1. ' By a short order, dated 4-11-1998, I had decreed Suits Nos.839 of 1987, 840 of 1987, 942 of 1987, 943 of 1987 and 944 of 1987 for reasons to be recorded. Following are the detailed reasons for the same.
2. ' I propose to dispose of all these suits by a common judgment since he main facts in all these suits as well as question of law are identical. However, wherever necessary I shall refer to these suits separately in order to highlight the various facts that are peculiar to the suit concerned.
3. ' Brief facts of the cases are that a bus belonging to defendant No,1, which was driven by defendant No,2, was approaching from the Steel Town and was proceeding towards the city. The bus was full of passengers most of whom were the employees of the defendant No,1. When the bus reached trar Star Gate on Shahre-e-Faisal accidently due to rash and fast driving by the defendant No,2, it climbed over the carriage way. As a result a car bearing registration No,205-170 which was coming from the city side crashed into this bus. The bus kept on moving under its momentum and also collided with a suzuki pick-up bearing registration No,GP-3181. As a result of this accident five persons, who were the occupants of the car were killed, whose names and suits No, filed in respect of their death are as under:-- {{TABLE}} S.No, Name Suit No,
(1) Kaiser Saeed. 839 of 1987
(2) Baby Sarah Najeeb 840 of 1987
(3) Mst. Halima Bibi 942 of 1987
(4) Baby Erum 943 of 1987
(5) Mst. Akhtar Begum 944 of 1987 {{TABLE}} ' It is the case of all the plaintiffs in the aforesaid suits that the above accident was caused by the actionable wrong negligent and rash driving by defendant No,2. Since the defendant No,2 was at the relevant time the employee of defendant No,1, the defendant No,1 is equally responsible for the actionable wrong of defendant No,2 and is liable to make good the pecuniary loss suffered by the plaintiffs due to the death of the individuals mentioned above jointly and severally and are liable to pay damages/compensation to the plaintiffs, who are the expected recipients of the pecuniary benefits of the deceased. The plaintiffs in various suits have claimed the following damages." {{TABLE}} S.No, Suit No, Suit Amount
(1) 839 of 1987 Rs,11,860,000
(2) 840 of 1987 Rs,2,500,000
(3) 942 of 1987 Rs,600,000
(4) 943 of 1987 Rs,13,520,000
(5) 944 of 1987 Rs,2,000,000 {{TABLE}} ' In so far as defendants are concerned the defendant No,1 does not deny the ownership of the bus nor does the defendant No,2 deny that had was driver of the bus at the relevant time. Their main contention in defence is that the bus was not being negligently driven and that the incident occurred due to a mere accident. In the written statement the contention of the defendant No,2 is that the bus did not climb over the divider/island on the road due to negligent driving but because the bus was hit by another vehicle from behind and as a result of the impact it was pushed over the island. The defendants, thus, disclaim any liability for the death of the individuals concerned.
4. The defendants' main thrust, however, is towards disputing the amount of the plaintiffs' claim in all suits rather than the claim itself. According to them these claims are highly exaggerated and unrealistic and ought not to be allowed, even if the Court finds that the defendants are liable for the accident.
5. ' Based on the pleadings of the parties the following issues were framed in Suit No,939 of 1987, which are also relevant to other suits except for minor variations with regard to personal description and circumstances of the deceased.
(1) Is the suit maintainable?
(2) Have the plaintiffs locus standi to institute the suit?
(3) Was the Bus No,845-807 being driven rashly and negligently by the defendant No,2?
(4) Was the death caused by the wrongful act, neglect or default of defendant No,2?
(5) What was the age of the deceased at the time of death?
(6) Whether the deceased was getting quick promotion and sharp rise in his salary?
(7) Whether the claim is inflated/exaggerated?
(8) How long the deceased was expected to live?
(9) Are the defendants liable for payment of compensation claimed or any part thereof?
(10) Is the suit barred by time?
(11) Whether the death of Qaiser Saeed deprived the plaintiff of the alleged expertise and assistance and pecuniary benefits? If no, what is its effect?
(12) Whether the plaintiff or any one of them have suffered or likely to suffer any fmancial loss due to the death of Qaiser Saeed?
(13) What should the decree be and against whom?
6. ' Each plaintiff in these suits examined either himself or his attorney and supporting witnesses wherever necessary. The plaintiffs also examined a police officer on duty at the scene of accident and also the driver of a pick-up that was also hit by the bus of the defendant No,1 at the time of the said accident". Incidentally this driver namely Muhammad Siraj who worked for the T&T Department is the only eye-witness of the accident. The defendants on the other hand examined defendant No,2, the driver of the bus involved in the accident namely Muhammad Altai and two other employees of defendant No,1, who were passengers in the said bus. The defendant No,1 also examined their Administrative Officer of the Transport Department.
7. ' In so far as the issues are concerned, issues Nos.1 to 4 are common to all suits inasmuch as these are all question of fact and law the determination of which is necessary before a decision can be arrived at in these suits. The other issues i,e, from 5 to 12 concern individual plaintiffs in various suits as these relate to the claim of damages and the facts thereto. These issues will be dealt by me individually under the heading of each suit.
8. ' Dealing with the common issues my findings are as follows:- ' Issue No,l. The parties did not address the on this issue at all. In any case the pleadings are also silent about this issue and I find there is no reason why this suit should not be maintainable. My findings, therefore, in respect of this issue are in the affirmative.
9. ' Issue No,2. Even on this issue the parties did not address me at all. However, under the Fatal Accident Act any representative of those entitled to claim namely wife/husband,. Parents and children can file a suit. Nothing has been brought on record to show that such'. Is not the case in these suits. My findings, therefore, with regard to this issue are in the affirmative.
10. ' Issues Nos.3 and 4. In so far as the pleadings of the defendant No,1 are concerned they have averred that the bus while proceeding from Steel Mills side towards Karachi near the Star Gate on Sharee-Faisal was hit by another vehicle on the left side and due to the impact was pushed over the driver on the road and ended up on the other side resulting in collision with the car and a van on the opposite side of the road. Their contention basically is that this was a mere accident and as a result of vis major and there was no element of negligence or rash driving by the driver of the vehicle. It is significant to note that even though the driver of the bus involved in the accident is a party to these proceedings he has not filed any written statement. This story of the defendant No,1 as brought out in their pleadings is echoed in the evidence of the two passengers of the bus which has been brought on record by the defendant No, 1 . However, it is surprising and indeed significant that the evidence of the driver of the bus that has been brought on the record by the defendant No,1 tells a completely different story. The driver does refer to some vehicle approaching from the side of the bus in his examination in chief but in his cross-examination he categorically says that no vehicle hit the bus as stated in the written statement and the evidence of the other two passengers of the bus. In fact the driver maintains in his evidence that the cause of the accident was the failure of the brakes of the bus as a result of which he lost control and the bus went over the divider in the road. As is apparent there is definite contradiction between the evidence of the driver and the evidence of the other two witnesses of defendant No,1 and the averments in the pleadings of defendant No, 1 . Considering that the driver was in fact driving the bus at the relevant time he ought to have known whether he was hit by another. Vehicle or not. It is also significant that the driver is the employee of the defendant No,l. It is obvious that in such situation it would be the evidence of the driver which has to be given more credence than the evidence of the passengers of the bus that he was driving or the averments in the written statement which has been signed by a person who had no personal knowledge of the accident. If the evidence of the driver has to be believed the cause of the accident was the failure .Of the brakes and if such be the case, it would mean that the bus was not properly maintained by the defendant No,1. It goes without saying that a bus which has faulty brakes must nevi be allowed to ply on read. It is also a fact that the brakes of buses do not fail all of a sudden. It is usually culmination of a .Process whereby the brake fluid begins to leak and finally it disappears altogether resulting in the failure of the brakes. I, therefore, feel that if the bus dirver's version of the cause of the accident has to be accepted then the blame entirely rests with defendant No,1, and thus, it extends to defendant No,2, who being a regular driver of the bus should have had indication of the impending failure of the brakes. Nevertheless, even if defendant No,2 is not held responsible for the failure of the brakes the defendant No,1 would be vicariously responsible for such failure. I, therefore, find that the defendant No,1 vicariously were liable for the death caused to the passengers of the car which was hit by the defendant No,1's bus.
11. ' As mentioned above the other issues relate entirely to the claim of damages by the plaintiffs in various suits. The question arises as to how these claims have to be determined. There are of course various authorities as to how it is to be done but then the facts in each case are different and, hence these cannot be taken as precedents for determining the amount of claim in any particular case. Here a distinction Ought to be drawn between claim in tort and under Fatal Accident Act. While in case of former no definite guiding principles can be laid down because calculation of such damages will of necessary be based on intangible factors, in case of the latter the factors almost wholly are tangible as it relates to pecuniary benefits that accrue or expected to accrue. It is, therefore, necessary that general principles for calculating the damages that can be claimed in a fatal accident are laid down so that it becomes easier for the plaintiffs to lead the necessary evidence. In so far as these cases before me are concerned I find that the evidence led by the plaintiffs for the amount of claim leaves a lot to be desired. However, before deciding the amount or claim, I would like to lay down the general principles as stated above and then examine the claims of each of the plaintiffs in each suit in the light of these general principles laid down.
12. These general principles in my view are as follows. These are by no means exhaustive and Court can of course lay down other principles that could lead to determination the damages. . However, following, in my humble view, ought to be, the guiding principles.
13. (11 Age of the deceased.
14. ' It will always be necessary for the plaintiffs to show as to what was the age of the deceased on the day of accident. Birth Certificate or School Leaving Certificate can provide the necessary proof.
(2) The nature of health of deceased.
15. The nature of health of the deceased is the single most important factor in determining the earning capacity of the deceased or his working life. Evidence must, therefore, be led to show as to what kind of health did the deceased enjoy at the time of the accident.
(3) Working life of the deceased.
16. In my view in a fatal accident case while determining the damages, what Courts are interested, it is the working life of the asked rather than his/her expected life span, which now can be taken to be 70 years, starting at the age of 20, provided the person has been keeping good health. Here a distinction has to be drawn between various kinds of jobs the deceased could be engaged in. A professional's working life would be almost the same as his life span except that for a female it could not exceed 65 years. A businessman's life span, given allowance for senility which often strikes such people in old age in our country, would be almost 65 years and for business women 60 years. A paid employee's working life can under no circumstances, extend beyond 60 years. If it is a house wife or unemployed female her working life will extend to only 60 years as beyond that age a female would no longer be an asset to the family.
(4) Educational qualification of the deceased.
17. ' While bringing evidence on record regarding this point it will be necessary for the plaintiffs to show as to what sort of institution was the deceased educated in an some academic record to show what was the level of education that was received by -the deceased.
(5) Family background of the deceased.
18. ' It will be necessary to bring evidence on record as to what station in life did the deceased belong to. More particularly whether he/she could be regarded as belonging to the lower middle class, middle class or upper middle class. Howsoever, unpalatable this class distinction may appear to be, the fact remains that ours is a class oriented society and hence this fact has to be considered for the entitlement of damages.
(6) Earning capacity of the deceased.
19. ' It will be necessary for the plaintiffs to show whether the deceased was a paid employee of a organization or was a self employed professional or was in business. If a paid employee then the plaintiff will have to bring on record his pay slips for at least three previous years. If a self- employed professional and a businessman it will be necessary for the plaintiffs to bring on record the income-tax records to show as to what was the annual profit of the deceased. The profit would be calculated by deducting the expenses from the total amount earned by the individual concerned during the year. If however, the deceased was a minor then a distinction has to be made as to whether the deceased had obtained School Leaving Certificate i,e, Matriculation Certificate/G.C.E. Level Certificate or the deceased was below the age of 15. In the event the deceased had obtained the certificates mentioned above it has to be seen as to what kind of results had he obtained in the examination to determine as to whether the individual concerned held any promise or not. If the results of the individual concerned were average i,e, to say below first division or if the individual concerned was below the age of 15 then evidence will have to be led to show as to what was the income of the father of the deceased and then it could safely be presumed in the absence of any evidence to the contrary that the son could not have earned any more than the father. In the event the deceased happens to be a female then unless some pay slips of the person concerned are produced to show her earning capacity it will be presumed that the female was either a house wife and, if not married, lived with relations and had no earning capacity at all and was perhaps only engaged in domestic work. If involved in domestic work her earning capacity cannot be regarded to exceed more than the pay of one servant in a house hold which currently can be regarded as Rs,1,500 if the female belongs to middle or upper middle class.
20. If the female belongs to lower middle class background then the earning capacity for domestic work would be regarded as 1/3rd of the income of the husband/father, head of the house hold.
(7) Future increase in income and inflation.
21. ' In so far as this point is concerned it has now been well-settled that a 20% increase is to be given under this sub-heading and I accept the same. This 20% is to be added to total earning before any deduction.
(8) Personal allowance of the deceased.
22. ' For this no evidence is required to be led and as a rule every one spends about 33% of his income on himself which is a personal allowance which ought to be deducted from the total earning before calculating to family as laid down under item 9 below.
(9) Sums available for benefit of claimants.
23. ' While claiming damages under Fatal Accidents Act it is usual for the claimants to claim the entire expected earring of the deceased. This in my view is a fallacy. Under Fatal Accident Act the claimants can only claim the pecuniary loss that they would suffer as a result of untimely death of the deceased. It is obvious that the deceased would have been able to give to the claimants what is left over after he fulfils the needs of his own and of his family. I have already held that everyone spends about 1/3rd i,e, 33% of what he earns on himself or herself which is the personal allowance.
24. If he/she lives in a joint family he/she would contribute about 25% of his/her earning after 33% deduction to family purse in an upper middle class home, 50% in a middle class home and 75% if he/she lives in a lower middle class home. However, our culture being what it is, no self respecting person would accept money from a female after she is married. Consequently after the age of 30 (the age by which ordinarily a female would be married) a female would not be expected to contribute anything. However, to cater for some females who might contribute due to some special circumstances, I would say a female's expected 'contribution after the age of 30 would not exceed 10% of her earning after 33% deduction. If the earning are in foreign exchange in a country where living standards are higher than in Pakistan there will be flat rate deduction of 50% from the total contribution to family purse. To sum up, deduction to be made after determining total earning, are as follows. {{TABLE}} For a person living in a Joint Personal allowance 33% of total deduction for both earning male and female.
25. Contribution to family purse. for an upper 25% of total middle class home earning after 33% deduction. For a middle class 50% of total home. Earning after 33% deduction. For a lower middle 75% of total class home. Earning after 33% deduction. for female after 30 10% of total years of age. Earning after 33% deduction.
26. For a person living independently deduction to be made would be as follows:-- Personal allowance 33% of total deduction for both earning. Male and female.
27. Contribution to family purse for an upper 10% of the total middle class home. Earning after 33% deduction. For a middle class 25% of the total home. Earning after 33% deduction for a lower middle 50% of the total class home. Earning after 33% deduction for female after 30 10% of the total years of age. Earning after 33% deduction {{TABLE}} ' Having determined the general principles on the basis of which the damages are to be calculated in fatal accident cases, now I shall deal with the rest of the issues i,e, from 5 to 12, collectively under each suit under the heading given above i,e,
(1) Age of the deceased.
(2) The nature of health of deceased.
(3) Working life of the deceased.
(4) Educational qualification of the deceased.
(5) Family background of the deceased.
(6) Earning capacity of the deceased.
(7) Future increase in income and inflation.
(8) Personal allowance of the deceased
(9) Sums available for benefits of claimants.
28. ' Suit No,839 of 1987 ' Name of deceased: Kaiser Saeed male ' Amount of claim: Rs,11,860,000
(1) 26 years,
(2) Good.
(3) 60 years- Remaining 34 years.
(4) Intermediate. Field Engineer.
(5) Middle Class.
(6) Employee of a foreign owned firm.
(7) 20%
(8) 33% deduction.
(10) Contribution of 50% of total earning less 33%.
29. ' The deceased was employed as a Field Engineer in a foreign owned firm and was drawing about Rs,11.000 as his salary and allowances plus bonus of about Rs,9,000. However, since bonus is not part of salary and is given for special purposes at the given time, I am not inclined to include it in the total emoluments. I, therefore, would regard the total monthly emolument to be Rs,11,000.
30. ' Calculation of damages is as follows:-- {{TABLE}} Rupees Rupees
(a) Earning during 4,488,000 working life of 34 years @ Rs,11,000 per month
(b) Future increase in 897,600 income @ 20%.
(c) Total Earning. 5,385,600
(d) Personal 1,777,248 allowance deduction @33%
(e) Remaining total 3,608.352 earning.
(f) Contribution to 1,804,176 family purse-Middle Class Ca) 50%
(g) Contribution of a female after 30 years age 10% {{TABLE}} Suit No,840 of 1987 Name of deceased. Sarah Najeeb Female Amount of claim Rs,2,500,000
(1) About 12 years.
(2) Good.
(3) 60 years. Balance working life 40 years attaining age
(4) Class 6, Bright student.
(5) Middle Class.
(6) Teachers job. Employee.
(7) 20%
(8) 33% deduction.
(9) For first 10 years contribution of 50'7, of total earning less 33%. For next 30 years contribution of 10% of total earning less 33%. '
31. ' It is more than likely that the deceased would have become a teacher but not after two years as stated in the affidavit because by then she would be only in class 8 and 14 years old. She would have at least requited another eight years education to be able to become a teacher.
32. Consequently, her working life would have begun at the age of 20. Thus, she would have a working life of 40 years as per principle laid down. According to the evidence led, I accept. That but the time she would have earned Rs,5,000 per month. However, I do not accept that she would have also* be employed in domestic work as she would fall in the category of employed person as per principle laid down.
33. ' Calculation of damages is as follows: {{TABLE}} Rupees Rupees
(a) Earning during 600,000 working life of 10 years @ Rs,5,000 per month
(b) Future increase in 120,000 income CO 20%
(c) Total Earning. 720,000
(d) Personal 237,600 allowance deduction 33%
(e) Remaining total 482.400 earning.
(I) Contribution to 241,200 family purse-Middle Class @ 50%
(g) Earning during 1,800,000 next 30 years of working life.
(h) Future increase in 360,000 income @ 20%
(i) Total Earning. 2,160,000 712,800 1,447,209 1,44,720 385,920 Rupees Rupee
(a) Earning during 30,000 working life of 5 years @ Rs,500 per month
(b) Future increase in 6000 income @ 20%.
(c) Total Earning.
(d) Personal 11,880 allowance deduction 33%.
34. 36, ill
(j) Personal allowance Deduction @33%
(k) Remaining Total Earning.
(1) Contribution of a Female to family purse after 30 years age @ 10% Total contribution to family purse {{TABLE}} ' Suit No,942 of 1987 ' Name of deceased Halima Bibi female.
35. ' Amount of claim Rs,600.000
(1) 80 years.
(2) Feeble.
(3) Nil.
(4) Barely literate.
(5) Middle Class.
(6) Domestic work/Teaching Qur'an etc.
(7) 20%
(8) 33% deduction.
(9) Contribution is saving to the family that is total saving less 33%.
36. ' It is obvious that the lady has no working life left and she is too old to do any useful work in the house. However, I am prepared to accept that she could live perhaps for another five years and could teach Qur'an to the children of her family as brought out in evidence and un rebutted by defendants. In my view her earning capacity would not exceed Rs,500 per month.
37. ' Calculation of damages is as follows:
(e) Remaining total 24,12 earning.
(f) Contribution to 24,12 family purse is saving to the family i,e, (E) above ' Suit No,943 of 1987 ' Name of Deceased Erum Female.
38. ' Amount of claim Rs,13.520,000
(1) .17 years
(2) Good.
(3) 60 years. Working life 40 years.
(4) GCE '0' Level and Certificate of Secondary Education. Averag student.
(5) Middle Class.
(6) Computer Operator.
(7) 20%.
(8) 33% deduction.
(9) For first 10 years contribution 50% of total earning less 33%.
39. For next 30 years contribution 10% of total earning less 33%. {{TABLE}} I would accept that the deceased (1) Contribution of a 24,120c ould have become a Computer Operator and Female to family ould have earned about Pounds 10,000 per purse after 30 years urn but after she would have attained the age @ 10% ge of 20 years, which would give her Total contribution to 64,320 orking life of 40 years. Family purse in Calculation damages is as follows:-- pounds. Pounds Pounds Converted into Rs,4,824,000 Rupees @ 14.75 = Earning during 100,000 Pound. orking life of 10 50% adjustment for Rs,2,412,000 ears Pounds.
40. 0,000 per annum earning in an foreign county where living ) Future increase in 20,000 standard is high. come Q 20%.
41. Suit No,944 of 197 ) Total Earning. 1,20,000 Name of Deceased Akhtar Begum- Personal 39,600 Female. lowance deduction Amount of claim Rs,2.000,000.
42. 3%. (1) 47 years. ) Remaining total 80,400 (2) Good.
43. Contribution to 40,200 (3) 60 years. Left 13 years working life. y purse-Middle (4) No evidence brought but literate. Se 50%.
(5) Middle Class. ext 30 Years of ) Earning during 300,000 (6) Domestic work. Orking life. (7) 20% ) Future increase in 60,000 (8) 33%. come 20% ) Total Earning. 3,60,000
(9) Contribution is saving to the family i,e, total saving less 33%.
44. Personal 118,800 lowance Deduction 33%; ) Remaining Total The plaintiff are obviously immigrants in the U.K. And in all probability originally belonged to working class in th 241,200 absence of any evidence to the contrary.
45. Consequently it is not possible to imagine that the deceased would be qualified enough to assist in office work of the plaintiff in his business. However, I do accept that she would be actively involved in domestic work. It is well- known that domestic help is expensive in the U.K. But at the same time it must be also taken into account that domestic help is not available to majority of the people in that country and every one does his own domestic work. As a rule a part time maid in England is paid about 20 Pounds a week that is about Pounds 80 per month or Pounds 960 per annum. Consequently, I would accept that the deceased domestic help could be quantified at Pounds 960 per annum. Calculation damages is as follows:- {{TABLE}} Pounds Pounds
(a) Earning during 12,480 working life of years @ Pounds 960 per annum.
(b) Future increase in 2,469 income @ 20%.
(c) 14,976 10,034 Rs,752,550 Rs,376 275 Total Earning.
(d) Personal 4,942 allowance deduction 33%.
(e) Remaining total earning.
(f) Contribution to family purse is saving to The family i,e, (E) above Converted into Rs, @ 75 =Pound.
46. 50% Adjustment for earning in a foreign country where living standard is high. The damages that the plaintiffs are, {{TABLE}} thus, entitled to are shown against the such heading "Contribution to family purse" in the tables above under each suit. These damages are being summarised below:-- S.No, Suit No, Damages in (Rs).
47. 839/1987 1,804,176 . 840/1987 385,920 942/ 1987 24,120 943/1987 2,412,000 944/1987 376,275 {{TABLE}} ' The said suits are, thus, decreed for the sums mentioned against each suit above along with interest as prayed. Wherever there are more plaintiffs belong one then the plaintiff would share the damages in accordance with their share in inheritance under Muslim Law as per the sect the individual plaintiff belongs to. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.