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Suit No.113 of 1985, decided on 27th April, 1987.

‑‑‑S. 1‑‑Suit for compensation‑‑Death because of rash and negligent driving‑‑Bus owned by Transport Corporation‑‑Plaintiff has to prove that at the relevant time person who was driving the bus was duly authorised by Corporation to drive the bus and he was driving it with the permission and authority of the Corporation‑‑Where such an authority was not established, Corporation cannot be vicariously liable for negligence and lapses of the person driving the vehicle, merely because vehicle was owned by it‑‑Person driving the bus and not the owner of the bus, therefore, was responsible for the accident and death of deceased.

Halsbury Laws of England, III Edn., Vol.IX, p. 87; Rose v. Plenty and another 1976 All E R 97 and P L D 1980 Kar. 146 ref.

‑‑‑S. 1‑‑Basic concept of an action under the Act stated.

A careful look at section 1 of the Fatal Accident Act would show that the basic concept of an action under this Act is to make provisions for maintenance and subsistence of a restricted class of relations and to provide them such compensation from which they have been deprived of on account of the sudden and unexpected death of their bread‑earner. It is not a distribution of the Estate of the deceased in which all the heirs would be entitled to a share. Nor it is a fine or penalty imposed on the wrong doer out of which the survivors should be invited to share the spoils according to the relationship they had with the deceased. The Act does not even recognise the right of a class of relations who would have been otherwise entitled for inheritance of the deceased, to file an action for damages under this Act. For instance a real brother or sister or other members of the family who under the law of inheritance would be entitled to a share in the estate of the deceased are not eligible to file any suit for compensation. It is only the restricted class of survivors i.e. spouses (wives, husbands) parents and children, who can bring an action under this act against the wrong doer.

Again, even the grown up children namely sons and daughters who are self‑earning and were not dependent upon the father and have not been put to any monetary loss on account of the death would not be entitled to a share in the amount realised from the wrong doer. The allocation should be proportionate to the loss/ deprivation suffered by each survivor. The eldest child though he may be entitled to a larger share in the inheritance would be awarded a lesser amount than infant who has a long way to go in life to reach the age of majority till he developed a muscle to earn his livelihood. It is he who has been deprived of the protecting wings of the bread‑earner and must be tended and provided for a relief as far as possible to obviate the hardship to which he would be otherwise subjected if the support which he was getting or would have continued to get from his deceased father is cut off. It is, on account of this concept that the Legislature have given wide powers to the Courts to determine the share of each plaintiff at the time of passing a decree.

The award under the Fatal Accidents Act, 1855 being similar in nature to the blood money awarded in cases of Qisas and Diyat should also be distributed in the same manner.

Before applying principle of Diyat it is to be kept in mind that there are two things one the eligibility of a shareholder and secondly proportion of the share to which such a shareholder would be entitled.

The Fatal Accidents Act restricts the class of heirs, who would be entitled to bring an action under the Fatal Accidents Act. Brothers, sisters and even the sons and daughters, who are entitled to a share in the Diyat and Qisas money are excluded from the limited class of beneficiaries under the Fatal Accidents Act. Under the Fatal Accidents Act only the dependents of a deceased person should be compensated. Self supporting sons and daughters, who were not drawing any benefit during the life time of the deceased and as such they have not suffered any deprivation or loss on account of death cannot be awarded any share in the decree.

Unless the Fatal Accidents Act is amended and its scope is widened and enlarged to include even those who would be entitled to a share on the pattern of Diyat mere apportionment of shares among the existing class of beneficiaries would not serve any purpose and it would neither be following the award according to the Diyat nor would be in consonance with the spirit of the Fatal Accidents Act.

The object of this Act is to recoup the loss to the heirs as far as money can do. It would neither be proper to give away the shares of the minor to the mother nor to keep their share in safe deposit with the anxiety to preserve it and pay them on their majority because by adopting the latter course the darkest and hardest period of their life would pass away without any relief to them. If their shares are kept in custodia legis and are spent on their maintenance, education and medical expenses as needed during minority they would get the real benefit of the decree. After they have attained majority the residue whatever it may be, should be distributed among them in accordance with the Muhammadan Law male getting double the share of female child. This would fulfil the requirement of Shariat and would also not cause any violence to the provisions of the Fatal Accidents Act as they presently stand on the statute book.

Raquya Bhai v. Secretary of Defence P L D 1976 Kar. 131; Mst. Qudsia Kishwar and 7 others v. Hakim and Co. 1985 C L C 2119; Mst. Asghari Begum v. K.R.T.C. 1984 M L D 756; Muhammad Yousuf Khan v. K.R.T.C. 1984 C L C 2830; Mst. Varkhima v. Abdul Rasheed and others 1981 C L C 944 and Nusrat Jehan Begum v. Karachi Municipal Corporation and 2 others P L D 1986 Kar. 489 ref.

Muhammad Maqsood for Plaintiff.

Mir Raza Hussain Haidri for Defendant No.l.

Defendant No. 2 (absent).

Date of hearing: 3rd March, 1987.

This is a suit by the widow of deceased Zafar Hussain, who died in an accident on 27‑12‑1983 leaving behind the Plaintiff Mst. Mukhtiar Begum and minor daughter Misbah aged 4 years and two minor sons Naveed Zafar and Waheed Zafar aged 2 years and 7 months respectively.

2. According to the plaint Bus No.830‑519 was taken out on a road test to Thatta and while it was returning it dashed against a parked Oil‑Tanker due to rash and negligent driving of the Defendant No.2 Mitho Khan resulting in the death of Zafar Hussain, Zaheeruddin and Ghaus Bux. It is alleged that at the time of the accident besides the three persons named above, there were other occupants, who were also employees of the Defendant No.l and who also suffered serious injuries. The Defendant No.2, who was driving the Bus at the relevant time is not contesting the suit. Defendant No.l have contested and filed the written‑statement. In their written‑statement they have stated that in fact it is submitted that the Bus was driven by the Defendant No.2 unauthorisedly without the permission of competent authority. It is further submitted that neither the said Bus was allotted to him to drive nor he was asked to drive the vehicle during the course of his employment as such the defendant No.2 himself personally responsible for the wrongful act committed by him on his own accord."

3. On these pleadings the following issues were framed:‑‑-----

(1) Whether the suit is time barred

(2) Whether defendant No.2 was driver and permitted by the competent authority to drive the bus

(3) Whether defendant No.2 himself was responsible for the death of Zafar Hussain by his own wrongful act by rash and negligent driving

(4) Whether the plaintiffs are entitled to claim compensation from the defendants, if so, to what extent

(5) What should be the decree "

4. The plaintiff has examined two witnesses, while the Defendants have examined Mohammad Masood, who is the District Manager of the defendant‑Company at Malir Depot. I will now dispose of the issues.

This issue is not pressed and is therefore dropped.

So far as issue No.2 is concerned, the plaintiff had to prove that at the relevant time the defendant No.2 was duly authorized by the defendant No.l to drive the bus and was driving it with the permission and authority of the defendant No.l. If such an authority is not established, I am afraid, the defendant No.l cannot be vicariously liable for the negligence and lapses of the defendant No. 2, merely because the vehicle in question was owned by the defendant No.l. It needs no argument to absolve an owner of any hazard, if his vehicle is hijacked or stolen and much against his will or knowledge the hijackers or thieves are involved in an accident. The plaintiff has examined two witnesses, who are employees of the defendant No.l. In a connected Suit No.112 of 1985, Muhammad Aslam, driver of the defendant has been examined. He was one of the occupants of the bus and so far as his version regarding the happening of the accident is concerned, I have no hesitation in believing his version but so far as his allegation that the party was on official duty when the accident occurred is concerned, it remains unconvincing. Assuming for the sake of argument, that this bus has been repaired and needed a road test, the question whether this group of persons or any one of them was duly authorized by the officials concerned to take it on road for a road test must be answered before the vicariously liability is determined. There are hundreds of drivers in the employment of defendant No.l and unless it is shown that at the relevant time a particular driver had taken the vehicle on the road and he was on duty, it would be very unsafe to make the employer liable for the consequences of the hazards, which this driver may suffer during the course of a journey on the road. The state of the evidence on record of these two connected cases shows that none of the occupants of this bus had been authorized to take this vehicle on the road. The statement of another witness on the point, namely, Mumtaz, who has been examined in the present suit, does not carry the case of the plaintiff any further. Merely by saying that "we had taken out the bus for a road test of the bus and about seven persons of KTC employees were occupying the bus at that time" does not show that they had taken the bus out with permission or under the orders of the officer concerned. As against the versions of Mumtaz and Muhammad Aslam examined by plaintiff there is a very clean statement of Muhammad Masood, District Manager of the defendant No.l, who has been examined by the defendant No.l. The following part of the statement of this witness would reveal the circumstances, under which the party left the depot of the defendants and met with the accident while they were returning:‑----

"On 19th December, 1983 I was Traffic Manager in Landhi Depot. On 17‑12‑1983 at about 4.30 p.m. driver Taj Bareen who was an employee of the defendant company took out of the depot Bus No.830‑591 without any knowledge or information of any responsible officer. As a matter of fact by this time the offices are closed and most of the officers leave the office for their homes. The driver and some of his colleague in the company went out on a joy ride for an excursion to Thatta. None of them was on duty. They went to Thatta and while they were returning, Taj Bareen withdrew from the driving and a person A . Y . Mitho Khan who was not a driver but Assistant Yard Master in the depot took over the steering. When they were returning from Gharo the accident took place. All of them had taken out the vehicle in this accident on their personal responsibility without any permission from the defendants and none of them was on duty at that time. This bus was absolutely in a fit condition and there was no question of road test. According to our procedure and standing instructions of the company, if a vehicle is on a road test a vehicle always taken out with permission of the officer concerned and is not supposed to go beyond four kilometres from the depot on the road test."

In this connection it would be beneficial to quote a passage from para 178 in Haulsbury Laws of England, III Ed. VOl.IX page 87, "The person by whom the tort is actually committed is acting within the scope of this authority (f) and in course of his employment as an agent of the corporation (g). In Rose v. Plenty and another reported in 1976 All E R 97 Lord Denning held that to make the owner liable for the tortuous act of the driver it should be necessary to establish that the accident occurred "within the course of the employment". In Nusrat Jehan Begum v. Karachi Municipal Corporation and 2 Others P L D 1980 Kar. 146 Ajmal Mian, J. has exhaustively examined the liability of the owner when the accident takes place on account of the negligence of the driver. Although in that particular case the employer was held liable but the dictum that an owner would not be liable unless the liability is incurred by the agent driver in course of his employment was affirmed.

In the present case, it has not been conclusively proved by the plaintiff that Taj Bareen one of the many drivers of defendant No.l took out the bus in course of his duties /employment and Mitho Khan, defendant No.2 who is responsible for the accident, was driving the bus in course of his employment or was ever authorized by the defendant No.l to drive the bus at the relevant time. I would answer the issue by saying that the defendant No.2 was the driver but it remains unproved that he was on duty or was driving the bus with permission of the competent authority.

Issue No.3:

This issue has been discussed above and must be answered in the affirmative. The witness Mumtaz, who is Conductor in the K.T.C. and who was travelling on this Bus, has stated that the Bus dashed against a Tanker which was parked on the left side of the road in Kutcha and the collision occurred because the vehicle became out of control of the Driver due to his fast and negligent driving. If this statement is read with the statement of the District Manager, it would be evident that the Defendant No.2 was not even a Driver, but he took over the vehicle from another Driver Tai Bareen while on way back from Thatta. He is, therefore, responsible for the accident and death of the deceased Zafar Hussain.

Issue No.4:

In support of the issue the widow plaintiff has examined herself and according to her statement, her husband Zafar Hussain at the time of his death was drawing a salary of Rs.1600 out of which he used to give Rs.1,400 per month for house‑hold expenses. This remains uncontradicted and may be accepted. At the time of his death he was aged only 27 years and if he had lived the normal span of life of 65 years, he could live another 38 years. Calculated at the rate of Rs.1,400 per month, the resulting loss to this widow and her infant children would be Rs.16,800 per year. For 38 years it should be Rs.16,800 x 38 = Rs.6,38,400. As the plaintiff has claimed Rs.5,00,000 a decree in the sum of Rs.5 lacs should be passed in favour of the plaintiff with costs.

The next question that remains to be determined is in what proportion this amount should be distributed among the claimant heirs.

A careful look at section 1 of the Fatal Accident Act would show that the basic concept of an action under this Act is to make provisions for maintenance and subsistence of a restricted class of relations and to provide them such compensation from which they have been deprived of on account of the sudden and I may say unexpected death of their bread‑earner. It is not a distribution of the Estate of the deceased in which all the heirs would be entitled to a share. Nor it is a fine or penalty imposed on the wrong doer out of which the survivors should be invited to share the spoils according to the relationship they had with the deceased. The Act does 'not even recognise the right of a class of relations who would have been otherwise entitled for inheritance of the deceased, to file an action for damages under this Act. For instance a real brother or sister or other members of the family who under the law of inheritance would, be entitled to a share in the estate of the deceased are not eligible to file any suit for compensation. It is only the restricted class of survivors i.e. spouses (wives, husbands) parents and children, can bring an action under this act against the wrong doer.

Again even the grown up children namely sons and daughter who are self earning and were not dependent upon the father and 'nave not been put to any monetary loss on account of the death would not be entitled to a share in the amount realised from the wrong doer. If this aspect of the case is kept in view then in my humble opinion the allocation should be proportionate to the loss deprivation suffered by each survivor. The eldest child though he may be entitled to a larger share in the inheritance would in my opinion be awarded a lesser amount than infant who has a long way to go in life to reach the age of majority till he develops a muscle to earn his livelihood. It is he who has been deprived of the protecting wings of the bread‑earner and must be tended and provided for a, relief as far as possible to obviate the hardship to which he would l be otherwise subjected if the support which he was getting or would have continued to get from his deceased father is cut of. It is, in my humble opinion on account of this concept that the legislature have given wide powers to the Courts to determine the share of each plaintiff at the time of passing a decree. The words of section 1 para 3 enjoining the Court to determine the share of each plaintiff are to the following effect:‑--

"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 and expenses, including the 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."

3. Courts have endeavoured to interpret the above words in a large number of cases. I may refer to quite a few of them. In Raquya Bhai v . Secretary of Defence PI,D 1976 Kar. 131. Mushtaq Kazi, J. has passed a decree against the defendants in the sum of Rs.90,000 and made the allocations of shares in the following manner:‑--

"Out of the decretal amount the plaintiff No.l Raquya Bhai may be paid her share 1/8 and remaining shares of the minor sons and daughter should be kept in their names in fixed deposit till they attain majority."

4. In a case Mst. Qudsia Kishwar and 7 others v. Hakim & Co. 1985 C L C 2119. Nasir Aslam Zahid J. passed a decree in favour of seven plaintiffs which included mother of the decea0ed, widow, sons and daughters of different ages. The allocation has made in the following way:‑---

"According to the plaintiffs, the deceased was expected to give Rs.890 per month to them for a period of about 16 years that is, till the age of 65 years, the deceased being 49 years of age at the time of the accident. On the basis of the aforesaid formula, the claim of the plaintiff come to Rs; 1, 70, 880. In my view, the claim for Rs.1,70,880 is supported by the evidence on record. Plaintiff No.8 is the mother of the deceased and according to the learned counsel for the plaintiffs, she does not claim any amount and she was joined only as a pro forma plain tiff .

The share of plaintiff No.l to 7 in the decfetal amount are proportioned as follows:‑

Plaintiff No. l Mst. Qudsia Kishwar Rs.65,800

Plaintiff No. 2 Babar Afzal Rs.10,000

Plaintiff No. 3 Shaista Rs.10,000

Plaintiff No. 4 Humayoon Afzal Rs.20,000

Plaintiff No. 5 Afshan Rs.20,000

Plaintiff No. 6 Farrukh Shahzad Rs.20,000

Plaintiff No. 7 Saba Rs.25,000

-----------------------------

Rs.1,70,880

-----------------------------

6. In another case Mst. Asghari Begum v. KRTC 1984 M L D 756. The suit was filed by the mother widow and four' minor children of the deceased Muhammad Ibrahim for recovery of es‑6,80,000 but the plaint was amended and the claim was reduced to gs.60,000 only. The learned Judge while passing the decree in the sOm of Rs.60,000 with interest at the rate of 14 per cent per annuli allocated the shares of the mother, widow and the children in the following manner:‑--

"Out of the decretal amount the share of the plaintiff No.l (mother) will be Rs.5,000 and the rest of the plaintiff Rs.11,000 each."

7. In Muhammad Yusuf Khan v. KRTC 1984 C L C 2830. This was a case by an invalid husband and two minor children of a deceased woman, who had died in a road accident. It was proved that she was the only earning member and was supporting her invalid husband as well as two minor children. A learned Judge of this Court passed a decree in the sum of Rs. 60,000 in favour of the plaintiffs without making any allocation of shares between invalid father and the two minor children.

8. Now I take up two leading judgments which have decided the issue differently. Each one of them has adopted equally pursuasive reasonings in support of the view taken. I may first refer to Mst. Varkhima v . Abdul Rasheed and others 1981 C L C 944. This case was decided by Naimuddin, J. as he then was sitting on original side. This suit was filed by a widow and three minor sons and a minor daughter of the deceased. The learned Judge framed a issue. "Whether the plaintiffs have suffered pecuniary loss due to the death of Raisham Gul. If so, how much " Learned Judge has disposed of this issue. It would be profitable to quote the findings on this issue in extenso to show that approach was brought to bear on the question of allocations of shares of the different heirs:

"Since the deceased was undisputedly earning Rs.600 per month and was spending Rs.500 per month on the maintenance of the plaintiff and his children and according to the normal expectancy of life in Pakistan he being in good health, would have lived for another twenty years and earned for the said period a total sum of Rs.1,44,00. Out of his amount at the rate of Rs.500 per month as proved by affidavit of Nek Badin he would have spent Rs.1,20,000 on the maintenance of the plaintiff and his children. Ordinarily he would have maintained plaintiff 1 for about 20 years and plaintiffs 2 to 5 for about 10 years, 11 years, 14 years and 15 years, respectively. Although it is not stated in the plaint or in the affidavit filed on behalf of the plaintiffs as to how much amount the deceased was spending on each of the plaintiffs every month, it was stated by Mr. K.B. Bhutto at the bar that the deceased was spending Rs.200, per month on plaintiff 1, which included maintenance of the house, Rs.75 each on all the remaining plaintiffs. This statement has not been disputed by Mr. Riazul Hassan Advocate for defendant 3. Accordingly each plaintiff is entitled to the following compensation:

(i) Plaintiff 1 (Widow) Rs.48,000

(ii) Plaintiff 2 (Minor) Rs.9,000

(iii) Plaintiff 3 " Rs.9,000

(iv) Plaintiff 4 " Rs.13,050

(v) Plaintiff 5 " Rs.13,950

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Total . . . Rs . 93 , 900

I, therefore, decide this issue accordingly."

9. In a bunch of cases disposed of by a single judgment by my brother Tanzilur Rehman, J. reported in PLD 1986 Kar. 489 the question was examined from a different angle. The learned Judge has exhaustively dealt with this question and has opined that the allocation of shares should be made strictly in accordance with the entitlement of different heirs under the Muslim Law of Inheritance. The reasonings of the learned Judge for adopting the criterion of distributing shares according to the Muslim Law are inspired by an anxiety to enforce the law of Shariat in letter and spirit.

10. The learned Judge has rightly held that the award under the Fatal Accidents Act being similar in nature to the blood money awarded in cases of Qisas and Diyat should also be distributed in the same manner. There is a consensus that the Diyat money has to be distributed among all the heirs of a deceased person in proportion to their respective entitlement under the Muslim law of inheritance.

11. Before applying principle of Diyat it is to be kept in mind that there are two things one the eligibility of a share‑holder and secondly proportion of the share to which such a share‑holder would be entitled. My brother has followed only the later part of the doctrine. He could not and has not followed the earlier part. The Fatal Accident Act restricts the class of heirs, who would be entitled to bring an action under the Fatal Accidents Act brothers, sisters and even the sons and daughters, who are entitled to a share in the Diyat and Qisas money are excluded from the limited class of beneficiaries under the Fatal Accidents Act. Under the Fatal Accidents Act only the dependents of a deceased person should be compensated. Self supporting sons and daughters, who were not drawing any benefit during the life time of the deceased and as such have not suffered any deprivation or loss on account of death cannot be awarded any share in the decree.

12. In my humble opinion unless the Fatal Accidents Act is amended and its scope is widened and enlarged to include even those who would be entitled to a share on the pattern of Diyat mere apportionment of shares among the existing class of beneficiaries would not serve any purpose and it would neither be following the award according to the Diyat nor would be inconsonance with the spirit of the Fatal Accidents Act.

13. I feel inclined to award 1/6 to the widow and preserve the rest of the decretal amount in custodia legis till such time that all the children attain majority. During this period they should be entitled to draw such amounts from time to time as the Court may deem fit to award on their applications. The expenses during the time of their minority would include such pressing needs as their maintenance, education, and medical expenses etc. etc. All these benefits they would have enjoyed if the deceased has remained alive.

14. In my humble opinion the object of this Act is to recoup the loss to the heirs as far as money can do. It would neither be proper to give away the shares of the minor to the mother nor to keep their share in save deposit with the anxiety to preserve it and pay them on their majority because by adopting the later course the darkest and hardest period of their life would pass away without any relief to them. If their shares are kept in custodia legis and are spent on their maintenance, education and medical expenses as needed during minority they would get the real benefit of the decree. After they have attained majority the residue whatever it may be, should be distributed among them in accordance with the Muhammadan Law male getting double the share of a female child. This would fulfil the requirement of Shariat and would also not cause any violence to the provisions of the Fatal Accidents Act as they presently stand on the statute book. The result is that the suit is decreed in the sum of Rs.5,00,000 with costs against Defendant No.2 only and dismissed against defendant No.l without order as to costs.

M.B.A./M‑106/K Suit decreed.

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