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(a) Fatal Accidents Act (XIII of 1855)‑

‑ S. 1‑Limitation Act (IX of 1908), S. 12 & Art. 21 ‑ Suit for recovery of damages under Fatal Accidents Act ‑ Death of a person through rash and negligent driving ‑ Period of limitation‑Computation of period ‑Periad of limitation for a suit under Fatal Accidents Act, would be one year‑‑Such period, held, would run from date of death of person killed‑Date of death would be excluded for computing period of one year ‑ Last day of limitation being holiday, suit could be filed on following day.

(b) Civil Procedure Code (V of 1908)‑‑

‑‑ 0. XXXII, Rr. 1 & 3‑Suits by or against minors‑Requirements -Suit by minors is to be bled by next friend‑Suit against minor defendant is to be filed through a guardian ad /item‑Suits by minors filed through mother, father or grandfather, held, would be proper and competent.

(c) Fatal Accidents Act (XIII of 1855)‑

‑‑ S. 1‑Death through rash and negligent driving‑Suit for damages Locus standi to sue‑Bus through which death was caused was admittedly owned by defendant and driver of bus being employee of defendant, suit filed by wife, husband, parents and children for whose benefits such suit was filed, held, would have locus standi to file suit.‑[Locus standi].

(d) Fatal Accidents Act (XIII of 1855)‑

‑‑ S. 1‑ Qanun‑e‑Shahadat Order (10 of 1984), Art. 118‑Death by rash and negligent driving‑Onus of proof‑Onus of proof, held, would lie on a person who asserts a claim and wants Court to believe same‑Hadith of Prophet (s. a. w.) would enjoin proof on person who is claimant and oath on person who repudiates such claim.

Seethamma and others v. Benedict D'sa and others A I R 1967 Mys. 11; Mariambai and others v. M. M. Isphani Ltd. and another P L D 1965 (W. P.) Kar. 59 and Ghulam Muhammad v. The Crown P L D 1953 Lah. 260 ref.

(e) Fatal Accidents Act (XIII of 1855)‑

‑ S. 1‑Qanun‑e‑Shaha4at Order (10 of 1984), Art. 118‑Rash and negligent driving‑Plea of bursting of tyre repelled‑Fact of such bursting of tyre, held, was to be proved by defendant‑Non‑produc tion of report of Motor Vehicle Inspector as well as witness from Police Department by defendant, about cause of accident, held, would negative plea of bursting of tyre‑Investigation by Police about cause of death of deceased having not been challenged and fact of such death by rash and negligent driving of bus owned by defendant's driver, having been proved by plaintiffs and not con troverted by cogent evidence by such defendant would prove such death having been caused by rash and negligent driving of bus.

(f ) West Pakistan Motor Vehicles Ordinance (XIX of 1965)‑

‑‑ S. 67(2)‑Fatal Accidents Act (XIII of 1855), S. 1‑Entitlement to compensation‑Compensation payable for death of, or injury to, a passenger, held, would be 1n addition to any sum which a person was entitled to receive as compensation under policy of insurance in accordance with provisions of S. 67 of Motor Vehicles Ordinance, 1965 ‑ Claimants having already received compensation under Ordinance 1965 would not be barred from "pursuing their remedy under Fatal Accidents Act as well although compensation received by plaintiffs under Ordinance 1965 would have bearing on the quantum of compensation to be awarded to them under Act XIII of 1855.

Muhammad Younus Khan and 3 others v. Karachi Road Transport Corporation and another 1984 C L C 2830 ref.

(g) Fatal Accidents Act (XIII of 1855)‑

‑‑ S. 1‑Normal expectancy of life, determination of‑Determination of expectancy of life, held, would largely depend on life conditions of deceased and his family background ‑Factors of general physique and ratio of death in pedigree of deceased and ages of persons alive in family would be a guiding factor for determining life expectancy Evidence for determination thereof being scanty Court fixed such expectancy to be sixty years.

Abdul Kadir v. Mir Ashraf Ali Khan and 2 others 1982 C L C 110; Miss Shamsun Nissa and another v. Karachi Road Transport Corporation and 3 others P L D 1975 Kar. 913; Mt. Koshalia and another v. Riaz‑ud‑din and others A I R 1936 Lah. 362; Iftiqar Hussain and another v. Karachi Electric Supply Corporation P L D 1959 Kar. 550; Ursulna v. Orient Airways Limited and others P L D 1960 Kar. 712; Bashir Begum and others v. Muhammad Ali Premjee P L D 1960 Kar. 785; Manmatha Nath Kuri v. Mokhlesurehman P L 1963 Kar. 90; Nusrat Ali v. U. K. Construction Company and others P L D 1963 Kar. 844; Kulsoom v. Jalil Ahmed Khan and others P L D 1964 Kar. 72; Muhammad Raza Khan v. Pakistan P L D 1965 Kar. 244; Din Muhammad and 3 others v. Faqir Muhammad and 2 others P L D 1970 Lah. 442; Miss Shamsunnka and others v. Karachi Road Transport Corporation P L D 1975 Kar. 914; Mr. Gohar v: Muhammad Hanif and others P L D 1975 Kar. 432; Rickaya Bai and S others v. Secretary of Defence, Government of Pakistan, Islamabad and 4 others P L D 1976 Kar. 139; Nusrat Jehan v. Karachi Metropolitan Corporation and 1 others P L D 1980 Kar. 158; Muhammad Siddique and others v. Gul Majeed and 2 others P L D 1980 Kar. 78; Mrs. Dianat Fatima and another v. Mir Abbas Khan and 2 others P L D 1980 Kar. 271; .41st. Warkherna and 4 others v. Abdul Ra.he.‑d and 2 others 1981 C L C 944 ; Jaffar All and another v. Sind Road Transport Corporation and another 1981 C L C 1106; Gul . Bano and 4 others v. Muhammad Ramzan and others 1982 C L C 1 120 ; Mrs. Asnra Ibrahim and 2 others v. S. R. T. C. and another P L D 1932 Kar. 236; Adam Hussain and others v. Muhammad Ayub 1983 C L C 2054; Mst. Zainab Bibi and others v. Muhammad Saeed and others 1983 C L C 1321 ; Barkat Ali Khan and others v. Karachi Electric Supply Corporation Limited P L D 1983 Kar. 453 and Nimmi Francis (Mrs ) and others v. Muhammad Saeed Qureshi and another 1982 C L C 1703 ref.

(h) Fatal Accidents Act (XIII of 1855)‑

‑-S. 1‑Dependency of claimants on deceased‑Minor's dependency as well dependancy of wife and parents of deceased was worked out by Court with reference to their respective ages and expectancy of life of deceased with reference to amount which deceased would have been able to spend on such dependants after deduction of his personal expenses.

Malik Raza Khan v. Pakistan P L D 1965 Kar. 244; Manmatha Nath Kuri v. Muhammad Mokhlesur Rahman and another P L D 1963 Dacca 290; Muhammad Nawaz and 4 others v. Altaf Rasul and 2 others P L D 1985 Kar. 353; P L D 1969 S C 565; Mst. Zebunnisa and others v. Sind Road Transport Corporation and another 1982 C L C 1228 and Mst. Qudsia Begam v. Younus and 4 others P L D 1973 Kar. 636 ref.

(i) Islamic Jurisprudence‑

‑‑‑Transfer of property in Islam through 'sale' and gift' elaborated‑West Pakistan Muslim Personal Law (Shariat Applica tion) Act (V of 1962)‑Succession‑"Estate of deceased" defined Damages to be awarded under Fatal Accidents Act, not estate of deceased‑Islamic Law of inheritance in all its details not applicable to compensation cases arising from accidental death‑Distinction between Diyat and Fatal Accidents Act highlighted.

Transfer of property under Islamic Law is of two kinds or forms : One is voluntary 'and . the other is involuntary Transfer of property that takes place voluntarily is either with or without consideration. Transfer of property with consideration is generally called "sale", and without consideration in one's own lifetime is called Hiba (gift) and if it is made effective after one's death it is called Wassiryat (will). The other kind or form of transfer, being the involuntary devolution of property by which the estate of a deceased person gets automatically transferred to his heirs, is called "inheritance".

"Estate of the deceased" may, thus, be defined as anything that belongs to a man or woman in his or her lifetime and what he or she leaves behind on his or her death, whether it be the movable or immovable properties or rights pecuniary in nature. Thus, the estate of deceased is that property or proprietary rights, which the deceased leaves behind after him. That is why it is called Wirtha, or Tarika, which literally means 'balance' or left over'. If a person dies, during the course of his employment and his heirs are paid a compensation by his employer or a person dies of an accident during his journey by rail or air due to negligence of the air company or the railways and his heirs are compensated under law of the land, or an innocent person is killed in riot the Government pays some compensation to tile heirs, or a person is killed on account of rash and negligent driving of a motor vehicle the owner/driver is required to pay damages to the legal representatives of the deceased. In all these cases the amount received by the heirs may not be regarded as the estate of the deceased, in its strict sense, in the eye of Shari'ah. Thus, the Islamic Law 6f inheritance, in all its details, is not to be applied. It may further be stated that, the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) provides that notwithstanding any custom or usage, in all questions regarding succession whether testate or intestate the rule of decision subject to the provisions of any enactment for the time being in force; shall be the Muslim Personal (Shariat) in cases where the parties are Muslims". The damages to be awarded under the Fatal Accidents Act, 1855, cannot be held to be the estate of the deceased as the same cannot be said to have been left behind by the deceased. Apparently it was non-existent at the time of his death. The provisions of Islamic Law of Succession cannot, therefore, be made applicable to it: At page 96 of Khutbat-i-Bahawalpur by a renowned and pious Muslim Scholar, Dr. Muhammad Hameed-Ullah, wherein the learned author has quoted a directive of the Holy Prophet Muhammad (Sallalaho Alaihi Wasallam). In a matter of blood money the Qazi, following the custom prevailing in the Arab Society, had awarded the blood money of the deceased to male heirs (Asbat) only i.e. son, father, etc. On coming to know of this, the Holy Prophet (Sallalaho Alaihi WaSallam) wrote to Hazrat Zahak (bin Sufyan), the then Governor of Yaman that the widow of the deceased should also be paid in accordance with her share in the inheritance. The tradition also finds place on Sunan Abu Da'ud, as Tradition No. 1163 wherein it is narrated by Said that Umar bin Khattab used to say that the Diyat is for Aqilah and widow will not inherit anything from the Diyat of her husband. Then, Zahbak bin Sufyan told him (Umar) that the Prophet of Allah (Sallalaho-Alehay Wasallam) wrote to him that widow of Ashyam al Zubabi, be paid Diyat of her husband 'according to her share from the inheritance'. Then, 'Umar resiled from his earlier statement. It shows that after Umar bin Khattab came to know of the said tradition that the Diyat is to be paid to heirs of the deceased, whether males or females, including widows, 'Umar resiled from his earlier statement as it had no binding force in presence of the tradition of the Holy Prophet (Sallalaho-Allehay Wassallam). It is also stated in Fatawa Hindiyyah (Urdu translation of Fatawa Alamgiriyya) Lucknow, 1932 Kitab-al-Jinayat, Vol. IX, Chapter 111, p. 303 that to claim the Qisas is the right of all heirs of the deceased and so is the rights of all the heirs to receive the Diyat. Legal position that Islamic law of Qisas and Diyat, in the matter of compensation, in several respects, is distinguishable from the Fatal Accidents Act, 1855. Firstly, section 1 of the Fatal Accidents Act restricts that a suit for damages shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death has been so caused. It implies that in case there is no wife, husband, parent or child of the deceased, no suit for damages under Fatal Accidents Act will be maintainable even if the other heirs of the deceased, for example brother and sister or distant kindred (Zawil Arham) are living, who may otherwise be entitled to inherit the estate of the deceased under Islamic Law. Secondly the' Diyat in the case of Qatl-i-Khata (causing death by mistake or negligence), according to the traditions of the Holy Prophet (s. a. w.) and his reverend Companions, is fixed as 100 camels, or 1000 dinars (of gold) or 10.000 dirhams (of silver) or value thereof, whereas in a case under the Fatal Accidents Act the damages are determined by the Court that have accrued to the bereaved legal representatives of the deceased for his sudden death, which are generally determined on the basis of proof of earning and future prospect of the deceased and dependency s' the legal representatives. Thirdly, in a case of Diyat, Aqilah ('Asbat) certain circumstances, may be made liable to pay the amount of Diyat, whereas under the Fatal Accidents Act, liability is restricted, and fourthly, the State is liable to pay the Diyat in case the offender is not known. So long as the Islamic Law of Qisas and Diyat is not in force, and the Fatal Accidents Act, 1855, continues to hold the field, the case will be governed by the provisions of Fatal Accidents Act, 1855.

Sri Manmatha Nath Kuri v. Moulvi Muhammad Moklesur Rehman P L D 1969 S C 565; Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Limited P L D 1959 Kar. 550; Syed Nusrat Ali v. Messrs U. .K. Construction Co. and another P L D 1963 Kar. 841; Malik Raza Khan v. Pakistan P L D 1965 Kar. 244; Din Muhammad and 3 others v. Faqir Muhammad and 2 others P L D 1970 Lah. 442; Mst. Warkhema and 4 others v. Abdul Rashid and 2 others v. Muhammad ,aged and another 1983 C L C 1321; 1981 C L C944 and The Quantum of Damages-Fatal- Injury Claims by Kemp & Kemp, published by Sweet & Marwell Limited, London 1962, 2^nd Edn., Vol. 2, p. 25 ref.

(j) Islamic Jurisprudence-

---Administration of justice -Guiding principles for Courts-For Islamization of Statute Law mechanism, held, has been provided in Constitution of Pakistan (197 ,)-Courts of Pakistan could seek guidance from Holy Qur'an and Sunnah and apply Islamic principles as applicable in a particular case.

Haji Nizam's case P L D 1976 Lah. 930; Hameeda Begum's case P L D 1975 S C 624; Muhammad Bashir's case P L D 1982 S C 139 and A. M. Qureshi's case P L D 1981 S C 377 ref.

(k) Fatal Accidents Act (XIII of 1855)--

-- S. I-Apportionment of shares among claimant-Principles of Islamic Law urged to be followed instead of applying English principles for apportionment of respective shares among legal heirs of deceased-Court ordered that amount awarded was to be divided in accordance with shares fixed under Islamic Law of inheritance.

(l) Fatal Accidents Act (XIII of 1855)--

Preamble-Fatal Accidents Act desired to be replaced by new enactment in accordance with Islamic jurisprudence.

Muhammad Maqsood for Plaintiffs.

Mir Raza Hussain Hyderi for Defendant.

Dates of hearing : 18th, 27th, February; 21st and 8th April, 1986.

JUDGMENT

These are seven (7) suits bearing -Nos. 492, 593, 541, 542, 544, 545 and 547 of 1984 filed on 28-4-1984 under Fatal Accidents Act, 1855 for recovery of damages in the various sums of money by and on behalf of the legal heirs of 7 deceased persons, as plaintiffs. The common facts relating to the above suits, briefly stated, are that on 27‑4‑1983 at 11‑30 p.m., driver Mumtaz Hussain, an employee of the defendant, while driving the defendant's bus No. 839‑90o (hereinafter referred to as the defendant's bus) on route No. 16‑E. going towards Quaidabad on National Highway reached the centre of Malir Bridge in a rash and negligent manner and dashed the other bus coming from Steel ,dills side (hereinafter referred to as the 'contract bus') and fell down in the dry bed of Malir river from the said bridge on its right side. Consequently, 11 persons travelling by defendant's bus including the deceased Hoor Jehan in Suit No. 492184, Ulfat Hussain in Suit No. 539/84, Abdul Wahid in Suit No. 542/84, Muhammad Ishaque in Suit No. 544/84 and Shaukat Ali in Suit No. 547/84 and two persons travelling by the contract bus, namely, Syed Lutf Ali Shah to Suit No. 841/84 and Muhammad Irfan in Suit No. 545184 died on the spot The first information report No. 135/83 was lodged on 28‑4‑1983 at 12‑30 p.m. at Quaidabad Police Station by one Asif Ali. The case was registered against Mumtaz Hussain, the deceased driver of the defendant's bus, but since both the drivers had died on the spot, no challan was submitted by the police to the Court.

2. The plaintiffs, without serving any notice on the defendant, straightaway filed the above suits against the defendant. The defendant filed its written statements in all the suits. The ownership of the bus has not beet denied by the defendant. It is also not dented that 'the said bus was being driven by its employee Mumtaz Hussain at the time it met the accident. It was, however, alleged that the accident took place due to the negligence of the driver of the contract bus, Lutf Ali Shah.

3. Issues were framed separately in all the suits. However, at the time of arguments, they were discussed with counsel and consolidated as under :‑

(1) Whether the suits are time‑barred and bad for non‑joinder or misjoinder of the parties

(2) Whether the plaintiffs are entitled to file the suits as guardian ad litem

(3) Whether the plaintiffs have any cause of action against defendant

(4) Whether the death of deceased was caused due to rash and negligent driving of the Driver of defendant's Bus No. 839‑906 or due to the rash and negligent driving of Contract Bus of Steel Mills

(5) Whether the plaintiffs have suffered any pecuniary loss due to the death of the deceased.

(6) Whether the plaintiffs are entitled to claim any compensation; if so, to what extent

(7) Whether the plaintiffs are entitled to interest

(8) What should the decree

(9) Cost of the suit. .

4. The plaintiffs examined themselves. Besides, the evidence recorded in Suit No. 547 was, by consent, ordered to be read as evidence in Suits Nos. 492, 539 and 541 to 545. The defendant examined four witnesses on its behalf.

5. My findings on the above issues are as follows :‑

6. Issue No. l.‑All the 7 suits have been filed on 28.4‑1984, Article 21 of the Limitation Act. 1908 prescribes the period of limitation as one year for a suit under the Fatal Accidents Act, 1855 The period into run from the date of the death of the person killed. The death in all the) suits occurred on 27‑4‑1983. The date of death will be excluded for computing the period of one year as provided under section 12 of the Limitation Act. The suit was, therefore, to be filed on or before 27‑4‑1984 The learned counsel for the plaintiffs submitted that there being Friday on 27‑4‑1984 and the Court was closed on that day the suits were file& on the following day i.e. on 28‑4‑1984. He produced a diary for tile year 1984, which supports his submission. Therefore, 27‑41984 is to be excluded as provided under section 4 of the Limitation Act. These suits are thus held to be within time. The finding on the first part of the issue is therefore in the negative.

7. As regards the second part of the issue that the suit is bad for misjoinder and non‑joinder of the parties, Mr. Raza Hussain Haideri, learned counsel for the defendant submitted that the suit is bad as the owner of the contract bus' was not joined as co‑defendant. Since the plaintiffs have made a definite allegation that the accident took place on account of the rash and negligent driving of the driver of the defendant's bus, the owner of the contract bus does not appear to be a proper or necessary party to the suits. The defendant also did not file any appli cation for impleading the owner of the contract bus as co‑defendant. The finding on the second part of issue No. 1 is also in the negative.

8. Issue No. 2.‑The suits . on behalf of the minors have been filed through next friend as provided under Order XXXII, rule 1, C. P. C. The contention of the learned counsel for the defendant that the suits Should have been filed through guardian ad litem seems to be misplaced. The suit by minors is to be tiled by next friend as provided under is Order XXXII, rule 1, whereas a suit against a minor defendant is to be filed through a guardian ad item as provided under Order XXXII, rule 3, C. P. C. Since the suits are by minors and have been filed through their mother or father or grand‑father as next friends, they are held as proper. Finding accordingly.

9. Issue No. 3.‑‑It has been admitted by the defendant that the bus, in question was owned by the defendant and the driver of the said bus was its employee at the time of accident, the cause of action has accrued; against the defendant to the plaintiffs, who are the persons, namely,' wife, husband, parents and children for whose benefit the suits have) been filed as provided under section 1 of the Fatal Accidents Act, 185 Finding is in the affirmative.

10. Issue No. 4--Mr. Mir Raza Hussain Haidri, learned counsel for the defendant contended that the onus of proof of this issue entirely rests with the plaintiffs. In support of his contention he placed his reliance on. the cases of Seetharnma and others v. Benedict D'sa and others A I R 1967 Mys. 11 Mariambai and others v. M. M. Ispahani Ltd. and another P L D 1965 (W. P.) Kar. 59 and Ghulam Muhammad v. The Crown P L D 1953 Lah. 260.

11. In the first‑named case (A I R 1967 Mys. 11) for compensation, under Motor Vehicles Act, 1939, it was observed that in a proceeding like the one before the Division Bench in which compensation was claimed on the ground of negligence on the part of the driver who drove the motor vehicle, the burden of proof was entirely upon the claimants. In the second‑named case (P L D 1965 (W. P.) Kar. 59) it was observed‑"It is the plaintiffs who have alleged negligence and it is they who have asked for damages on account of the negligence. The burden therefore is on them to show as to whether there was any negligence on the part of the defendants on account of which the plaintiff's would be entitled to any damages." In the third‑named case (P L D 1953 Lah. 260), it was,: observed "whether or not the petitioner was rash and negligent is a question of fact about which the Court has to form an opinion, on considering the entire material on the record."

12. There can, thus, be no cavil for the proposition that the onus of proof lies on a person who asserts a claim in his favour and wants the Court to believe it. This proposition is very well‑founded in the first part of the Hadith of our Holy Prophet Muhammad (Sallallahu Ealaihi Wasallem) some 1400 years ago, which reads as the proof is on the person who is a claimant and oath is on the person who repudiates it. Elaborating the first part of the above quoted narration, which is relevant for the purpose of deciding this issue and giving the word "ALBINAYAT" its widest connotation that it means and includes oral testimony of a witness, circumstantial evidence and documentary evidence it is held that the onus of proof of issue No. 4 entirely lies on the plaintiff. It is for the plaintiffs to prove the act of rash and negligent driving and so the question is whether it has been proved in this case.

13. According to para. 3 of the plaint, on 27‑3‑1983 the deceased Mumtaz Hussain, driver of the defendant, driving bus No. 839‑906 in a rash and negligent manner on National Highway when reached the Malir Bridge, in an attempt to overtake another bus, dashed the contract bus of the Steel Mills from the wrong side and consequently the bus of the defendant fell down from the bridge on the ground and the deceased Hoor Jehan in Suit No. 492/84 and other 8 persons including late Mumtaz Hussain driver of the defendant bus died on the spot. Two persons from the contract bus including the driver also died on the spot. F. I. R. No. 135/1983 was lodged with Police Station, Quaidabad on the following day and the police registered the case under section 304‑A, Cr. P. C. against the deceased Mumtaz Hussain, the driver of the defendant bus.

14. The defendant submitted in para. 3 of its written statement that the deceased driver of the contract bus Ulfat Ali Shah‑was contributory to the alleged accident, which was caused due to his fault, negligence and carelessness, by coming from the. opposite side of the defendant bus, which was being driven at the high speed. 1t was alleged that the defendant's bus was at a very slow speed moving towards Steel Mills at the Malir Bridge. The driver of the contract bus driving in high speed whirled against the right side portion of the defendant's bus with such a pressure that the tyre of the right side got burst and the bus turned in the right of the Bridge and fell down, which resulted in the accident.

15. The plaintiffs have examined Hashmat Ali Exh. 5 in Suit No. 547/84, a co‑passenger in the defendant's bus and an eye‑witness whose evidence by the consent of the counsel for the parties was treated as‑evidence in all the other suits. The relevant portion of his deposition reads as under .‑

"I and my family members boarded the bus of K. T. C. of Route No. 16‑E at Colony Gate. Apart from me, the others, who boarded the bus alongwith me, were my deceased son Shaukat Ali, his wife Hoor Jehan, my wife Mst. Sara Bi (plaintiff No. 2), my grand son, Qaiser Ali (vlaintiff No. 3) and another daughter‑in‑law of mine by the name of Farzana. In all six of us had boarded the bus in question. The bus started at a great speed and the bus was going very fast and the driver of the bus was driving the bus very rashly. The passengers as well as the conductor of the bus had been requesting the driver off and on to go slowly but the driver did not pay any heed to this request and he went on driving the bus at a very fast speed. He stopped at two stops namely Wireless Gate and Stop No. 15. While he was on the Malir Bridge, he overtook several vehicles at a great speed and then collided with another bus coming from the opposite side, which was said to be the bus of Steel Mill. The bus of Steel Mill was coming on its correct side, whereas our bus was on the wrong side. Our bus overturned on account of this accident. My son Shaukat Ali died on the spot. Toy daughter‑in‑law, Hoor Jehan also died on the spot in the said accident. All the others received injuries in the said accident. I produce certified copy of the F. I. R. lodged against the driver of the bus as Exb. 5/1."

16. The defendant examined Abdul Jamil Khan Exh. 6 and Noor Muhammad Eah. 7, who are Conductor and Security Guard respectively of the defendant. The relevant portion of the deposition of Exh. 6, reads as under :‑

"When our bus reached the middle of the bridge, a private bus, coming from the opposite side, while overtaking another vehicle, struck our bus on the wrong side. As a result of this accident, the driver of our bus died on the spot. At the time of the accident, our bus was travelling on its correct side i.e. the left hand side. The private bus hit the door of our bus where the driver sits. On account of this accident, our bus fell from the bridge into the dry bed of Malir River."

17. Noor Muhammad Exh. 7 deposed in his evidence that :‑

"Our bus was going on the Malir Bridge on its correct side i e. the left‑hand side. On the opposite side two buses were coming side- by‑side. Both were private buses. One bus was overtaking the other bus. It came on the wrong side and hit the door of our bus where the driver sits.

He further stated that

"On account of the accident the tyre of our bus burst and that is why it swerved on the right and fell on the right hand side of the Bridge."

18. Defendant also produced its Works Manager, Misbahur Rehman Exh. 8, who deposed that

"After examination of our bus which was lying in the Malir River 1 cane to the conclusion that the bus had fallen up‑side down in the Malir River bed from the bridge and was lying up side down, My examination of our bus also showed that the impact of the accident was on account of tyre bursting."

He further deposed that :‑

"My assessment was that the accident had not been caused on account of any negligence of the driver of our bus and that our bus had fallen into the river bed from the bridge on account of the tyre bursting."

19. As regards the plea taken by the defendant that a tyre on right side of its bus burst due to the dashing of the contract bus against the defendant bus, the evidence of Conductor is completely silent on this aspect of the matter and so of the Security Guard in his examination‑in‑', chief. About the tyre got burst, as alleged, no question seems to have been asked from the plaintiffs' witness in the cross‑examination. More., over, had the tyre burst, as alleged, the Motor Vehicle Inspector, in his usual inspection report of the bus after accident must have mentioned the said fact in his report. It was for the defendant to prove the alleged fact of the bursting of the tyre through the report of the Motor Vehicle inspector. 'either the said report has been produced nor any one from F the Police Department has been examined, particularly the S. I. who investigated the case after the accident as per F. I. R. Exh. 5/1.

20. Even if it is assumed, for the sake of argument, that the right side tyre of the defendant's bus had burst, it is of little significance as the fact remains that it burst if at all, subsequent to the dashing of the defendant's bus by its driver against the contract bus which, it seems, was the result of the act of rash and negligent driving of the defendant driver. Had the tyre of the defendant's bus burst before its dashing against the contract bus due to some mechanical reason, it could, perhaps,, be described as a pure accident which is not the case here.

21. It appears from the evidence of the plaintiff Exh. 5, whose evidence seems to he natural, that the deceased driver of the defendant bus tried to overtake the other bus. The deposition of the defence witness, Noor Muhammad that "on the opposite side two buses coming side‑by‑side one bus was overtaking the other bus it came on the wrong side and hit the door of our bus where the driver sits, is not believable as it was the defendant's bus, which was on the wrong side at the time of accident as it fell down from the bridge on wrong side. It is. therefore, clear that it was the driver of the defendant's bus who overtook the other bus going ahead of it and dashed against the contract bus. It appears that he was at that moment rash and negligent in his driving; with the result that he could not stop his bus, which ultimately fell down from the bridge to the dry bed of the river killing the driver of the contract bus and one passenger, sitting on his right side in the contract bus, besides killing nine other persons sitting in the defendant's bus. including the deceased seven persons whose legal representatives have filed the above suits for compensation under the Fatal Accidents Act, 1855. The statement of defendant's witness Misbabur Rahman Exh. 8 as to his assessment that the accident had not been caused on account of any negligence of‑the driver of the defendant's bus, cannot be considered as relevant unless it is covered by sections 45 to 51 of the Evidence Act, 1872 (corresponding to the provisions of sections 59 to 65 of the Qanun‑e‑Shahadat, 1984). The question before me is not of foreign law, or of science, or art, or as to the identity of handwriting, or finger impressions and, therefore, assessment of D W. 3 (Exh. 8) that the defendant's driver deceased Mumtaz was not rash and negligent does not fall within the provisions of the sections referred to above. Had the contract bus hit the defendant's bus, being driven on the wrong side rashly and negligently, the contract bus would have fallen on the ground from the Malir Bridge on the other side, and not the defendant's bus. There is no doubt in my mind that the circumstances in which the defendant's bus bad fallen on its wrong side from the Malir Bridge, the driver of the defendant's bus had dashed against the contract bus from the wrong side driving the same rashly and negligently.

22. Furthermore, I would say that F. I. R. No. 135/83 was lodged with the Police Station by a stranger. The said F. I. R. Exh. 5/1, and the investigation made thereon, was not challenged by the defendant Had the accident been caused due to the negligence of the contract bus the defendant ought to have lodged the F. 1. R. which it failed. It has also failed to take any step against the owner of the contract bus or claiming compensation for the damage caused to their bus. None o the defendant's witness has stated anything about lodging of the F. 1. R. by defendant or any step taken by it against the contract bus. The defendant has also given no explanation by way of justification a: to why it has not taken any step against the person or person, who are alleged to have caused loss to their bus as per their own version.

23. As to the issue whether the death of the deceased was caused due to the rash and negligent driving of the driver of defendant's bus or due to the rash and negligent driving of the contract bus, my finding is that the death of a deceased was caused due to the rash and negligent driving of the driver of the defendant.

24. Issue No. S.‑The plaintiffs and the persons for whose benefit the suits have been filed have been shown to be the dependents of the deceased. The plaintiffs who' are the deceased's wife, minor children and the aged parents will suffer pecuniary loss due to the death of the deceased. They have been shown to be dependents and making their livelihood on the earning of the deceased, pecuniary loss caused to them due to the deaths of the deceased is apparent which has also been proved by the plaintiffs as stated before the Court in their evidence. Finding is, therefore, in the affirmative.

25. Issue No. 6.‑Mr. Mir Raza Hussain Haidri, learned counsel for the defendant, inter alia, contended that a sum of Rs. 16,000 has been paid to the plaintiffs in Suit' Nos. 492. 539, 542. 544 and 547 of 1984 in full and final settlement of the claim of the said plaintiffs in the said suits. He referred to a number of affidavits produced by the defendant while deposing in the suits. The‑.e affidavits are Exhs. 9/4, 9/5, 9/6 and 9/12, which pertain to the claims in Suit Nos. 492. 542, 544 and 547 of 1984. No affidavit has been filed in respect of Suit No. 539. However, the receipt of compensation at the rate of Rs. 16 000 each in the suits mentioned above including Suit No. 539 84 is admitted by Mr. Muhammad Maqsood, counsel for plaintiff. The question arises as to the effect of the receipt of the above payments by the plaintiffs concerned. Mr. Muhammad Maqsood, counsel for the defendant relies on section 67 of the Motor Vehicles Ordinance, 1965, substituted with effect from 28‑2‑1978 by Ordinance VIII of 1978, and is thus applicable to the present case, as the

accident took place on 27‑4‑1983, much after the promulgation of the said Ordinance, 1978. The section reads as under :‑

"Section 61. Compensation for the death of or injury to, a passenger. (1) In the case of death of, or injury to a passenger in a stage carriage or a contract carriage, other than a contract carriage constructed, adapted or used to carry not more than six passengers including the driver, arising out of the use of such carriage, there shall be paid, if a permit has been granted in respect of that carriage, by the holder of the permit, and, if no permit has been so granted, by the owner of the carriage, as compensation the amount specified in the thirteenth schedule,‑

(a) in the case of death of a passenger, to the legal representatives of the deceased passenger, and

(b) in the case of an injury to a passenger, to the injured passenger.

(2) The compensation payable under subsection (1) shall be in addition to any sum which the person entitled to receive compensation may receive or be eligible to receive under a policy of insurance under the provisions of section 95 of the Motor Vehicles Act, 1939 (IV of 1939).

(3) Any contract for the conveyance of a passenger in a stage carriage or contract carriage, other than a contract carriage constructed, adapted or used to carry not more than six passengers including the driver, in respect of which a permit has been issued under this chapter, shall, so far as it purports to restrict the liability of any person, or to absolve any person from his liability in respect of any claim made against that person in respect of the death of, or injury to, the passengers who is being carried in, entering or alighting from the vehicle, or purports to impose any conditions with respect to the enforcement of any such liability, be void."

As it would appear from subsection (2) of section 67, of the Provincial Ordinance, the compensation payable under subsection (1) is in addition to any sum which a person entitled to receive compensation may receive or be eligible to receive under a policy of insurance under the provisions of section 95 of ‑tie Motor Vehicles Act, 1939.

26, In the matter of Islamization of the Motor Vehicles Act, 1939 and the Motor Vehicles Ordinance, 1965 the Federal Shariat Court as reported in P L D 1983 F S C 29 at page 31 observed that :‑

" This provision does not affect a person's right to take proceedings under the Fatal Accidents Act or in tort against the person responsible for any accident which causes the death or injury to a passenger. It is merely a compensation pavablr to a passenger in order to alleviate immediately the suffering of the family of the deceased or of an injured person by helping them financially. Looked in this light it is a salutary provision introduced in the public interest and for the good of the travelling public. Secondly it also puts the owner and driver of the vehicle to more caution so that as far as possible the transport business may be accident free. The Government has the right not only to regulate such business as the transport business in public interest but also to make laws for the greater benefit of the customers or other members of the public affected by such business."

27. Mr. Muhammad Maqsood has also placed his reliance on the case of Muhammad Younus Khan and 3 others v. Karachi Road Transport Corporation and another (1984 C L C 2830), wherein it has been held that section 67 of 1965 Ordinance does not prevent an aggrieved party from persuing remedy available to it under other laws. The said Ordinance does not override specifically the provisions of Fatal Accidents Act.

28. Another connected question before me is whether paragraph No. 6 of the affidavits wherein it has been solemnly affirmed that "the plaintiff will not persue the case with the police or any Court of law" prevents the said plaintiff from filing the case under Fatal Accidents Act or not The answer is readily available in paragraph No. 3 of the affidavits themselves which clearly mention that "the K. T. C. (defendant) agree, through mutal negotiation to pay the said sum of Rs, 16,000 under Motor Vehicles Ordinance as amended from time to time towards compensation." The above term contained in para. 6 will, therefore, be read in the context that the plaintiffs' receiving the compensation under the Motor Vehicles Ordinance, 1965 will not persue their cases. before the police or any Court of law persuant to the provisions of section 67 of the said Ordinance, under which compensation has been paid to them, and not under the Fatal Accidents Act, 1855. Furthermore, subsection (3) of section 67 of the said Ordinance may also be referred to with advantage which provides that any contract for the conveyance of a passenger in a stage carriage or contract carriage, other than a contract carriage constructed. adapted or used to carry not snore than six passengers including the driver, in respect of which a permit has been issued under this chapter shall so far as it purports to restrict the liability of any person or to absolve any person from his liability, in respect of any claim made against that person in respect of the death of, or injury to the passenger who is being carried. in, entering or alighting from the vehicle, or purports, to impose any condition with respect to the enforcement of any such liability, be void. There is, therefore, no force in the contention of the learned count for that defendant that the plaintiff's who have received compensation from the defendant, as referred to above, are barred from persuing their remedy under the Fatal Accidents Act, 1855. The receipt of payment under section 67 of the Motor Vehicles Ordinance, 1965 does, not, ipso facto. prevent the legal representatives of the deceased, from persuit their remedy under the Fatal Accidents Act, 1855, after having received the compen sation under the said Motor Vehicles Ordinance, 1965. However, the compensation received by the several. plaintiffs under section 67 of the Motor Vehicles Ordinance, 1965 will have a bearing on the quantum of compensation to be awarded to such plaintiffs in proceedings under Fatal Accidents Act, 1855.

29. Having dealt with this preliminary question, as raised by Mr. Haidri to the award of compensation, I proceed to consider Issue No. 6 in each suit separate as facts relating‑to the quantum of compen sation are different in each suit, but before doing so I would like to decide the question of expectancy of life of the deceased in .the cases before me.

30. The learned counsel for the defendant has submitted that the expectancy of life of the deceased should be held up to 60 years of age. In support, he has placed reliance on Abdul Kadir v. Mir Ashraf Ali Khan and others (1982CLC110), Miss Shamsun Nissa and another v. Karachi Road Transport Corporation and 3 others (PLD1975 Kar.913), Mt. Koshulia and another v. Riaz‑ud- Din and others (A I R 1936 Lah. 362). In the first two cases the expectancy of life has been held up to 60 years of age, whereas in the 3rd case it was held to be up to 55 years.

31. On the other hand, learned counsel for the plaintiffs has relied on a large number of cases, namely, Ifteqar Hussain and another v. Karachi Electric Supply Corporation (P L D 1959 Kar. 550), Ursulina v. Orient Airways Limited and others (P L D 1960 Kar. 712), Basher Begum and o hers v. Muhammad Ali Premjee (P L D 1960 Kar. 785), Manmatha Nath Kuri v. Mokhlesurehman (P L D 1963 Kar. 90), Nusrat Ali v. U. K. Construction Company and others (P L D 1963 Kar. 844), Kulsoom v. Jalil Ahmed Khan and others (P L D 1964 Kar. 72), Muhammad Raza Khan v. Pakistan (P L D 1965 Kar. 244), Din Muhammad and 3 others v. Faqir Muhammad and 2 others (P L D 1970 Lah. 442), Miss Shamsunnisa and others v Karachi Road Transport Corporation (P L D 1975 Kar. 914), Mr. Gohar v. Muhammad Hanif and others (P L D 1975 Kar. 432), Rukaya Bai and S others v. Secretary of Defence, Government of Pakistan, Islamabad and 4 others (P L D 1976 Kar. 139), Nusrat Jehan v. Karachi Metropolitan Corporation and 1 others (P L D 1980 Kar. 158), Muhammad Siddique and others v. Gul Majeed and 2 others (P L D 1980 Kar. 78), Mrs. Dianat Fatima and another v. M. it Abbas Khan and 1 others (P L D 1980 Kar. 271), Mst. Warkhema and 4 others v. Abdul Rasheed and 2 others (1981 C L C 944), Jaffar Ali and another v. Sited Road Transport Corp oration and another (1981 C L C 1106), Gul Bano and 4 others v. Muhammad Rantsan and others (1982 C L C 1120), Mrs. Asma Ibrahim and 1 others v. S. R. T. C. and another (P L D 1982 Kar. 236), Adam Hussain and others v. Muhammad Ayub (1983 C L C 2054), Mst. Zainab Bibi and others v. Muhammad Saeed and others (1983 C L C 1321), Barkat All Khan and others v. Karachi Electric Supply Corporation Ltd. (P L D 1983 Kar. 453) and Nimmi Francis (Airs.) and others v. Muhammad Saeed Qureshi and another (1982 C L C 1703).

32. There seems to be difference of opinion, which is quite natural, in the matter of giving a judicial finding as to the expectancy of life to a certain age. In the cases mentioned at serial Nos. 1, 6, 11, 13, 16, 18, 19, 20 and 21 the expectancy of life was held as 65 years of age. In cases mentioned at serial Nos. 3 and 5 the expectancy of life has been held to be of 55 years of age, whereas in the case mentioned at serial No. 3 it was held to be of 53 years and in another case at serial No. 10 it was determined at 48 years. In the rest of the cases mentioned at serial Nos. 4, 7. 8, 9, 12. 14, 15. 17 and 22 the expectancy of life of the deceased was fixed at 60 years. A study of the cases cited at the bar shows that in most of the cases the expectancy of life has been determined at 60 years.

The determination of the expectancy of life largely depends on the life conditions of the deceased and his family background and on factors of general physique and the ratio of deaths in the pedigree of the deceased and the ages of the persons alive in the family. The evidence adduced by the plaintiffs on the question of expectancy of life in all the suit before me is very much scanty. I, therefore, fix the expectancy of the ages of the deceased at 60 years of age in all the suits. Now I proceed to consider the quantum of compensation to be awarded in each Suit separately.

33. Suit No. 492 of 1984 and Suit No. 547 of 1984:

Suit No. 492/84 is for recovery of Rs. 2,00,000 filed by grandfather as next friend of the three minor sons of the deceased Hoor Jehan. Hoor Jehan, the deceased was of 30 years of age at the time of her death as stated in para. 5 of the plaint, which has been denied by the defendant for want of knowledge. There is no evidence as to the age of the deceased. Witness Hashmat Ali examined in this suit is completely silent on this point. The names of her legal heirs, the plaintiffs, and their ages have also not been proved by evidence in this suit.

34. Mr. Muhammad Maqsood, however, submits that the same witness has been examined separately in Suit No. 47/84. In Suit No. 547 of 1984, Shaukat Ali the deceased husband of Hoor Jehan had died in the tame accident. I, therefore, decide Issue No. 6 in both the suits together.

35. Suit No. 547 of 1.984 is for recovery of Rs. 4,00,000. Hashmat Ali, father of the deceased, who has also been examined in this suit as a witness has stated that the deceased Shaukat Ale left behind 3 sons Qaiser Ali, Harder Ali and Zafar Ali aged 8, 6 and 4 years respectively. About the deceased Shaukat Ali he stated that he was about 32 years of age at the time of his death. The age of the deceased Shaukat Ali has, however, peen stated as 33 years in para. 1 of the plaint. The plaintiff in Suit No. 547 of 1984 has not cared to establish age of the deceased Shaukat Ali, which could have been proved by either producing his Identity Card or service record from the' office of the Rice Export Corporation, where the deceased was employed. However, the witness who is the father of the deceased has stated himself to be of 55 years of age in the cause title of plaint, but has stated in his deposition to be of 45 years of age. There seems to be some discrepancy in the age of plaintiff No. 1 and thus Court is left in result with no direct evidence as to the age of deceased. On facts and circumstances of the case, however, I take it that the plaintiff No. 1, the father of the deceased Shaukat Ali was 55 years of age in 1984. He has stated on oath that deceased Shaukat Ali was born in February, 1949. His age, therefore, at the time of his death comes to about 35 years.

36. As to the earning of Hoor Jehan in Suit No. 492/84, there is no evidence except the word of her father‑in‑law that she was earning about Rs. 800 to 900 per month. It was stated by the said witness that she used to teach her children and also the children of neighbouring area and was also used to do stitching work, but this has been challenged by the defendant in cross‑examination. No evidence has been produced to substantiate the allegation about the earning of the deceased, Hoor Jehan. At least, evidence could have been led by producing the persons whose children she used to teach at her home and paid the fees to her. Not even a word has been said about her educational qualification. I am, therefore, not convinced that the deceased lady was earning her livelihood by teaching or stitching.

37. Mr. Muhammad Maqsood, however, submitted that even if it is not proved that she was earning, she will be deemed to be an earning member of the family as it cannot be denied that she must be doing her domestic work which has monetary value. In support of his submis sion, he paced his reliance on Malik Roza Khan v. Pakistan (P L D 1965 Kar. 244), Manmatha Nath Kuri v. Muhammad Mokhlesur Rahman and another (P L D 1963 Dacca 290), Muhammad, Nawaz and 4 others v. Altaf Rasul and 2 others (P L D 1985 Kar. 353).

38. In the first‑named case (P L D 1965 Kar. 244), the deceased was a young man of 26 years of age. No proper means of earning by the deceased was established. Nevertheless, a compensation on the basis of average income of Rs. 100 per month was assessed. In the second‑named case (P L D 1963 Dacca 290) the deceased was a girl of about 6 years of age. It was observed by the Division Bench that the child would have assisted her mother in the household work. It was thus inferred that rendering of such service, having a monetary value, the parents have been deprived of prospective pecuniary advantage. The learned Judges, there fore. held that "her income" may be taken at the average of Rs. 170 per month from the age of 12 years of age, out of which she could have spared about Rs. 100 per month for her parents and the decree of Rs. 1;0,000 awarded by the Subordinate Court was maintained. The matter went up in appeal. The hon'ble Supreme Court, by its judgment reported in P L D 1969 S C 565, upheld the decision. In the third‑named case (P L D 1985 Kar. 353), the deceased was a boy of 8 years of age, without earning anything. It was observed. that it was not necessary that the child should have actually been earning. It was thus held that "the deceased on coming of age, might have easily earned Rs. 200 per month and would have spent at least half of the amount on the parents."

39. It can, therefore, be reckoned that the deceased Hoor Jehaa might have earned as a part‑time domestic servant and would have provided additional comforts, by way of contributing towards maintenance of her children. A sum of Rs. 300 would be a reasonable amount of earning out of which she would have spent a sum of Rs. 200 on her children. Although her age has not been specifically prove' but her husband's age has been determined to be of 35 years in Suit No. 547/84. As generally a wife is younger in age than her husband in our Society. I accept, therefore, the age of the deceased to be of 30 years as stated in the plaint and calcu lating compensation at the rate of Rs 200 per month for 20 years as last child Zafar Ali aged 5 years would have started earning after attaining the age of 25 years, in normal case, the total compensation amount comes to Rs. 48,000. The plaintiff having already received Rs. 16.000 from the defendant, as compensation under Motor Vehicles Ordinance, 1965, the net amount of compensation comes to Rs. 32,000.

40. As far at the earning of her husband, deceased Shaukat All in Suit No. 547/84 is concerned, the witness Exh. 5 has produced last pay certificate Exh. 5/2 which shows that the deceased was drawing a sum of Rs. 2,163 as monthly salary inclusive of all allowances. However, conveyance allowance at the rate of Rs. 185 and tea allowance at the rate of Rs. 15 is to be excluded. The monthly pay with dearness allow ance local compensatory allowance and house rent allowance thus comes to Rs. 1,813 p.m. The youngest child Zafar Ali aged 5 years at the time of accident could have remained dependant on the deceased for 20 years, the amount of compensation on the basis of Rs. 1,813 per month for 20 years comes to Rs. 4,35,120. The deceased had a wife, parents, 3 sons (one son having died during pendency) who have been shown as dependants on his earning. Having deducted 1/3rd towards his personal expenses and expenses for his deceased wife and son the net amount comes to Rs. 290,080 and after deducting the sum of Rs. 16,000 paid by the defendant under section 16 of the Motor Vehicles Ordinance, 1965 and Rs. 14,000 by his employer the net amount of compensation comes to Rs. 2,60,080 payable to the plaintiffs which is decreed against the defendant.

41. Suit No. 539/84.‑It is a suit for recovery of Rs. 2,10,000 filed by the father of the deceased Ulfat Hussain, who left behind, besides him, widow and one daughter born after his death. The deceased Ulfat Hussain was working in the defendant Corporation. It has been alleged that he was 28 years of age at the time of his death. Fazal Elahi, father of the deceased has so stated in his examination‑in‑chief, which has not been controverted by the defendant in the cross‑examination. I, therefore, take the said age to be proved. It has been alleged that he was getting Rs. 850 per month from the defendant Corporation. I, therefore, fix to be the monthly earning of the deceased. Calculating at the said rat for 32 years, having already held 60 years of age as expectancy of life, the total amount of compensation comes to Rs. 3,26,400. After deducting 1 /3rd A on account of personal expenses of the deceased the balance amount come to Rs. 2,17,600. Again, after deducting Rs. 16,000 paid by the defendant under section 67 of the Motor Vehicles Ordinance, 1965, the amount come to Rs. 2,01,600. The amount of Rs. 2,01,600 is, therefore, decree against the defendant.

42. Suit No. 541/84.‑It is a suit for recovery of Rs. 2,50,000 filed by the widow, one son and one daughter of the deceased Lutf Ali Shah. The deceased was 52 years of age at the time of accident, as stated by his wife, Mst. Sardar Bibi in her evidence (Exh. 5), which has gone unchal lenged in the cross‑examination. The age of the deceased Lutf Ali Shah is therefore proved to be 52 years at the time of his death. As regards earning of the deceased, he was working as driver of the contract bus and was earning Rs. 1,500 to Rs. 1.600 per month as alleged by his wife. None has been produced from the firm of the Bus Contractor of the Steel Mills, where he was employed. I am not going to believe the oral testimony of the witness when direct evidence was available and could be produced. As admitted by the defendant in Suit No. 539/84 that the salary of a helper in the defendant's Corporation is Rs. 850 per month, the driver's salary must be on a higher side. In the absence; of the direct evidence, I determine the salary of Rs. 1.000 per month for driver, He being of 52 years of age at the time of death, the amount of compen sation for 8 years comes to Rs. 96,000. The Contractor of the Bus, where, the deceased was employed has, however, paid a sum of Rs. 10 0W towards compensation. After having deducted the said sum of Rs. 10,000 it comes to Rs. 86,000. After deducting 1 /4th for personal expenses, the net amount comes to Rs. 64,500 which is awarded as compensation to the legal heirs of the deceased against the defendant.

43. Suit No. 541/84.‑It is a suit for recovery of Rs. 1,50,000 filed by widow and daughter of the deceased Abdul Wahid. The age of the deceased Abdul Wahid at the time of accident was 55 years, which has not been controverted by the defendant in the cross‑examination. I, therefore, hold that the deceased was 55 years of age at the time of the accident. It has been stated in the plaint that the deceased Abdul Wahid was working as Pesh Imam in the Mosque and was earning Rs. 860 and other facilities in the sum of Rs. 500 per month. No certificate regarding salary or the facilities has been filed which could very easily be done by summoning someone from the defendant Corporation and producing service record of the deceased. D. W. 4 Jehangir, Secretary of the defen dant Corporation has, however, stated that Abdul Wahid was working as a fitter at the time of his death. Mr. Muhammad Maqsood, submits that the defendant's witness (D. W. 4) has admitted in his statement that the salary of the deceased was Rs. 1,000 per month. I am afraid, this state ment is not correct. In fact, the witness stated that "On an average, the salaries of helper or fitter are in the region of Rs. 1,000 per month which include all emoluments." It cannot be said that the defendant's witness has admitted the salary of Abdul Wahid as Rs. 1 000 per month. I, therefore, bold the salary of the deceased to be at the rate of 860 per month, as stated in the plaint. Since no evidence has been led on the facilities amounting to Rs. 500 per month, it stands not proved. The age of the deceased has been shown to be 55 years, as also held by me. Compensation equal to the earning of 5 years only is awarded, and after deducting Rs. 16,000 as has already been paid to the legal heirs of the deceased by the defendant Corporation under Motor Vehicles Ordinance, 1965, it comes to Rs. 35,600. The amount equal to 1/3rd is also to be deducted from the salary towards personal expenses of the deceased and the balance) comes to Rs. 23,733 which is decreed against the defendant.

44. Suit No. 544/84.‑It is a suit for recovery of Rc. 4,00,000 filed by legal heirs of the deceased Muhammad Ishaque who left behind one widow, 4 minor sons and 4 minor daughters. The age of the deceased at the time of his death has been shown to the plaint as 40 years as also stated by Mst. Rashidan, his widow, in her examination‑in‑chief, which has not been admitted by the defendant as is evident from the cross- examination. No Identity Card or service record from the employers, as to the proof of age, has been produced. There is, therefore, no evidence on record except the bare statement of the plaintiff No. I to prove the age of the deceased. The age of the eldest child has been stated to be 17 years, but, against, no proof of the age of the eldest child, has b.‑en produced. Mr. Muhammad Maqsood submits that the identity Card of the widow Mst. Rashidan was shown to the counsel for the defendant, which was issued on 21‑5‑1974 stating the age of the said witness as 28 years. Since the Identity Card was issued in 1974 the age of the widow on the date of accident will be of about 38 years. No evidence as to the year of her marriage or birth of the first child has been produced. Looking to the facts and circumstances of the case, I hold the deceased to be of 45 of age at the time of his death. As to his salary, it has been stated in the evidence of the widow to be Rs. 2,000 per month but no proof of the same has been produced, which was easily obtainable by the plaintiff by summoning the employer, where the deceased was working as driver. In the absence of the evidence, I fix Rs. 1,000 per month as his salary, as also held by me in Suit No. 539/84. Calculating earning of the deceased at the rate of Rs. 1,000 per month for 15 years his total p earning comes to Rs. 1,80,000. In all Rs. 30,000 has been received by legal representatives of the deceased, which will be deducted from the amount of compensation awarded in this suit. After having deducted the said sum of Rs 33,000 it comes to Rs. 1,50,000 only, and after deducting 1/10th of the salary towards personal expenses of the deceased the net amount comes to Rs. 1,35,000 which is decreed against the defendant.

45. Suit No. 545/84.‑The deceased Muhammad Irfan left behind one widow, 3 sons and two daughters. The widow has died during the course of trial of the suit and one daughter Tahira also died after the filing of the suit. The deceased was 32 years of age as stated in para. 1 of the plaint. As to the proof of age the plaintiff has produced extract from the register of deaths showing the age of the deceased as 30‑35 years. He was serving as driver in the Steel Mill. The plaintiff has failed to produce any evidence as to his age by producing record of the Steel Mill, were the deceased was working as driver. The plaintiff also failed to produce any Identity Card. However, 1 hold that the deceased was 35 years of age at the time of accident.

46. As to his salary the plaintiff has produced Exh. 5;1 dated 17th July, 1983, which is a letter, showing the payment of dues in respect of the deceased. This letter contains statement of account. Three days' salary has been deducted from 28‑4‑1983 as Rs. 162.95. It is, however, not shown as to what is the basic salary and what allowances are included in it. Item No. 3. however, shows an amount of Rs. 609.97 which has been paid to the deceased for 27 days for leave encashment, which payment, perhaps, has been made on the basis of basic salary. This letter does not prove satisfactorily as to what the basic salary and what were the allowances payable to the deceased. The amount of Rs. 600.97 awarded as 27 days' salary for leave encashment to the deceased as per Exh. 5/1 leaves a room for doubt as to how three days' salary of Rs. 162.95 has been calculated. The plaintiff has not cared to produce any witness on behalf of the Steel Mill to prove the salary of the deceased. This letter is, in fact, merely a photostat copy an inter‑departmental note. This state of evidence does not prove salary of the deceased to the satisfaction of this Court. The salary of the deceased who was a driver in the Steel Mill, in the circumstance, is fixed at Rs. 1,000, per month. Computing his salary at the rate of Rs. 1,000 per month for 25 years, the total amount comes to Rs. 3,00,000. After deducing 2/5th amount of his salary towards personal expenses and also the maintenance amount of the widow and the daughter who died during the course of these proceed ings, the amount of compensation which is awarded in this suit comes to Rs. 1,80,000 and it is decreed accordingly.

47. As to apportionment of the above sums among the various plaintiffs, the question has arisen as to it basis. The learned counsel for the plaintiffs has referred to the case of Mst. Zebunnisa and others v. Sind Road Transport Corporation and another (1982 C L C 1228), wherein it has been observed by my learned brother Mr. Justice Saleem Akhtar that "while apportioning the share of the plaintiffs I have not strictly followed the principles of Muslim Law mainly for the reason that the compensation awarded to the plaintiff is not an estate inherited by the plaintiffs.

48. I may, however, refer to the decision given by Fakhruddin G. Ebrahim, J. of this Court (as he then was) reported as Mst. Qudsia Begum v. Younus and 4 others (P L D 1973 Kar. 636), wherein it was observed that "the amount awarded (under Fatal Accidents Act as damages) will be divided between the plaintiff and her four minor children in accordance with their shares under Muslim Law."

49. Transfer of property under Islamic Law is of two kinds or forms: One is voluntary and the other is involuntary. Transfer of property that takes place voluntarily is either with or without consideration. Transfer of property with consideration is generally called "sale", and without consideration in ones own lifetime is called Hiba (gift) and' if it is made effective after one's death it is called Wassiyyat (will). The other kind or form of transfer, being the involuntary devolution of property by which the estate of a deceased person gets automatically transferred to his heirs, is called "inheritance."

50. "Estate of the deceased" may, thus, be defined as anything that belongs to a man or woman in his or her lifetime and what he o she leaves behind on his or her death, whether it be the movable or immovable properties or rights pecuniary in nature. Thus, the estate o deceased is that property or proprietary rights, which the deceased leave behind after him. That is why it is called Wirtha, or Tarika, which literally means 'balance' or 'left over'. If a person dies, during the course of his employment and his heirs are paid a compensation by his employer or a person dies of an accident during his journey by rail or air due t negligence of the air company or the railways and his heirs are com pensated under law of the land, or an innocent person is killed in riot the Government pays some compensation to the heirs, or a person is killed on account of rash and negligent driving of a motor vehicle the owner/ driver is required to pay damages to the legal representatives of the deceased. In all these cases the amount received by the heirs may no be regarded as the estate of the deceased in its strict sense, in the eye of Shari'ah. Thus, the Islamic Law of inheritance, in all its detail, is no to be applied. It may further be stated that the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) provide that notwithstanding any custom or usage, in all questions regarding succession whether testate or intestate the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal (Shariat) in cases where the parties are Muslims". Thedamages to be awarded under the Fatal Accidents Act, 1855, cannot be held to be the estate of the deceased as the same cannot be said to have been left behind by the deceased. Apparently it was non‑existent at the time of his death. The provisions of Islamic Law of Succession cannot therefore, be made applicable to it. I may, however, mention paragraph No. 91, at p. 96 of Khutbat‑i‑Bahawalpur by a renowned and pious Muslim Scholar, Dr. Muhammad Hameedullah, wherein the learned author has quoted a directive of the Holy Prophet Muhammad (Sallalaho Alaihi Wasallam). In a matter of blood money the Qazi, following the custom prevailing in the Arab Society, had awarded the blood money of the deceased to malt heirs (Asbat) only i.e. son, father etc. On coming to know of this, the Holy Prophet (Sallalaho Alaihi Wasallam) wrote to Hazrat Zahak (bin Sufyan), the then Governor of Yaman that the widow of the deceased should also be paid in accordance with her share in the inheritance. The tradition also finds place in Sunan, Abu Da'ud, as Tradition No. 1163 wherein it is narrated by Sa'id the Umar bin Khattab used to say that the Diyar is for Agilah and widow will not inherit anything from the Divat of her husband Then, Zahhak bin Sufyan told him ('Umar) that the Prophet of Allah (Sallalaho Alehay Wasallam) wrote to him that widow of Ashyam al Zubabi, be paid Diyat of her husband 'according to her share from the inheritance'. Then. 'Umar resiled from his earlier statement. It shows that after Umar bin Khattab came to know of the said tradition that the Diyat is to be paid to heirs of the deceased, whether males or females, including widows 'Umar resiled from his earlier statement as it had no binding force in presence of the tradition of' tire Holy Prophet (Sallalaho‑Alehay Was sallam). It is also stated to Fatawa Hindiyyah (Urdu translation of Fatawa Alamgiriyya), Lucknow, 1932 Kitab‑al‑jinayat, Vol. 1X, Chapter 11I, p. 3U3 that to claim the Qisas is the right of all heirs of the deceased and do is the rights of all the heirs to receive the Diyat. I may also refer to the provision of law as contained in the Draft Ordinance relating to the provisions of law of Qisas and Diyat prepared in June, 1981 and submitted to the Federal Government by the Council of Islamic Ideology. It is stated in the said provision that "The Diyat shall be disbursed among the heirs of the victim according to their respective shares in inheritance". This provision of law, among others, was approved by the, Majlis‑e Shoora, in its last Session held in July, 1984. I am also conscious of the legal position that Islamic Law of Qisas and Diyat, in the matter of ‑compensation, in several respects, is distinguishable from the Fatal Accidents Act, 1855 Firstly, section 1 of the Fatal Accidents Act restricts that a suit for damages shall be for the benefit of the wife husband, parent and third, if any, of the person whose death has been so caused. It implies that in case there is no wife, husband, parent or child of the deceased, no suit for damages under Fatal Accidents Act will be maintain able even if the other heirs of the deceased, for example brother and sisters or distant kindred (Zawil Arham) are living, who may otherwise be entitled to inherit the estate of the deceased under Islamic Law. Secondly, the Diyat in the case of Qatl‑i‑Khia (causing death by mistake or negligence), according to the traditions of the Holy Prophet (:. a.) and his reverend companions, is fixed as 100 camels, or 1000 dinars (of gold) or 10,000 dirhams (of silver) or value thereof, whereas in a case under the Fatal Accidents Act the damages are determined by the Curt that have accrued to the bereaved legal representatives of the deceased for his sudden death, which are generally determined on the basis of proof of earning and future prospect of the deceased and dependency of the: legal representatives. Thirdly, in a case of Diyat, Aqilah ('Asbw). in certain circumstances, may be made liable to pay the amount of Diyat, whereas under the Fatal Accidents Act, liability is restricted, and fourthly the State is liable to pay the diyat in case the offender is not known. I am, therefore, clear in my mind that so long as the Islamic Law of Qisas and Diyat is not in force, and the Fatal Accidents Act, 1855, continues to hold the field, the case will be governed by the provisions of Fatal Accidents Act, 1855. The relevant part of section 1 thereof is reproduced as under :‑

"and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought: and the amount so recovered, after deducting all costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct."

51 I may also refer to a decision of the honourable Supreme Court reported as Sri Manmarha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman (PLD1969SC565), wherein it is observed:‑

"That under section 1, the pecuniary loss will be loss resulting to the parties beneficially entitled as consequence of the death. The Act itself does not, however, lay down any principle for calculating the measure of such loss but an estimate has still to be made by the Court, which has also been apportioned the sum so determined between the beneficiaries and proportionately according to the nearness of their relationship and the interest which of them had in the life of the deceased. But even the reasonable expectation of pecuniary advantage which might have been derived from the deceased had he remained alive, may be taken into account, and damages given in respect of that expectation. Assessment of damages in such a case must, therefore, necessarily to be same extent a rough and approximate in nature based more or less on guesswork, for it may well be impossible to accurately determine the loss."

52. Mr. Muhammad Maqsood submitted that on apportionment the widow should get the major share of the compensation as compared to her children, because she maintains them also. In support, he referred to the cases of Iftikhar Hussain and another v. The Karachi Electric Supply Corporation Ltd., Syed Nusrat Ali v. Messrs U. K. Construction Co. and anther, Malik Raza Khan v. Pakistan, Din Muhammad and others v. Faqir Muhammad and 1 others and Mst. Warkhema and 4 others v. Abdul Rashid and 1 others v. Muhammad Saeed and another.

53. In all these cases, I find, the widow has been awarded bigger share than the other heirs including parents of the deceased. On rough calculation of the percentage in the above‑cited cases, it seems that in the first‑named case (P L D 1959 Kar. 550) widow was awarded at the rate of 45 % approximate, whereas the younger son was awarded 33 % and the elder son was awarded 22 %. In the second‑named case (P L D 1963 Kar. 841) the widow was awarded 48 %, the son was awarded at the rate of 9% and the father was awarded at the rate of 13 %. In the third‑named case (P L D 1965 Kar. 244). the widow was awarded 25 % and the father and mother of the deceased were awarded 25 % each and the remaining 25 % was awarded. to two sons jointly. In the fourth‑named case (P L D 1970 Lah. 442) the widow was awarded about 50%, the father was awarded 12 % and the two children were apportioned the remaining 38 %, the younger son to get more and the elder to get less at the rate of 23 % and 15 % respectively. In the fifth‑named case (1531 C L C 944) the widow was awarded about 51 %, whereas the balance 49 % was apportioned bet ween three sons and one daughter. In the last mentioned case (1983 C L C 1321) the widow was awarded 45 % and the balance was to go to the rest of the heirs, who, besides father, were 10 sons and daughters,

54. I may also refer "The Quantum of Damages‑Fatal Injury Claims" by Kemp & Kemp, published by Sweet & Mawell Limited, London (1962, 2nd Edn., Vol. 2, page 25) wherein it has been stated by the learned authors that :‑

"Apportionment is normally made by the jury's verdict or in the course of judgment.

Where there is apportionment between widow and children, "the practice is to award the greater part of the total to the widow, on the reasonable assumption that she will maintain the children sc long as they are dependent, and to award comparatively small sum to the children. Usually, though not always, a younger child i awarded more than an older child because the period of expected dependency is greater."

The learned authors have also mentioned a number of cases, showing the amounts apportioned between members of the family and summarised on the point as under :‑

Names Award Apportionment

Zinovieff v. British Transport 33,000 Widow ............... 21,000

Commission Parents 7,000

Two chil

dren aged

19 and 16

each 2,500

Sainsbury v. Wakeman Bros The8,000

Widow ................ 7,000

Times, 20th October, 1959. Two children

aged 6 and

2 1/2 ‑each 500

O'Neill v. Smith & Co. (Bride‑6,998 Widow ................ 6,618

ford) Ltd. Two children each.. 175

Eifert v. Holt's Co. Ltd. 6,400 Widow aged......... 2,000

23

Son aged 1................ 4,400

Causer v. Erlth do Co. 6,000 Widow aged

4,500

Two children

aged 11 and

7‑each.................... 750

Heatley v. Steel Companyof 6,000 Widow................. 5,000

Wales Ltd. Son aged

17 150

Daughter 200

Two youngest

children

Total...................... 650

Donlon v. Clarke, Chapman & 5,600 Widow aged

Co. (195.1) C L Y 962. 24 2, 600

Three child

ren aged

5, 4, 3‑each 1,000

Holtum v. W. J. Cearns (1953) 4,000 Widow 3,000

C L Y 962 Eight children

aged under 16

between them 500

Lwwin v. Ribble Motor Services 3,750 Widow aged

Ltd. 46 3,300

Son aged 11 200

Daughter

aged 10 250

Bain v.Moss Hutchison Line 3,500 Widow aged

Ltd. 45 2,900

Son aged

16 200

Daughter

aged 12 400

Swift v. Reardon Smith Line 3,160 Widow aged

Ltd. 37 2.750

Daughter

aged 22 10

Daughter

aged 20 50

Daughter

aged 13 150

Grandson

aged 1 200

Grij,'iths %. J. Arthur Rank 2,750 Widow............... 1,750

Productions (1954) C L Y Son aged

885 14 500

Daughter

aged 12 500

Woods v. W: H. Rhodes 8 2,558 Widow aged

.Sons Ltd. 40 2,058

Four children

ages not

stated 75

75

150

200

Walshe v. arc. Alpine & Sons 2,500 Widow.............. 1,750

Ltd. The Times, Julv ‑8. Girl

1959. aged 9 200

Boy aged

7 250

Boy aged

5 800

Rohdes v. War Office (1954) 2,000 Widow

C L Y 885. aged 27 1,850

Son

aged 8 15,150

Son

aged 5 200

Son

aged 4 200

Daughter

aged 3 200."

55. As a result of the above discussion and particularly in the light of the observation of the honourable Supreme Court (P L D 1969 S C 565) already quoted. the apportionment of the amount of compensation among the several plaintiffs in the suit appears to have been left by the statute to the discretion of the Court. The discretion is, however, to be exercised S in a ,judicious manner, which is different from case to case.

56. In some of the cases, however, as would appear from the above chart, one fails to understand the propriety of apportionment from Islamic point of view for the reason that the widely received English principles of inheritance and will, working as background. It is not only true to the English decisions but also some of the Pakistani decisions, referred to above.

57. Generally speaking, the Courts of Pakistan, while interpreting certain principles in a given case including those which relate to the matter of discretion, adhered to the principles of English Common Law. The reason is obvious. It is due to the supremacy of Anglo‑Saxon law and its system, which is being practised in this sub‑continent for about one T and half century but, now, in the Islamic Society of Pakistan all such laws and principles, as are found repugnant to Islamic Law, have to vacate their place for the Islamic Common Law and its principles, so as to make room for their enforcement with the Constitutional backing for the Islamization of Law through Courts, for which reference may be made to the judgment of Mr. Justice Muhammad Afzal Zullah of the then Lahore High Court (now Judge. Supreme Court of Pakistan) in Haji Nizam's case (P L D 1976 Lah. 930) relevant paragraph whereof is reproduced as under:

"All doubts in interpretation of law and appreciation of evidence would be resolved in manner consistent with Islamic principles and jurisprudence in preference to any contrary norm. Courts for which law declared by a superior Court is binding as law, when faced with any of the above situation qua precedent binding law, would treat it as if written law but, in order to assist and act in aid of the superior Courts which laid down the precedent might, with respect, deliberate Islamic point of view which would in turn help reappraisal and reinterpretation on Islamic lines. Such points would ordinarily have to be raised and canvassed formally so as to take advantage of. The controversy in each case would have to be specified after due study with the help of the bar. This would help the entire judicial system to develop on the pattern envisaged in the Constitution."

For further support of this view, though indirect, reference may also be made to the Supreme Court case of Hameeda Begum (P L D 1975 S C 624) Muhammad Bashir (PLD 1982SC 139) and A. M. Qureshi (PLD 1981 SC377).

58. According to me, in so far as the Islamization of the enacted laws] is concerned, a mechanism has been provided in the Constitution itself, but in so far as the field presently unoccupied by legislature is concerned U td‑r. the judicial norms, practice and principles, Courts of Pakistan can certainly seek guidance from the Holy Qur'an and Sunnah and apply the Islamic principles, as applicable in a given case.

59. 1, therefore, consider it proper that in the natter of apportion ment of the shares among the various plaintiffs/illegal heirs in the above suits, the principle of Islamic law be followed, instead of applying, the English principles which are influenced by different considerations, for example, the English law of inheritance provides for widow a large share than it is provided in Islamic Law, so much so that in English law even the entire property can be willed away in favour of the wife, which is not permissible under Islamic Law in the presence of other heirs. Furthermore, there are concepts different to each other, regarding the right of guardianship of minors as to their person and property in both the systems, and so are the dissimilarities on the question of the respon sibility of the heirs of the deceased for providing maintenance to orphan children. Although the compensation awarded under the Fatal Accidents Act is not, strictly speaking, a wirtha or tarika i. e. the property left by the deceased, but nevertheless it is the property which has accrued to the heirs of the deceased for their benefit on account of his death. The diyat in Islamic Law and the compensation under Fatal Accidents Act, in their nature, are the same a‑, both are blood money and ensue from the wrongful act of the killer. Islam in the matte of distribution of the property directs us to follow the principle of showing compensation to relation by womb. Allah the Almighty in Hi Wisdom has prescribed the shares of all the heirs of the deceased by way of inheritance, and His Prophet Muhammad (Sallalaho Alaihi Wasallam) has directed as that the blood money of man or woman killed by mistake, is to be distributed among the heirs of the deceased in accordance with y their shares in inheritance. If this principle is adopted it will, firstly, leave no room for subjective determination of appointment by a Judge; secondly, it will not vary from case to c se; thirdly, it will give uniformity and stability to the law, which is to be given due protection; fourthly, it will not create bad blood among the various legal heirs by increase or decrease of their shares, and lastly it will foster goodwill and strengthen human behaviour and social relationship towards each other among the legal heirs to the welfare of the family which is the cornerstone of develop ment and prosperity of society in general. Therefore. adhering to the said principle of Islamic Law, I am of the view that in the matter appor tionment of the amount of compensation among the various plaintiffs/ legal representatives of the deceased, the discretion of the Court must b guided by the principle of Islamic Shari'ah as embodied in the Holy Qur'an and Sunnah of the Holy Prophet and his reverend companions.

60. In this view of the matter, it is, therefore, ordered that the amount awarded by me in the above suits will be divided among the various plaintiffs in accordance with their shares as fixed under the Islamic Law of inheritance, as detailed below:‑

(i) In Suit No. 492/84, the decretal amount of Rs. 32,000 will be divided equally between the two sons (Qaiser Ali and Zafar Ali).

(ii) In Suit No. 547/84 the amount of Rs. 2,60,080 will be divided a 1/6 share to go to the father (Hashmat Ali), 1/6 to the mother (Sairah Bibi) and the balance will be distributed between the two sons of the deceased (Qaiser 'Ali and War Ali) in two equal shares.

(iii) In Suit No. 539/84, the amount Rs. 2,01,600 will be divided as 116 to go to the father (Fazal Ilahi), 1 '8 to the widow (Salma Perveen), one‑half will go to the daughter (Tehsin Ulfat) and the balance shall revert to the father of the deceased.

(iv) In Suit No. 541/84, the decretal amount of Rs. 64,500 will be distributed as I /8 to go to the widow (Sardar Bibi) and the balance to the son (Syed Nadim Hussain Shah) and the daughter Farzana in the manner that the son takes double the share of the daughter in proportion.

(r) In Suit No. 54210 the amount of Rs. 27,733 will be distributed as I;8 to the widow (Ust. Bakht Zaiha) and the balance to the daughter (Mst. Perveen).

(vi) In Suit No. 544/84 the amount of Rs. 1,35,000 will b distributed as 1/8 to the widow (Mst. Rashidan) and the balance among the 3 sons and 5 daughters in the proportion that the each son takes double the share of each daughter.

(vii) In Suit No. 545/84 the amount of Rs. 1,80,000 will b distributed among the surviving 3 sons (Rizwan, Suleman and Zeshan) and one daughter (Tasleem) in the proportion that each so takes double the share of the daughter.

61. It .may, however, be stated that the defendant in a suit for damages under Fatal Accidents Act will have little concern with this aspect of the matter.

Issue No. 7:

62. The suits were filed without any prior notice to the defendant Corporation. The damages have been decreed under no contractual obligation. There was no previously fixed or determined amount against the defendant. The liability of the defendant has been determined in tort. In the facts and circumstances of the cases. I, therefore, do not consider it proper to award any amount by way of interest to the plaintiffs.

Finding in the negative. ‑

Issue No. 8:

63. To sum up, the above seven Suits are decreed to the extent of the various amounts awarded in the said paragraphs Nos. 39, 40, 41, 42, 43, 44 and 46 hereinabove.

Issue No. 9:

64. There will be costs in the suits against the defendant which will be paid to plaintiff No. 1 in every suit.

65. Before parting with these cases, I would like to observe shat the Fatal Accidents Act, 1855, enacted some 130 years ago, has a limited scope which, in view of the society and Peoples of Islamic Republic of Pakistan needs to be amended so as to include all cases of deaths, caused by accident, negligence and mistake, of persons earning as well as non earning, ‑and the category of the beneficiaries may also be widened so as to include all the heirs of the deceased, whether dependents for their x livelihood on the deceased or not. The Fatal Accidents Act takes only a material view in the matter' of compensation, whereas Islam in such cases takes into account not only the material aspect but the whole social context which includes moral, spiritual, economic, and psychological support and backing which the legal heirs of the deceased have been depriv ed of. If, however, the Ordinance of Qisas and Diyat which, in the matter of Diyat, is applicable to Muslims and non‑Muslims alike, is enacted the Fatal Accidents Act, 1855 may be said a good‑bye. But till such time that the said law is not enacted, the Fatal Accidents Act may be modified a observed above. In this respect, assistance, may, perhaps, be had from the Draft Law of Qisas and Diyat, as approved by the Majlis‑i‑Shoora of Pakistan. Let the Registrar of this Court send a copy of this judgment to the Secretary, Ministry of Justice and Parliamentary Affairs, Government of Pakistan, Islamabad.

A.A. Suits decreed.

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