This is a suit for recovery of Rs,4.8 millions filed under the provisions of Fatal Accidents Act, 1855 as a result of death of Fida Hussain Qureshi on 9-9-1997 due to electrocution. In para. 1 of the plaint following persons, in addition to the plaintiff who is the widow, have been shown as the other legal representatives entitled to compensation being sons and daughters of the deceased:-- 1 Mrs. Lubna FirdousDaughter 22 years 2 Muhammad Suhail QureshiSon 21 years 3 Miss Uzma QureshiDaughter 18 years 4 Miss Naureen QureshiDaughter 17 years 5 Muhammad Ali QureshiSon 15 years 6 Muhammad Farhan QureshiSon 14 years
2. In this case, since the defendant was debarred from filing written statement, the case came up for final disposal before this Court on 15-10-1998 when the application of the defendant filed under Rule 159 of Sindh Chief Court Rules (O.S.) (C.M.A. 8900 of 1998) was dismissed in the following circumstances:-- "This is an application under Rule 159, Sindh Chief Court Rules (O.S.) seeking four weeks' time to file written statement on behalf of defendant. This application was filed on 9-9-1998 after the order, dated 18-8-1998 was passed by the Additional Registrar (O.S.) through which defendant was debarred from filing written statement. Perusal of case file indicates that defendant was served in the month of March, 1998 and Mr. Siddiqui has filed his Vakalatnama on 21-3-1998. He has also filed an application under section 148, C.P.C. (C.M.A. 5647 of 1998) which was granted on 28-5-1998 by the Additional Registrar granting two weeks' additional time to file written statement. Despite passage of more than four months, the defendant has not filed its written statement. The only ground shown in this application is that the learned counsel is still awaiting necessary instructions from the defendant which have not been extended to him. This is no ground to extend time to file written statement. Accordingly, this application is dismissed."
3. Plaintiff has examined herself as Exh.4. One Ashiq Ali from Pakistan National Shipping Corporation was examined as Exh.3. He has produced Service Certificate attesting the facts about the monthly earnings and age of the deceased, Fida Hussain Qureshi.
Today, the plaintiff has filed a statement of claim and has prayed for a decree in the sum of Rs,38,53,206 with 14% interest per annum from the date of suit with cost. I have heard Mr. Nasir Maqsood, Advocate for plaintiff and Mr. Kazi Abdul Hameed Siddiqui, Advocate for defendant.
4. I have gone through the evidence and the documents brought on record. There is no evidence from defendant's side controverting the allegations. No issues were framed as there was no pleading in the field from the defendant's side. However, it was permitted to contest the suit by getting its evidence recorded which was declined. In these circumstances and in absence of any denial or rebuttal to the plaintiff's evidence, I decree this suit in the following manner:--
(a) At the time of his death, the deceased was earning Rs,24,640.50 and it is proved that he was 49 years of age, therefore, he could have served in the P.N.S.C. till the age of 60 years. These salaries for 11 years come to Rs,32,53,206.
(b) As per plaintiff's case, the deceased being a man of good habits and health could have lived upto the age of 70 years and during his last 10 years, it is claimed in the plaintiff's evidence, he could have earned Rs,5,000 per month. Therefore, for the said ten years, he could have earned Rs,6,00,000.
(c) Aggregate income of the deceased for 21 years, therefore, comes to Rs,38,53,206.
(d) Add 20% increment in the salaries and other benefits amounting to Rs,7,70,641.20 bringing the total amount to Rs,46,23,847.20.
(e) Substract 1/6 on, account of personal expenses of the deceased which come to Rs,7,70,641.20 again bringing the balance amount to Rs,38,53,20.
5. In view of the above noted facts, it is established that the plaintiff and other legal representatives as mentioned in para.1 of the plaint have suffered pecuniary loss as a result of death of Fida Hussain Qureshi and that they are entitled to the aforesaid amount. However, one question remains to be resolved as to how the decretal amount is to be distributed. According to both the learned counsel, there is no hard and fast rule as the appropriation is based on the discretion of the Judge passing the decree. Reference was made to a recent case of this Court, Mst. Shamim Akhtar v. Javedan Cement Limited 1997 CLC 955 where my learned brother Rana Bhagwan Das, J. has granted apportionment amongst the legal representatives in the following manner:-- "(16)In view of what is stated above, the plaintiff and other legal representatives are, therefore, entitled to a total compensation of Rs,17,45,000. With regard to apportionment amongst the legal representatives subject to realisation, a sum of Rs,3,00,000 shall be paid to the widow, a sum of Rs,1,50,000 shall be invested in long term finances in the names of six minor daughters of the deceased and the balance amount in equal shares invested in long term profit scheme in the names of five minor sons of the deceased. Suit is accordingly decreed in above terms with interest at 14% from the date of suit till payment.
6. Yet in another case of this Court Ameena v. Government of Pakistan. Ministry of Defence 1995 M LD 1922, G.H. Malik, J. (as he then was) granted major share to the widow where a majority of the legal representatives of the deceased was minor. In the case of Gul Khan v. Karachi Transport Corporation and another 1997 CLC 932, while decreeing the suit, I had granted shares of the legal representatives of the deceased according to the ratio of their entitlement as per their share of inheritance. Earlier, in Iftikhar Hussain and another v. Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550, this Court while decreeing the suit for Rs,34,200 directed payment of Rs,15,100 to the widow, Rs,11,400 to the younger son and Rs,7,700 to the elder son of the deceased. It is stated by Mr. Nasir Maqsood that the case of Ameena (supra) was upheld in appeal by a Division. Bench of this Court and was subsequently, affirmed by the Honourable Supreme Court and that at no stage such apportionment was disturbed. In the case of Mehmooda Yousuf Nizami and 6 others v. S. Huda and another 1981 CLC 1341, 50% of the decrial amount was directed to be paid to the widow.
Under these circumstances, it was rightly argued that there is no hard and fast rule for tabulating apportionment of the decretal amount amongst the legal representatives of the deceased.
7. At the time of filing of this suit, i,e, on 15-11-1997 it is shown that out of 6 children, one daughter and two sons were minors. Next son at the relevant time was of 14 years of age and elder to him was of 15 years. Even on this day, they are minors and it is the duty of the Court to protect their interest. In addition to this fact, there are two daughters of the deceased who, although of marriageable ages are still unmarried. Keeping all these facts in view, the apportionment is made to the following extent subject to realisation of the decretal amount:--
(i) The widow/plaintiff will get 40% which comes to Rs,15,41,282.40
(ii) All the three daughters will get 10% each which comes toRs,11,55,961.80
(iii) All the three sons will get 10% each which comes toRs,11,55,961.80 The share of the two minors, namely Muhammad Ali and Muhammad Farhan shall be retained with the Nazir of this Court and will be paid to them on attaining the age of majority.
8. As a result of the above discussion, suit of the plaintiff is decreed for Rs,38,53,206 with cost and 12% interest from the date of suit till realisation.