1. ' MRS. YASMIN ABBASEY, J.---Being aggrieved with the judgment, dated 19-3-1999, whereby the suit of appellant was dismissed inter alia on the ground that the appellants have failed to bring any evidence as to the pecuniary loss suffered by them due to death of deceased child which he might had provided to appellants in the forthcoming period. Their entire claim is based on mental shock and torture they suffered due to death of child with whom they were in extreme love.
2. ' It was observed that damages under Fatal Accident Act cannot be awarded on the basis of mental shock and love and thus suit filed by the appellants was dismissed.
3. ' Concisely case of the appellants/plaintiffs is that they are occupants of Flat No, GF-2, Block-73, Sea View Apartment wherein they were residing with their deceased son. During construction of these apartments defendants had dug certain water pits/tanks to hold water for construction. After completion of projects those pits/tanks had to be removed and or filled, for the safety and security of inhabitants of apartments particularly of children, as it is completely a residential unit. However, those water tank remained uncovered, due to which negligence and careless act of defendants, the appellant/plaintiff's minor child aged about 2 years, while playing with other kids had fallen down in one of those pits/tanks filled with water and lost his life. On recovery of his body he was shifted to PNS Shifa, but was declared dead.
4. ' It is pleaded by appellant that minor child even in his tender age was seemed to be intelligent and with the care of his parents would have been best supporter of them, which they lost due to irresponsible, negligent and careless act of defendants.
5. ' The point for consideration in this appeal was whether compensation can be granted for a non earning child of tender age who himself was dependent on his parents at the time of his death.
6. ' The learned counsel for appellant contended that it is a question of unfortunate death occurred due to negligible act of defendants, otherwise in normal course having no health problem, the child would had a brilliant career under guidance of educated parents. Minor's father was Lt. Colonel in Army and it is expected that deceased minor would have been also the best follower and a better partner to support them as pleaded in para. 10 of the plaint.
7. ' Respondent in reply had tried to take the plea of contributory negligence that the depth of water tank in the compound was not more than 9 inch, which could not be said to be dangerous to human life. Even otherwise, the said water tank was at a distance of about 150 feet away from the appellant's apartment, therefore, respondents cannot be held responsible for the death of minor child.
8. ' To substantiate his argument, the learned counsel for the Appellant has referred to a number of authorities.
9. ' In 1997 CLC 925 (Muhammad Moosa v. Karachi Water and Sewerage Board and another) very elaborately it is discussed that:- "The allegation that parents of the deceased should have taken preventive measure and a step to deter the minor from going out of the house or near the manhole is hardly a defence by civic agencies entrusted with discharge of public responsibilities of maintaining sewerage line in a safe and orderly manner. Indeed it is highly difficult if not altogether impossible to prevent the movement of minor and innocent children from going out of the house which may lead to a wrongful restraint on free movement of such child and arrest his natural brought-up, healthy growth and nursing. The stand taken by the defendants on the face of it is not only strange but also ridiculous in view of the uncontroverted evidence that the manholes were lying open for the last 2- 3 days before the incident. Be that as it may, it is evident that the defendants utterly failed to prove the alleged act of contributory negligence on the part of the minor child and her parents."
10. ' Similar view, expressed in 1992 CLC 2369 (Javed Iqbal v.Province of West Pakistan and others) was upheld by Honourable Supreme Court in 1995 SCM R 446 (Pakistan Railways through its General Manager v. Javed Iqbal), 1996 SCM R 406 (Federation of Pakistan through Secretary Railways and another v., Hafiza Malika Khatoon Begum and others) 2001 CLC 221 (Karachi Water and Sewerage Board through Managing Director and another v. Muhammad Moosa), which too was recognized in C.P. No, 1643 of 2000 by Honourable Supreme Court of Pakistan on 12-7-2001.
11. ' Examining the doctrine of 'Res ipsa loquitor' (things speak for themselves) it is observed in 2004 M LD 361 (Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd. And another) authored by one of us (Mr. Justice Amir Hani Muslim) that:- "The applicability of this doctrine in cases of negligence to the effect that once the factum of accident is established by the plaintiff the burden to show absence of, negligence shifts upon the defendant".
12. ' In the present case too learned single Judge in his finding on fact has held the respondent was responsible for the incident. Hence that aspect in addition to the observation discussed earlier needs no discussion anymore. The only point now to be considered is the question of damages to be granted to appellants, as the negligible act of respondents discussed by learned Single Judge in impugned judgment has neither been challenged nor denied in specific terms.
(iii) Annual income per year comes to Rs, 5000 X 12 at the age of 18 years Rs,60,000.
(iv) The deceased was expected to support the appellants for about 20 years and thus a loss suffered by the appellants at the rate of Rs,60,000 per annum for 20 years turns out to be Rs,12,00,000.
(v) Increment at the rate of 20% per annum will also be added to comprehend th'e advancement in the life.
13. [12,00,000 5] Rs,2,40,000
(vi) Gross loss of pecuniary benefits. Total (iv + v) [12,00,000 + 2,40,000] Rs,14,40,000.
14. IX. LESS
(a) A sum of Rs,1/3rd will be deducted from the above amount of personal expenses.
(b) A sum of Rs,6000 per year i,e,Rs,500 per month for sixteenyears on account of upkeep of the deceased till he starts earning will also be deducted Rs,96,000.
(x) Net loss of pecuniary benefits will be obtained by deducting both deduction of personal expenses and his upkeep from the gross loss of pecuniary benefits shown at Sr. No,vi. So, it comes to Rs,8,64,000.
15. ' The statement as filed appears to be reasonable and appropriate.
16. ' In view of above discussion appellant's claim for damages is allowed as per their statement, dated 17-8-2006 to the extent of Rs,8,64,000.
17. ' In view of foregoing reasons, we had allowed appeal of appellants by our short order, dated 29-3- 2007 and had set aside the impugned judgment and decree the suit of the appellant in the aforesaid amount of Rs,8,64,000 with mark-up at the rate of 10% per annum on the decrial amount from the date of decree till the entire amount is paid to the appellants.