NASIR SAEED SHEIKH, J. - The appellant No. 1 WAPDA alongwith its two officials have preferred this R.F.A, against the judgment and decree dated 28.6.2005, passed by the learned Senior Civil Judge, Hafizabad granting relief of recovery of damages or damages of Rs. 50,00,000/- (rupees fifty lac only) with costs to the respondents Nos.1 and 2 in Civil Suit No. 211 -A of 1998.
2. Brief facts of the case are that the respondents Nos. 1 and 2 instituted a suit before the learned Senior Civil Judge, Hafizabad for the recovery of Rs. 76,50,639/- (rupees seventy-six lac, fifty thousand, six hundred and thirty-nine only) as damages against the present appellants on 24.10.1998. It was contended by the respondents/plaintiffs that on 9.5.1996, at 17:05- hours, a private truck bearing No. BUA-4535 entered Mushtaq Filling Station, Dharanwala and collided with one of the 11 thousand KV electricity lines, which were crossing over and above the Filling Station. This resulted into breaking of yellow phase conductor of the electricity lines and high-tension electricity lines thus fell down on the ground of the Filling Station. The respondents/plaintiffs contended that due to malfeasance, misfeasance non-feasance of the appellants WAPDA Authorities, the broken high-tension electricity lines 11 thousand KV were left unattended with running power currents. The respondents/plaintiffs Nos. 1 and 2 are father and son respectively and they were riding a motorcycle and entered into the petrol pump for filling their motorbike with petrol supply from the Mushtaq Filling Station. On the same day, i.e. 9.5.1996, at 17:50 hours, the motorbike of the respondents/plaintiffs Nos. 1 and 2 collided with the fallen conductor as a result electric shocks struck the respondents from the fallen conductor through -which the electricity supply was not disconnected by the WAPDA Authorities. The respondents/plaintiffs Nos. 1 and 2 badly burnt and received severe injuries from the electric shocks. The respondents/plaintiffs were picked up from the spot by passers by pedestrians and were taken to Civil Hospital, Hafizabad from where they were shifted to Meo Hospital, Lahore and on 14.5.1996, the eight leg of the respondent/plaintiff No. 1 Qazi Zaka Ullah was amputated the respondents/plaintiffs were later on shifted to Ittefaq Hospital, Lahore.
As per medical report (Ex. P.l), the respondent No. 1 Qazi Zaka Ullah suffered the following injuries:--
(i) Clinical burnt alright and left leg and genitalia.
The Doctor described the present problems in the Ex.PM, dated 27.11.1997 of said respondent No. 1 in the following manner:-
(i) Right above knee amputation with short thigh stump which makes the fitting of prosthens very difficult.
(ii) Loss of Gains penis and reduction in the length of penis to almost half of its pervious erect length.
(iii) Unsightly scar and muscle flap left leg.
According to the medical report (Ex. P.2), dated 27.11.1997, the Doctor described the physical position of the respondent/plaintiff No:2 as follows:-
(i) Electrical burn of scalp, face and right leg.
The Doctor prescribed the present problems in the said report:-
(i) Bald patch (post burn alopecia) OR scalp.
(ii) Shin graft (from thigh) to right side of face.
(iii) Burn of right upper and lower eyelids with reduction in the size of palpebral aperture.
(iv) Right cataract. Lens has been removed.
At the time of the institution of the suit, the Respondents/Plaintiffs Nos. 1 and 2 were still under treatment. On 27th and 29.6.1996, the respondent/plaintiff No. 1 underwent operation of genitalia.
The respondent/plaintiff No. 2 Was also operated upon on 8th, 11th and 17th June, 1996 while his eye was operated upon on 12.02.1997 as well as on 13/19.11.1997. The respondent/plaintiff No. 1 could not get a satisfactory treatment of his amputated leg and he was advised to proceed abroad for having an artificial leg and treatment from there. The father of the respondent No. 1 and grandfather of the respondent No. 2 moved a complaint to the Wafaqi Mohtasib on 21.7.1996 seeking compensation for the respondents Nos. 1 and 2 for the injuries suffered by them. However, on 23.6.1998 the Wafaqi Mohtasib expressed his inability to exercise jurisdiction in the matter. The respondent/plaintiffs Nos. 1 and 2 thus instituted a suit for the recovery of Rs. 76,50,639/- (rupees seventy-six lac, fifty thousand, six hundred and thirty-nine only) from the appellants claiming special as well as general damages, the detail of which was given in paragraph Nos. 28 and 29 of the plaint.
3. The suit was contested by the appellants and the following issues were framed by the learned Senior Civil Judge, Hafizabad:- ISSUES:
(1) Whether the plaintiffs have got no cause of Action and locus standi? OPD.
(2) Whether the plaintiffs are estopped by their conduct and words to bring the present suit? OPD.
(3) Whether the suit is within time? OPP.
(4) Whether the defendants are entitled to special costs? OPD.
(5) Whether the defendants departments is liable for the incident which resulted in the injuries on the person of the plaintiffs? OPP.
(6) Whether the plaintiffs have borne the expenses of Rs. 22,90,639/-, if so whether the same is recoverable from the defendants as special damages? OPP.
(7) Whether the plaintiffs are also entitled to general damages worth Rs. 53,60,000/- in addition to special damages? OPP.
(8) Relief
4. The parties produced their respective evidence and vide judgment and decree dated 28.6.2005, the learned Senior Civil Judge, Hafizabad granted a decree for the recovery, of Rs. 50,00,000/- (rupees fifty lac only) to the respondents/plaintiffs covering both special as well as general damages.
5. This judgment and decree dated 28.6.2005 has been assailed by the appellants/judgment- debtors WAPDA Authorities through the instant Regular First Appeal.
6. It is argued by the learned counsel for the appellants that the suit instituted by the respondents was time-barred. The learned counsel elaborated that the suit for recovery of damages; as instituted by the respondents was covered by Article 36 of the First Schedule of Limitation Act, 1908, which provided a limitation of two years for the institution of the suit. According to the learned counsel, the injuries upon the person of the respondents were caused by the incident taking place on 9.5.1996, at 17:50 hours and the suit must have been instituted on or before 8.5.1998 applying the limitation as prescribed in Article 36 of the Limitation Act. Having stated so, the learned counsel further submitted that the learned Civil Judge while recording finding on the issue of limitation illegally and incorrectly applied the provisions of Article 14 of the Limitation Act, 1908 by excluding the time spent by the, respondents in pursuing a complaint lodged in respect of the incident to the Federal Ombudsman. The learned counsel referred to document (Ex.P.27) in this context and pointed of that complaint before the Federal Ombudsman was lodged in the matter on behalf of the respondents in 9.1.1997 and the case was closed by the office of Federal Ombudsman on 23.6.1998, whereas, the suit was instituted by the respondents on 24.10.1998. The learned counsel relied upon the judgments reported as Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 Supreme Court 142) and Shafaullah Qureshi v. Federation of Pakistan through Secretary/Chairman Islamabad (1999 CLC 364) in support of his contentions that the office of Federal Ombudsman has been excluded from the definition of "Court" for the purpose of Article 14 of the Limitation Act, 1908 and thus the respondents were not entitled to exclude the time, which was spent in pursuing their case for recovery, of damages from the appellants before the Ombudsman find the finding of the learned Trial Court in the impugned judgment dated 28.6.2005 excluding the said period of complaint was contrary to the law laid down in the above reported judgments. The learned counsel this concluded that the suit having been instituted on 24.10.1998 was undoubtedly barred by time and was liable to be dismissed. The learned counsel next argued that the incident took place within the premises of Mushtaq Petrol Pump and the breaking of the high-tension electricity cables were caused by the entering of truck No. BUA-4535 into Mushtaq Filling Station and both the said respondents persons i.e. The owner of the Petrol Pump and the driver/owner of the truck have not been impleaded in this suit, therefore, the suit was incompetent in the eye of law as having been instituted without impleading the necessary parties. The leaned counsel next contended that notwithstanding the above objections, the learned Trial Court illegally granted the recovery of damages of Rs. 50 lac to the respondents. The learned counsel contended in this context that the respondents were unable to prove the damages suffered by them and were in fact themselves careless and negligent in entering the premises of Mushtaq Filling Station without the fallen caring about high-tension electricity lines. The learned counsel further argued that the supply of electricity was automatically stopped for three minutes by the WAPDA authorities on account of the incident as the tripping of the electricity supply was automatic and after three minutes, the supply of electricity was made operative. The learned counsel argued that-WAPDA authorities were hot informed of the correct position at the spot, therefore, no knowledge with respect to the falling of electricity broken high-tension wires can be attributed to them and thus the appellants were not at all proved to have been responsible for the incident, which resulted into the injuries of the two respondents. The learned counsel thus prayed that the suit of the respondents for damages is liable to be dismissed in view of the above circumstances.
7. The learned counsel for the respondents has controverted the contentions of the learned Counsel for the appellants, It has been argued by the learned counsel for the 'respondents that admittedly the respondent No. 2 was a minor at the time of the incident, as according to the medical certificate (Ex. P.2) describing his injuries, his age was three years only and the limitation against him did not even commence, because Section 6 of the Limitation Act, 1908 provides that in case of legal disability of minority, insanity or idiocy, a suit can be instituted when the above-said disabilities have ceased and the limitation period for the purpose of instituting the suit etc. Is to be reckoned thereafter. The learned counsel for the respondents argued that even today the respondent No. 2 is a minor and the limitation has not so far commenced against him. The learned counsel further argued that the physical lives of the respondents have been' destroyed due to the injuries suffered by them on account of the negligence of the appellants and the learned Civil Judge/Trial Court has granted the damages correctly although not sufficiently. The learned counsel further argued that the appeal instituted by the appellants has no merits and is liable to be dismissed.
8. We have heard the respective contentions of the learned counsels for the parties and have perused the record with their assistance.
9. There is no cavil with the proposition as settled by the Hon'ble Supreme Court of Pakistan in the judgment reported as Shafaatullah Qureshi v. Federation of Pakistan (PLD 2001 Supreme Court 142) that proceedings before the Wafaqi Mohtasib do not qualify as "proceedings prosecuted in a Court" and the period spent in such proceedings cannot be excluded by applying Section 14 of the Limitation Act, 1908. The same is the legal position enunciated in the judgment reported as Shifatullah Qureshi v. Federation of Pakistan through Secretary/Chairman, Railways, Ministry of Railways (Railway Board), Islamabad (1999 CLC 364). However it is a matter of record and admitted position that the respondent No. 2 was aged about three years at the time of incident and is still a minor and is suffering from a legal disability as envisaged in Section 6 of the. Limitation Act, 1908 and the limitation has not been commenced against him. The respondents suffered injuries in the same incident, which took place on 9.5.1996 at 17.50 hours and were jointly entitled to institute a suit in question for the redress of their grievance; one of the plaintiffs namely Shehryar Zaka the respondent No. 2 undeniably suffered from a legal disability of minority and the time for the limitation for instituting the suit, in question, cannot be said to run against any of them. In this context, Section 7 of the Limitation Act, 1908 is very much relevant and is reproduced as follows:- "7. Disability of one of several plaintiffs or applicants.-- Where one of several persons jointly entitled to institute a suit [for proceeding] or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all: but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased."
10. This respondent No. 1 is although the father of the minor respondent No. 2, however, the respondent No. 1 was not legally competent to give discharge of the entitlement-of the respondent No. 2 with his concurrence unless a Guardian Judge has specifically authorized the respondent No. 1 to give such a discharge, In this respect, reliance is placed upon a Division Bench judgment from Indian jurisdiction reported as Kamleshwari Prasad Singh v. Shivachandra Bose and others (A.I.R
(36) 1949 Patna 212). In two other judgments reported as A.I.R. 1919 Allahabad 297 and A.I.R 1935 Kalkatta 636, it has been held that such a discharge as envisaged by Section 7 of the Limitation Act, 1908 can only be given with the permission of the Court.
Applying the above statutory as well as case-law principles, both the respondents are entitled to the benefit of the provisions of Section 7 Of the Limitation Act, 1908 and the suit instituted by them cannot be termed as time-barred.
11. There is another aspect of this question of limitation, which is relevant and important for the purposes of entitling the respondents to the institution of the suit at the time when it was done by them on 24.10.1998. The respondents Nos. 1 and 2 suffered continuing wrong due to the incident in question and period of limitation begins to run at every moment of time during which the wrong is continuing. Although the incident resulting into the injuries suffered by the respondents took place on 9.5.1996; but both the respondents kept on receiving the treatments for their respective injuries till the year 1997 as is reflected from the medical check-ups, surgical processes/treatments given to them by the Doctors as is reflected in the documents (Ex. P.9) dated 22.2.1997, (Ex.P.11) dated 1.2.1997, (Ex.P.12) dated 3.4.1997, (Ex.P.15) dated 8.7.1997 and (Ex.P.16) dated 3.11.1996, and on each day of such treatment, the wrong continued and, therefore, fresh limitation for suing the appellants accrued in favour of the respondents, In views of the above, we hold that the suit instituted by the respondents was not at all time-barred and there is no force in the contentions of the learned counsel for the appellants in this context.
12. So far as the objection of the learned counsel for the appellants to the effect that the truck which collided with' the WAPDA electricity poll and the owner of tire petrol pump where the incident in question took place were necessary party in the suit instituted by the respondents and without impleading them, the suit was liable to be dismissed, is concerned,, the said objection is not sustainable in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as Punjab Road Transport Board through its Chairman, Lahore v. AbduI Ghafoor and 6 others (PLD 1989 Supreme Court 541) where at page 546 while interpreting the provisions of Order I, Rule 9 of C.P.C., their lordships held as follows:- "The effect of Order I, Rale 9, C.P.C, is that, "No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it" Similarly, Rule 13 provides that, "No objection with regard to non-joinder or misjoinder of parties can be raised unless it was taken at the earliest possible opportunity and in all cases where issues are settled at or before such settlement unless the ground of objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived." These two rules give ample general guidance for determination of a plea of misjoinder or non-joinder. While making general observations on the first point noted by the High Court these principles (contained in Rules 9 and 13 particularly Rule 9) it seems were not kept in mind." .
13. Coming to the crucial issues Nos. 5, 6 and 7, the learned Civil Judge has recorded finding against the appellants that it was on account of sheer negligence of the appellants that the high- tension electricity current remained active in the broken cables which were not taken care of by the appellants so as to exclude the possibility of exposures of the respondents to the injuries suffered by them. The respondents/plaintiffs have produced four doctors namely Dr. Muhammad Aslam as PW.1, Dr. Captain Khalid Faruq as PW.2, Dr. Syed Iftikhar Shah as PW.3 and Dr. Ameer Afzal as PW-4 to prove the injuries suffered by them and all the doctors have categorically established the fact that the injuries suffered by the respondents were due to damaging and burning effects produced by the electricity current. Muhammad Nazir (PW.5) is a supporting witness of the incident, who stated as follows in his examination-in-chief:- [( URDU TEXT )] In the first few lines of his cross-examination, the said Muhammad Nasir further stated as follows:- [( URDU TEXT )] The respondent No. 1 appeared as PW.4 (incorrectly renumber as PW.4 instead of PW-6) and he fully supported the incident narrated in the plaint, In his examination-in-chief, the respondent No. 1/PW.4 stated as follows:--- [( URDU TEXT )] The statement got recorded by the plaintiff No. 1 was also supported by another witness of the occurrence Asad Ullah Afzal Cheema, who is resident of a house adjacent to Mushtaq Filling Station.
14. The appellants/defendants have not denied the incident and produced two witnesses namely Idrees Sohail, S.D.O, as DW.1 and Tanvir-ul-Haq, S.S.O. Incharge 132 KV Grid Station, Hafizabad. None of these two witnesses' produced by the appellants have proved any fact as to what safety measure steps were taken by the appellants after the breaking of high-tension 11000 KV electricity wires. (DW.1) admitted the fact that the electricity wires were broken by hitting of the truck and that the capacity of the electricity wires was 11000 KV in which electricity current was operative after their falling down. The said (DW.1) further stated that the incident took place due to the carelessness of the respondents. The other witness Tanvir-ul-Haq (DW.2) stated that whenever there is a circuit breaker trip in the electricity current, they restore the electricity supply within three to five minutes. However, this (DW.2) was not posted at the time if the incident in the Grid Station in question and he has stated in his examination-in-chief that one Saadat Ali Khan was the Incharge of the Grid Station, who had died and the said witness was posted there. None of these two witnesses established any fact as to after the breaking of high-tension wires, any steps were taken by them to take care of the broken and falling electricity wires or that the electricity supply at least to/the extent of those broken electricity wires was stopped by the appellant-department, It was the statutory responsibility of the appellants to have exercised necessary caution and care in such a situation. The learned counsel for the appellants tried to argue that nobody duly informed the appellants of the breaking of the electricity wires, therefore, the electricity current was again made operative after three to five minutes of the first incident in which a truck collided with the electricity poll from where the electricity high tension wire broken down, In this context, a celebrated judgment decided by a House of Lords and reported as Lord Mayor, Aldermen and Citizens of the City of Manchester and Markland (1936 Appeal Cases 360) is very relevant. The facts of the case are reproduced from the text of the judgment as follows:- "360. The accident happened on the main road running between Salford towards the north-west and Bolton towards the south-east. About fifty or sixty feet southward of the point on the road where the accident happened the boundary line between the urban district of Worsley towards the north and the borough of Eccles towards the south crosses the road at right angles. The highway authority immediately north of this boundary is the Urban District Council of Worsley and immediately sought of this boundary is the Corporation of the Borough of Eccles. Along the length of this road runs an electric train line Owned and operated by the Corporation of Salford. The Lancashire County Police have jurisdiction in the neighbourhood of the accident. The districts through which the road runs are outside the city of Manchester,, but within the area of supply of the appellants as water under-takers under the Manchester Corporation Waterworks Act, 1897, and the Acts incorporated therewith and amending the same, and as such undertakes the appellants own (inter alia) most side and the service pipes connecting the main with the adjoining houses on each side- of the road. At about 11.15 p.m. On Saturday, February 11, 1933, the deceased descended from the rear of a tram-car, which was travelling towards Salford and had stopped at a point with its rear end about fifty or sixty feet north of the boundary already, mentioned. While still holding the rail of the car he was struck by a motor-car driven by Bamford and also travelling towards Salford.
The deceased died from his injuries shortly after the accident."
At page No. 363, their lordships of the Privy Council observed as follows:- "It is not disputed that the appellants have a duty to take all reasonable precautions to secure that leaks in their system should be brought to their knowledge and be repaired with promptitude. The question is whether they failed in that duty in the present case."
At page No. 364 of the reported judgment, their lordships of the Privy Council laid down the following principles of law with respect to such like situations:- "What is it that the appellants did to secure that in districts outside the city bursts in' their pipes should be promptly made -known to them? They had certain periodical examinations and tests made at the various stop-cocks and hydrants involving a visit to any given spot about once in nine days, but beyond this they did noting. I adopt the words of Talbot J. (I). "But as to anything more, they rely entirely on the chance that some policeman or road officer, or other servant of another authority, or some householder or other person may give them information." This was a system or want of system which the appellants' own officer, Mr. Dalton, did not apparently regard as satisfactory.
It is said on the appellants' behalf that the interest of the several authorities outside the city to see that no damage is done to the roadways within their districts, and that no loss or inconvenience is occasioned to the inhabitants, is so strong as to make it reasonable on the part of the appellants to trust to the officials of those authorities to communicate to them news of leakages. I do not think so. I agree with Slesser L.J. That the learned Judge was fully entitled to come to the conclusion that these precarious, unreliable, uncoordinated methods of receiving information did not exonerate the appellants. If the appellants choose to rely upon the chance of being kept informed by the outside means which I have indicated, without taking any precautions on their own part, and that chance fails them, they cannot be heard to say that they have discharged their duty." '
15. The arguments of the learned counsel for the appellants that they were unaware of the breaking and falling down of the high-tension electricity wires is not acceptable in view of the principles of law as laid down in the above reported judgment. The appellants did not produce any evidence to rebut the positive evidence produced by the respondents to the effect that the incident, in question, took place due to the negligence of the appellants. None of the officials of the appellant/WAPDA took any steps for preventing the incident in question. The appellants WAPDA authorities miserably failed to prove the necessary carp and caution having been taken by the appellants after the breaking of the high-tension wires and their falling at the spot. The two witnesses produced by the appellants did not utter a single word about any steps having been taken to meet such an eventuality by the appellants in order to save human life and injuries to the ordinary citizens. The appellants failed to discharge their burden of rebutting the positive evidence produced by the respondents, therefore, the findings recorded by the learned Trial Court on issues Nos. 5, 6 and 7 are upheld. The findings recorded by the learned Civil Judge/Trial Court that the respondents Nos. 1 and 2 suffered injuries due to sheer negligence of the appellants are fully supported by the material available on the record.
16. All that has been discussed above leads us to conclude that the instant R.F.A, is without any merits and is accordingly dismissed without any orders as to costs. The appellants were directed to deposit Rs. 25 lacs, being the half of the decretal amount, with the Trial Court, vide order dated 6.4.2006 passed by this Court on C.M. No. 1-C of 2006. This amount is stated by the learned counsel for the appellants to have been deposited. The learned Trial Court is directed to immediately release this amount with profits, if any, to the respondents Nos. 1 and 2. The remaining half of the decretal amount shall also be recovered expeditiously from the appellants.