MAZHAR ALAM KHAN MIANKHEL, J.---The appellants herein through instant appeal, have questioned the judgment and decree dated 2477-2002 of learned Civil Judge-II, Peshawar, whereby their suit for damages caused to their house and the death of three precious lives due to the negligence of defendant/respondents, was dismissed.
2. The brief but the material facts of the case are that because of negligence of respondents Nos.1 and 2, leakage of natural gas in main pipeline in front of the house of the appellants Nos.2 to 4 was not controlled and checked by them which entered their house and because of explosion in the pipeline, the house caught fire and was completely damaged and burnt by taking three precious human fives and injuring an infant of the house along with all the household articles.
3. The mother of appellants Nos.2 to 4, their brother Sanobar (son-in-law of appellant No.1) and Mst.
Saeeda daughter of appellant No.1 who was married to Sanobar deceased lost their lives in the incident. Grandson of appellant No.1, an infant of four months, son of Sanobar and Saeeda deceased was also severely burnt. All the household articles including the gold ornaments of Mst.
Saeeda deceased were also burnt.
4. The admitted facts of the case are that the matter was reported to the police and the criminal case vide F.I.R. No.188 dated 24-3-1995, Exh. P.W.1/2, was registered but record of the case would reveal that no action and proper investigation was made till date. In spite of the visit of Chief Minister and inspection of the site by him along with all the concerned, no proper inquiry/investigation was conducted neither by the Government, nor by the respondent department.
The appellants, as per their version, suffered a loss of more than Rupees three millions due to the negligence of respondents and three precious lives were also lost. The coldhearted and unhealthy response of the police, Government and the department itself was the cause for their mental torture and financial loss. They have also claimed Rs:20,00,000 (Rupees Twenty Lacs), as damages.
5. A written statement of the respondents carries the routine technical objections and total denials but the tragic incident was not denied by alleging it to be because of the negligence of the appellants but never explained the same.
6. Learned counsel for the plaintiff/appellants submitted that the appellants suffered mental torture in the shape of loss of three human lives, damages to their house and household articles due to the negligent act of the respondents; that the tragic incident and the negligence of respondents was established on the record having no rebuttal but the learned trial Court failed to appreciate this aspect of the case and the evidence available on the record was evaluated on wrong and technical assumptions of law. He next contended that the material available on the record was more than sufficient to grant a decree in their favour and requested for decretal of claim of the appellants.
7. As against that, the learned counsel for the respondents, by placing reliance on an unreported case of alike nature, R.F.A. No. 36 of 2004, decided on 16-9-2011, titled "Miss Sitara Begum v. Sui Northern Gas Pipelines Limited", submitted that appellants failed to prove the fact that the' occurrence was because of negligence on the part of the respondents. He next submitted that the trial Court, in this view of the matter, has rightly dismissed the suit of the appellants.
Learned counsel for the parties were heard and record of the case was perused.
8. Perusal of the record would reveal that in the case of appellants, there are certain established facts which need no further evidence to prove the same. The gas pipeline was passing just adjacent to the house of appellants. There was a leakage of gas in the pipeline just in front of the house of the appellants. Appellants were not the consumers of the respondent department which could have created a doubt with regard to a fault of gas leakage or other accidental omission/commission within their house. The house caught fire within micro seconds and everything was under fire in a blink of any eye by leaving no chance for inmates to escape.
This tragic incident was reported in the print as well as electronic media. The intensity of the incident also compelled the Chief Executive along with all other concerned officials of the department to inspect the spot. The local police had also registered a criminal case. But the most unfortunate and heart rending aspect of the incident was that neither the high-ups of the department moved to inquire into the actual cause to fix the responsibility on the delinquent nor the police changed its casual behaviour and failed to investigate the case by nabbing the actual person responsible for the negligence. The attitude of the Provincial Government and its chief proved it to be nothing more than a gallery play and photo session. Any file, if opened, was placed as an A underlay of a carpet. We are sorry to observe that this has become our general behaviour as a nation and such like tragic incidents do not arouse our feelings and sentiments as if we are immune of such things and such tragic incident cannot happen to us. We, as a nation, have lost our sense of responsibility.
We have just given the general picture of the case as the circumstances of the case had called for it and all this was established on the record. We are fully conscious of the law on the subject.
9. Such like cases would only require to establish, the incident/wrong done to the plaintiff and its apparent cause. The damages then could be of two types (i) special damages and (ii) general damages. Special damages which have actually been caused to the plaintiff. The B same would require strict proof. In case of general damages, the amount of damages would not require to be proved by way of proper accountancy. So, the loss and damages in general are measured by .Way of rule of thumb as compensatory damages.
10. It has never been denied that there was no leakage of gas pipe line. The appellants produced four witnesses who have reiterated the occurrence and the tenor of their entire cross-examination would further confirm the tragic occurrence. The respondents totally denied the occurrence but they produced only two witnesses, one Sub Engineer, a technical person involved in laying of gas pipelines, tried to explain that at the time of laying of pipelines, all necessary care and caution required under their system of work is taken, but he was not posted here when the questioned pipeline was laid. He, at the end, submitted that it might be a cause of an unlawful act of someone.
In cross-examination he admitted that on that day he heard the NEWS of occurrence. The other witness, though admitted the occurrence, but stated only to the extent that on getting complaint, he sent the concerned staff to the spot.This was the gist of evidence which established the occurrence. The cause for the occurrence can be some terrorist activity or negligent act of the inmates of the house or the negligence of the officials of the concerned department.
We can analyse the cause of occurrence through available record. The possibility of the first cause is out of consideration as during.
Those days the overall situation of country was normal and there were no such like terrorist activities in the country. While considering the second possibility of the occurrence, the record on its surface would reveal,that the appellant's family is the sufferer and no apparent cause on their behalf is available on the record or determined by the department, because the appellant's family was not the consumers/clients of the respondents. Had it been so, then there could have been a chance of their negligence.
The apparent cause of the incident could only be the negligence of the department, as there is also nothing on the record either by the inquiry of police, Government or the department that it was a terrorist act. So, we have no hesitation in our mind to hold that it was all because of negligence of the officials of the department which claimed three human lives and destroyed a house. The department having the sole responsibility to have inquired into the matter at its depth to know about the actual cause, but as per record and admission of the counsel for respondents that there was no inquiry into the matter by the respondents would be sufficient to reflect their negligence.
11. The appellants have established the tragic incident without any only required to prove the factum of incident. The burden then shifts to shadow of doubt and under the established law of the land, they were respondents to prove that the occurrence was not because of their negligence.
Reliance can be placed on 2006 SCMR 207, "Punjab Road Transport Corporation v. Zahida Afzal and others". Though the referred case was with regard to fatal road accident but the principle laid down was with regard to burden of proof. The same principle can also be applied in this case.
Relevant Para-9 of the judgment reads as under:-- "it is settled proposition of law that it is the duty of the plaintiff to prove the factum of accident whereafter the burden is shifted upon the defendant to prove that the accident occurred not due to his or their negligence. In the present case burden is shifted upon the petitioners/defendants' to prove that thedeceased died not because of their negligence but the petitioners failed to discharge their onus in accordance with law, therefore, both the Courts below were justified to grant damages to the respondents Which is not only in accordance with the evidence on record and is also in accordance with the law laid down by this Court in various judgments including the following judgments:-- Mst. Kamina and another v. Al-Amin Goods Transport Agency and 2 others, 1992 SCMR 1715 and (2)
Karachi Transport Corporation and others v. Mukhtar Begum and others, 1998 SCMR' 807. One of the principle laid down for determining the compensation in such like cases, is at Serial No. (v) of Para- 10 of the judgment, which reads as under:--
(v) "Where the actual extent of such pecuniary loss cannot be ascertained accurately, the sum may be an estimate or partly a conjecture".
Paras 12 and 13 of the judgment are also worth to be reproduced:- (12)"Our Constitution contains Chapter I relating "Fundamental rights" in which life of human being is given due importance. It requires everyone to work for the welfare of the people of Pakistan but a person who is violating the law and Constitution works against the welfare of the people that is why it is high time to promote the law of tort so that the people must understand that we cannot live as a nation without performing our duties within the framework of law. As in the present case admittedly the driver had driven the bus in violation of the mandatory provisions of Motor Vehicle Ordinance, 1965 and rules framed thereunder thus, causing fatal injuries to the innocent citizens.
(13)"It is pertinent to mention here that mere framing of law does not provide good results unless the law is strictly implemented by all the sections of the society in letter and spirit without fear, favour and nepotism as envisaged in "Sura-e-Baqra" of Holy Qura'an. To achieve the goal of ensuring every citizen and organ of the State on a right path the nation, as a whole, has to honour the commitment in terms of the Constitution and law. One of the modes to achieve this goal is to file a suit for damages against the offenders by the aggrieved persons. It is the duty of the members of the Bar Associations and Bar Council to educate the people and to file suits for damages against the offenders apart from the criminal proceedings. It is also the duty and obligation of the media to provide to cultivate awareness of rights specially law of tort which will ultimately bring/compel every authority and functionary including the Chief Executive of the country to work within the framework of law and Constitution".
The record of the case is obvious that respondents failed to discharge their burden and took it very light, so, they are liable for the tragic incident, wherein the poor family suffered and unbearable loss at their hands.
In the case of "Karachi Transport Corporation v. Latif-ur-Rehman" 1993 SCMR 1149, it was observed by their lordships in the following manner:- "We may also observe that a Government department/ functionary is not expected to raise frivolous pleas in an action brought by a citizen for recovery of his lawful claim, with the object, to deny it or to prolong litigation in respect thereof. Such practice is to be deprecated in the strongest terms. The officials responsible for the same should be made accountable for their above uncalled for and unjustified approach, particularly in cases arising out of fatal accidents, the approach of Government department/functionaries should be human and pragmatic, all efforts should be directed to ensure that an aggrieved person gets his reasonable, admissible claim promptly without loss of any time." The judgment relied upon by the defendant/respondents in their defence, to our view, would not be applicable in peculiar facts and circumstances of the case and would be distinguishable, as there were different version of leakage of gas including the one of negligence of the appellants therein, but in the instant case there are no such different versions and negligence of the respondents is established on the record.
The appellants though have not proved their actual damage and loss, but it can be ascertained from over all scenario of the occurrence and for general damages for pain, torture and suffering, they are not supposed to prove actual damages. Furthermore, there could be no compensation to the loss of human life. The prospective and compensatary damages of Rs.25,00,000 (Rupees Twenty Five Lacs) would have a soothing effect on the aggrieved family, specially when they are being held entitle for the same after their long and hectic struggle spreading over fifteen plus years. This amount of the compensation should be paid to the aggrieved family in lump sum without further delay as per their respective shares to be determined by the executing Court at the time of making payment. Intentional delay for payment would further liable the respondents to pay fine at the prevailing bank rate.
Hence, this appeal is allowed with costs and the impugned judgment and decree dated 24-7-2002 of the Civil. Judge-II, Peshawar is hereby set aside.