SARMAD JALAL OSMANY, J.--- This is a suit under the Fatal Accident Act for compensation in the amount of Rs,10,00,000/-.
2. The brief facts of the matter as disclosed in the plaint are that one Samandar Khan died in a traffic accident on 5.5.1987 within the area of the Airport Police Station, Karachi East, leaving behind plaintiffs Nos. 1 to 4, who are his minor sons and daughters as his legal heirs besides others who are majors and whose names appear in Paragraph No. 1 of the plaint. It is stated in the plaint that Bus No. 830-517 owned by defendant No. 1, viz. Karachi Transport Corporation, while being driven by defendant No. 2, Bilal Khan, in a rash and negligent manner crushed the deceased, who was standing on the footpath at Natha Khan Bus Stop on 5.5.1987, as a result of which he had expired. It has been further averred that the deceased was aged about 45 years and when he died, he was in good health and used to carry on a business of car dealership/brokerage in Gulzar Market. As a result of his business operations the deceased used to earn Rs.7,000/- to Rs.10,000/- per month. It has been specifically stated that the deceased enjoyed good reputation with his customers and was very hard working and consequently his death has deprived the plaintiffs and his other dependents of their basic needs as they had left their education and were compelled to search for some work in order to earn their livelihood. So also it has been averred that the deceased used to do domestic work which had a monetary value of Rs.500/- per month and that he used to spend all his earnings on the plaintiffs and his other dependents except for Rs.200/- per month which he kept apart for his personal expenses.
3. It has also been stated in the plaint 'that as the death of the deceased was caused by the wrongful and negligent act of defendant No. 2 who was/is a servant/employee of defendant No. 1 consequently the defendant No. 1 is also equally liable to pay a compensation to the plaintiffs as prayed for.
4. Both the defendants were served and since only defendant No. 1 entered appearance and filed its written statement the defendant No. 2 was declared ex parte on 29.10.1989. In the written statement filed by defendant No. 1 certain preliminary objections have been taken regarding filing of suits by the learned counsel for the plaintiffs in this Court under the Fatal Accidents Act on the basis of contingency fee which has prevented the defendant No. 1 from approaching the legal heirs of the deceased for the purpose of-settlement and has also increased the burden of this Court. It has also been averred in the written statement that the suit is time-barred. Further more all the averments contained in the Plaint have been controverted including the factum of the accident, the earning capacity of the deceased as well as quantum of compensation payable if any by the defendant No. 1.
On the basis of the parties pleadings the following issues were framed:-
(1) Whether the death of deceased Samandar Khan on 5.5.1987 at Shahrah-e-Faisal, near Natha Khan Bus Stop, was caused by wrongful act, negligence and default of defendant No. 2 Bilal Khan in driving Bus No. 830-517 in a rash and negligent manner and in dashing the bus against the deceased, who was on the foot path?
(2) Whether the defendant No. 2 was in employment of the defendant No. 1 at the time of the aforesaid accident and he was driving the Bus belonging to defendant No. 1?
(3) Whether the deceased was earning Rs. 7,000/- to Rs.10,000/- per month as a car dealer and whether his income could have increased to Rs.15,000/- per month?
(4) Whether the plaintiffs are entitled to an amount of Rs.10,00,000/- as damages/compensation for the loss of life of the deceased?
(5) What should the decree be?
Following additional issues were also framed on 13.11.1996.
(1) Whether the plaintiffs who are minor legal heirs of the deceased can bring a suit for compensation under Sections 1 and 2 of the Fatal Accident Act, 1855 after expiry of period of limitation as provided under Article 21 of the Limitation Act and before the period of disability ceased to exist, as provided under Section 6 of the Limitation Act? And
(2) Whether, to avail benefits of Section 6 of the Limitation Act, a plaintiff is required to show that no other person was competent to give discharge on behalf of minors as provided under Section 7 of the Limitation Act?
The defendant No. 1 examined Karim Bux who is its Secretary as well as Bilal Khan Def. No. 2 who was the driver of the Bus in question and employed with the defendant No. 1 and thereafter the defendant No. 1 closed its side.
Mr. Nasir Maqsood, learned counsel for the plaintiff has addressed the issues of limitation first viz. The Additional Issues. He has submitted in this regard that although the suit was filed beyond the period prescribed by Article 21 of the Limitation Act, which contemplates one year counted from the date of the fatal accident, it was filed by the minor plaintiffs, who were the statutory beneficiaries of the deceased, as per the provisions of the Fatal Accidents Act, 1855. The plaintiffs Nos. 1 to 4, who are such minor beneficiaries (or were at the time of filing of the suit) have filed the suit through their next friend for their on benefit as well as for the benefit of the deceased's other dependants viz. Their mother Qalandar Jan and their brother Muhammad Nazeer (widow and unmarried major son of deceased respectively). As such, the suit was filed in a representative capacity as per the Fatal Accident Act. Consequently, it is submitted that the suit would not be time-barred in view of Section 6 of the Limitation Act, which gives the right to a person suffering from any legal disability at the time when the cause of action accrued to file the suit/proceeding/application etc. When such legal disability ceases as during such period limitation would remain suspended. Further it has been submitted that the benefit extended by said section could also be availed of by the widow and major children of the deceased , who would consequently be entitled for compensation under the suit. So also learned counsel has submitted that Section 7 of the Limitation Act would not apply in the circumstances of the case as the major plaintiffs could not give a valid discharge in respect of the minor plaintiffs right to claim compensation for the death of their deceased father which was a very valuable right. In support of this contention, learned counsel has relied upon Farazuddin v. Pakistan Navy (1991 CLC 1866), Muhammad Aqil V. Akhtar Hussain (PLD 1971 Kar. 864), Marium v. Ali Bahadur (1996 CLC 692) Iftikhar Hussain v. KESC (PLD 1959 W P Kar. 550), Shamsun Nisa v. KTC (PLD 1975 Kar. 914), unreported judgment in Suit No. 879 of 1986 (Bakhtawar v. KTC), and unreported order dated 9.9.1990 in Suit No. 937 of 1990 (Marium v. Ali Bahadur). Learned counsel further submitted in this regard that the Fatal Accident Act being a beneficial piece of legislation enacted to provide compensation to the family of the deceased for wrongful death, the prOvisions thereof must be interpreted liberally in order to suppress the mischief and advance the remedy. In this regard learned counsel has relied upon an unreported judgment in Civil Petition No. 201-K of 1997 entitled Pakistan v. Raeesa Begum handed down by the Hon'ble Supreme Court as well as Sindh Employees Social Security Institutions v. Spencer and Company (Pak.) Ltd. (1998 SCM R 440), and Shaheen Airport Services v. Sindh Employees Social Security Institution (1994 SCM R 881).
5. As regards the merits of the case, learned counsel has addressed Issues Nos. 1 and 2 together viz. Whether the death of the deceased Samandar Khan was caused by the wrongful act and negligence of the defendant No. 2, Bilal Khan, while driving Bus No. 830-517 as a result of which the deceased died and issue No. 2, whether defendant No. 2 was in employment of the defendant No. 1 at the time of the aforesaid accident. In this connection, learned counsel has submitted that rebuttals in the written statement with regard to the above factual statements contained in the plaint were not specific and consequently were hit by the provisions of Order 8, Rules 3 and 4, CPC and as a result thereof under Order 8, Rule 5, such facts would be deemed to be admitted. In the result, Article 113 of the Qanun-e-Shahadat Order, 1984 would come into play whereby facts which have been admitted need not be proved. In view of the foregoing submissions, learned counsel has argued that the factum of the accident which took place on the day of incident, as well as that the defendant No. 2 was driving the bus in question in a rash and negligent manner which struck the deceased on the footpath and as a result whereof he died, stand proved. In this connection, learned counsel emphasized the contents of Paragraphs Nos. 2 and 3 of the plaint in which such allegations were contained and the reply thereto in the written statement where it has only been averred' that as to the contents of paragraph No. 2 the plaintiff is to put strict proof of the same and with regard to paragraph No. 3 again the same averments have been made along with the denial that the contents are false and baseless. In support of this proposition, learned counsel has relied upon Syed Afzal Hussain v. KTC (PLD 1997 Kar. 253), Fazal Mehmood v. Sardar Khan (PLJ 1996 Kar. 1039), lnam Nagshbandi v. Hap. Shaikh ljaz Ahmed (PLD 1995 S.C. 314), Kursheeda v.
Qudratullah (1988 CLC 1062), Rah-e-Manzil Transport v. Muhammad Aamin (PLD 1963 Kar. 182), Shaikh Abdul Sattar v. Union of India (AIR 1970 SC 479) and Badat and Co. Vs. East India Trading Co.
(AIR 1964 SC 538).
6. Further learned counsel has submitted that PW-1, Sher Baz who was an eye-witness has categorically given a graphic account of the accident in his examination-in-chief to the effect that he saw the Bus coming from Saddar side and going towards Malir side at a very fast speed and another bus also of KTC following it. On reaching the bus stop, the first Bus hit the deceased standing on the footpath. The witness has further deposed that he was standing 10/15 paces away from the deceased and after the accident, he along with some other persons removed the deceased to Jinnah Hospital. The number of the Bus was 830-517.
He has further deposed that the policeman at the stop had identified the driver and had given his name as Bilal Khan. The said witness was not cross-examined on these points and accordingly, learned counsel has submitted that as his testimony has gone unchallenged, it should be given full credence and accepted as true unless displaced by reliable, cogent and clear evidence. For this proposition, learned counsel has placed reliance upon (NLR 1992 Civil (SC) 36), Aziza v. Muhammad Sarwar (1 997 MLD 2013), Maryam Mirza v. M.M. Kazi (1988 MLD 1651), Roshan Jan v. Pakistan (1997 CLC 1517).
7. As regards the deposition of DW-1, Bilal Khan, who is also defendant No. 2 and the Driver of the bus in question, learned counsel submitted that the said witness did not support the contents of the written statement and gave evidence beyond the pleadings, introducing totally new facts regarding the accident. This, as per learned counsel cannot be permitted as a party cannot be allowed to prove what it had never pleaded as per the maxim "secundun allegata et probata" viz. That a party can only succeed to the extent of what has been alleged and proved. In support of this proposition, learned counsel relied upon Syed Afzal Hussain v. KTC (PLD 1997 Kar. 253), Bin Yamin v.
Hakim, (1996 SCM R 336) and Aamir Shah v. Ziarat Gul (1998 SCM R 593).
8. Learned counsel has . Further submitted that no independent witness was ever examined by the defence, which cast grave doubt on the reliability of defendant No. 2's testimony. Failure, in this regard, in the circumstances of the case viz. That the accident took place at main Shahrah-e- Faisal Road at 1600 hours when traffic was at its peak, would be fatal to the defendant's case as held in Gul Bana v. Muhammad Ramzan (1982 CLC 1120), Abdul Hague v. Pak Railway (1987 M LD 1703) and Nimmi Francis v. M. Saeed Qureshi (1982 CLC 1703). Even otherwise, as per learned counsel the evidence of the bus driver who was involved in the traffic accident is to be treated with great caution as he is an interested witness, particularly, in the circumstances of the case, when he has admitted that there were other people present on the spot. For this proposition, learned counsel has relied upon Sher Bano v. Kelli Patel (1 986 MLD 111), Khatoon v. Noor Sher Khan (1988 M LD 1236). Lastly, learned counsel has submitted that DW-1 Karim Bux, who appeared for the defence, has stated his ignorance about the facts of the case and consequently his deposition should be totally ignored.
9. Regarding the quantum of compensation as envisaged in issues Nos. 3, 4 and 5, learned counsel has relied upon the statement of claim filed along with the plaint which is based on the average life expectancy in Pakistan of 70 years. Accordingly, as the deceased was of 53 years of age when he died, he would be .Expected to earn fdr another 17 years and it has been established that he was earning a sum of Rs.7,000/- to Rs.10,000/- per month. Consequently, the loss of pecuniary benefits to the plaintiffs stood established in the total sum of Rs.14,28,000/-. To this, as per statement of claim an amount of 20% would added as increment viz. Rs.2,85,600/- which would thus take the total pecuniary benefit to Rs.17,13,600/-. From this amount personal expenses of 1/6th would be deducted amounting to Rs.2,85,600/- thus leaving a balance of Rs.10,00,000/-. Consequently, learned counsel prayed for a decree in the above amount along with interest @ 14% per annum from the date of filing of the suit till payment, plus costs. He further submitted that 50% of such amount may be awarded in favour of the widow of the deceased and remaining 50% distributed between the statutory beneficiaries. For this proposition, learned counsel has relied upon: Gul Khan v. KTC (1997 CLC 932) and unreported judgment in Suit No. 656 of 1996 entitled Saeeda Begum v.
Government of Sindh and Suit No. 697 and 1988 entitled Roshan Bai v. Pakistan Steel Mills.
10. As opposed to the contentions of learned counsel for the plaintiff, Mr. Shafqat Hussain, learned counsel for the defendant No. 1 has submitted that the suit is time-barred having been filed beyond one year of the death of the deceased. In this regard he has maintained that Section 1-A of the Fatal Accidents Act provides that every Suit filed thereunder shall be for the benefit of the were, husband, parents and children, if any, of the deceased and shall be brought in the name of the Executor, Administrator, or Representative of the deceased. Consequently, it is maintained that all the beneficiaries under the Fatal Accidents Act have a joint and identical right to file the Suit and any one of them can do so under the Legal Representatives Act, 1855. Accordingly, in the circumstances of the case, the provision of Sections 6 and 7 of the Limitation Act would not apply to a case under the .Fatal Accidents Act as suits under the latter Act can be filed for the benefit of the persons, who are minors or otherwise disabled by anyone of the other beneficiaries, who are under no legal disability. In the circumstances, it is submitted that the suit could have been filed by the widow/major son/daughter of the deceased within the time limit prescribed by law. It is further submitted that in order to avoid limitation, the suit has been filed by the minors, claiming the adult son/daughter and widow as beneficiaries. In any event, as per learned counsel for the defendant No. 1, the suit could have been filed by the minors when they attained majority.
11. Learned counsel has further submitted that in none of the cases cited by the other side has this aspect of the matter viz. Applicability of the Legal Representatives Act been discussed and consequently, the same are not relevant as far as such applicability is concerned. In view of the foregoing submissions, it has been stressed that the suit is time-barred.
12. As far as the merits of the case are concerned, learned counsel has submitted that the onus of.
Proving the factum of the accident viz. Issue No. 1 has not been discharged by the plaintiff, as only one alleged eye-witness has been examined who appears to be an interested witness being a neighbour of the deceased. Further more, the Driver of the bus has categorically denied that such an accident was ever caused by the bus in question as it was being towed by another Bus.
Consequently, it is quite illogical that the Bus which was being towed should cause the accident.
Further in cross-examination, the Driver has stated that he had been acquitted from the criminal charges brought against him as a result of such accident and that both buses remained parked on the side of the footpath between 3.00 p.m. To 9.00 p.m. While the towed bus was being repaired.
In view of the above, learned counsel has stated that the case has been filed on false and fabricated grounds and should be dismissed.
13. I have heard both the learned counsel as well as gone through the record and written- arguments. My conclusions are as follows:-
14. As regards the issues of limitation viz. Additional issues which were framed on 13.11.1996 the controversy is whether the provisions of Sections 6 and 7 of the Limitation Act would apply to a case filed under the Fatal Accidents Act since under the latter Act the suit is for the benefit of the persons who are the legal heirs/representatives of the deceased. Consequently the suit which was admittedly filed beyond the limitation period of one year as prescribed under the law would be time-barred. In this regard it would be seen that Section 6 of the Limitation Act entitles a person suffering under any legal disability to file a suit when such disability ceases in which circumstances the period of limitation would be counted against such person upon the date of such cessation. On the other hand per Section 7 of the Limitation Act this right can only be availed if there is no one to give a valid discharge on behalf of the person suffering from the legal disability 'without the latter's consent. Consequently, it would be seen that Section 7 which takes away a valuable right given under Section 6, is to be strictly construed. In my view, as a very valuable right had accrued to the minor plaintiffs upon the death of their father viz. To receive compensation as prayed for in the suit, the widow or major son of the deceased could not give any discharge as regards such right.
Therefore, in the present case Section 7 would not apply. In this regard the case of Muhammad Aqil Khan v. Akhtar Hussain and others (supra) is quite to the point as well as the cases of Farazuddin and others v. Pakistan Navy, Iftikhar Hussain v. KESC, Shamsunnisa v. Karachi Road Transport Corporation and unreported judgment in Suit No. 879/1986 entitled as Bakhtawar Shah v. Karachi Road Transport Corporation as well as Marium and others v. Ali Bahadur in Suit No. 937/1990 (supra).
15. As to the contention of learned counsel for the defendant No. 1 that under Section 1-A of the Fatal Accidents Act the suit is to be filed in a representative capacity and hence could have been filed within limitation by the major legal heirs on their on behalf as well as on behalf of minors particularly in view of the Legal Representatives Act, in my opinion, the same is not tenable in law.
The reasoning is very simple because the Limitation Act prescribes the period of limitation for filing of suits, appeals and applications and vide Sections 6 and 7 thereof dispensation has been given to those persons who are either minors or suffering from any other legal disability to file suit after such legal disability has ceased and during such period limitation ceases to run against such person. On the other hand Section 1 of the Fatal Accidents Act provides that all Suits thereunder are to be filed for the benefit of the deceased's legal heirs/representatives in order to ensure that they get their rightful share from any compensation awarded by the Court. These two proviso-ns to law operate independently of each other and one cannot defeat the other. This aspect of the matter has been dealt at length by a Division Bench of this Court in Muhammad Aqeel Khan v. Akhtar Hussain (supra) where it has been held that even though a suit can be filed in a representative capacity by the major legal heir of the deceased for the benefit of the minors non-filing of the suit by the former cannot become in the way saving of limitation under Sections 6 and 7 of the Limitation Act as a right of the minors to claim compensation under the Act is a statutory one and cannot be allowed to be defeated merely due to non-filing of the suit by the major legal heirs for one reason or other.
16. Consequently for the foregoing reasons the Additional Issue No. 1 is answered in the positive and No. 2 in the negative.
Issues Nos. 1 and 2 viz. Whether the death of the deceased was caused by the wrongful act of defendant No. 2 Bilal Khan while driving Bus No. 830-517 in a rash and negligent manner and whether defendant No. 2 was in the employment of defendant No. 1 at the time can conveniently.
Be taken-up and dealt with together.
17. In this connection, PW-1 Sherbaz Khan has deposed that on the day of incident viz. 5.5.1987, he.
Was present at Natha Khan Goth Bus Stop at 1600 hours when he saw the Bus in question coming at a very high speed along with another Bus also at high speed from Saddar side and going towards Malir side. On reaching the Bus Stop the first Bus hit the foot path and went over it and crushed deceased Samandar Khan. Thereafter the Bus had stopped upon hitting the deceased and the witness saw some persons removing the latter to Jinnah Hospital. The driver .Had managed to escape from the scene of the incident but a police man had identified him and had given his name as Bilal Khan. Under cross-examination, the witness has admitted that neither was his name mentioned in the FIR and nor in the Mushirnama. However, he has denied that he is deposing falsely just because the deceased was his neighbour.
18. The next witness who is relevant for the purpose of deciding issues Nos. 1 and 2 is DW.1, Karim Bux who is the Secretary of K.T.C. This witness has deposed that he has no personal knowledge of the facts of the case, however, he recognizes the signatures of Major (Retd.) M.S. Baloch on the written statement, who was the former Secretary of K.T.C. Under cross-examination he has displayed total ignorance of the facts of the case except that the defendant No. 2 is serving with defendant No. 1 as a driver.
19. The next witness is DW-2 Bilal Khan who is a driver in the defendant No. 1's Corporation. He has deposed that he was driving Bus No. 830-517 on the day of the incident but this Bus was towed by another Bus as it was totally out of order. He has also deposed that no accident ever took place during this process on the day of incident. Under cross-examination, the witness has admitted that he had been arrested by the Police in connection with the alleged incident but he has, however, denied that the Bus while in his control had dashed over the foot path and killed the deceased. He has voluntarily stated that both his Bus, which was being towed and the Bus, which was towing it, had gone out of order and had remained parked at the foot path from 1500 to 2100 hours and thereafter when the towing Bus had been repaired by their Mechanic who had come form the Depot when both the Buses were taken them. He has further stated that an FIR was lodged in connection with the alleged incident and he had been prosecuted in relation thereto but thereafter eventually acquitted. He has again denied that the deceased died due to his rash and negligent driving. He has also admitted that an entry is made in the Depot when the Bus reaches there and accordingly an entry of witness's Bus was duly recorded at Landhi Depot at about 2100 hours.
20. A perusal of the afore-mentioned Deposition would show that only one has been examined by the plaintiff who has steadfastly maintained that the Bus in question had crushed the deceased to death on the day of incident. On the other hand, however, defendant No. 2 had appeared in the witness-box and had admitted that he was driving the said Bus on the day of the incident but has denied that his Bus was ever involved in the accident. On the contrary, it is the case of the defendant No. 2 that his bus was being towed by another Bus and remained parked on the foot path form 1500 hours to 2100 hours as the towing Bus had gone out of order and consequently there could be no question of any accident having taken place.
21. It would be seen that the plaintiff have categorically asserted in the plaint viz. Plaintiffs and 3 that the accident took place on 5.5.1987 due to the rash and negligent driving of defendant No. 2 while driving Bus No. 830-517, which resulted in the death of the deceased and at that time the Bus was owned by defendant No. 1. This statement in the plaint has been fully supported by PW-1 who has deposed that on the day of incident he was standing at the Bus Stop when he saw the Bus in question hitting the foot path and crushing the deceased resulting in his death. He has further stated that he was standing only about 10 to 15 paces away from the deceased and that he had been told by the police man on duty that the name of the driver was Bilal Khan. However, nothing has been come out in his cross-examination, which could displace the examination-in-chief of PW-1 Sherbaz although he has been put a number of questions as to his whereabouts on the day of incident, which in may opinion he has answered satisfactorily. In this regard, he has deposed that he worked in KDA Pipe Factory near Dalmia, which is about 2 1/2 miles away from the place of incident and on the crucial day after finishing his duty at 1400 hours he had reached home at 14.30 hours, taken a meal and then left his Home for Qauidabad. He has further deposed that the Bus Stop is at a distance of 20 minutes walk from his house and it is the nearest Bus Stop.
Consequently, PW-1's presence at 1600 hours on the day, time and place of incident has gone un- rebutted under cross-examination and hence I have no reason to disbelieve him.
22. It would also to be seen that the plaintiff case is set out in paras 2 and 3 of the plaint wherein it has been specifically mentioned that the defendant No. 2 was driving the bus in question in a rash and negligent manner which consequently hit the deceased Sardar Khan at the footpath who ultimately succumbed to the injury. This statement of fact has been denied in the written statement of defendant No. 2 as being false and baseless that the deceased died due to fatal injuries suffered because of the defendant No. 1 's rash and negligent driving. No other ground of defence was raised by the defendant No. 2. Learned counsel has accordingly submitted that as no specific denial has been made by the defendant No. 2 all the allegations contained in the plaint would deem to be admitted under Order 8, Rule 5, CPC and in terms of Art. 113 of the Qanun-e- Shahadat Order, 1984. In support of which proposition he has referred to S. Afzal Hussain v. KTC, Fazal Mahmood v. Sardar Khan, Inam Naqsbandi v. Hap. Shaikh Ejaz, etc. (supra) However, in my view, Order 8, Rule 5, CPC would not apply to the facts of the present case as the defendant No. 2 has effectively denied the allegations contained in the plaint as regards the involvement of the bus and that the defendant No. 1 in the accident in question which is certainly not an evasive denial.
Consequently the plaintiff had to prove such allegations of fact and to that extent the provisions of Arta 113 of the Qanun-e-Shahadat Order, 1984 would also not be relevant as the same does not require admitted facts to be proved which is not the case in the present matter.
23. On the other hand it would be seen that defendant No. 1 through its witness D.W. 2 Bilal Khan has set-up an entirely new case to the effect that the bus in question was being towed by another bus and both buses had broken down and remained parked beside the footpath between 1600 hours to 1900 hours. Consequently, there could be no possibility of the accident having taken place. This plea in my view defendant No. 1 cannot be allowed to take advantage of since it is a not its case in the written statement. It is a fundamental principle of law that parties cannot be allowed to go beyond their pleadings since otherwise it could give an unfair advantage to the other party.
Reference in this connection can be made to Bin Yamin v. Hakim and Aamir Shah v. Ziarat Gul (supra).
24. In view of the above foregoing discussion issues Nos. 1 and 2 are answered in the positive.
25. Issue No. 3 pertains to the income of the deceased. In this respect it would be seen that per the deposition of PW-2 Mahar Zaman who is a Car Dealer, the deceased who was also a Car Dealer used to make about Rs.8000 to Rs.10,000/- per month as he used to sell 4/5 cars in a month. In his cross-examination the witness has admitted that neither he nor the deceased had any documentary evidence regarding their business and also that he had never paid any income tax.
He has also admitted that the deceased never had any direct business relationship with him. PW.3 Muhammad Yamin who is the son of the deceased has supported P.W.2 as regards the deceased's profession as a Car Dealer and has also deposed that the deceased's monthly income was between Rs.8000/- to Rs.10,000/-. In cross-examination he has admitted that in some months the deceased's income may have gone down form the average figures narrated by him. The witness also admitted that he had no documentary proof regarding the deceased's income but added that he had some idea of the same because he had accompanied his father to the market where such business was being carried on.
26. In view of the foregoing in my opinion, the plaintiff has succeeded in establishing that the deceased was infact a Car Dealer who used to by/sell second hand cars and that in one transaction he would possibly earn Rs.2,000/- and also that in a month he would sell 4/5 cars. This conclusion has been drawn from the fact that in the cross-examination nothing has been brought out to the contrary except there was no documentary proof regarding the deceased's business. In my view, the deceased was a person belonging to the lower income group and it is hardly possible that he would keep any documentary record of the transactions in which he was engaged.
Consequently, I would hold that the deceased was earning between Rs.8,000/- to Rs.10,000/- in a month at the time of his death and therefore, the average income of Rs.7,000/- per month as submitted by the learned counsel for the plaintiff is not unreasonable. Issue No. 3 is accordingly answered in foregoing terms.
27. As regards Issue No. 4 viz. The amount of Rs.10,00,000/- claimed by the plaintiff as compensation, it would be seen that in terms of the formulation laid down by the Hon'ble Supreme Court in Pakistan Steel Mills Corpr. v. Malik Abdul Habib (1993 SCM R 848) the average life expectancy in Pakistan is 70 years. The deceased per Exh.3/2 (copy of NIC) was aged 53 years at the time of his death, therefore, the pecuniary benefit to be awarded for 17 years comes to Rs.14,28,000/-. To this amount 20% is to be added as increment viz. Rs.2,85,600/- thus the grand total of compensation would be Rs.17,13,600/-. From this 1/6th is to be subtracted as personal expenses viz. Rs.2,85,600/- thus making a gross balance amount of Rs.14,28,000/-. Consequently, the suit is decreed in the sum of Rs.14,28,000/- against the defendants jointly and severally along with markup @ 14% per annum from the date of filing of the suit till payment. The decretal amount shall be distributed between the legal heirs of the deceased according to their Shares as per Muslim law. The above formulation finds support from the cases decided by the Superior Courts viz. Mst. Zaibun Nisa Begum v. Pakistan Coast Guards (1987 M LD 883), Ameena v. Government of Pakistan (1995 M LD 1922) and Gui Khan v. Karachi Transport Corp. (1997 CLC 932).