1. ' KHILJI ARIF HUSSAIN, J.---Brief facts for the purpose of deciding the suit that the plaintiff filed suit for recovery of Rs,30,50,000 against the defendants under Fatal Accident Act, 1855. It is alleged that the plaintiff is widow of the deceased Muhammad Saleem who died due to coming into contract with (public light) live wire lying dangerously on the road loosely hanging from electric pole on Bahadur Yar Jang Road due to neglect and default of defendant. No,1 in its inattention of the wire and its failure to repair in time the defective wires. The deceased left behind father Inyat Ali, aged about 60 years, mother Mst. Sharifeen, aged about 50 years, Khalida, widow, aged about 29 years, and Hina daughter aged about one year. The incident was occurred on 12-8-1992 a rainy day when an electric wire which was stretched overhead on the main road at Bahadur Yar Jang Road broke- down on account of lack ofcare and precaution on the part of defendant No,1 and fell down dangerously on the road, loosely, hanging from the electric pole and came into contact with the deceased motorcyclist passing through the road. The defendant No,1, (KESC), filed written statement and stated that system is well protected and not denied that due, to electric live wire death of Muhammad Saleem was caused, however, it was stated that the defendant No,1 is continuously checking the network and replacing wire where-ever the need arises.
2. ' On behalf of defendant No,2 written statement has been filed in which defendant No,2 denied any liability towards plaintiff. It was further stated that the liability of the defendant No,2 is restricted in all respects of accidents in a year to the extent Rs,3,00,000.
3. ' Since the plaintiff has not pressed his claim against defendant No,2, there is no need to discuss the defence taken by defendant No,2 in his written statement.
4. ' On the basis of pleadings between the parties following issues were framed:-- "(1) Whether the death of the deceased in question was caused by the actionable wrong, default, in performance of the duty, negligence in not properly maintaining its overhead wires/electric installations or in not providing safety measures for protecting members of public against the danger inherent in their business/operation, if so, its effect?
(2) Whether the plaintiff is entitled to compensation from the defendants, if so, to what extent?
5. ' On behalf of the plaintiff, Khalid Rehman, Attorney of the plaintiff, filed affidavit in evidence and produced, Death Certificate issued. From ZMC (East), death certificate issued from hospital, graveyard certificate, newspaper clippings of Jang and Evening Special, identity card of Khalida, identity card of deceased, service card of deceased, birth certificate of Hera, Nikahnama, B-Form, death certificap of Inayat Ali, recent photographs of widow, Hera and deceased and power of attorney as Exs. P/1 to P/14. P.W.2, Shafiqur Rehman son of Inayat Ali filed his affidavit in evidence. On behalf of defendant No,1 Aijaz All an employee of defendant No,1 (KESC) filed his affidavit in evidence.
6. ' Heard Mr. Nasir Maqsood, learned advocate for the plaintiff, Mr. Muhammad Ismail Memon, learned counsel for the defendant No,1, and Mr. Khalid Mahmood Siddiqui, learned counsel for defendant No,2, and my finding on the issues are as under:-- ISSUE NO.1.
7. ' Mr. Nasir Maqsood, learned advocate for the plaintiff, did not press his claim against defendant No,2 and accordingly there is no need to give any finding whether the defendant No,2 is liable to any amount claimed by the plaintiff. Learned advocate for the plaintiff vehemently argued that electric live wire broke down on 12-8-1992 on account of physical defect due to lack of care and precaution on the part of defendant No,1 and fell down dangerously on the road loosely hanging on electric pole due to which death of the deceased was caused. In the affidavit in evidence it was stated that the legal heirs of the deceased deprived of expected pecuniary benefits to the extent of Rs,30,50,000 as the deceased was working as LDC/Typist in Postal Life Insurance Department of Pakistan Post Office and was drawing a salary of Rs,3,000 to Rs,3,500 per month including allowances and other facilities. It was further stated that deceased was a competent, skilled and perfect in his work and could have been promoted/upgraded very soon to superintendent and he could have started getting a sum of Rs,6,000 to 7,000 per month and the deceased also used to give tuition to primary students belonging to locality and used to charge Rs,100 to Rs,150 per students and used to have always a group of 12 to 15 students and thus earned Rs,5,500 per mouth.
8. It was contended that the members of defendant No,1 omitted to maintain system periodically of rusty wires and to remove, loose rusty wire or wires having some physical defects likely to fell down from the pole does not remain live by providing protective measures which resulted fatal causality to the deceased. It was contended that the defendant No,1 was under obligation and also on duty to the public that the electric poles and wires are properly maintained and rusty if break down does not remains live and is automatically disconnected but the defendant No,1 failed to discharge his duty which they owned to the public in this regard accordingly defendant No,1 is liable to pay the damages compensation to the plaintiff.
9. ' Mr. Ismail Memon, learned counsel for defendant No,1, heavily relied upon the admission of the plaintiff's witness during cross-examination that on 12-8-1992 there was heavy rain in the city and further relied upon the admission of the plaintiff's witness "it is correct that it was extraordinary heavy rain fallen on the day of incident".
10. ' On going through cross-examination it appears that allegation of the plaintiff's witness that the defendant has failed to check up wires periodically and that rusty wire has not been removed by the defendant and that live wire remained loosely hanging after the same was broken down has not been denied, and accordingly evidence to this extent goes unrebutted. The defendant's witness All Aijaz in his affidavit in evidence admitted that the incident took place on 12-8-1992 and according to itsrecord it was a rainy day and electrocution was caused on main Bahadur Yar Jang.
11. Road. The witness further stated that on 12-8-1992 it was a rainy day and at around about 16-30 hours wire broke down and the report was lodged by the Police Mobile of Soldier Bazar Police Station near 9/1 Clayton Road. The complaint centre dispatched complaint gang along with same police mobile and aforesaid wire broken was isolated timely. It was stated in the affidavit in evidence that the wire was broken due to heavy raining and the water was standing on the road.
12. The defendant further stated in his affidavit in evidence .That on the day of incident due to rain throughout the city number of wires were reported to be broken and reports were lodged at complaint centres. In the cross-examination the defendant's witness admitted that deceased was died by coming into contact with live snapped wire. The witness further admitted that the wire snapped bore of 220 volts of current pressure which killed the deceased on the spot. Witness denied the suggestion that incident of electrocution was not an incident of natural disaster or was beyond the control of the defendant. During cross-examination witness stated that defendant carried out annual preventive maintenance to ensure that the wires are not broken due to rain but failed to produce any record in support of his contention though specific question was asked to him that the network of wire at Bahadur Yar Jang Road has not been replaced since Pakistan was established though the witness in his statement stated that they were maintaining and replacing weak wires periodically and kept record but failed to produce the same and further failed to produce report that gang carry out the inspection of the poles and live snapped wire found that it did not break due to physical fault but heavy rain caused its falling. The witness admitted that rules required installations of guard wire on electric poles for the safety purpose and further that apart from rainy season guard wire might not be functional to defuse the current.
13. ' Learned advocate for defendant No,1 heavily relied upon the admission of the plaintiff witness that on the day of the incident there was heavy rain when the wire was broken and due to said heavy rain defendant No,1 is not liable for amount claimed by the plaintiff. Similar defence was taken by the defendant in the case of Mst. Rafiqan v. KESC, 1999 CLC 1812, and I would like to reproduce a para. From the said judgment:-- "Another point which has been urged by the learned counsel for the defendant in respect of absence of negligence on the part of defendant in properly maintaining the electric wire is that on the day of incident there heavy rains and wind storm in Karachi due to which the electric wire broke down. In the written statement filed by the defendant no such plea has been raised by the defendant. The learned counsel for the defendant has relied uponadmission on the part of the plaintiff during her cross-examination where the plaintiff has admitted that on the day of incident it was raining and wind was also blowing fast. In my view, rains and fast mind are common feature in every part of the country. Unless the defendant, in order to escape their liability/responsibility of wire breaking due to rains or fast wind, brings some evidence on record as the velocity and fierceness of wind storm and rains, the defendant cannot be permitted to urge that electric wires had broken down due to heavy rains and fast wind. In the instant case except a bare admission of the plaintiff in her cross-examination no other evidence to prove the fierceness and velocity of heavy rains and fast wind has been brought on record by the defendant. The same could have been proved by the defendant by examining an official of metrological department of Karachi but the defendant failed to do so. In an event, in case of breakage of the wire was on account of rain and fast wind then why only one wire and not other wires running parallel to be broken. The factum of breaking one wire alone is definite pointer towards not taking proper care of maintaining its system by the defendant. Accordingly I hold that wire had not broken due to heavy .Rains and fast wind on 21-7-1988".
14. For the purpose of quantum on moderate and average basis a sum of Rs.5000 may be assumed (Rs.3000 from job and Rs.2000 from tuition). Hence annual loss come to (5000 x 12)Rs.60,000 The aggregate loss of pecuniary benefit for overall 38 years comes to (60,000 x 38)Rs.22,80,000 ADD 20% increment chances on the aggregate income of overall years(22,80,000 - 5):Rs.456,000 The gross loss of pecuniary benefits may be obtained by adding Aggregate lossRs.27,36,000' In the case of S. Iqbal Hussain Jaffery v. Karachi Electric Supply Corporation, 1994 CLC 1903, it was held:-- `...The defendant's witness Ali Akbar Shah (D.W. 1) has stated: `There were heavy rains and one of the electric wires had fallen down. The electric wire had collapsed due to heavy rains.' The witness admittedly was concerned with emergency duties and had nothing to do with maintenance and supervision of the overhead wires. He was, therefore, unable to say anything with regard to maintenance and checking of the wires; and was also unable to explain why only one of the five wires broke down when rain was affecting all the five wires. Another witness of the defendant.
15. Abdul Qadir (D.W.2), deals with maintenance. He has stated that during normal season, but not during emergencies, overhead wires are checked; but he could not nor did not produce any evidence or record of any checking having been carried out by the defendant. In view of this state of evidence, Mr. Habibur Rashid was constrained to rely almost entirely on the plea that the breakage of wire occurred due to heavy rains. However, no evidence of the quantity of rain which fell on the day in question has been produced and it is not enough merely to asset that there were heavy rains; nor has any explanation been offered of how and in what manner the rain affected the wire. The explanation is not reasonable and does not, therefore, have the effect of displacing the inference of negligence. Rain in itself is not such an unusual or violent phenomenon that reasonable precautions cannot be taken to guard against it; and it is not unknown in that there are many parts of the world where in spite of extremely heavy rainfall the electric supply continues unaffected and electric wires do not break down. If, in Karachi, electric wires break at the first drop of rain, the fault, surely, is not in our stares but in the workings of organization concerned with supplying electricity and maintaining the wires and other installations necessary for the purpose."
16. ' The principle laid down in the above referred case fully supports the case of the plaintiff.
17. ' For the foregoing reasons, since the defendant No,1 failed to produce any record that they were properly maintaining electric wires and also required safety guards were provided to defuse wire immediately when the same was broken and no witness has been called by the defendant from the metrological department to prove that on the day of incident there was an abnormal situation in the city. The issue is answered in the affirmative.
18. ISSUE NO.2.
19. ' The plaintiff's witness in his evidence categorically stated that deceased was earning Rs,3,000 to Rs,3,500 per month Postal Life Insurance Department of Pakistan Post Office where was working and further Rs,5000 per month by giving tuition to the students and at the time of his death the age of the deceased was 32 years the amount of loss/damage sustained by the plaintiff and other legal heirs of the deceased therefore claims Rs,28,35,000 on the basis of the following calculations:-- and chances of increment (22,80,000 + 456,000)
20. LESS Personal expenses at 1/6th (27,36,000 - 6) Rs.456,000 Less Rs.50,000 paid by Provincial Government (28,85,000 - 50,000):Rs.28,35,000 Net loss of pecuniary benefits (27,36,000 - 456,000)Rs.22,80,000 FURTHER ADD: Damages for loss of career and better future prospect of only daughterRs.300,000 Damages under the head of Consortium for the loss of association of the deceased in question by the spouse/widow.Rs.300,000 Funeral expenses: Rs.5,000 Rs.6,05,000 Total loss of pecuniary benefits (Rs.22,80,000 + 605,000)Rs.28,85,000 FURTHER LESS Rs.50,000 paid by the Provincial Government to August, 1999 rain affectees on humanitarian grounds. (Rs.28,85,000 - 50,000)Rs.28,35,000 ' The plaintiff's suit is, therefore, decreed in the sum of Rs,28,35,000 with costs and interest/mark-up at the rate of 12 per cent per annum from the date of filing of the suit till its realization against defendant No,1 and dismissed against defendant No,2.