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---S. 1 read with Court Fees Act (VII of 1870) [as amended by Sind Finance Act (XV of 1975)], Art. 20-Suit for damages-Payment of court-fee-Held, payable under Act in case, in question, in circum stances.-[Damages].

--- S. 1-Suit for damages-Payment of court-fees--Payable after realisation of decretal amount - Court Fees Act (VII of 1870), Art. 20 [as amended by Sind Finance Ordinance (XV of 1975)], Sind Finance Ordinance (XI of 1979) and Sind Finance Ordinance (XII of 1981).-[Damages).

Abdul Haleem Khan for Plaintiff.

Abdul Sattar Shaikh, A. A.-G. for Defendant. -

Dates of hearing : 25th and 28th January, 1982.

This is a suit for recovery of Rs. 2 lacs under . the Fatal Accidents' Act, Briefly the facts are that Mansoor Hussain, his wife Zohra the plaintiff No. 2, son Adam Hussain plaintiff No. 1, Habiba daughter and another son Yaqoob Hussain were coming in car from Quetta to Karachi. The car was being driven by Yaqoob and when they reached about 5 miles away from Hyderabad an Oil Tanker No. M N B 2453 driven rashly and negligently collided with the car whereby Mansoor Hussain and Yaqoob died instantaneously while Habiba died in the hospital. The plaintiffs were injured and the car was completely smashed. This incident took place on 7th September, 1978 at about 5 p. m. A report was lodged and the defendant was challaned. The plaintiffs have thus claimed Its. 2,00,000 as damages. suffered due to the death of- these three persons.

2. The defendant in spite of service has not appeared and no written statement has been filed by him.

3. The plaintiffs have examined Adam Hussain who is plaintiff No. 1. He has described the. incident that while he was coming from Quetta with tire aforestated persons it' the car at about 8 p. m. about 'I miles away from Hyderabad there was a line of trucks on the opposite side. Out of this row all of a sudden an Oil Tanker which had extinguished its lights came out and put on its light. At that time the plaintiff's car lead moved partly on Kutcha road and partly on the road surface but the Oil Tanker which was owned and driven by the defendant dashed against the car thereby causing death of his father, his elder brother and sister which have been named above. He himself and his mother plaintiff No. 2 were injured. The plaintiff has stated that his father was engaged in business in the name and style of Hussain & Co. and was dealing in motor car tyres. He was earning between Rs. 2,000 to Rs. 2,500 per month, fl is son Yaqoob was also working with him. His sister Habiba was a Commerce graduate and was completing her Chartered Accountant's Course with Ferguson & Co. who were paying her an allowance of ks. 380 per month. He has stated that both these persons were giving me entire amount for family expenses. He has further stated that the age of his deceased father was about 57 years and he would have lived upto the age of 70 or 75 years as his grandfather died at the age of 75 years and grand mother died at the age of 85 years. He has further stated that his father was enjoying good health and did not even smoke. From the statement of the plaintiff No. 1 it is established that the defendant was rashly and negligently driving the Oil Tanker which dashed against the car of the plaintiff, smashed it and caused death of 3 persons two of which had died instantaneously. Mansoor Hussain the father of plaintiff No. -1 and husband of plaintiff No. 2 was earning member of the family and died in this accident. Although the plaintiff has stated that that his brother Yaqoob was also working with his father but he has not stated what was ibis earning and whether he spent it on the maintenance of the family. fie has stated that Habiba, his sister, was getting a stipend of Rs. 380 per month which she used to give to the family members. However, for purposes of assessing the damages I will only restrict to the earn ing capacity of Mansoor Hussain the father of plaintiff No. 1. The plaintiff has stated that he was doing business and earning Fps. 2,000 to Rs. 2,500 per month. I will take his monthly income at Rs. 2,000 per month. About his age the plaintiff No. 1 has stated that he was 57 years of age and would have lived for more than 70 or 75 years. I wi11_ take his expectancy of life -at 65 years. The deceased Mansoor Hussain would have spent some money on his personal expenses also which according to the authorities may be estimated at 1/3rd of the income. In this way the deceased would have spent on his family Rs. 1,334 per month. This amount was being spent on the plaintiffs as well as two other members of .the family. However, as Yaqoob and Habiba were earning themselves they may not be completely dependent upon the father. However, since they were jointly living with their father it cannot be denied that part of the income spent on family members would have also been spent on these two persons. Therefore, it would be safe to fix the amount spent on the plaintiffs at Rs. 1.000 per month. In view of these facts the plaintiffs have suffered a loss of Rs. 96,000.

4. I, therefore, decree the suit against the defendant for a sum of Rs. 96;000 with costs and interest at the rate of 12 per cent per annum from the date of suit till recovery.

5. The plaintiffs have not paid court-fee as they were under the impression that on suit under the Fatal Accidents Act, court-fee of Rs. 1.5 is payable. "-'he objection regarding payment of court-fee has arisen because of certain legislative amendments in the Court Fees Act. In the year. 1975 by Sind Finance Act, 1975 (Act XV of 1975) Article 2 0 was added in the Court Fees Act, whereby court-fees of Rs. 15 was payable on suits filed under Fatal Accidents Act. 1n the year 1979 by Sind Finance Ordinance, 1979 (Ordinance XI of 1979), Article 20 was omitted. Again by Sind Finance Ordinance, 1981 (Sind Ord. XII of 1981 amend ment was made in Court Fees Act, which provided that no fee shall be charged on plaint or memorandum of appeal for recovery of damages under the Fatal Accidents Act, 1855. The learned counsel for the plaintiffs has contended that the Court Fees Act, being procedural, the law, at the time of judgment should be applied. Otherwise the same provision would not lave been reintroduced. The learned counsel for the plaintiffs has further pointed out that in view of Razak v. Usman (P L D 1975 Kar. 944), no court-fee is payable. He has further drawn my attention to the recommendation of Islamic Ideology Council to the effect that court-fee should not be charged and finally he submitted that in a proper case the Court has discretion to extend the time under section 149, C. P. C. Considering the contentions raised on behalf of the plaintiffs, the nature of the suit and the history of legislation providing for payment of court fee, in any opinion it is a fit case where plaintiffs should be,- , allowed to pay the court-fee after realization of the decretal amount.

M. Y. M. Petition accepted.

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