zaheer Ahmed, P.W.3, have not 'in any manner been displaced by the cross---examination. According to these witnesses, the deceased was earning about 1,200 per month by giving tuition. The witnesses have also stated that the deceased intended to set up a tuition centre and thereby earn about 2500 per month. It is, therefore, established that the deceased was earning Rs.1,200 per month by private tuition and that he would have earned about 2500 or more by establishing a private tuition centre. Mr. Nasir Maqsood submits that since the deceased was a student of Inter Commerce he would not have been able to establish a private tuition centre until he completed his studies so that for a period of two years from the date of the accident he would not have been able to earn more than Rs.1,200 per month but that thereafter for about three years he would have earned about Rs.2,500 per month and then Rs.3,000 per month from private tuition. The submission of the learned counsel appears to me to be entirely reasonable and has not been challenged by Mr. Siddiqui. As for the case of the plaintiff that the deceased intended to do M.B.A. And would have earned about Rs.5,000 to 8,000 per month, it appears to me that there is no sufficient evidence on the record to show that the deceased was in a position to do M.B.A., and Mr. Nasir Maqsood has quite fairly not pressed the case on that point. I would, therefore, hold that the deceased would have earned Rs.1,200 per month for a period of two years, Rs.2,500 for a further period of three years, thereafter Rs.3,000 per month. It may be observed that even illiterate and unskilled persons who are willing to work can earn up to Rs.3,000 per month.
11. It is, therefore, entirely probable that the deceased who was educated and was already engaged in gainful' activity would have earned Rs.3,000 and perhaps more, per month.
12. As for the life expectancy of the deceased, the evidence is that he was a young boy in good health and had simple habits. Mr. Siddiqui submits that according to some journals published in U.S.A., average age of a human being in what is described as the "third world", including this country, is not more than 30 to 35 years. No such journal has, of course, been reproduced by Mr: Siddiqui and in any event, the submission flies in the face of well-known facts and the weight of authority according to which, in the absence of evidence to the contrary, average life expectancy is 70 years.
13. I would, therefore, hold that in the circumstances of the case the deceased could reasonably be expected to live to the age of 70 years.
14. Issue No.3.--In view of what is stated above, no further discussion is necessary on this issue; and I would hold that the plaintiff/beneficiary can expect to live up to the age of 70 years.
15. Issues Nos.4, 5 and 6.--It is the case of the plaintiff that the deceased used to keep Rs.150 to Rs.200 per month himself and give the rest of his earnings to his parents; and it is not disputed that the plaintiff has been deprived, by the death of the deceased, of the pecuniary benefit which she would otherwise have received. She is, therefore, obviously entitled to claim compensation from the defendants. As for the amount of such compensation, Mr. Nasir Maqsood submits that the plaintiff was 42 years old when the deceased died, and, on the basis that she can expect to live up to the age of 70 years, she has been deprived of the pecuniary benefit for a period of 28 years; and that the amount of such benefit is Rs.7,57,440. This amount is arrived at by calculation as follows:--
(A) Earning for 2 years at the rate of Rs.1,200 per month. Rs.28,800.00
(B) Earning for next 3 years at the rate of Rs.2,500 per monthRs.90,000.00
(c) Earning for next 23 years at the ate of Rs.3,000 per monthRs.8,28,000.00 Rs.9,46,800.00 To the above amount of Rs.9,46,800 must be added an amount equal to 20% thereof on account of normal increase income in future. The amount of such increase comes to Rs.1,89,360 so that the total income of the deceased for 28 years would have been Rs.11,36,160. Out of that income a deduction of one--third thereof, amounting to Rs.3,78,720 has to be made on account of personal expenses of the deceased leaving the amount of Rs.7,57,440 as not benefit of which the plaintiff has been deprived and which she is, consequently entitled to recover. Mr. Siddiqui has not disputed the calculation. He, however, submits that in view of the observation of the Supreme Court in the case of Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another (1993 SCM R 848) interest against the defendant No.1 should be granted from the date of the decree and not from the date of the suit. Mr. Nasir Maqsood says that the plaintiff would be satisfied with such interest.
16. It is not disputed that the plaintiff is entitled to costs of the suit and Mr. Siddiqui has advanced no argument against award of costs to the plaintiff. In fact, in the circumstances of the case when the defendants had no worthwhile defence and the claim of the plaintiff appears to have been contested merely for the sake of contesting it, I would have been disposed to grant corn't3ensatory costs had the plaintiff but asked for such costs; but she has not done so, The plaintiff is, in the circumstances, entitled to the costs of the suit.
17. Issue No.7.--In view of the above findings, the plaintiff who is the sole beneficiary of the deceased, her husband and the father of the deceased having died during the pendency of the suit, is entitled to a decree against the defendants, jointly and severally, for Rs.7,57,440 with costs of the suit and interest on the decretal amount at the rate of 14 % per annum from the date of the decree till payment and/or realisation. The suit is therefore, decreed accordingly.