' This is a suit for recovery of Rs,15,00,000. Under the Fatal Accidents Act, 1855.
1. Briefly stated facts of the case are that the deceased Shujjat Ali aged 45 years died in the accident by the Bus of the defendant No,1 within the Mehran Depot on 24-8-1986 within the area of Model Colony, Police Station Karachi. The deceased left behind the legal heirs as shown in para. 1 of the plaint and the plaintiffs 1 and 2 are the minors daughter and son of the deceased. According to the plaint the legal heirs Nos.5, 7 and 8 were unmarried and were being supported by the deceased. Such legal heirs Nos.5 to 8 are also entitled to damages of the compensation.
2. That the defendant No,1 was the owner of the Bus bearing No,866-846 and defendant No,2 was the Electrician employee/servant of the defendant No,1 at the time of the accident on 24-8-1986.
That the defendant No,2 who as an employee of defendant No,1 was performing his duty at the Mehran Depot where the deceased who was also an employee of the defendant No,1 as a driver was working in the aforesaid Bus when all of sudden and in a rash and negligent manner the defendant No,2 sat on the steering and rashly and negligently putting the reverse gear started the bus with the result that the bus rashly reversed back and Shujjat Ali, the deceased, the driver of the Mehran Depot of the defendant No,1 who was standing on the back of the said bus, came under the wheels of the said bus and was:rushed and died on account of the fatal injuries caused to him.
That the deceased Shujjat Ali was aged 45 years and was having good health and physical and used to have simple and sober habits and in view of his health and family average expectancy of life, he could have survived up to the age of 75 years easily.
3. That the death of deceased Shujjat Ali was caused by the rash and negligent driving of the defendant No,2, employee of the defendant No,1 and as such the defendants Nos.1 and 2 are liable jointly and severally- to pay the compensation to the plaintiff and other dependent legal heirs.
4. That in view of the ages of the plaintiffs, and of the legal heirs i,e,, Nos.5 to 8, and the deceased, the present and expected earning capacity of the deceased, the plaintiffs and other legal heirs claimed the sum of Rs,15,00,000 as the deceased was working as an experienced driver in Mehran Depot of the defendant No,1 and was earning Rs,3,000 per month. The plaintiffs have said in he plaint that the deceased to supplement his income used to drive a Sozuki of omeone in his area and used to earn a sum of Rs,2,000 per month in addition to he monthly salary. The plaintiffs have prayed for a decree of Rs,15,00,000 gainst the defendants jointly and severally and interest at the rate of Rs,15% er annum and the costs of the suit.
5. In this case the written statement was filed on behalf of the defendant No,1 denying all the allegations mentioned in the plaint but the defendants did not lead any evidence. The following issues were framed in this case:
(1) Whether death of deceased Shujjat Ali on 24-8-1986 at Mehran Depot was caused due to wrongful act and neglect of defendant. No,2 Zahid Iqbal in reversing Bus No,866-846 rashly and negligently at its back?
(2) Whether the defendant No,1 is liable for act of its employee Zahid Iqbal?
(3) What was the monthly income and prospects of monthly income going up, of deceased Shujjat Ali?
(4) What was the life expectancy of the deceased?
(5) Whether the defendants are liable jointly and severally for the damages?
(6) Whether the suit is time-barred?
(7) Whether Mst. Yasmin is not entitled to a share of the damages if she is a married woman?
(8) What should the decree be?
6. I have heard Mr. Nasir Maqsood, Advocate for the plaintiff only as none appeared on behalf of the defendants.
ISSUE NO.1:
7. The plaintiff examined P.W. 1, Abdul Haq Qureshi son of Aminuddin, Assistant Traffic Manager, Mehran Depot, Karachi who in his evidence stated that nowadays the salary of driver of KTC is Rs,2,440 per month. He further stated that departmental enquiry was conducted by defendant No,1 in respect of accident in which late Shujjat Ali had died. He produced the original enquiry report as Exh.6. The enquiry report reveals that on 24-8-1986 at about 14-50 hours driver Shujjat Ali was sitting behind the Bus No,866-846 in the workshop where the defect of the bus was being rectified by the Electrician Zahid Iqbal. He started the bus to check the defect but the bus was possibly in reverse gear and it suddenly moved backward. The driver who was sitting behind the bus could not escape and came under the right rear wheel of the bus and died at the spot. Further, the plaintiff examined Sajid Ali son of Shujjat Ali Khan who filed his affidavit in evidence and was cross- examined by the defendants' counsel. This witness narrated the same story as mentioned in the plaint. Further, in para. 9 of the affidavit in evidence he stated that the deceased used to drive Suzuki of someone in his area and used to supplement his income by Rs,2,000 per month.
8. That in the cross-examination nothing could be brought to shatter the evidence adduced by witness Sajid Ali. On the contrary, no question was put to this witness that the deceased had not been driving the Suzuki of someone and had not been earning a sum of Rs,2,000 per month as additional income.
9. That the plaintiff in this case has failed to prove the actual salary of the deceased. The official witness Abdul Haq Qureshi stated in his evidence that at the time of the death of the deceased Shujjat Ali his salary was Rs,1,110 but at the same time he admitted that presently the salary of K.T.C.
Driver is Rs,2,440.
10. From the defendants' side no evidence has been adduced in rebuttal, as such the death of driver Shujjat Ali has been proved and it is also proved that he died due to rash, wrongful and negligent act of Zahid Iqbal electrician an employee of defendant No, 1 . The issue No,1 is, therefore, answered in the affirmative.
ISSUE NO.2:
11. It is admitted position that Electrician Zahid Iqbal was an employee of defendant No,1 and while discharging his official duty, due to his negligence the death of Shujjat Ali had occurred and, as such, the defendant No,1 is also liable for the act of his employee.
ISSUE NO.3:
12. With regard to the income and prospects of monthly income of the deceased Shujjat Ali going up, the witness of the plaintiff Sajid Ali admitted in his cross-examination that the monthly salary of the deceased was Rs,1,110. The official witness Abdul Haq Qureshi, Assistant Traffic Manager Mehran Depot has also stated that the salary of the deceased at that time was Rs,1,110 per month but he further stated that the present salary of drivere in KTC was Rs,2,440. There is no rebuttal from the defendants' side, as such, I hold that the salary of the plaintiff was Rs,1,110 at the time of the death.
ISSUE NO.4:
13. That life expectancy of the deceased, according to the decisions of the superior Courts, has now been settled which would be up to 70 years.
ISSUE NO.5:
14. The deceased Shujjat Ali died due to the negligence of defendant No,2 who was an employee of defendant No,1 and further that the death occurred due to the negligence of defendant No,2 while performing his official duties as an employee of defendant No,1, therefore, both the defendants are liable jointly and severally for the damages.
ISSUE NO.6:
15. The parties did not address the Court on this issue which means that they have dropped this issue. This issue is, therefore, decided as not pressed.
ISSUE NO.7:
16. Mst. Yasmin is admittedly the married daughter of deceased Shujjat Ali. In the plaint it is averred that the husband of Mst. Yasmin had no proper earning. There is no evidence in this regard as such this issue is answered that Mst. Yasmin is not entitled to any share in the compensation.
17. With regard to the compensation claimed by the plaintiff in the suit according to the statement of account filed is Rs,7,00,000. The calculation made by the plaintiff's counsel for Rs,7,00,000 is not the correct calculation. The earning capacity of the deceased has been shown as Rs,3,000 per month whereas from the evidence adduced on plaintiff's behalf, the monthly salary of the deceased was Rs,1,110 per month.
' It is significant to note that the plaintiffs have alleged that at the time of death the age of the deceased was 45 years. The plaintiffs have not filed any document to show that the age of the deceased was 45 years. Plaintiff's own witness P.W. 1 Abdul Haq Qureshi in cross-examination stated that according to service record of late Shujjat Ali maintained by the corporation, he was born in 1929. In the year 1989 the retirement age of the employees of the corporation was 60 years.
The age as given by this witness cannot be accepted as correct as no service record has been produced by this witness in support of his evidence. At the same time, the word of month of the plaintiff's witness can also not be accepted without there being any documentary evidence in support thereof. The plaintiff's witness deliberately did not produce the NIC of the deceased as such the presumption under law will be that the same would have gone against the plaintiffs. Be that as it may, the plaintiff's have filed a copy of Form 'B' as Exh. 7/2 which shows the number of the NIC of the Head of the family as 52032-142723. The same number of NIC of the deceased appears in Exh.7/4 which is the death certificate of the deceased.
From these two documents, the year of birth of the deceased is proved to be 1932. From the above, the age of the deceased at the time of his death in the year 1986 was 54 years and not 45 years as alleged by the plaintiffs. The deceased as such would have retired after 6 years i,e,, in the year 1992 after reaching 60 years of age. Accordingly, the deceased's income, in case if he would have been alive, would have been as under: QUANTUM OF DAMAGES: {{MISARRANGED DATA}}
(a) Average span of life in Pakistan. 70 years.
(b) Loss of pecuniary benefits to the legal heirs 16 years.
(54-70) (age of the deceased minus average span of life).
(c) Earning capacity of the deceased per month Rs,1,110 per by working as driver in K.T.C. (defendant month X 72 No,1) as proved. Up to 24-8-1992 up to the months age of the deceased as 60 years. 79,920.
(d) Additional earning of a sum of Rs,2,000 per Rs,1,44,000 month by driving Suzuki privately for 6 years up to the age of 60 years.
(e) After retirement he could have earned Rs,4,80,000 Rs,4,000 per month by driving taxi for remaining 10 years which comes to Rs,4,000 X 12 X 10,
(f) Gross loss of benefits Less 1/3 on account of personal expenses Rs,7,03,920-1/3. Rs,7,03,920 Rs,2,34,640
(g) Net loss of pecuniary benefits to the Rs,4,69,280 beneficiaries The suit is decreed for Rs,4,69,280 against the defendants with costs and interest at the rate of 14% per annum from the date of suit till payment.
' The apportionment amongst the legal heirs will be as under:
(1) Sajid Ali Rs,1,87,712
(2) Sadaquat Ali Rs,1,87,712
(3) Mst. Waseema Rs,93,856 Rs,4,69,280 .