This is a suit for recovery of Rs,10,00,000 under the Fatal Accidents Act against the Federation of Pakistan and Pakistan Air Force owing to the accidental death of deceased Muhammad Aslam aged about 51 years on or about 6-7-1988 as a consequence of air crash of an air craft belonging to the defendants within the local limits of S.I.T.E. Police Station.
2. It is the case of the plaintiffs who were minor son and daughter respectively of the deceased on the date of suit and are major by now that the death was caused by falling of one of the air craft of the defendants during its flying negligently and without due care, It is further, averred that the defendants committed act of negligence, default, lack of prudence and reasonable foresight in flying the air craft over the populated area knowingly and deliberately in a reckless and negligent manner, It is also urged that the air craft was either defective or the pilot who was flying the said air craft did not pilot and fly the said air craft with due care, prudence, diligence and acted with negligence and default causing serious loss of lives of people; that the death of the deceased was caused by actionable wrong, wrongful act, negligence, default, malfeasance, non-feasance, misfeasance and lack of reasonable foresight on the part of the defendants,
3. In a common written statement filed by the defendants, they have denied the allegations of negligence, default, recklessness etc, They have taken the position that the air craft in question was declared serviceable by the concerned authority and there was no fault or operational defect in the said air craft and further that the pilot who was detailed for this mission was also declared fit physically and mentally for flying, Their further defence in this regard is that the occurrence had taken place due to some reasons beyond the control and imagination of the defendants, Various legal pleas including maintainability of the suit were also advanced which were reflected in the following consent issues:--
(1) Whether the suit is maintainable against the defendants under the Fatal Accidents Act, 1855?
(1=A) Whether the suit is barred by Limitation?
(ii) Whether the death of the deceased was caused by the actionable wrong, wrongful act, negligence, default, =Homo, misfeasance and lack of reasonable foresight of the defendants?
(iii) Whether the suit is liable for the payment of the court=fee?
(iv) Whether the plaintiff is entitled for the compensation claimed, if so, what should be amount?
(v) Whether the plaintiff is entitled to cost and interest as claimed?
4. It is pertinent to observe that separate Suits Nos,729 to 734 of 1988 were filed by respective legal heirs of different deceased persons in identical circumstances which were heard, tried and finally disposed of by G,H. Malik, J, (as he then was) vide Judgment, dated 22=11=1994 whereby the suits were decreed in different amounts with costs and interest at 14% from the date of the suit till payment, Defendants assailed the aforesaid consolidated judgment in High Court Appeals Nos,129 of.1996 to 134 of 1996 which after pre-admission notice to the respondents were dismissed in limine by a Division Bench consisting of Mrs. Moda Ravi and Syed Sneed Ashhad, JJ, on 11=11=1997,
5. When this suit came up for evidence before me, both the counsel for parties filed a joint statement permission to consider the defendant's evidence recorded in Suit No,729 of 1988 as evidence in this suit which was allowed subject to all just exceptions, Pursuant to the said order, defendants' counsel has placed on record certified copies of the depositions of two Squadron Leaders examined on behalf of the defendants, On behalf of the plaintiffs, Usman Farooq Baia, Deputy Manager. In charge (Industrial and Personnel), National Motors Limited, Karachi and Halinia Bib!, widow of the deceased were examined in this suit,
6. With the assistance of the learned counsel, I have gone through the- relevant evidence on record and considered the questions. Of fact and law raised by them. My findings are as under for the following reasons:-- Reasons
7. Issue No, 1 In view of the findings in the connected suits, learned counsel for the defendants did not press this issue which is dropped.
8. Issue No,i-A, As the suit on the face of averments made in the plaint does not appear to be barred by limitation, learned counsel for the defendants did not press this issue which is dropped as redundant,
9. Issue No-ii, This issue was .decided against the defendants by G,H, Malik, J. (as he then was) in identical suits which finding has attained finality by reason of dismissal of the appeals preferred by the defendants. In this view of the matter, Mr. Badrudduja Khan, learned counsel for the defendants was obliged to accept the legal position as even otherwise the. view taken by a Division Bench in identical suits and on similar evidence is not only entitled to respect but also binding on the Single Judge, Issue is, therefore, answered in affirmative,
10. Issue No-iii, Learned counsel for the defendants was obliged to fairly concede that no court-fee is payable on a suit filed under the provisions of Fatal Accidents Act, Issue is answered accordingly,
11. Issue No-iv, In the plaint it was averred that the deceased was working as fulkime Chowkidar in National Motors and earning Rs,2,400 per month, Besides he was doing overtime and earning Rs,1,000 per month on this score, It was further averred that being not satisfied with the aforesaid amount of income he intended to migrate to Middle East for performing a job of manual nature where within a period of 2/3 years he would have started earning Rs,10,000 per month and so on so forth. In her affidavit in evidence widow of the deceased instead claimed that he was earning Rs,3,000 per month which would have increased upto Rs,7,000/8,000 per month with the passage of time. Additionally he used to do overtime and earned Rs,1,000 per month. She reiterated intention of deceased to migrate to Middle East and his expected earning of Rs,10,000 p.m. etc.
12. At the hearing, however, Mr. Nasir Maqsood, learned counsel for the plaintiffs confined the claim to income of the deceased at Rs,3,037.30 per month, which he was receiving on the date of accident whereas on the date of evidence by plaintiffs' witness Usman Farooq Baig he would have been entitled to salary and allowances worth Rs,4,426 per month. This witness stated on oath that the deceased was drawing Rs,3,037.30 per month at the time of his death. He produced such statement reflecting the salary as well as various allowances as on 1-4-1988 onwards Exh.1/1. The witness further submitted that this amount would have been admissible to the deceased in the subsequent five years. He further, stated that the employees in the cadre of the deceased at present were drawing salary and allowances worth Rs,4,426 per month. He produced another statement Exh.1/2 reflecting the salary and allowances admissible to the deceased in the subsequent years as on 29-2-1996 and onwards. From the personal file of the deceased he was able to assert that he was aged about 51 years at the time of his death and was maintaining good physique and health. During the cross-examination only questions put to the witness relate to the preparation of such statements in the account section of National Motors Limited bearing signatures of Manager Accounts. No question was directed to the witness whether such statements were false, fabricated or manipulated. In all probability, irrespective of the fact that author of the statements was not examined at the trial, the witness had no reason to give false evidence to oblige the legal heirs of the deceased. It may be observed that in criminal proceedings while guilt of an accused must be established beyond every shadow of reasonable doubt, in civil proceedings it is preponderance of the evidence which determines a controversy. In the absence of any strong and exceptional circumstance to the contrary, I see no good reason to discard the evidence of this witness which is otherwise natural, straight-forward, unimpeachable and must be accepted on the face of it, I am, however, not inclined to accept the probable income of the deceased in view of his intended migration to Middle East which is a far-fetched and too remote a circumstance.
13. Needless to observe the deceased was of 51 years at the time of his death. Normal life expectancy according to the preponderance of superior Courts view in Pakistan is taken to be 70 years. This position was not controverted in the identical suits arising out of the same accident. I will, therefore, accept this proposition and allow calculation of the expected income and probable loss to the legal heirs of the deceased as a consequence of unnatural and sudden shock occasioned by the unfortunate accident.
14. Learned counsel for my assistance has prepared a statement reflecting the probable income of the deceased which may be reflected as under:-- Gross income
(i) Salary for 8 years from 1988-1996 at Rs,3,037 per monthRs, 2,91,552
(ii) Salary for remaining 11 years at Rs,4,426 per month. Rs, 5,84,232 Total Rs,8,75,784
15. As the income of the deceased was expected to rise by passage of time at the rate of 20% adding a sum of Rs,1,75,156 to the total income, the grand total works out at Rs,10,50,940. Allowing 1/6th of the total earning on account of personal expenses at Rs,1,75,156 and adjusting interim payment of Rs,5,000 made by the defendants, net amount works out at Rs,8,70,784.
16. The gross amount, thus, comes to Rs,8,70,784 of which 50% shall be payable to widow of the deceased. Abid Hassan and Wajid both sons of the deceased are awarded a compensation of Rs,75,000 each while the balance amount of Rs,2,85,392 shall be distributed equally amongst his three daughters namely Chand Gul, Rukhsana and Rahila. The plaintiffs shall also be entitled to costs of the suit with interest at 14% from the date of suit till payment. This amount shall also be apportioned amongst the legal heirs in the above manner.
17. Issue No-v. Suit of the plaintiffs, is thus, decreed as aforesaid. Defendants are given sixty days' time for deposit of the decretal amount with the Nazir of this Court in terms of section 82, C.P.C.