This suit has been filed by the mother and 4 minor sisters and one minor brother of the deceased boy Faisal under the Fatal Accidents Act, 1855, claiming an amount of Rs. 1,00,000 as damages.
Plaintiff No. 1 is Mst. Sharifan, mother of the deceased boy plaintiffs Nos. 2 to 5 are the minor sisters, aged 6 years to 12 years, of the deceased and plaintiff No. 6 is the four-- year old brother of the deceased. The defendant is the Karachi Electric Supply Corporation Limited.
2. The case of the plaintiffs is that on 11-7-1978, due to rains a tree in that lane in Liaquatabad No. 3, Karachi on which their house is located was uprooted as a result of which the overhead electric wires of the defendant corporation broke at about 12-45 p.m. The broken electric wires were submerged in the rainy water that had collected in the lane. One Rasheed; resident of a nearby house located on the same lane got lodged a complaint with the defendant's complaint cell on telephone at about 1.00 p.m. Through Iqbal, who also lived in a house nearby on the same lane about the breaking of the electric wires and that electric current was passing through the water and that the situation had become dangerous for the people of the area. Lqbal had a telephone in his house. Rasheed had also informed about the dangerous situation to the employees of the defendant who were in a KESC Van which he saw after some time 'near the hotel of one Majid.
However, the defendant did not disconnect the electric city till 3-00 p.m. In-between this period at about 1.45 p.m. Faisal, son of plaintiff No. 1 and brother of other plaintiff, came out of his house and when he put his feet in the water on the street he was electrocuted and died as a result thereof. The deceased, according to the plaint, was a healthy and intelligent young boy of 8 years and be had a bright career before him. He was the eldest son of plaintiff No. 1, a widow. The suit has been filed against the defendant claiming compensation of Rs. 1,00,000 on account of the negligence of and failure of duty by their employees which- resulted in the death of the deceased.
3. The defendant corporation filed a written statement in which it was admitted that the tree had been uprooted on account of rains as a result whereof electric wires broke down at about 12-45 p.m. And these wires submerged in the rainy water. However, it has been pleaded that this was an act of God and, therefore, the defendant were not liable. Further it was pleaded that the earliest information which they received was at 2.00 p.m. And immediately a van was despatched to the site concerned without any loss of time and the mains were immediately disconnected. According to the defendant, immediately upon receiving information of the accident they had strictly observed the rules of safety and that they have not been negligent nor have they defaulted in the discharge of their duties. The claim of the plaintiff was denied.
4. On the pleadings of the parties the following consent issues suggested on behalf of the parties were adopted by the court on 16-2-1980
(1) Whether the victim died as a result of electrocution ?
(2) Whether the defendants were informed immediately of the breakage of the electric wires, on its breaking ?
(3) Whether the defendants failed to take action speedily ?
(4) Whether the fatal injury was caused due to the negligence of the defendants?
(5) Whether the plaintiffs are entitled to any compensation against the defendants ?
(6) What the order shall be ?
5. The plaintiffs examined five witnesses, namely, Mst. Sharifan. Mother of the deceased boy (P. W. 1, Exh. 5), Abdul Rasheed (P. W. 2, Exh. 6). Abdul Jalil (P. W. 3, Ex h. 7), Nawab Siddiqui (P. W. 4 Exh. 8) and Iqbal Husain (P. W. 5, Exh. 9). The defendant examined the following 3 witnesses :--
(i) D. W. I-Abdul Lateef (Exh. 10) Electrical Supervisor.
(2) D. W. 2-Amjad Shah (Exh. I l) who was the Incharge of the K. E. S. C. Van which was dispatched by the complaint centre for necessary action on receipt of the complaint.
(iii) D. W. 3-Abdul Rasheed, Executive Engineer (Complaints) of defen--dant corporation.
6. Before I deal with the issues framed in this suit I may briefly discuss the cases of both the parties as brought out in the evidence recorded before this Court. According to the plaintiffs' evidence the overhead wires had broken around 12-45 p.m. On 11-7-1978 and the wires got submerged in the water in the lane in front of the house of the plaintiffs. A complaint was made at about 1-00 p.m. By P. W. 2 Abdul Rasheed through Iqbal Husain (P. W. 5) who also liver in the same lane and who has a telepone in his house. After getting the complaint made through Iqbal. P. W.2 Abdul Rasheed came back to his house and stood guard warning people not to step into the water. Then he saw at some distance a KESC van standing. He rushed to the van and informed the K. E. S. C. Staff in the van that wires had broken and requested that electricity should be disconnected to avoid any unfortunate accident that might take place. According to P. W. 2 Abdul Rasheed, these employees of K. E. S. C.
Informed him that this was not their job but they asked him to go and see their Incharge who was working in the next lane. Rasheed went there and talked to the Incharge of the van who asked him to wait till he finished the job which he was doing. Rasheed had to wait for about 10-15 minutes after which they started walking towards the scene of the accident. But then P. W. 2 saw the deceased Boy Faisal lying electrocuted in the water. The body of the deceased wet taken out of the water with the help of wooden sticks. P. W. 2 then again went to the house of Iqbal and got another complaint recorded with the K. E. S. C. According to the plaintiff, the K. E. S. C. Van came around 3- 0C! p.m. And the live wires were then disconnected. According to the evidence of the plaintiff, therefore, defendant corporation has been negligent and they are liable to pay compensation to the plaintiffs under the Fatal Accidents Act. According to the defendant's evidence no complaint was received on telephone but some people had come personal at about 2-10 p.m. And made a complaint at their complaint centre which is about half a mile from the place of the accident. The complaint is recorded in the "wire-broken register" which is Exh. 10/1. A van was dispatched immediately to the scene of the accident where it was found that out of three phases, two phases and the earth wire were disconnected and no electricity was passing through the two phases but the third phase wire was not disconnected and it was live. That wire was disconnected and the submerged wires were put in a bunch, on one side. According to Exb- 10/1, the van which was in the charge of Amjad Shah (D. W. 2) came back after completing the work at 2-30 p m. i. e. 20 minutes after the complaint was recorded. According to D. W. 2 the accident was of such a nature that only two phases and earth wire got disconnected and the third phase remained live and this was an accident which could not, therefore, be prevented even by the protective measures adopted by K.
E. S. C. In the circumstances, the defendant's case as built up in their evidence was that they were not negligent and in any case the uprooting of the tree was on act of God for which they cannot be held responsible. It was also their case that the first complaint was received in the complaint centre after the accident had taken place and if the report had been received earlier, defendant would have taken action earlier and in that case the deceased would not have died. I would now deal with the issues framed in this suit.
7. Issue No. l.-"Whether the victim died as a result of electrocution ?
Evidence of P. W. 1 to P. W. 3 clearly establishes that deceased Faisal died on account of electrocution by coming into contact with the electric current passing in the water that had accumulated in the lane in front o his house on account of the broken live wires getting submerged in the water. No attempt has been made to cross-examine these witnesses on this question. It more or less is an admitted position that deceased Faisal died on account of electrocution. This issue is accordingly decided in the affirmative.
8. Issue No. 2."Whether the defendants were informed immediately of the breakage of the electric wires on its breaking ?
The oral evidence led on behalf of the plaintiff is to the effect that two complaints were made on telephone by Iqbal Husain (P. W. 5). One complaint was made at about 1-00 p.m. i. e. about 3/4 of an hour before the accident and the other complaint was made after the accident. If this evidence is believed then it would show that about 45 minutes before the death of the deceased on account of electrocution, defendant had knowledge of this dangerous situation and they defaulted in the performance of their not to take necessary action urgently and expeditiously. The evidence of Abdul Rasheed (P. W. 2) and Iqbal Husain (P. W. 5) is clear on the point that two complaints were made and that the first complaint was made much prior to the time the accident had taken place.
These two witnesses were cross-examined on this point. I find that their evidence has withstood the attacks during the cross-examination and their testimony on this point has not been shaken. Their version appears to be true. On the other hand the defendant's evidence is that they maintain what is known as "broken-wire register" in which all complaints about broken wires are recorded and in such register for the relevant period (Exh. 10/1) there is no entry of any complaint made on telephone but there is an entry about a personal complaint having been lodged at 2-10' p.m. Which was immediately attended to and by 2-30 p.m. The van which was sent for necessary action had come back and reported compliance. I am not impressed by the entries made in this wire-broken register (Exh. 10/1). For instance on 11-7-1978 there are 10 entries in this register regarding broken wires, but except for the entry relating to the complaint in question where at two places the time is shown --at one place 1410 hours and at the other place 1430 hours-against no other entry two timings are given. In all the others only one time is given. Further, although Amjad Shah had stated in his evidence that on 11-7-1978 he had attended about 30-35 complaints, in the wire-broken register there are in all 10 complaints regarding breakage of wire on that day and significantly the name of Amjad Shah as the gang-incharge is only mentioned at one place, i.e. in respect of the accident in question. If all the complaints relating to the breakage of wires were recorded and as Amjad Shah has stated that be had attended to about 30-35 complaints on 11-7-1978, his name as gang-incharge would have appeared at more than one place specially as in one centre there are only three or four gangs to deal with complaints. The absence of details and the absence of name of Amjad Shah at more than one place against the entries made in Exh. 10/1 on 11-7-1978 show that in fact all the complaints were not recorded in the wire-broken register. 1t was further in the evidence on behalf of the defendants that whenever any complaint was made on telephone, the number of telephone from which the complaint was made was recorded in the wire-broken register. I however, find that on I1-7-1978 against none of the 10 complaints, telephone number of any complaint is mentioned. I further examined the entries for ten days from 12-7-1978 to 21-7-1978 in Exh. 1Q/1 and I found that telephone number of complainant was not mentioned against any entry for these 10 days. 1t can be presumed that at least one complaint had been made on telephone on these 10 days. This leads to the conclusion that if a complaint was made on telephone it was either not recorded, or if it was recorded, the wire-broken register does not show that the complaint was made on telephone. I am, therefore, of the view that this wire-broken register (Exh. 10/1) cannot be taken as a reliable piece of evidence containing the record of each and every complaint either made personally or on telephone in respect o breakage of wires. In my opinion some complaints were recorded an others were not recorded in this register. In view of my reaching this conclusion, I am inclined to accept the evidence led on behalf of the C plaintiffs that two complaints were made, one before the accident and one after the accident. I, therefore, decide Issue No. 2 in the affirmative and hold that immediately after the breakage of electric wires and before the accident a complaint was made on telephone by Rasheed through Iqbal to the complaint entry of K. E. S. C. Informing them of the breakage of wires.
9. Issue No. 3.-"Whether the defendant failed to take action speedily ?"
I have already decided under Issue No. 2 that the first complaint was made immediately after the accident so that it can be assumed that the first complaint was made around 1-00 p.m. . Action is taken, however, according to the evidence of the defendants, just before 2-30 p.m. And by that time the deceased had already lost his life. If action had been taken immediately on receipt of the first complaint around 1-00 p.m. It is obvious that at least this boy's life would not have been lost.
This issue is decided in the affirmative.
10. Issue No. 4.-"Whether the fatal injury was caused due to negligence of defendants ?'
I have already held that action was not taken expeditiously by the defendant in attending to the complaint. According to the evidence led on behalf of the plaintiffs which has been believed and accepted by me, the complaint about the breaking of the overhead wires and their submerging in the water was made to the complaint centre of the defendant at about 1-00 p.m. According to the defendant's evidence itself within 20 minutes of receipt of the complaint at 2-10 p.m. The job was finished and the gang which had gone in the van to attend to this complaint came back at 2-30 p.m. That is within 20 minutes, after completing the job of disconnecting the electricity at the place where wires had broken down and got submerged in the water. In the present case where the complaint was made around 1-00 p.m. Bad action been taken within the next 30 minutes or so the valuable life of a young body could have been saved, but according to the evidence of the defendant themselves action is taken just before 2-30 p.m. That is, nearly 1i hours after the making of the complaint. I, therefore, find that the defendant failed in their duty to take action expeditiously in case of breaking of wires which was a source of great danger for a large number of a people in that area specially on account of the wires getting submerged in the water making the entire body of water dangerous. However, independently of action being taken on the making of a complaint, the duty under the law of the defendant in respect of maintenance of their electrical installation and for the provision of protective measures requires consideration in this case.
11. Evidence of P. W. 1, an electrical Supervisor of K. E. S. C. Is that guard-wires, as a protective measure, are employed by the defendant in the overhead wires to avoid accidents. According to him the job of the protective mechanism of guard-wires and conductors is that no sooner a wire breaks the entire electricity in the overhand wires is disconnected. But, according to this witness dampness affects the value of these conductors and if the conductors are affected on account of dampness the protective measures do not work and in spite of breaking of a wire, electricity in other wires may not be disconnected. According to this witness, however, if before the rains the conductors are in proper condition and there is no defect in them then even if rains take place, the rains would not affect the working of these conductors.
12. Evidence of the Executive Engineer (Complaints) of the defendant corporation. (D. W. 3) is very important and I consider it necessary to reproduce certain extracts from his evidence recorded in this case :- "The rains affect our safety measures. On account of dampness caused by rains the resistance value of the safety device is affected. On account of the dampness when the resistance value falls below standard, the circuit which is used for protection is not complete. :. . ..I do not know the exact facts of the accident. However, maintenance is not entirely the cause of an accident. As I have stated, on account of weather conditions the protective measures adopted by K. E. S. C. May not remain up to the standard. This may be one cause of the accident. The other reason could be a particular type of accident which might first disconnect one or two phases and the second or third phase may remain live. . .It is not correct that on account of the breaking of the wires lives of people are endangered.
Reason is that in most cases the protective measures keep safe the people but in some cases the protective measure may not work which might result in an accident. ---. . . .We adopt protective measures and if in a case protective measures do not work accidents might take place due to technical reasons . . . . .If a particular pole is properly checked and protective measures there are in perfect condition and even if heavy rains take place the resistance value of such measures does not fall below standard but after 2 years, on account of dampness. The protective standard of these measures may fall below the required standard."
13. According to D. W. 3, maintenance is not entirely the cause of an accident. According to him, ,on account of weather conditions the protective measures adopted by K. E. S. C. May not remain up to the required standard. This according to him might be one cause of the accident. He has, in his replies to question put by the Court to him, stated that normally the rains during the monsoon season take place in June, July and August in Karachi, and that it is not possible to carry out maintenance and testing check of each pole in the city of Karachi once every year but a routine check does take place. The important piece of his evidence is to the effect that if a particular pole is properly checked and protective measures there are in perfect condition then even if heavy rains take place the resistance value of such measures does not fall below standard, but after two years, on account of dampness, the protective standard of these measures may fall below the required standard. From his evidence, therefore, it follows that if before the rainy reason the conductors and other protective measures are properly checked then rains for two seasons would not affect their resistance value and dampness on account of rains also would not affect them. In the present case, therefore, if the conductors and other protective measure had been checked before the rains in 1978 or even before the rains of 1977, the conductors and protective measures adopted by the K.
E. S. C. Would be working properly and would not fail in case of breaking of wires. In this case no evidence was led on behalf of the defendant to show that during the last two years of the accident the electric poles in the lane in question were properly checked to see that the conductors were working properly. If they had brought such evidence on record and that evidence had been believed then it would be a case where defendants had taken all possible measures for protection and in spite of that if an accident had taken place it might have been difficult to come to a conclusion that the accident itself had taken place on account of negligence on the part of the defendant or on account of failure on their part to perform their duty of keeping and maintaining the electrical installations in proper condition.
14. However, Mr. Mizam A.I Khan, learned counsel for the defendant laid great stress on the evidence of Amjad Shah, D. W. 2 who was incharge of the gang which had gone to disconnect electricity at the scene of the accident. According to his evidence, when the site was inspected it was found that two wires automatically disconnected themselves and in the third wire which was lying loose intermitent current was passing and that wire was disconnected by the lineman who had gone in the van along with Amjad Shah. According to him, when the overhead wires had broken in this case on account of the fall of the tree, out of the three phases, two phases got disconnected and on account of the spark at the time of dis--connection of these two wires the earth wire also got automatically dis--connected and, therefore, the third wire was not disconnected but remained alive. According to the witness this was a special type of accident and, therefore, one of the wires remained live. However, the facts about the special kind of accident that had taken place which disconnected two phases and then the earth wire resulting in the third phase remaining live, according to the evidence of Amjad Shah, were not recorded any where. He had also not disclosed the exact details of the way in which the accident had taken place to any other person till he came to Court after nearly 2J years to give evidence. According to him, such details are not recorded any where and at the time the van goes to attend to a complaint a slip is given to the gang-incharge and after the job is completed, the gang incharge writen on the slip that the job has been done but the exact details of how the accident had taken place or how many wires had got disconnected are not mentioned in the slip. A perusal of Exh. 10/1 and also the log--book (Exh. 12/1) does not show that in fact the wires had broken in the manner in which it is deposed by Amjad Shah. I may repeat here that for the first time Amjad Shah discloses this in Court and prior to that, according to his own evidence, neither he recorded the details about the special type of accident on any writing nor did he discussed this with any one in his corporation. It is difficult to place reliance on his evidence firstly on account of the reasons mentioned hereinabove that there is no written record of the details of the accident, and secondly if this was the defence of the defendant, it should have been taken as a specific plea in the written statement. In the written statement no such plea is taken.
Thirdly, evidence of the electrical supervisor K. E. S. C. (D. W. 1) is to the effect that if one wire gets broken and the protective measures are working in proper condition, electricity in all the wires is automatically disconnected. This evidence of D. W. 1 is in conflict with the evidence of Amjad Shah that in the present case as two wires got disconnected and then the earth wire was disconnected, the third wire which was not disconnected, remained live. According to the electrical supervisor (D.
W. 1) even if one wire gets disconnected, and the protective measures were working properly, electricity in the other wires should also disconnect immediately. On account of these considerations I find it difficult the accept the version given by Amjad Shah that this was a freak accident for which the responsibility could not at all be placed on the defendant.
15. Out of the two possibilities, first that the accident took place on account of the protective measures not being upto the reqired standard and the other that it was a freak accident and it happened as related by Amjad Shah, the probability is that the accident took place because protective measures were not working in proper order. As I have observed earlier, if there was evidence on record that during the last two years prior to the accident the poles in that lane had been properly checked and the conductors were found to be in perfect condition, it might have been presumed that the accident had taken place on account factors beyond control of the defendant. In the present case, however, there is no evidence on the part of the defendant in this record. On the other hand there is evidence of the defendant themselves that normally protective measures should work and that on account of dampness due to rains protective measures may not work provided during the last two years the conductors and other protective measures are not checked properly.
16. I am, therefore, of the view that evidence has not been brought on record that all reasonable protective measures had been adopted by the defendant corporation in the instant case and on the basis of the evidence on record and the probability being that the accident happened on account of the protective measures being not of the required standard, the accident that took place was the direct result of the negligence of the defendant.
The contention that the accident was the direct result of an act of God has no merit. In my view it was an accident which could have been avoided if requisite steps for maintenance of protective measures had been taken by the defendant. I accordingly decide this issue in the affirmative and against the defendant.
17.Issue No. S.-"Whether the plaintiffs are entitled to any compensation against the defendants ?"
At the outset while arguing on this issue. Mr. Nizam A.I Khan, learned counsel for the defendant urged that this suit has been filed by the mother and also the brother and sisters of the deceased boy under section 1 of Fatal Accidents Act, 1855, and in this section brothers and sisters are not listed as the beneficiaries and accordingly they are not entitled to make a a claim for compensation under section 1 (2) of the Act. Mr. Malik Muhammad Saeed, learned counsel for the plaintiffs could not meet this challenge. In my view brothers and sisters of a deceased are not entitled to claim damages in a suit filed under section 1 of the Fatal Accidents Act 1855, as they are not included in the list of beneficiaries given in tha H section. Accordingly I hold that plaintiffs Nos. 2 to 6 being the brother and sisters of the deceased are not entitled to any commensation and the only person who is entitled to claim compensation is plaintiff' No. 1, the mother, provided it is proved that she has financially been a loser on account of the death of her deceased son as she could reasonably expect financial benefits from him.
18. In this connection there is the evidence of plaintiff No. 1, in which she has stated that at the time of his death, Faisal who was 8 years old was doing the work of "Zari" and used to bring 5 to 10 rupees a week as his earning. According to her, the deceased was of good health. She has further stated that on account of financial difficulties Faisal was not going to school and apart from the deceased son, out of the 5 others children, 4 were daughters and the youngest child was another son who was four years of age. According to her statement the deceased was her elder son and apart from the youngest child, deceased was the only son and she was expecting a lot of financial help from him if be had not died from the unfortunate accident. Except for a question to which she answered that her son was learning the work of "Zari" there is no cross-examination of plaintiff No. 1 on this point. Two points are established from this evidence and these are that the deceased was learning the work of `Zari' and that even during this training period he was bringing 5 to 10 rupees a week to the house.
19. The other main evidence on the question of earning of the deceased is of D. W. 3 Abdul Jah (Exh.
7). He has deposed that he has his own "Zari" work and the deceased used to learn the work of "Zari" at his place.. According to this witness a person is trained to become a skilled worker of `Zari' in about 2 years time, and the deceased had already taken training and done a lot of work with him for about one year. This witness has further deposed that at the time of his death, the witness was paying the deceased about Rs. 50 per week but after he had fully learnt the work, he could . Have earned upto Rs. 50 per day. According to D. W. 3, workers in "Zari" business are paid on daily-wages.
In his cross-examination he confirmed that be was paying Rs. 50 a week to Faisal deceased.
Sometimes he used to give this money to the deceased boy and on other occasions to plaintiff No.
1. He denied the suggestion that he was giving this evidence falsely.
20. The other witnesses have also supported the version of P. W. 1 and P. W. 3 that the deceased was learning "Zari" or working with Akdul Jalil. Mr. Nizam A.I Khan, learned counsel for the defendant,, had argued that the deceased was 8 years old at the time of his death and it should be presumed that till he attained the age of 18 years if he had not died, he would not be earning anything and thereafter he would have been expected to earn at the most Rs. 200 per month and out of that at best plaintiff No. 1 could expect a sum of Rs. 50 per month from the deceased. On the basis of the evidence that has come on record, however, I have reached the conclusion that even at the time of his death the deceased boy was bringing about 10 rupees a week to the house which would make about Rs. 40 per month as his contribution to his mother for the maintenance of the family. After another one or two years, according to the evidence of P. W. 3, the deceased boy would have fully learnt the work of `Zari' and would have started earning about Rs. 50 per day. In my view this figure is rather exaggerated. I would take the earning of the deceased for another two years from the date of his death at Rs. 50 per month and. Thereafter from the age of 10 years to the age of 18 years I would take as a rough average the ' total monthly earning at about Rs. 300 per month and from the age of 18 years the average earning at about Rs. 500 per month. Being the eldest son, the father having already died, it is natural to expect that the deceased, if he had not died in the unfortunate accident, would have been financially a source of income and benefit to plaintiff No. 1.
On a rough average since attaining the age of 10 years I would accept that plaintiff No. 1 could reasonably except a sum of Rs. 200 per month from the deceased. This amount plaintiff No. 1 could reasonably expect to receive from the deceased till the age she was expected to live.
21. At the time of giving evidence, plaintiff No. 1 gave her age as 40 years. She would, therefore, be 38 years old at the time of the death of the deceased. In the judgments delivered during the last decade, superior courts of our country have taken the expected span of life as 60 years or 65 years in. Fatal accident cases but the recent trend in the judgments is to accept the conservative figure of 60 years. In my view also the normal span of life in Pakistan should be taken as 60 years if there is no evidence on record that the deceased or the beneficiary was suffering from any malady .Or diseased, which on medical authority, was likely to curtail the life span of the deceased or the beneficiary. In case, however, cogent and accurate evidence comes on record that in the family of the deceased the normal age in fact was more than 60 years, the Court would not be restricted to 60 years s the expected age.
22. In the present case the plaintiff No. 1 would be expected to live upto the age of 60 years that is for 22 years from the date of death of the deceased. I have held that after two years of that date she could expect on an average a sum of Rs. 200 per month from the deceased. The amount for 20 years at this rate comes to Rs. 46,000 to which amount plaintiff No. 1 is entitled as damages. Issue No. 5 is decided accordingly. ,.
23. Issue No. 6 deals with relief. In view of my findings on issues Nos. 1 to 5, I decree the suit of the plaintiff No. 1 against the defendant for Rs. 48,000. Plaintiff No. 1 shall be entitled to proportionate costs. Suit of plaintiffs Nos. 2 to 6 is dismissed.