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Regular First Appeal No.120 of 1979, decided on 18th November, 1986.

‑‑‑S. 1‑‑Rash and negligent driving‑‑Accident‑‑Damages‑‑Accident not denied by appellant‑defendant Corporation‑‑‑ Driver of bus who could be the best witness not examined by defendants in support of their plea that said driver did not drive bus rash and negligently and no other evidence produced by defendants to rebut evidence brought on record by plaintiffs‑respondents‑‑Eye‑witness of occurrence not related to plaintiffs‑‑Evidence of eye‑witness and accident report on record fully establishing that accident took place on account of rash and negligent driving of bus driven by driver/employee of appellant Corporation‑‑ Appellant also not challenging fact of death of deceased woman as a result of injuries received by her in accident‑‑Appellant, held, was liable to pay damages to plaintiffs‑respondents in circumstances.

‑‑‑S. 1‑‑Civil Procedure Code (V of 1908), O.VI, R.2‑‑Pleadings‑‑Parties are not required to plead law.

‑‑‑S. 1‑‑Fatal accident‑‑Damages‑‑Claim of damages on account of loss of companionship, love, affection, shock etc., held, not entertainable under Fatal accidents Act‑‑Damages under the Act could be granted only for pecuniary loss suffered on account of death of deceased.‑ [Damage].

‑‑‑S. 1‑‑Damages‑‑Deceased aged 24 years at time of meeting with fatal accident and employed at a monthly salary of Rs.650‑‑Deceased spent some amount on herself as well‑‑Normal expectancy of life of deceased taken as 65 years and excluding amount which deceased might spend on herself, a sum of Rs.350 per month allowed to plaintiffs /parents of deceased for a period of 41 years as damages on account of financial loss suffered by them due to death of deceased in fatal accident as a result of rash and negligent driving of bus belonging to respondent‑ Amount spent on funeral expenses also allowed.‑‑[Damage ].

‑‑‑S. 1‑‑Fatal accident‑‑Damages on account of pecuniary loss‑‑Amount spent on treatment, not entertainable‑‑Pecuniary loss would be loss resulting to parties beneficially entitled as consequence of death. Act not laying down any principle for calculating measure of such loss but an estimate has to be made by Court‑‑No definite or hard and fast rule could be laid down as to matters which should be taken into account to assess damages but only such damages could be given as could be shown to have been financially suffered by those who brought action‑‑Factors which Court would take into account while estimating damages, stated.‑‑[Damage].

Manmatha Nath v. Muhammad Mokhlesur Rehman and another PLD 1969 S C 565 rel.

Nemo for Appellant.

Ch. Muhammad Iqbal for Respondent.

Date of hearing: 18th November, 1986.

.‑‑It was on 1st August, 1974, at about 9‑30 a.m. when Muhammad Afzal alongwith his sister Mst. Parveen Akhtar aged about 24 years and Mst. Shaheen Sadiq aged about 6/7 years was proceeding on his Scooter LEJ 6610. When he approached Ferozepur Road near Sharif Park, Ichhra, Lahore, Punjab Road Transport Bus No. LEK 2111 driven by Behram Khan, Driver hit‑ the scooter from behind as a result of which Muhammad Afzal and his two sisters were injured. Muhammad Saeed P.W.4 happened to be present near the place of occurrence. He made arrangements to remove Muhammad Afzal, Mst. Parveen Akhtar and Mst. Shaheen Sadiq to hospital. However, Mst. Parveen Akhtar died in the way on account of her injuries before any medical aid could be rendered to her. Muhammad Saeed P.W.4 reported the matter to the police who registered a case under sections 304‑A, 275 and 338, P.P.C. vide F.I.R. No.268, dated 1st August, 1974 Exh.P.7. It was stated by Muhammad Saeed P.W. that he was present in front of the clinic of Doctor Muhammad Sharif on Ferozepur Road, Lahore to catch a bus on 1st August, 1974, at about 9‑30 a. m. He saw Muhammad Afzal alongwith his two sisters coming on a scooter and passing from near him. In the meantime, Omnibus No. LEK‑2111 which was being driven at a fast speed by Behram Khan came there. The left front part of the bus hit the scooter from behind and dragged Muhammad Afzal and his two sisters to some distance. All the three were seriously injured on account of rash and negligent driving by Behram Khan who was challaned in the said case by Police. It is stated at the Bar that he confessed his guilt and was accordingly convicted by the Magistrate.

2. Chaudhry Muhammad Sadiq and his wife Mst. Mumtaz Begum, parents of Mst. Parveen Akhtar on 12th December, 1974 filed the present suit against Punjab Road Transport Board and Behram Khan, Driver claiming a sum of Rs. 4, 85,168 as damages on account of the death of their daughter and injuries to their son Muhammad Afzal and their daughter Mst. Shaheen. The plaint was amended and the amount of damages claimed was enhanced to Rs.5,27,768.54. It was pleaded that Mst. Parveen Akhtar deceased at the time of her death was aged about 22 years. She was employed at a monthly pay of Rs.650 with chances of promotion. The plaintiffs, therefore, claimed Rs.3,23,400 as pay of the deceased from 1st August, 1974 to 10th December, 2015. They claimed Rs.2,00,000 on account of shock, mental torture and deprivation of the company of their daughter, love and affection etc. Another sum of Rs.2,000 was claimed as funeral expenses. Another sum of Rs.2,368.54 was also claimed as medical expenses for treatment of Muhammad Afzal and Mst. Shaheen Sadiq. In this way, a total sum of Rs.5,27,768.54 were claimed as damages from the defendants who resisted the claim and controverted the averments in the plaint. It was pleaded by them that the accident did not take place on account of rash and negligent driving of Behram Khan. It was stated that the accident took place on account of the negligence of Muhammad Afzal himself. The learned Civil Judge framed the following issues on the pleadings of the parties:‑--

(1) Are Mst. Shamim Sadiq and six others (serial No. 3 to 9 in para. No. 2 of the plaint) beneficiaries of Mst. Parveen Akhtar deceased O. P. D.

(2) Have plaintiffs no locus standi to bring this suit O. P. D

(3) Has defendant No not been properly sued If so what is its effect O.P.D.

(4) Did the accident in question resulting in the death of Miss Parveen Akhtar occur as a result of negligent and rash driving of defendant No.2 O.P.P.

(5) If issue No.4 is proved, to what amount of damages are the plaintiffs entitled to receive from defendants jointly and severally O. P. P.

(6) Relief.

All these issues were decided against the defendants and in favour of the plaintiffs as a result of which decree for recovery of Rs.5,27,768.54 on account of damages with costs was passed in favour of the plaintiffs and against the defendants vide impugned judgment and decree, dated 24th February, 1979. Hence this appeal.

3. The appeal was called earlier in the day. No one appeared on behalf of the appellant. We, therefore, sent a chit to the Bar Room to secure the presence of the two learned counsel for the appellant for arguments in this case. We kept waiting for sufficiently long time but no one appeared on behalf of the appellant. We have ourselves carefully gone through the record with the assistance of the learned counsel for the respondents. This being an old appeal, we decided to proceed with the hearing of appeal in the absence of learned counsel for the appellant.

4. The plaintiff‑respondents during trial of their suit produced oral as well as documentary evidence in support of their claim.

Exh. P.1 is a letter from District Manager, Lahore Omnibus Service to the Chief Traffic Officer, Punjab Road Transport Board furnishing interim accident report of Bus No. LEK 2111. It was stated in this report that "when the bus reached Ichhra Morr near Habib Bank, the driver of the bus was confronted with a scooter being driven by one Muhammad Afzal son of Muhammad Sadiq going ahead of him. There was also reportedly one minibus going in the same direction. It overtook the Scooter safely but our bus driver tried to overtake it from wrong direction. The scooter driver could not visualize this wrong side overtaking in time and lost balance. All the three riders i.e. Muhammad Afzal, his sister Mst. Parveen Akhtar deceased and another sister Mst. Shaheen Akhtar fell down. By this time, our bus had also reached the site and unfortunately Parveen Akhtar was crushed to death under the front wheels of the bus." It was further stated that the other two occupants of the bus also suffered injuries.

Exh. P.2 is the accident report by the Assistant Traffic Manager wherein it was stated that "the wagon was crossing the scooter while the bus driver overtook the scooter and the wagon from wrong side and bus struck with the scooter. Exh.P.3 is the rough site plan of the place of occurrence. Documents Exhs.P.4 to P.6, and P.8 to P.18 are the receipts issued on account of payment of professional fee and purchase of medicines by the plaintiffs. Exh.P.19 is the notice sent to the Punjab Road Transport Board by the plaintiffs claiming damages on account of the death of their daughter Mst. Parveen Akhtar because of rash and negligent driving of bus belonging to the Punjab Road Transport Board by Behram Khan. Exh.P.22 is the secondary school certificate of Mst. Parveen Akhtar. She passed her examination in 1967. In this certificate, her date of birth is recorded as 10th December, 1950. Exh.P.23 is the photograph of the bus and the place of occurrence. Exh.P.24 is clipping of a newspaper containing news of this accident and also the photographs.

In all, seven witnesses were examined by the plaintiffs. Sheikh Muhammad Saeed, Advocate reached the place of accident after the occurrence. It was stated by him that Mst. Parveen Akhtar was employed in Cardex Clinic as lady X‑ray technician at monthly pay of Rs.650. Doctor Akhtar Mahmood P.W.2 rendered treatment to Muhammad Afzal and Miss Shaheen and received Rs.220 as professional charges. He issued receipts Exhs. P.4 to P.6 H.C. Ghulam Nabi P.W.3 recorded formal F.I.R. Exh.P.7. Muhammad Saeed P.W.4 was an eye‑witness of the occurrence. He lodged F.I.R. Exh.P.7 and arranged removal of the injured to hospital. Ehsan Elahi P.W.5 runs a chemist shop. He had issued receipts Exhs P.8 to P.18 on account of sale of medicines. Doctor Akhtar Ali P.W.6 is owner of Cardex Clinic. It was stated by him that Mst. Parveen was employed in his X‑ray department and was getting Rs.650 per month as pay. He stated that besides the pay, Nlst. Parveen Akhtar also earned extra wages by doing overtime job and also by visiting residences of patients. Muhammad Sadiq P. W.7 is one of the plaintiffs who appeared as his own witness in support of the case.

The defendant‑appellant examined only one witness in rebuttal. Mahboob Alam D.W.1 was accident incharge of Lahore Omnibus Service. It was stated by him that the occurrence did not take place on account of rash and negligent driving. He prepared site plan of the place of accident. It was further stated by him that the scooter had struck the bus from rear. He admitted that the reports Exhs.P.l and P.2 were prepared by his office. No other evidence oral or documentary was produced by the defendants during trial of the suit. Behram Khan driver who was one of the defendants in the suit also did not appear to rebut the plaintiffs' case.

A perusal of the evidence on record would show that the accident has not been denied by the defendants. It was pleaded by them that Behram Khan defendant did not drive the bus negligently and with rashness. Mahboob Alam D.W.1 is himself not an eye‑witness of the occurrence. Behram Khan driver who could be the best witness was not examined by the defendants to support their plea. No other evidence was produced by the defendants to rebut the evidence brought on record by the plaintiffs.

Muhammad Saeed P.W.4 is an eye‑witness of the occurrence. He is not related to the plaintiffs. He just happened to be present at the bus stop waiting to catch a bus and saw this occurrence. It was clearly stated by him that the bus was being driven rashly and negligently at fast speed by the driver. The accident report Exh.P.2 and the report Exh.P.l also indicate that the bus driver tried toy overtake the scooter as well as another wagon from wrong side. It is, therefore, fully established on record that the accident took place on account of the rash and negligent driving of the bus by Behram Khan, an employee of the appellant. The fact that Behram Khan was an employee of the appellant is not denied. It is established that as a result of rash and negligent driving of bus by Behram Khan, Mst. Parveen Akhtar was seriously injured. She died as a result of those injuries. The defendants do not challenge the fact of the death of Mst. Parveen Akhtar as a result of injuries received by her. The defendants are, therefore, liable to pay damages to the plaintiffs.

5. The plaintiffs claimed a sum of Rs.5,27,768.54 as damages. There is no averment in the plaint to the effect that the suit was being filed for recovery of damages under Fatal Accidents Act, 1855 but it was not necessary because the Code of Civil Procedure does not require parties to plead law. The suit was throughout treated by the parties as a suit under Fatal Accidents Act. The total amount claimed by they plaintiffs as damages also included a sum of Rs.2,00,000 on account of life long shock, mental torture to the plaintiffs, deprivation of company, love, affection and services rendered by the deceased to the plaintiffs". The claim of damages on account of loss of companionship, love, affection, shock etc is not entertainable under the Fatal Accidents Act. The damages under this Act can be granted only for pecuniary loss suffered by the plaintiffs on account of the death of the deceased. We are, therefore, of the view that on this count damages of Rs.2,00,000 could not be claimed by the plaintiffs. The learned Civil Judge while decreeing the suit of the plaintiffs did not discuss in his judgment nor give any reasons to accept the entire claim of damages of the plaintiffs. We, therefore, disallow the claim of damages of Rs.2,00,000.

The plaintiffs claimed a sum of Rs.3,23,400 on account of the pay of the deceased from 1st August, 1974 to 10th December, 2015. It was stated by the learned counsel for the plaintiff‑respondents that at the time of death, Mst. Parveen Akhtar was aged about 24 years and in good health. According to the learned counsel the normal age of the deceased in absence of accident would have been about 65 years and as such, calculating her expected life of 65 years, the plaintiffs were entitled to claim pay of the deceased at the rate of Rs.650 per month for 41 years. We agree that the normal expectancy of life of Mst. Parveen Akhtar could be taken as 65 years. It is also established on record that she was getting Rs.650 per month as her pay from Cardex Clinic but this would not mean that she was paying the entire pay to her parents. She must be spending something on herself as well. The learned counsel for the defendants also concurred with this view. We are, therefore, of the view that the plaintiffs can be allowed a sum of Rs.350 per month as her pay for 41 years. The learned counsel for the defendant‑respondents did not object to this. Calculating the pay at the rate of Rs.350 per month for 41 years, the total comes to Rs.1,72,200. We are, therefore, of the view that the plaintiffs are entitled to receive this amount as damages from the defendants on account of the financial loss suffered by them because of the death of Mst. Parveen Akhtar as a result of the rash and negligent driving of bus belonging to the Punjab Road Transport Board by Behram Khan, Driver. The plaintiffs spent Rs.2,000 towards funeral expenses of their daughter Mst. Parveen Akhtar. They are also entitled to receive this amount. A sum of Rs.2,368.54 was spent by the plaintiffs for treatment of their two children. They are not entitled to receive this amount under the Fatal Accidents Act 1855. In support of these conclusions, we place reliance on the judgment in Manmatha Nath v. Muhammad Mokhlesur Rehman and another P L D 1969 S C 565 wherein it wash held that under section 1 of Fatal Accidents Act, 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. It was further held that no definite or hard and fast rule can be laid down as to the matters which should be taken into account to assess the damages but this much can be said that only such damages can be given as can be shown to have been financially suffered by those who bring the action. In estimating such damages, the Court will, no doubt, take into account the age of the deceased, her health, earning capacity and even chances of advancement. Thus parents may recover for the loss of the probability that the deceased child would have contributed towards their maintenance. The basis of the assessment is not the requirement of the plaintiff but the money value of the assistance which the deceased might probably have given' had she continued to live. It was further held by their Lordships that in an action of this nature, damages can be recovered in respect of the reasonable expectation of the value of the services that the deceased might have rendered to the members of the family.

6. As a result of the above discussion, this appeal is partly accepted. The suit of the plaintiffs is decreed to the extent of Rs.1,74,200. The G defendant‑appellant will pay the costs of the suit and this appeal to the plaintiff‑respondents.

M. Y. H. /692/L Appeal partly accepted

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