1. ' KHILJI ARIF HUSSAIN, J.---This suit for recovery of Rs,32,50,000 has been filed by the plaintiffs under Fatal Accidents Act, 1855 against the defendants.
2. Brief facts of the case are that the plaintiffs are minor children of deceased Muhammad Yaseen, who died on 21-7-1992, by coming into contact with live electric wires loosely hanging from the pole on main road of Clifton, on account of negligence of defendant No,1 and defendant No,2 has been sued as an insurance company, covers third party risk of defendant No,1 in the case of any fatal accident arising out of electrocution. Defendants Nos.1 and 2 filed their written statements and denied the claim of the plaintiffs and stated that deceased, who while stealing the earth wire got electrocuted, is not entitled for any relief.
3. ' On the basis of pleadings of the parties the following consent issues were framed:--
(1) Whether death of the deceased Muhammad Yaseen was caused due to electrocution while cutting and stealing the earth wire or direct touch of the broken overhead wire which broke down on account of lack of precaution on the part of defendant No,1?
(2) Whether defendants Nos.1 and 2 jointly and severally to pay compensation to the plaintiff on account of death so' caused to the deceased Muhammad Yaseen, as alleged in the plaint?
(3) Whether plaintiffs are entitled to cost and interest or to any relief?
(4) What should the decree be ?
4. ' On behalf of the plaintiffs Manzoor Hussain, next friend of the plaintiffs, filed affidavit-in-evidence as ,P. W.1/2 and produced national identity card of the deceased, F.I.R. Lodged, death certificate, medical certificate and cause of death. Plaintiffs also produced Muhammad Hanif and Muhammad Anwar as witnesses on their behalf. On behalf of defendant No,1 Lineman Muhammad Yousuf filed affidavit-in-evidence and produced extract from wire broken book and report of accident dated 22-7-1992.
5. ' Heard Mr. Nasir Maqsood, learned counsel for the plaintiffs, and Mr. Saeed Ahmed, learned counsel for defendant No, 1.
6. The next friend of the plaintiffs in his deposition stated that at the time of accident deceased was 35 years of age and left him behind his mother Mst. Mariam, aged 70 years, widow Zainab Bibi, aged 35 years B and six daughters, aged about 12, 11, 9, 5, 4 and 1 year. He stated that on 31-7-1992 at about 0800 hours in a rainy day an electric wire, which was stretched over head on the main road at Clifton behind Darakhshan Police Chowki broke down on account of lack of care and precaution on the part of defendant No,1 and fell down dangerously on the road, loosely hanging from the electric pole. The nearest complaint Centre of the area was informed about the breaking of overhead wire but the defendant No,l's complaint centre paid no attention to it without undue delay. The deceased Muhammad Yaseen was passing from that road on his way to work when he came into contact with the said broken wire, -lying live and unattended on the road without any warning from the defendant No,1 and he fell down speechless and died. The witness in his statement stated that the death of the deceased was caused by negligent and improper maintenance of the wire by defendant No,1 which broke down due to some physical defects as same could not withstand rain and, caused the tragicdeath ,of the deceased. He further stated that defendant No,1 'failed to provide effective measures for protecting the members of the public including the deceased against the danger and peril inherent in their business operation. The witness in his statement stated that defendant No,1 omitted to maintain the system of periodically checkups of rusty wires in Clifton behind Darakhshan Police Station and failed to remove the loose and rusty wires or wires having some physical defects likely to fell down. Like the wire in-question which fell down on account of their omission and resulted in the fatal accident and casualty which caused the death of the deceased. He also stated that due to the death of the deceased the expected earning capacity of the plaintiffs, the legal heirs have been deprived of expected pecuniary benefits to the extent of Rs,32,50,000 as the deceased was junk dealer (kabadi) and he used to purchase the used and dilapidated material, steel and plastic from the residential area of Clifton and Gizri and used to sell in bulk to big junk dealers and used to earn a sum of Rs,200 to Rs,300 per day. He also stated that the deceased after 3 to 5 years could have started earning a sum of Rs,10,000 to Rs,12,000 per month due to his good dealing and honesty. The deceased intended to open his own store to keep different junk dealers to work for him under his supervision and then he could have earned a sum of Rs,20,000 to Rs,25,000 on account of profit/commission on the resale of the collected material.
7. ' Mr. Muhammad Hanif, an eye-witness of the incident, in the affidavit-in-evidence stated that he was proceeding from Shah Rasool Colony to Darakhshan Police Chowki and the deceased was going ahead of him, when reached on the main road behind Darakhshan Police Chowki and stepped over the road in the stagnant water, he unwarily came into contact with a live broken snapped wire which was loosely hanging from the electric pole and lying dangerously live and unattended on the road and the deceased Muhammad Yaseen fell down speechless. The witness stated that he shouted and immediately rushed on the spot and many other people also gathered around without undue delay. He stated that within few minutes the police officials from Clifton Police Station also reached on the spot and they also attempted to isolate the victim from the clutches of the wire with the help of sticks and ropes, but could not succeed and then the KESC complaint centre was intimated about the accident and was asked to switch off, but after considerable delay of about half an hour managed to disconnect the wire.From the pole and thereafter the victim was isolated from the snapped wire and was taken to Clifton Police Station in the police mobile. The police recorded his statement as well as statements of other persons and it was told by the police that the deceased appears to have expired owing to the electric shock received by the snapped electric wire.
8. ' S.-I. Zaheer Hussain, P.W.4, also in his statement stated that on receiving the message about the incident he intimated to KESC to send their staff with vehicle to discontinue electric to isolate the victim from the wires. He produced Roznamcha Entry No,3 as Exh./P.W.4/1 and stated that when he reached at the spot he found that the wire carrying current, live and energized. He further stated that KESC officials also reached on the spot at about 8.20 a.m. And warned the people to be away from the pole and the wire as the same were live and could cause electric shock to person coming into contact with the same. The KESC officials disconnected the live snapped wires from the pole.
9. He stated that he noticed that left arm of the deceased victim was stuck by the live snapped electric wires and caused burn injuries which was visible and permanent. He produced inquiry report as P.W.4/4, letter issued by MLO, JPMC dated 21-7-1992 about cause of death as Exh.P.W.4/8, death certificate and PM Report as Exh.P.W.4/6 and P.W.4/7 respectively, memo. Of handing over dead-body and Randari Certificate as Exh.P.W.4/9.
10. ' Muhammad Yousuf, lineman of defendant No,1, filed affidavitin-evidence and denied that there was physical defect in wires/line was loosely hanging from the pole at the main road of Clifton on 21-7-1992 and death of the deceased was caused due to contact with the loose wire hanging from the pole. He stated that on 21-7-1992, it was rainy day and at about 0805 hours a complaint was received that a man was electrocuted on 26th Street and on receiving the complaint immediately a gang on the job was deputed at 0810 hours and without delay they isolated the wire from Wali Muhammad Jamoot PMT. He further stated that incident had taken place due to deceased's own fault as he was cutting and stealing the earth wire and during that process the deceased got electrocuted and expired. In his cross-examination he stated that broken wire was carrying 220 volt current which was capable for killing a man, who, if comes in contact with it. The witness admitted that he was not the eye-witness of the incident and further admitted that every pole should have the installation of the grid wire mechanism to diffuse the current in the wire once it is broken/isolated from the pole. He expressed his ignorance about the schedule of maintenance of wire and expressed ignorance with the wire in-question, which was snapped, was installed. The witnesses in reply to the question whether he has not deliberately produced the record of maintenance, installation of wires, grid wires and periodical check up with regard to the wire in- question because the same was adversely affecting the interest of KESC, he replied, "it is correct".
11. He further stated that the evidence he has given is on the basis of hearsay as well as from his personal knowledge.
12. ' In the case of Barkat Ali Khan and others v. KESC and others, PLD 1983 Karachi 453, it was held as under-- "When an electric wire of KESC breaks, it is only KESC which can give evidence about the exact reasons for the breaking of the wire KESC is under an obligation and also owes a duty to the public that the electric poles and wires are properly maintained and that required protective measures are taken so that in the case of a wire breaking, the electricity in the wire is automatically disconnected and the broken wire does not remain live. In the absence of any evidence on record had KESC had discharged their duty which they owed to the public in this regard, the presumption would be that proper maintenance and care had not been taken."
13. ' In the case of Syed Iqbal Hussain Jafri v. KESC, 1994 CLC 1903, it was held as under:-- "In the present case, the wires which caused the death, were under the sole management and control of the defendant and it is the admitted position that the wire had broken and was lying on the road when the deceased came into contact with it and was electrocuted; and the accident, the cause of which is not known, was such as would not have occurred in ordinary course of things if
(i) Average life span in view of 70 years preponderance of authorities.
(ii) Loss of pecuniary losses for (70 - 35 35 years years)
(iii) Monthly income by junk dealing (Kabadi) was stated to be Rs,200 to 300 per day and thus on average the deceased used to earn a sum of Rs,5,500 per month which appears to be minimum earning capacity of persons doing independent work in Pakistan.
(iv) Loss of pecuniary benefits for one [5500 x 12] Rs,66,000 year
(v) Loss of pecuniary benefit for 35 years [66,000 x 35] Rs,23,10,000 ADD
(iv) 20% advancement in income [23,10,000 -- 5] Rs . 4,62, 000the defendant has used reasonable care. It was, therefore, for the defendants to show, by evidence, that the accident may have occurred without negligence on their part."
14. ' In the case of Sultan Bibi and others v. KESC, 1999 CLC 273, it was held as under:-- "In the instant case, the plaintiffs have discharged their burden successfully by proving that deceased Taj Muhammad died due to electrocution on 25/4/1999. No tangible or convincing evidence was led in rebuttal by KESC to disprove such accident and to prove that they had taken all reasonable care and caution to avoid such accident. It is settled that where it is proved that the death was a direct cause of electrocution, the burden shifts upon, KESC to prove that all care, caution and precautionary measures were taken to possibly avoid happening of any breaking of overhead wires. In the abovementioned circumstances of the case, I am inclined to hold that deceased Taj Muhammad died due to negligence and wrongful acts of defendant No,1 and that it was not an act of God for which any concession could be extended to KESC."
15. Keeping in view the principle laid down by this Court in various cases, in which death has been caused due to electrocution it was ,held that the burden is upon electricity supply corporation to prove that all possible reasonable care has been taken by them and incident has not taken place due to their negligence. It is true that general rule is that it is for the plaintiff to prove negligence and not for the defendant to prove it, but in those cases where true cause of the incident lies solely within the knowledge of the defendant, this hardship is awarded by invoking the use of res ipsa loquitur. Keeping in view the above principle of law when I analyzed the evidence on record it transpired that the defendant failed to discharge the burden upon it. The defendant has not produced the record of maintenance, installation, grid wires and periodical check-ups with regard to the wires in-question, which clearly establishes that incident was occurred due to the negligence by defendant No,
1. Accordingly issue No,1 is accordingly answered in affirmative.
16. ISSUE NO.2.
17. The deceased left him behind mother, widow and six minor daughters and on their behalf their next friend appeared in the witness-box and stated that deceased was engaged in the business of junk dealer and used to earn a sum of Rs,200 to Rs,300 per day and was expected to earn Rs,20,000 to Rs,25,000 per month within couple of years. The defendant No,l's witness in his cross-examination was suggested that the deceased was earning so much amount as alleged by the plaintiffs' witness, which was categorically denied by him. It was further stated in his cross-examination that deceased used to send Rs,20,000 to Rs,25,000 per month to his house. On the basis of the evidence on record, I am of the view that the plaintiff is entitled for the following damages:- (vii)Gross loss of pecuniary benefits [23,10,000 - 4,62,000] Rs,27,72,000 LESS (viii)Personal expenses at the rate of 1/6th as per 1997 CLC 955 [27,72,000 -- 6]Rs,4,62,000
(ix) Net loss of pecuniary benefits [Rs,27,72,000 -- 4,62,000] Rs,23, 10,000 FURTHER ADD:
(a) Damages for loss of association under the head of consortiumRs,50,000
(b) Damages for loss of career and better future prospects for children (five minor daughters were left behind @ Rs,50,000 each).Rs,3,00,000 Total pecuniary loss Rs,26,60,000 ' Since the plaintiff in his claim has not asked for damages for loss of association and care, nor stated so in his evidence, therefore, the plaintiff is not entitled for the same.
18. The suit of the plaintiff is, therefore, decreed in the sum of Rs,26,60,000 with interest at the rate of 10% per annum from the date of decree till realization against defendant No,1 and against defendant No,2, being the insurance company, covering third party insurance, to the extent of Rs,20,000.