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Suit No.555 of 1984, decided on 11th May, 1987.

---Ss.1 & 2--Deceased, a boy about 15 years, vendor of fruit and vegetables, run over by a wagon car--Monthly income assessed at Rs.1,000 out of which Rs.400 deducted as his monthly expenses--Father and mother heirs and dependents of deceased--Father aged 44 years and mother 39 years--Damages calculated on basis of future life expectancy of father which in the case was considered to be 16 years- -Rs.1,15,000 awarded as compensation with interest at loo per annum from date of suit till realisation.

M.Maqsood for Plaintiffs.

Umar Qureshi for Defendants.

Date of hearing: 11th May, 1987.

The plaintiffs have filed this suit for recovery of Rs.five lacs damages on account of the death of, their son Nasib Khan aged 15 years who died in a traffic accident on 17-12-1982 at 7.30 a.m. It is alleged that the defendant No.1 is the owner of a Toyota Wagon No. GP-1814 and the defendant No.2 was the driver of the said wagon at the material time. On 17-12-1982 at about 7.30 a.m. the defendant No.2 was driving the wagon rashly and negligently on Business Recorder Road dashed the deceased and consequently he got fatal injuries and died. The deceased used to sell fruit and vegetables and earn average amount of Rs.40 per day. His average income has been estimated at Rs.1000 to Rs.1200 per month, which was likely to increase in future. He used to send Rs.800 to 900 per month to his parents through his uncle and had hardly any personal expenses. He was a healthy boy. The defendants filed written statement in which it was denied that the death was caused due to rash and negligent driving by defendant No.2. It was pleaded that the defendant No.2 was driving the wagon on a moderate speed when the deceased in a reckless and negligent manner attempted to cross the road suddenly appeared before the wagon and the accident was caused due to his own negligence. All other allegations regarding earning were denied. The following issues were framed:-

(1) Whether the death of the deceased, Nasib Khan was caused by the defendant No.2, the driver of wagon No.GP-1814, belonging to the defendant No.1 due to rash and negligent driving

(2) Whether the defendants are liable to pay compensation as claimed by the Plaintiffs jointly and severally

(3) Whether the plaintiffs are entitled to cost and interest at 15% P.A. from the date of filing the suit till recovery of the decretal amount

The Plaintiffs have examined two witnesses. P.W.2 is the eye witness who has stated that the wagon of the defendant No.1 was driven by defendant No.2 in a high speed and while the deceased was standing on the footpath near him, he was dashed by the wagon. This witness was present at the time of incident and had taken the deceased to the Hospital. In the cross-examination this witness has not been shaken. However, the plea raised by the defendants is that while crossing the road, the deceased dashed against the wagon and received injuries. By raising this plea, the defendants are pleading that the deceased was negligent and the death has not been caused due to rash and. negligent driving. This incident happened on a busy road namely Business Recorder Road at peak hour at.7.30 a.m. and as admitted by the defendant No.2 in his evidence many people had gathered over there. The defendants could have produced any witness to establish that the incident was caused due to rash and negligent act of the deceased. In view of the plea raised by the defendants the entire burden rests upon them to establish these facts. No independent evidence has been produced by the defendants. There is nothing to disbelieve the eye-witness P.W.2. Therefore, my finding on issue No.1 is in the affirmative.

As the defendant No.2 had been driving the wagon rashly and negligently in the course of his employment and in view of finding of issue No.1 the defendants are liable to pay compensation.

The next question is about the quantum of compensation. The plaintiffs have alleged in the plaint that the income of the deceased was Rs.1100 to 1200 as he was selling vegetable and fruit. The learned counsel for the defendants has contended that there is contradiction in the evidence of plaintiffs' witnesses about the sale of vegetable, and therefore, it cannot be accepted. The contradiction Pointed out is that one witness has stated that he was selling vegetable on push cart (THELA) and the other witness has said that the deceased was selling vegetable on a shop. Even if this discrepancy is there, the fact remains that he has been selling vegetable and fruit. The witnesses have said that he was earning Rs.40 per day. However, in the circumstances of the case, I will assess his income at Rs.1000 P.m. The plaintiffs' witnesses have stated that he used to send Rs.80G or 900 p.m. to his parents through some persons who used to visit the village. Such persons have not been produced, but the fact remains that from the evidence recorded it is established that the deceased was sending some money to his parents for their maintenance. As the deceased was living alone', he would have necessarily spent money on himself and that would have come to Rs.400. In this way the Plaintiffs would have been benefited from the income of the deceased to the extent of Rs.600 p.m. Now the question is what compensation should be paid to the plaintiffs. The plaintiff No.1 is the father of the deceased is aged 44 years while the Plaintiff No.2 is the mother and is aged 39 years. In such circumstances when compensation is granted to the parents, it is not the expectancy of life of the deceased son which is made the basis for calculating compensation but it should be calculated on the basis of the expectancy of life of the parents because they can be maintained only so long they are alive. No evidence has been led to prove the expectancy of life of the parents, therefore, in these circumstances, I will fix it as sixty years. The mother's expectancy of life will be 21 years, and that of the father sixteen years. I will grant compensation for sixteen years calculating at the rate of Rs.600 p.m. The suit is therefore, decreed against the defendants jointly and severally for Rs.1,15,200 with cost and interest @ 10% per annum from the date of the suit till recovery.

No ground for granting interest @ 15% per annum has been shown. As observed above the plaintiffs will be entitled to the interest @ 10 per annum from the date of suit till recovery. The amount of compensation and interest shall be apportioned amongst the plaintiffs as follows:---

(1) Plaintiff No.1. Rs.75,000/-

(2) Plaintiff No.2. Rs.40,200/-

and the entire amount of interest and cost.

The payment shall be made to the plaintiffs directly on their appearance before the Nazir after due verification of their identity. The defendant No.1 shall deposit the decretal amount within three months.

K.B.A./A-93/K Suit decreed.

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