' On 7-12-1998 the plaintiff Mst. Farzana Parveen filed the suit against the defendants Karachi Electric Supply Corporation (K.E.S.C.) for recovery of Rs.81,63,060 under the provisions of Fatal Accidents Act, 1855 as her husband Hafiz Salim Akhtar died coming into contact with electric live wires lying dangerously on the road on 14-10-1998.
2. The plaintiff has filed the suit in the representative capacity for herself and for the benefit of other legal heirs of the deceased Hafiz Salim Akhtar, namely Baqar Ali Khan (father of deceased), minor children Rehan Ali Khan aged 5 years, Rizwan Ali Khan aged 4 years and Rabeya aged 1 year (sons and daughter of the deceased). She further stated that she has no adverse interest to that of other legal heirs of the deceased pending adjudication of the suit Baqar Ali Khan, father of the deceased died.
3. Plaintiff alleges in the plaint that on 14-10-1998 the deceased Hafiz Salim Akhtar was senior Clerk in Karachi Water and Sewerage Board but he was working in Sindh Secretariat on deputation. On 14-.10-1998 after completing his work he was returning to his house. At about 4-45 p.m. He reached main Shahrah-e-Kamal Ataturk near Sindh Secretariat, Electric Wires were broken from the pole and lying on the ground in the rainy water as it was rainy season. The deceased came into contact with the said wires and died there. The people came and rescued the deceased with the help of wooden planks. The police also arrived there. They took the deceased to Civil Hospital where a doctor pronounced him dead. The police started the investigation and prepared inquest report under section 174, Cr.P.C. And lodged the report on the same date.
Issue No.1 .In affirmative.
Issue No.2.In affirmative.4. The plaintiff further alleges that the defendants are a statutory body, Corporation, they are responsible for supply of electricity throughout Karachi. The defendants are also responsible for construction, maintenance, properly looking after the under work of overhead wires, cables, poles and other electricity installations pertaining to transmission and distribution of energy and by virtue of inherent danger in their business operation the defendants were obliged to insure by virtue of electricity laws and rules that no live part of its installations and under work be exposed so as to capable of being touched by any person not intending to have access to them. It is further alleged that the defendants have failed to perform their duties in proper manner and were grossly negligent. Therefore, the accident took place in which the deceased had died. She has prayed for compensation of the above mentioned amount with 15% profit per annum on the said amount.
5. The defendants tiled the written' statement in which they admitted that they provide electricity to Karachi, including the Shahrahe-Kamal Ataturk near Sindh Secretariat, Karachi. They claimed that they were doing their duties honestly and with due care and caution. They denied the incident as alleged on 14-10-1998 in which the deceased had died. They asserted that no complaint of such incident was received at the complaint center, as such, they did not know about the incident and for the first time they came to know about the incident through the present suit. They prayed for the dismissal of the suit.
6. On 23-4-2001, the Court framed the following issues:- ISSUES:
(1) Whether the deceased Saleem Akhtar died as a result of negligent of the defendant viz. From live wire lying from main pole on Shahrah-e-.Kamal Ataturk maintained by defendant?
(2) Whether the defendant is liable to pay the compensation, if so, its quantum?
(3) Whether the plaintiffs are entitled for the relief claimed?
(4) What should the decree be?
7. In support of the case the plaintiff examined herself as Exh. P. Shaikh Ahmed, Abdul Rauf, A.S.-I.
Haq Nawaz, S.-I. Mushtaq Ahmed and Medico-Legal Officer Dr. Muhammad Ismail. She produced death certificate issued by Civil Hospital as Exh.P.1, death certificate issued by DMC as Exh.P.2, Roznamcha Entry No.39 as Exh.P.3, Roznamcha Entry No.40 as Exh.P.4, newspaper clippings as Exhs.P.5 to P.13, heirship certificate as Exh.P.14, Nikahnama of plaintiff with the deceased as Exh.P.15, birth certificates of the children as Exhs.P.16 to P.18, identity card of father of the deceased as Exh.P.19, identity card of the plaintiff as Exh.P.20, identity card of the deceased as Exh.P.21, salary certificate identity card of father of deceased as Exh.P.22 and death certificate of Baqar Ali Khan as Exh.P.23. P.W. Abdul Rauf produced salary statement of the deceased dated 17-10-2003 as Exh.P.3-1, salary statement as Exh.P.3/2, seniority list as Exh.P.3/3 and seniority list dated 31-3-1998 as Exh.P.3/4, P.W. A.S.-I. Haq Nawaz produced Roznamcha entries as Exh.P./4/1 as Exh.P.4/2, identity cards of the deceased as Exhs.P-4/3 and Exh.P.4/4, memo. Of dead body as Exh.P.4/5 and attested carbon copy of Roznamchna Entry No.39 as Exh.P.4/6. P.W. S.-I. Mushtaq Ahmed produced inquest report and the letter as, Exh.P.5/1 and Exh.P.5/2, memo. Of dead body as Exh.P.5/3, original copy of statements under section 161, Cr.P.C. Of four witnesses as Exh.P.5/4 to Exh.P.5/7, post-mortem report as Exh.P.5/8. Medico-Legal Officer report as Exh.P.5/9, death certificate as Exh.P.5/10 and attested carbon copy of Roznamcha Entry No.40 dated 14-10-1998 as Exh.P.5/11.
8. The defendants examined Munsif Shah, Foreman KESC and Shoukat Jamil Assistant Engineer, Power House, KESC.
9. I have heard the parties Advocates. Perused the record of this case very carefully. My findings on the above issues are as under for the following reasons:-- Issue No.3.In affirmative. In affirmative to the tune of Rs.4,53,625.40.
Issue No.4.The suit is decreed for an amount of Rs.44,53,625.40 with 15% interest from the date of judgment till recovery of the amount.
REASONS ' ISSUES NOS.1 AND 2.
10. As the issues are interconnected, therefore, they are discussed together. To prove the issues, the plaintiff has examined herself. She stated the same facts as disclosed by her in the plaint which facts are mentioned above. It will be repetition of same facts if they are narrated again. The second witness examined by the plaintiff was Shakeel Ahmed. He was an eye-witness of the incident. His evidence reveals that on 14-10-1998 at 4-45 p.m. The pedestrian namely Hafiz Salim Akhtar, while walking through Shahrah-e-Kamal Ataturk near Sindh Secretariat came info contact with live snapped wires which were lying submerged in the accumulated rainy water, dangling and loosely hanging from the main electric pole, therefore, the deceased received a heavy electric shock, fell down on the ground and became speechless. He and other people gathered around the victim and managed to isolate and drag the victim with the help of ropes and wooden planks. In the meantime a police mobile of artillery Maidan Police Station reached there and evacuated the said victim to the hospital. In the cross-examination he confirmed the above incident and further added that he was a businessm an and his business hours were from 10-00 a.m. To 10-00 p.m. He denied the suggestion of the, defendants that he did not witness the incident or that no incident took place on that date.
11. The third witness was Abdul Rauf, Director Administration, Karachi Water and Sewerage Board.
His evidence reveals that the deceased was employed as senior clerk in the Karachi Water and Sewerage Board from 17-11-1985. At the time of his death his monthly salary was Rs.4491. He produced such statement as Exh.P.3/1. He further deposed that if the deceased would have on the same post he would have been drawing a salary of Rs.7288 but the, deceased could have been promoted in BPS-14 as his other colleagues, who were junior to him, were promoted, then his salary would have been Rs.9,000 per month. At the time of death, the deceased was working with Government of Sindh on deputation and was posted in Sindh Secretariat but he was drawing salary from the Karachi ,;]Water and Sewerage Board. He produced the seniority lists of the officers who were working with the deceased and his juniors were promoted. In the cross-examination he deposed that the amount of salary mentioned by him was gross salary and Mansoor Ahmed, who was junior to the deceased, was promoted on 20-6-2002 as an Assistant.
12. The fourth witness, examined by the plaintiff, was Haq Nawaz. He was A.S.-I. Posted at Artillery Maidan Police Station. His evidence reveals that on 14-10-1998 he was on patrolling duty along with his subordinate staff. While, they were passing through Shahrah-e-Kamal. Ataturk, Sindh Secretariat and reached Ombudsma n Office they saw a crowd of people, they went there and found a person was electrocuted by coming into contact with snapped electric, wires. He immediately informed such facts to the S.H.O., who reached at the place of incident. He also saw the said person laying speechless in the rainy water and overhead electric wires were lying hanging from the main electric pole, which were submerged in the rainy water adjacent to the Ombudsman Office, Sindh Secretariat. He along with S.H.O. And other person present there managed to take out the body of the victim with the help of wooden plank and then the body was taken to the Civil Hospital. From the pocket of the deceased he found his identity cards which showed that he was employed in Karachi Water and Sewerage Board. The body was handed-over to Medico-Legal Officer Civil Hospital, who conducted post-mortem examination and declared him dead because of electric shock. In the cross-examination he stated that he did not know whether any complaint 7was made to KESC of the said incident. He denied the suggestion of the defendants that no incident, as alleged by him, took place.
13. The fifth witness examined by the plaintiff was Mushtaq Ahmed. He was Sub-Inspector, Artillery Maidan. His evidence reveals that on 14-10-1998, S.H.O. Informed him at about 5-00 p.m. That a person namely Salim Akhtar, who was electrocuted by coming into contact with the snapped electric wires beside Sindh Secretariat had been brought in police mobile van in Civil Hospital from the place of incident, therefore, he maintained such information in the Roznamcha under Entry No.39. He produced the said entry. Then he went to the Civil Hospital where he found the dead body of Salim Akhtar lying in mortuary. He prepared the inquest report as required under section 174, Cr.P.C. And issued a letter to the doctdr for furnishing him cause of death of the deceased. The Doctor furnished the cause of death by declaring that the deceased died due to electrocution. He produced the said documents. He then handed-over the dead body to Bagar Ali, father of the deceased. He also inspected the place of incident and prepared the memo. Of place of incident which he produced. He also recorded the statements of witnesses. He also received the post- mortems examination report of the deceased which also shows the same cause of death. The said postmortem examination report was also produced in the evidence. In the cross-examination he deposed that the'Medico-Legal Officer would be in a better position to verify the contents of the post-mortem examination report. The sixth witness examined by the plaintiff was Dr. Muhammad Ismail. He conducted the post-mortem examination of the deceased. His evidence reveals that on 14-10-1998 he conducted the post-mortem examination of the deceased Hafiz Salim Akhtar, who died due to cardiorespiratory failure resulting from electric shock. He verified the postmortem examination report already produced in the evidence to be the said report. In the cross- examination he stated that electric shock leaves marks on body. He found one mark on the dead body from where the electric current had entered into the body, second mark from which electric current had come out from the body and he had mentioned such facts in the post-mortem examination report.
14. From the above evidence it is clear that on 14-10-1998 at 4-45 p.m. The deceased Hafiz Salim Akhtar came into contact with electric live snapped wires which were lying submerged in the accumulated rainy water. The said wires were dangling and loosely hanging from the main electric pole. The deceased was taken to hospital where he was pronounced dead. The cause of death, as shown by the Medico-Legal Officer, was due to cardiorespiratory failure resulting from electric shock. Thus, it has been established beyond any shadow of doubt that the incident as alleged by the plaintiff had occurred.
15. The defendants' case, as set up in the written statement and the cross-examination to the witnesses, that no such incident took place, has not been established from the evidence of the plaintiff or through the cross-examination to the witnesses. The witnesses have categorically denied such suggestions of the defendants.
16. In support of the defence the defendants examined two witnesses. The first witness, examined by them, was Munsif Shah. He was Foreman of the defendants. His evidence reveals that the defendants had not received complaint about the incident. He further stated that the Wires were not loosely hanging from electric pole on the date, time and place of incident and further asserted that the incident did not take place due to negligence on the part of defendants. In the cross- examination, he stated that at the time of incident he was not posted within the area but he was posted in power house. He further admitted that he did not personally know about the contents of the written statement as he had not signed the same. He admitted that the record of complaints, received about such type of incident is to be destroyed after three years, therefore, the record of the present case must have been destroyed. He admitted that the guard wires are installed for the purpose of safety and that general reasons for snap of wires are due to overloading or weakness of the wires. He admitted that' in a case of electrocution a departmental inquiry is carried out whenever any case is filed. He further admitted regarding the present incident that an inquiry had been conducted by some officer of KESC, but he did not know his name. He further deposed that he did not know who lodged the report in respect of the complaint of the present incident which took place on 14-10-1998 at Tughlaq House, Shahrah-e-Kamal Ataturk because the complaint Supervisor, after 08 hours is changed in a shift. He further admitted that in the year 1999 when the written statement was filed at that time the record was intact and was not destroyed. He further admitted that the officials of KESC, who attended the complaint on 14-10-1998 of Taghluq House, Shahrah-e-Kamal Ataturk are still in service. He gave the normal life of copper wires as five to eight years.
17. The second witness examined by the defendants was Shoukat Jamal. He was Assistant Engineer.
His examination-in-chief is same as that of D.W. Munsif Shah. In the cross-examination, he stated that he was not posted at the place where the incident took place, but he was posted at Korangi Power House. He admitted that he came to know about the incident through official record of KESC.
He admitted that the report of the present incident must have been prepared by the officer who was responsible to conduct the inquiry. He denied that they used to maintain any complaint register, but the complaint register is maintained by KESC, Ejender Road, Power House. He admitted that he came to know about the incident in the month of November, 2003 and before that he was unaware of the facts of this case as he was posted at Korangi Power House. He admitted that it was the duty of Complainant (Maintenance and Complaint) Centre to do the periodical checking of the overhead wires from time to time and such record is maintained by the Zonal Office. He admitted that they used to install guard wires device in every pole to protect the overhead network and the purpose of installing guard wires device is to prevent the wires from breaking down. He admitted that there was no system with the KESC which will render the wire dead automatically at once when it is isolated and snapped from pole and it is also not the function of guard wires to render the isolated wires dead. At the same time he further admitted that the guard wires should have been affixed from pole where the wires in question had snapped. He admitted that they noted a complaint in respect of Tughlaq House, Shahrah-eKamal Ataturk and they dispatch MTL at 3-25 p.m. To attend the complaint at Tughlaq House, Shahrah-e-Kamal Ataturk and the team was consisted of three persons viz:, lineman, two workers, a driver and whenever the team returns back to the office an entry of arrival is to be made in the complaint register. He further admitted that one Rahmat was lineman, who attended the complaint at Tughlaq House, Shahrah-e-Kamal Ataturk, who is still working in KESC.
18. From the above evidence of the defendants witnesses it is clear that the -defence set up by the defendants in the written statements has been falsified by the above-named two witnesses. From their evidence, It is clear that a complaint was received at the Complaint Centre of the defendants and on the said complaint one Rahmat lineman attended the complaint but the said person has not been examined. From the evidence, it is also clear that an inquiry into the incident was conducted by the defendants, but no such inquiry report has been produced. Even the complaint record has not been produced though when the written statement was filed, the complaint record was intact as the record was used to be destroyed after three years of the complaint. In the present case the incident took place in the year 1998 and the written statement was filed in the year 1999. As such, the defendants have intentionally and purposely withheld the said pieces of evidence from the Court by not producing the same, which has adversely affected their defence.
19. After considering the material available on the record. I am of the considered view that the incident, as alleged by the plaintiff, took c place in which the deceased died.
20. From the evidence it is clear that the defendants were gross negligent in doing the public duties. 'Under the law the defendants were/are responsible for maintenance, properly looking after the network of overhead wires, cables, poles and other electricity installations pertaining to the transmission and distribution of energy. The electricity is a hazardous and inherently dangerous activity and can harm on account of accident in the operation. Of dangerous activity. For example, in case the live wires are broken then it may cause the death of citizens. Constitution of Pakistan guarantees the protection of life of the citizens. The defendants are engaged in the activity which is highly dangerous, therefore, heavy responsibility lies upon them to take care and to maintain their installations and other related matter in a very orderly manner through periodical and timely checking.
21. Under, the electricity law a guard wires are provided to de-energize the electric wires and to protect it from falling on the ground as required under rule 76 of Electricity Rules. The said provisions read as under:-- "Guard-wires.---Every guard-wire shall be connected with the earth at each point at which its electrical continuity is broken and, in the case of electric traction lines, shall also be connected, at intervals of no more than five, spans, with the rails.
(1) Every guard-wire shall have an actual breaking load of not less than 1,500 lb, and shall if of iroh or steel, be galvanized:
(2) Every guard-wire of the cross-connected system of guard-wire shall have sufficient current carrying capacity to ensure the rendering dead till the contact has been removed, of any live wire coming into contact with it, without risk of fusing of the guard-wire or wires.
(3) Every guard-wires or system of guard-wires and its supports shall have sufficient strength to carry without breaking the extra load which may be put on them by the fall of any or all the wires guarded."
22. It will be noticed that the defendants did not provide guard-wires at the place of incident. If the guard-wires would have been installed then the snapped wires would have not fallen on the ground and the incident would have been averted. However, the incident took place, because of non-providing guard-wires by the defendants, which shows gross negligence on their part by not conducting themselves in accordance with law and violation of Rule '76 of Electricity Rules.
23. Due to modern and new technology the defendants are required to acquire sophisticated instruments and other related gadgets to protect such type of incident. Thus, the negligence of the defendants is proved in this case.
24. However, if anybody undertakes an activity involving hazardous and risky exposure to human life then he is liable under the law of Torts to compensate for the injury suffered by any other person irrespective of any negligence or carelessness on the part of the Manager of such undertaking. The basis of such liability is forcible risk inherent in the very nature of such activity.
Under the law such liability is known as "strict liability". It differs from the liability which arises on account of negligence or fault. The concept of "strict liability" was propounded long back in the year 1868 in a case of Rylands v. Fletcher and another (1968 LTR 220). The rule. Of "strict liability" laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such things snapped and its causes damage, to another, he is liable to compensate for the damage caused. The above rule, as framed in Renalds (supra) has certain exceptions. The said rule was being adopted in England but subsequently the said rule was considered by our neighbouring country India in a case of M.C. Mehta v. Union of India (AIR 1987 SC 1086), but the Supreme Court of India did not accept the said exceptions because of the changed circumstances and development of scientific knowledge and technology. At page 1099, it has been observed as under:- "We would therefore, hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example in escape of toxic gas the enterprise is, strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortuous principle of strict liability under the rule in Rylands v. Flectcher (supra)."
25. The Supreme Court of India further held that for applying the rule of "strict liability" the defence of reasonable care and that the incident occurred without negligence on their part were not available to the defendant. It has further been held as under:-- "We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health' and safety of the persons working in the factory and residing in the surrounding areas owes and absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the - hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation' from then hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity."
26. The above rule was further confirmed by the latest decision of the Supreme Court of India in a case of M.P. Eb v. Shakil Kumari (2002 SC Cases 162). At page 164 it has been observed as under:-- "7. It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent, escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution Was from such diverted line. It is the 'lookout of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps."
27. Under the concept of "strict liability" the plaintiff is required to simply prove that the incident took place because of the hazardous or dangerous activity of the defendant and the plaintiff is entitled to compensation respective of any defence taken by the defendant.
28. In the present case, the plaintiff has proved through convincing evidence that the incident took place on account of the negligence of the defendants. Nevertheless, on the doctrine of "strict liability" the defendants are liable and required to compensate the plaintiff and legal heirs of the deceased for the damages caused to them.
29. As regards the compensation the deceased has left the widow and three minor children namely Rehan Ali Khan (son) Rizwan Ali Khan (son) and Rabia (daughter), therefore, they are also entitled to receive the compensation.
30. As regards the income of ,the deceased, he was working as Senior Clerk in Karachi Water and Sewerage Board but he was on deputation with the Government of Sindh and was working in Sindh Secretariat. He was drawing a gross salary of Rs.4491 per month at the time of his death. The (a)Loss of pecuniary benefits for 38 years at the rate of Rs.7000 = p.m.Rs.3192,000 (b)20% because of chances of increment of aggregate income over all the yearsRs.6,38,400 (c)Damages in favour of widow for loss of association and loneliness under the head of "consortium"Rs.100,000 (d)Damages in favour of children due to death of their father for the loss of education, comfort and position in society which they would have enjoyed if the father had lived and maintained the income which had died with him at the rate of Rs.300,0110 each of three children.Rs.900,000plaintiff has stated that the deceased-was giving tuition of lessons of Holy Quran and was earning Rs.4,000 per month. ...However, the plaintiff has not produced any concrete evidence to prove the fact of income per month on that account. Nevertheless her statement went unchallenged. The plaintiffs witness Rauf who was Director Administration, Karachi Water and Sewerage Board stated that if the deceased would have been on the same post then he would have been drawing Rs.7288 per month as his salary but if he would have' been promoted to Assistant then he would have been drawing salary of Rs.9,000 per month because his juniors have been promoted to the post of Assistant. Keeping in view the relevant circumstances, increase in pay and extra income I take average sum of Rs.7,000 per month as monthly income of the deceased including other income.
The deceased was about 32 years of age at the time of incident. The average span of life is taken as 70 years, therefore, he would have been in funding position for the next 38 years. In aggregate pecuniary benefit for 38 years would be Rs.31,92,000. During the periods there were chances of increment of salary and income, therefore, over all 20% is awarded on account of chances of increment on the aggregate income for all the years, as such, the plaintiff is also entitled for further amount of Rs.638400. The deceased's personal expenditure would be taken 1/6th of his total income which comes to Rs.638400. The widow is also entitled to compensation for loss of association and loneliness which is granted at Rs.100,000. The children are also entitled to the damages due to death of their father, for the loss of education, comfort and position in the society at the rate of Rs.300,000 for each child. Under Islamic Law, if a person is dead due to intentional, unintentional, unlawful, neglectful act, rash or negligent driving or by mistake, then the legal heirs of the deceased are entitled to compensation which is known as Diyat equivalent to the value of the 30,630 grams of silver, which is fixed and decicared by the Federal Government by Notification.
For the financial years 1998-99, the Federal Government vide Notification No.S.R.0.460(I)/98, dated 2-7-1998 declared Rs.251,625,4 as compensation for the loss of life of the deceased.
31. The plaintiff is also entitled to funeral expenses of Rs.10,000.1j Thus the plaintiff and legal heirs of the deceased are entitled to the I following compensation:-- (e)Compensation for loss of life of the deceasedRs.2,51,625.4
(f) Funeral expenses Total: Deduction 1/6th on account of personal expenses of the deceased of the gross pecuniary benefits for 38 years.
Net compensation : Rs.50,92,025.4 Rs.6,38,400 Rs.44,53,625,40
32. Thus the suit of the plaintiff is deceased against the defendants in the sum of Rs.44,53,625.40 with profit/mark-up at the rate of 15% per annum from the date of the judgment till recovery of the amount with costs. The decree shall be satisfied within a period of 30 days.