1. The plaintiff has filed the above suit for recovery of Rs.12,00,000 under Fatal Accidents Act, 1855,
2. Briefly the case of the plaintiff is that the plaintiff being father of deceased Saira Khatoon who died in road accident on 6-2-1989. It is alleged by the plaintiff that defendant No. l was the owner of the Hiace Van bearing--No.264-353 and defendant~No.2 was the driver of the defendant No. 1 and was driving the said van during the course of employment of defendant No. 1. It is inter alia, contended by the plaintiff that defendant No.2 while driving the van in a rash and negligent manner on National Highway when reached near City Hospital and Liaquat Government College near Malir Kala Board dashed the pedestarin namely, Saira Khatoon on the road. Consequently she was stated to have got fatal injuries and was taken to hospital where she remained unconscious in I.C.U. for two days and died on 9-2-1989 in the hospital. It is claimed by the plaintiff that the death of deceased Saira Khatoon was caused due to the negligence and wrongful act of defendant No.2 and defendant No. l is vicariously liable for the actionable wrong of defendant No.2. It is pleaded by the plaintiff that deceased was very intelligent and shining student of B.A. Final studying in Liaquat Government College, Malir and she was expected to become a teacher and could have joined some institution after graduation and could have started earning. She was also expected to do her Masters and was expected to become- lecturer with the passage of time, and could have started earning a sum of Rs.3,000 per month, to Rs.4,000.
3. The defendants Nos. l and 2 filed their joint written statement in response to averments made in the plaint-and contended that neither the defendants have committed any offence nor any liability lies on them. However, it was admitted that the offending van bearing No.264-353 was owned by defendant No. 1, the defendant No.2 was driving the said van at the time of accident during the course of employment of defendant No. 1. The defendants denied the personal knowledge about the deceased who died with the accident of other vehicle and no accident took place with their vehicle.
4. The defendant No.3 also filed their written statement and contended that their liability is confined to Rs.20,000 for third party risk..
5. On the basis of above pleadings the following consent issues were settled by the Court on 26-2- 1990:
(i) Whether death of Mst. Saira Khatoon was caused by the wrongful act, neglect or default of defendant No.2 Nawab. Ali in driving van No.264-353 rashly and negligently on 6-2-1989 at public road viz. National Highway in Malir Colony Area Karachi?
2. (ii)Whether the defendant No. 1 as owner of the said vehicle is liable for the said act of defendant No.2 who was his employee?
3. (iii)What was the earning capacity of the deceased?
4. (iv)What were earning prospects of the deceased?
5. (v)What was the life expectancy of the deceased?
6. (vi)Whether the defendants are liable jointly and severally to pay compensation to heirs of the deceased for the loss of life of the deceased?
(vii) What should be the compensation for loss of the deceased?
(viii) What should the decree be?
7. In support of his case, the plaintiff examined the following witnesses; .
8. (i)Zafar Ali, Police Officer who produced F.I.R., site sketch of the accident, memo of site inspection, motor vehicle inspection report.
9. (ii)Abdul Wahab, eye-witness who produced Matric Certificate of Saira Khatoon, deceased, Intermediate Certificate, mark-sheet of B.A., Part I of deceased. Admit card of B.A. Final of Liaquat Government College, death certificate, N.I.C., Copy of F.I.R. Certificate of ownership pertaining to the offending van of KESC.
10. The defendants only examined the driver of the van and did not produce any document.
11. Accordingly my issue wise findings are as follows: ISSUES NOS. 1 AND 2 These issues are inter-related to the aspect of negligence and as such are dealt with together. The plaintiff reiterated the contents of the plaint in his affidavit-in-evidence pertaining to the aspect of rash and negligent driving of the defendant No.2 leading to accidental death of deceased. The plaintiff was cross-examined by the defendant but his statement on the point of negligence and death of deceased on account of rash and negligent driving were not questioned neither the defendants put their own case before the said witness. -Eye-witness in the case, namely, Jamiluddin gave a detailed version of the accident and nothing material was brought in his cross- examination. The defendants also did not question the authenticity of the contents of the documents produced in the evidence by the witnesses. On the other hand the defendants did not examine the author of the written statement nor examined any independent witness for the accident in question. Only driver of the van was examined but his evidence was absolutely contrary to beyond the pleadings and contradictory. On the contrary the driver of the van totally denied the accident in question, and contended that since the students at site were in rash and gathered there, started beating and locked him in one room of the hospital. The defendant No.2 also denied to have any personal knowledge of the contents of the written statement filed in this case.
12. Accordingly I hold that omission on the part of defendant to cross-examine and challenge the material aspect of both oral and documentary evidence advanced by the plaintiff on the material aspect of negligence of defendant A No.2 would give rise to the inference that truth of such statement has been accepted by the defendants, and thus, such unchallenged statement of witness should be given full credit and accepted unless displaced by cogent, reliable and clear evidence. I answer these issues in the affirmative.
13. ISSUES NOS. 3 AND 4 These issues are also inter-related and can be disposed of together. It is claimed in the plaint that deceased was intelligent and shining student of B.A. Final. She was also giving tuition to the area students and was earning a sum of Rs.1,200 to Rs.1,400 per month. The deceased was stated to be very promising and was expected to do her Masters and thereafter, she could have joined some college as lecturer and could have earned more with the g passage of time and expected to earn a sum of Rs.3,000 to Rs.4,000 per month and she could have started more earning with further increase in the tuition with the progress and promotions in life and she expected to earn more than Rs.6,000 after becoming lecturer in the college. The above averments of the plaint have not been denied by the defendants. Accordingly I answer the issues in affirmative.
14. ISSUE N0.5 It is an admitted position that life span in Pakistan and in fatal C accident cases is 70 years.
15. Therefore, I answer this issue in affirmative.
16. ISSUE N0.6 It is an admitted position in this case that defendant No.1 was the owner of the van at the time of accident and defendant No.2 was the servant/driver of the van. It is also an admitted position that defendant No.2 was driving the van in rash and negligent manner resulting into the death of deceased Saira Khatoon. Thus, the defendant No.l will be vicariously liable D to pay the compensation to the legal heirs for the wrongful act of defendant No.2 during the course of employment of defendant No.l. Besides the defendants will also be liable for the payment of compensation under the Fatal Accidents Act, 1855 to the legal heirs jointly and severally.
17. Accordingly I answer this issue in affirmative.
18. ISSUES NOS. 7 AND 8 These issues pertain to the aspect of quantum of damages and are being disposed of together.
19. The Fatal Accidents Act, 1855 itself does not lay down any principle for calculating the measures of loss but an estimate has still to be made by the Court. The assessment of damages in such a case must therefore, necessarily to some extent of a rough and approximate nature based more or less on guesswo rk, for it may well be impossible to accurately determine the loss which has been sustained by the death of husband, wife, parent or child. No definite or hard and fast rule can, as such, be laid down as to the matter which should be taken into account but this much can be said that only such damages can be given that can be shown to have been financially suffered by those who bring the action. That's why the measure and award of damages differ even from Judge to Judge as it is not necessary that two Judges in similar circumstances may determine the same quantum of loss and damages. These broad principles were discussed by Hon'ble Supreme Court in the case of Sri Manmatha Nath Kuri v. Moulvi Muhammad Mukhlesur Rahman PLD 1969 SC 565 and it was held that the determination of the quantum must be liberal not niggardly since the law values life and limb in a generous scale. The Courts should not succumb to niceties, technicalities and mystic maybees as held in AIR 1980 SC 1354. Since the said Act is a beneficial enactment and its basic purpose is to provide compensation to the specified statutory beneficiaries who have lost their bread earners owning to the wrongful act of the wrongdoers and as such while construing the beneficial enactment the Court can take into consideration the object for which it was enacted and the mischief which it intended to suppress and if two possible constructions of a provision of such a statute are possible one which favours the class of persons for whose benefit the statute has been enacted would be preferred. This principle has been held in 1998 SCM R 440. In the instant case a girl of 19 years died leaving behind father and mother respectively at the ages of 43 and 42 years and accordingly on the basis of 70 years as average life span in Pakistan, a loss of pecuniary benefit for a period of 28 years will be assessed on basis, of earning capacity of the deceased. In the case of Viqar Ahmed and others v. Blue Lines Air-conditioned Coach Services 1989 CLC 229 the above view was held. In the instant case as held on Issues Nos.3 and 4 the deceased can earn a sum of Rs.4,000, per month a contribution to the extent of Rs.3,000 can safely be expected at least for 8 years and thereafter keeping in view the factor of her marriage, the contribution could be expected to the extent of Rs.1,500 per month for. remaining 20 years. While appreciating the chances of promotion and improvement in life 20 % enhancement in the contribution can also be added to comprehend net loss of pecuniary benefits. Thus, the net loss of pecuniary benefits are as under:--
(A) Pecuniary loss at the rate of Rs.3,000 per month for 8 years (3,000 x 12 x 8). Rs.2,88,000
(B) Further pecuniary loss at the rate of Rs.1,500 per month for 20 years (1,500 x 12 x 20) Rs.3,60,000 ADD 20% on account of chances of enhancement of contribution owning to promotion with the passage of time.Rs.1,29,600 Total: Rs.7,77,600 As a result of the above discussion, the suit of the plaintiff is decreed for Rs.7,77,600 with cost and 12% interest from the date of suit till realisation.