' This suit was filed for recovery of Rs,12,00,000 under the provision of Fatal Accidents Act, 1855 by the Qaseem Ahmad father of the deceased Taslim Ahmed, who died in a road accident on 2-6- 1989 within the area of New Karachi Police Station.
2. The suit was filed by the plaintiff in a representative capacity for his own benefit as well as to the benefit of the mother of the deceased namely Feroza Begum who was aged 43 years at that time.
During the pendency of the suit the plaintiff Qaseem Ahmed died and Mst. Feroza Begum mother of the deceased was substituted as plaintiff and the plaint was amended in terms of the Court order, dated 3-12-1990.
3. In the plaint the defendant No,2 was narrated as Zonal Municipal Committee. Karachi (Central) but subsequently on a C.M.A. No,3043 of 1990, dated 3-5-1991 the plaintiff was allowed on 3-12-1990 to substitute the Z.M.C. (Central) with Z.M.C. (South) and accordingly plaint was amended.
4. The defendant No,2 Z.M.C. (South) was declared ex parte on 20-10-1991 alongwith defendant No,1 i,e, Government of Sindh; but on 24-5-1992 the defendant No,2 ZMC (South) was allowed to file written statement and the same were taken on record. It is also borne from the record that during the proceeding of the case, by Court's order, dated 27-2-1998, on the statement filed on behalf of the plaintiff, the description of the defendant No,2 was again changed by the name of District Municipal Corporation (South).
5. According to the case of plaintiff the defendant No,1 runs and manages the defendant No,2 which is also a statutory body and is engaged in maintaining municipal affairs in the District South Karachi and the defendant No,3 was the driver of the defendant No,2 engaged in driving the garbage lifter truck of the defendant No,2 on 2-6-1989 the defendant No,3 while driving the garbage lifter of the defendant No,2 in a rash and negligent manner on Main Shaharah-e-Aam, New Karachi dashed the deceased from the back and dragged him at least 10 steps and caused his instantaneous death; the incident was reported to New Karachi Police Station, Karachi where the defendant No,3 was booked in a criminal case; the death of Taslim Ahmed was caused by the actionable wrong; negligence; default and the wrongful act of the defendant No,3 the servant/employee of the defendants Nos.! And 2 as such the defendants Nos. I and 2 are liable to pay the compensation to the plaintiff the defendants are also liable jointly and severally to pay the compensation/damages to the plaintiff.
6. As to the quantum of damage, it is stated in the plaint that the plaintiff is entitled t6 a sum of Rs,12,00,000 as the deceased was denter and painter and was running a workshop and garage of denting and painting of cars and motorcycles in New Karachi and used to charge Rs,3.000 to Rs,5,000 for the denting and painting of one car and used to have net earning of Rs,10,000 to 11,000 per month. The deceased was getting more and more work with the passage of time and was likely to have few more workshops in the same area and which could have obtained with 5 years, and could have started work with full climax and could have earned at least Rs,15,000 to Rs,20,000 per month. The deceased used to give all of his earning to the plaintiff and other legal heirs and wanted to give them maximum comforts and satisfaction. The plaintiff also claims Rs,15.000 on funeral expenses.
7. The defendants in their written statement admitted to the extent that the defendant No,2 was engaged in maintaining municipal affairs in the District (South) Karachi and defendant No,3 is engaged in driving their garbage lifter truck. It is denied by the defendants that accident occurred due to rash and negligent act of the defendant No,3, the claim of the plaintiff is also denied by the defendants.
8. On 11-10-1992 the Court framed the following issues:--
(i) Whether the death of the deceased (Tasleem Ahmed) was caused on account of negligent and rash driving of the defendant No,3 during the course of employment of defendants Nos.1 and 2 while driving of the garbage lifter belonging to defendants Nos.l and 2 on 2-6-1989 within the area New Karachi Police Station?
(ii) Whether the defendants. Are liable to pay compensation/damages to the plaintiff jointly and severally, if so. To what extent?
(iii) Whether the plaintiff is entitled to cost and interest/profit at mark-up rate as claimed?
(iv) What other relief or reliefs this Honourable Court may deem fit?
9. The plaintiff examined herself as P.W.1 and another witness Muhammad Azam as P.W.2 by filing the affidavits in evidence. The plaintiff produced her identity card, identity card of the deceased Taslim Ahmed and photo copy of F.I.R. No,243 of 1989 dated 2-6-1989 lodged at New Karachi Police Station as Exhs.P.1 to P.4. None of the above witnesses has been cross-examined by their counsel.
No evidence has been led by the defendant to rebut the evidence of The plaintiff. Issue No,1
10. The P.W.2 Muhammad Azam who was eye-witness to the accident was examined by the plaintiff to prove the accident as claimed in the plaint. The P.W.2 has filed his affidavit-in-evidence wherein he supported the case of the plaintiff regarding the rash and negligent driving of the defendant No,3 resulting into death of the deceased Taslim Ahmed on 2-6-1989. This P.W.2 was not cross- examined by the defence as such his statement remained unrebutted. Thus, omission to cross- examination on this material aspect of the evidence lead to. The conclusion that the defendants have admitted the veracity and truth of the said statement. In such circumstances the statement of P.W.2 on the material aspect of rash and negligent driving would be deemed to have been admitted and would be relied upon by the Court. My finding, therefore, on the Issue No,1 is in affirmative.
Issues Nos.2, 3 and 4
11. The issues can be dealt with together as they were connected with each other. Since the finding of the Issue No,1 is in affirmative and it is proved that accident took place as claimed by the plaintiff and thus the defendants are, therefore, liable for payment of compensation to the plaintiff jointly and severally.
12. Mr. Nasir Maqsood, learned counsel for the plaintiff submits that according to the preponderance of authority life expectancy in Pakistan is to be taken at 70 years and I would, therefore, proceed in accordance with preponderance of authority, on the basis of life expectancy of 70 years.
13. The counsel for the plaintiff also submitted a statement of claim alongwith written notes of argument in support of the above issues and according to him the pecuniary loss to the plaintiff which arose out of accidental death of deceased Taslim Ahmed comes as under:--
(i) Average life span in Pakistan 70 years
(ii) Loss of pecuniary benefits by the plaintiff for 27 years as the plaintiff was 43 years old at the time of accident: (70-43)27 years
(iii) Income per month by running a denter and painter workshop and Garrage in New Karachi at Rs,5,000 per month on average
(iv) Annual income comes to Rupees (5000 x12) Rs,60,000
(v) Average loss of pecuniary benefits for 27 years (60,000 x 27)Rs,16,20,000
(vi) Add 20% on account of increment on aggregate income for overall (Rs,16,20,000 divide by 5)Rs,3.24,000
(vii) Gross loss of pecuniary benefits for 27 years (16,20,000 + 3,24,000) Rs,19,44,000Rs,19,44,000
(viii) Less 1/3rd on account of personal expenses of the deceased (19,44,000 divide by 3)Rs,6,48,000
(ix) Net loss of pecuniary benefits (19,44,000 - 6,48,000Rs, 12,96,000
14. The above calculation is not questioned by the defendants and the assessment made in the said statement of claim appears to be in consonance with the law laid down by the superior Courts in respect of quantification of the compensation in fatal accident cases. Since the plaintiff has prayed for a decree merely in the sum of Rs,12,00,000 I am not inclined to grant more than the amount claimed. Thus, in view of the fact that the evidence of the plaintiff on the factum of the ages of plaintiff and deceased on the point of present and expected earning capacity of the deceased forming the basis of the claim is not rebutted and controverted, nor defendants have led any evidence to prove diminution of plaintiff's claim. I am inclined to hold that the plaintiff is entitled for a sum of Rs,12,00,000 on account of loss of pecuniary benefits with mark-up at the rate of 14% per annum from the date of filing of suit till realization and cost. The decree to be satisfied within two months.