' RAHMAT HUSSAIN JAFFERI, J.---On 27-8-1995, the plaintiff filed the suit for recovery of Rs.35,00,000 under the provisions of the Fatal Accidents Act, 1855.
2. Brief facts giving rise to the present suit are that the deceased Muhammad Akram Qureshi was working as Painter. He had a wife (the plaintiff) and eight children having ages from 18 years to 9 years. The suit has been filed by the plaintiff in a representative capacity of her children as the interests of the plaintiff other beneficiaries are the same. It is alleged that on 28-8-1994 the deceased Muhammad Akram was returning to his house from his work place when at about 6-00 or 7-00 p.m. He reached need Edgah Chowk. He entangled with live electric wire which was lying on the road hanging from the main pole. He fell down on the ground. The persons present there helped him and took him to the hospital where he was pronounced dead. Such entries were made in the police station diaries. The doctor conducted the postmortem examination of the deceased.
The cause of the death was electric shock. The plaintiff alleged that the deceased died due to negligence of the defendants as they did not maintain and check the wires properly and no periodical check was made with the result that the old and rusty wire fell down on the road resulting the death of the deceased. She has claimed compensation for Rs.35,00,000 as the deceased was about 45 years old and considering future span of life and his income the damages were fixed.
3. The defendants were served. They filed written statement in which they denied the allegations of the plaintiff and claimed that the deceased had not died because of the negligence of the defendants. They also claimed that they were maintaining the wires periodically and there was no fault in the wires, therefore, they prayed for dismissal of the suit.
4. Out of the pleadings of the parties, following issues were framed.
(1) Whether deceased Muhammad Akram Qureshi, died as a result of negligence and reckless act of the defendant, its employees? If so its effect?
(2) Whether the persons mentioned in paragraph 1 of the plaint suffered any pecuniary loss due to the accidental death of M. Akram Qureshi, on 28-8-1994? If so upto what extent?
(3) Whether plaintiff is entitled for any other relief?
(4) What should the decree be?
5. The parties led evidence in support of their claims. The plaintiff examined four witnesses. They produced the Station Diary of Police Station, Death Certificate, Income Certificate of the deceased, Postmortem notes of the deceased.
6. The defendant examined one witnesses Shoukat Jameel, Assistant Engineer KESC. He did not produce any documentary evidence.
7. I have heard the parties Advocate and perused the evidence. My findings on the above issues are as under for the following reasons:-- Issue No.1 In affirmative.
Issue No.2 In affirmative to the extent of Rs.3,50,000 (salary)
Issue No.3 In affirmative. Issue No.4 The suit of the plaintiff is decreed for Rs.752,923,75 with 15% mark-up from the date of incident till its realisation.
8. Issues Nos. 1 to 3. As all the issues are interconnected, therefore, they are discussed together.
9. On the above issues, the plaintiff tiled her affidavit in which she narrated the same facts as mentioned by her in the plaint. She categorically stated that on 28-8-1994 the deceased while returning to home entangled with live electric wire handing for the pole in the area of Muhammad Bin Qassim Road Eidgah Chowk, Karachi and died on account of the electric shock. She further deposed that the death of her husband had occurred due to the negligence of the defendants. She has shown in all 9 legal heirs of the deceased including herself. She further claimed that the deceased was earning Rs.3500 per month as Painter where he was employed and was earning about Rs.500 per day from his own painting work, therefore, she has claimed compensation of Rs.35,00,000 as damages. She was cross-examined by the defendants. Basically the cross- examination was about the incident but she was not the eye-witness of the incident. She denied the suggestion that her husband was earning Rs.2500 per month. The rest of the cross- examination was in respect of the facts, which were after the incident.
10. The second witness was Tariq Ali Qureshi. He was eye-witness of the incident. He stated in his affidavit that on 28-8-1994 at 7-00 p.m. He was standing at Eidgah Chowk Bus Stop waiting for transport. In the meantime he saw a middle aged pedestrian Muhammad Akram Qureshi, who while passing through Muhammad Bin Qassim Road, when reached near Eidgah Chowk, came in contact with electric live wire lying on the ground which was loosely hanging from the main electric pole of KESC. As a result, the victim became speechless and fell down on the ground. The people standing near the place of the incident immediately gathered at the spot. Some of the nearby shop owners intimated the incident to KESC office situated at Garden near Maki Masjid but even after passage of quite a good time nobody came from the KESC to rescue the deceased. Then the people tried to release the victim from the clutches of the wire by using ropes and wooden plans/sticks. Then the victim was taken to Civil Hospital at 7-30 p.m. He also accompanied the said people. The medical officer declared the deceased Muhammad Akram Qureshi dead because of electric shock. Only two questions were asked from him in the cross-examination that, too, with regard to other persons present at the place of the incident and that the shops were open. As such the evidence of this witness went unchallenged.
11. The plaintiff also examined Dr. Abdul Hag. He produced the post-mortem report of deceased Muhammad Akram Qureshi which shows that the deceased died due to electric shock. He also produced the station diary by which the information was supplied to the police.
12. The plaintiff also examined Police Inspector Anwar Sultan. He was posted at Aram Bagh Police Station. His evidence reveals that on 28-8-1994 at 7-50 p.m. He received information from police control about the receipt of dead-body in the Civil Hospital who died as a result of electric shock at Edgah Chowk. He made such entry in the Roznamcha. He went to hospital where he prepared the inquest report under section 174, Cr.P.C. He also visited the place of the incident which was at Eidgah Chowk, Muhammad Bin Qassim Road, Karachi. He found water available on the road and one electric wire of overhead main line broken and hanging. He recorded the statement of the witnesses. He also issued letter to medical officer for conducting the post-mortem examination of the deceased, that was kept in the mortuary of the hospital and after post-mortem examination the dead-body was handed over to its relatives. The station diaries shows the date as 29-9-1994. In the cross-examination he clarified the position that due to mistake instead of "8" in place of the month, figure "9" was mentioned.
13. From the above evidence it has been established beyond any shadow of doubt that the deceased Muhammad Akram Qureshi while returning from the place of his work, when reached at Edgah Chowk, he entangled with the live electric wire which was lying on the ground hanging from the main pole. The information was supplied to the KESC office but nobody came from there, therefore, the people rescued the deceased and then took him to the hospital where he was pronounced dead.
14. As against this evidence the defendant examined Assistant Engineer Shoukat Jameel. His evidence reveals that no live electric wire was lying or hanging from the main pole near Eidgah Chowk and the electric wires were properly looked after by the corporation through their staff and that the deceased had not died due to negligence of the defendants. In the cross-examination he admitted that on the date and time of the incident he was performing his duties as Sub-Engineer KESC at Korangi and was not posted at Eidgah Aram Bagh, therefore, he had no personal knowledge about the incident of the death of the deceased. He further deposed that the contents mentioned in the evidence are the facts which were supplied to him by his Senior colleagues namely, Manzoor Nasir and Sharifuddin but Manzoor has resigned from the service of KESC whereas Nasir is still serving in the corporation. He further deposed that he did not know the reason as to why the electric wires had fallen from the pole. He further deposed in the cross-examination that no complaint of the incident of the death of the deceased was filed with the department nor any complaint with regard to the incident was reported to the department. He admitted that the corporation had no system whereby in case of disconnection or fall of electric wire from the electric pole the same is entered in the record with reasons thereof. He further stated that overhead electricity wires in the street of Eidgah Chowk were LT wires and periodical checks and repairs were being performed by the Corporation. About the guard wires he admitted that the Corporation installed Guard Wire devices on every electric pole. He denied the suggestion that the purpose and use of the Guard Wire equipment is to disconnect the current in case wire drops from the pole and further added that the corporation do not have any device or equipment due to which the current in the wire goes automatically, if the wire drops or separated from the pole.
15. From the evidence of the defendant's witness it is clear that his evidence-in-affidavit is hearsay evidence, which is inadmissible, as such, the said evidence cannot be considered. Admittedly the facts were told to him by two persons out of them one had resigned and another viz Nasir was available but he was not examined in this case. Therefore, the statement of the witness made in the affidavit is excluded from consideration. However, the witness has admitted that there were LT wires in the area and the said wires had Guard Wires but they do not have any device if the wires drop from the pole then it become dead. Under Rule 49(3) of Electricity Rules the defendants were required to ensure that "No live parts of the electricity supply lines shall be exposed as to be capable of being touched by persons not intended to have access to them." Rule 76 of said Rules deals with Guard-Wires, that reads 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 lins, 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 iron or steel, be galvanized.
(2) Every guard-wire of or 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-wire 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."
16. The defendants were required to provide such devices for safety purpose but they did not do so.
This shows gross negligence on the part of the defendants. Furthermore, the cause of the falling of the electric wires is not mentioned. Under the Doctrine of "RES IPSA LOQUITUR" the defendants are required to prove that the accident did not occur on account of their negligence. Reference is invited to the case of Pakistan Steel Mills Corpn. Ltd. v. Abdul Habib (1993 SCM R 848). The defendants did not lead such evidence.
17. It has also been brought on the record through witness Tariq Ali Qureshi that after the incident, matter was reported to KESC office situated at Garden near Maki Masjid but nobody came from the KESC to rescue the deceased. This statement of witness went unchallenged as no cross- examination was conducted. It is well-settled principle of law that if any piece of evidence led in the examination-in-chief is not denied or B controverted in cross-examination, then it is presumed to be accepted by the other side, reference is invited to a case Muhammad Akhtar v. Munna, (2001 SCM R 1700).
18. All the above facts clearly show the negligence on the part of the defendant. Thus, the deceased has died because of the said negligence.
19. From the above position it is clear that the legal heirs of the deceased Muhammad Akram Qureshi are entitled to claim the compensation and damages. As regards the quantum of damages, section 1 of the Fatal Accidents Act, 1855 stipulates as under:-- "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
' Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct."
20. Thus it is left with the Court to exercise judicial, discretion in fixing the amount of damages. The language of the section is very clear that the damages can be awarded to the beneficiaries who have sustained loss. In the present case the death of the deceased caused loss to his widow viz. Plaintiff and his 8 children whose ages were from 18 years to 9 years. There is nothing on the record, which can suggest that any of the children of the deceased were independent, as such, it appears that all the children were dependent upon the deceased. If the deceased would have been alive, then he could have supported his children substantially till they become independent.
21. The deceased was aged about 55 years at the time of the death as clear from the post-mortem report. At the most he could have earned at the age of 65 years, as such, the children could have been benefited from the income of the deceased for 10 more years. The plaintiff claimed that the deceased's monthly salary was Rs.3500 from Azeem Painters, but she has produced the certificate from the proprietor of Azeem Printer as Exh.P/9 which shows that the deceased was earning Rs.2500 per month. Therefore, for the next 10 years, the income of the deceased would have been about 3,00,000 if calculated at the rate of Rs.2500 per month it is possible that the income might had increased during those 10 years then at the most the deceased might had earned Rs.3,50,000.
22. 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 victim are entitled to compensation 'which is known as Diyat equivalent to the value of the 30,630 grams of the silver, which is fixed and declared by the Federal Government by Notification. For the financial years of 1994 and 1995, the Federal Government vide Notification No.S.R.O. 647(1)/94, dated 1-7-1994 declared Rs.202,923.75 as Diyat (compensation) amount. Taking the benefit of such Notification the legal heirs of the deceased are also entitled to Rs.202,923.75 as compensation for the loss of life of the deceased. For the mental shock of the plaintiff, I fix the compensation at Rs.200,000. Thus the legal heirs of the deceased are entitled to the following damages and compensations.
(1) Compensation for loss of salary Rs .350 , 000-00
(2) Compensation of loss of life of Rs.202,923-75 the deceased
(3) Damages for mental shock Rs .200, 000-00 Rs.752,923-75
23. The issues are replied accordingly.
24. Issue No.4: In view of my findings on issues Nos. 1 to 3, the suit of the plaintiff is decreed for sum of Rs.752,923.75 with 15% markup profit from the date of the incident till recovery of the amount. The amount be distributed amongst the legal heirs of the deceased Muhammad Akram Qureshi as per share of inheritance. The suit is decreed in the above terms.