JUDGMENT: Ch. Muhammad Ibrahim Zia, J.- The captioned appeals with the leave of the Court have been addressed against one and the same judgment of the High Court dated 22.3.2010 whereby the appeals filed by both the parties have been dismissed. As the common questions of law and facts are involved, therefore, the same are disposed of through this consolidated judgment.
2. Brief facts forming back-ground of these appeals are that the plaintiff-appellant, Muhammad Abbas Khan, filed a suit against the respondent-Government & others, for recovery of Rs. 150- million, (fifteen crores), as damages, in the Court of District Judge Kotli on 19.10.2005. It is alleged that on 2.5.2005, Muhammad Abbas Khan Khatak, appellant, student of class III, went to the house of his neighbour, Gul Khan alias Muhammad Asif for playing with his children. While playing, the children went on the roof of his house whereupon the plaintiff was touched and caught with the 11000 K.V, Electric Transmission Line which is crossing very close to the roof of the house. The appellant's abdomen and arm was seriously burnt and after treatment from different hospitals, his arm has been cut from the shoulder and he has become disable forever. It is further alleged that the other arm of appellant Muhammad Abbas Khan Khattak was also damaged and the internal and external parts of abdomen also badly affected. The suit was resisted by the defendants by filing written statement. The learned District Judge Kotli framed issues in the light of the pleadings of the parties. The evidence produced by the prosecution was recorded and after hearing both the parties, vide judgment dated 31.5.2007, decreed the suit to the tune of Rs. 21,50,000/- (twenty one lac and fifty thousand).
3. Both the contesting parties separately challenged the judgment and decree of the learned District Judge, Kotli in the High Court by filing appeals. The defendants prayed for annulment of the judgment of trial Court whereas the plaintiff contested for enhancement of the amount of compensation. The learned single Judge of the High Court, upheld the judgment and decree of the District Judge Kotli and dismissed both the appeals vide judgment and decree dated 22.3.2010.
Both the contesting parties have challenged the propriety of the judgment and decree of the High Court dated 22.3.2010, through the captioned appeals before this Court.
4. Raja Gul Majeed Khan Advocate, counsel for the defendants-appellants, after discussion of facts, mainly objected to the impugned judgment of the High Court on the ground that it is violative to rule 14 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 as the same is handed down by a single Judge of the High Court whereas under this rule, a single Judge is competent to hear the appeal only in the matter involving valuation for the purpose of jurisdiction up to Rs.
15,000/-, thus, on this sole ground, the impugned judgment is not maintainable. He further submitted that both the Courts below fell in error of law, misreading and non reading of evidence.
The plaintiff, has failed to bring on record any cogent evidence to substantiate his claim, therefore, both the judgments of Courts below are not maintainable. The main objection raised on the merits of the case is that it has been established from the record that the house on which the incident took place, is constructed long after installation of the electric transmission line, therefore, it is not negligence of the department, but of the owner, who despite knowledge, constructed the house near the electric transmission line. In his opinion, the appeal merits acceptance and reversal of the impugned judgment. He further submitted that the cross appeal of the plaintiff is not maintainable, hence, be dismissed with costs.
5. Conversely, Mr. Muhammad Yaqoob Khan Mughal Advocate, the learned counsel for the plaintiff submitted that both the Courts below have passed the impugned judgment after due appreciation of evidence and application of judicial mind. He submitted that the plaintiff-appellant has proved his case by cogent evidence. Both the Courts below have recorded findings on the question of facts which are unexceptionable, hence, the second appeal is not maintainable. He submitted that the defendants-appellants have failed to make out any legal point for interference by this Court.
The Commission (civil Judge), after spot inspection submitted a detailed report and the Commission was appointed on the application of defendants-appellants. The plaintiff-appellant's case is even fully proved through the commission's report. It is further submitted that the lame excuse of the defendants-appellants that the house is constructed after installation of the electric supply line, is factually incorrect. If for the sake of argument it is deemed true even then the department cannot be exonerated from its duties. It is the basic duty of the Electricity Department which is comprising of highly qualified engineers and technical experts, to arrange and manage safe supply of electricity and installation of the lines in such a manner to save the public from any danger. Therefore, even if any person constructs the house in such a manner which may result into injury, it is the duty of the department to take remedial steps. A young boy has become disabled permanently who has to suffer for the whole of his life due to negligence of the Electricity Department. Therefore, the impugned judgment and decree requires modification to the extent of enhancement of the amount of compensation as claimed in the suit. He submitted that while dismissing the appeal of the defendants the appeal filed by the plaintiff-appellant be accepted by granting the prayed damages and compensation.
6. We have considered the respective arguments of the learned counsel for the parties and also gone through the record. According to the brief case history and in the light of the arguments of the counsel for the parties, only three legal questions require deliberation:- i. Whether; the impugned judgment is handed down in violation of Rule, 14 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984? ii. Whether; there is any misreading or non reading of evidence hence, second appeal is competent and lastly; iii. Whether the plaintiff-appellant is entitled for enhancement in the amount of compensation or not?
7. The first question relates to the jurisdiction of the single Judge of the High Court regarding valuation of the suit under Rule 14 of the Azad Jammu and Kashmir, High Court Procedure Rules, 1984. It appears that this objection is result of misunderstanding of facts and ignorance of the amendment effected in the rules. According to our own judicial notice, the statutory provision relied upon by the learned counsel for the defendants-appellants has since been deleted through the notification dated 31st July, 1999. It will be useful to reproduce this amendment notification which speaks as under:- HIGH COURT OF JUDICATURE OF AZAD JAMMU AND KASHMIR Muzaffarabad July, 31, 1999.
NOTIFICATIN No. 6502-06/H.C/99 In exercise of the powers vested in it under section 44-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and Section 52 of the Azad Jammu and Kashmir Courts and Laws Code 1949, Azad Jammu and Kashmir High Court, with the previous sanction of the Government conveyed vide Law Secretariat's letter No. SL/3/4/99/AD dated 2.7.1999, is pleased to make the following amendments in the Azad Jammu and Kashmir High Court Procedure Rules 1984:- In the Azad Jammu and Kashmir High Court Procedure Rules, 1984, (hereinafter called the said rules), the following words occurring at the end of sub rule 1 (a) of rule 14, shall be deleted:- "when the value for the purpose of jurisdiction does not exceed fifteen thousand rupees"; and
2. In the said rules, the following words occurring at the end of sub rule 1 (c) of rule 14 shall be deleted:- "when the value of the subject matter does not exceed fifteen thousand rupees".
By order of the High Court of Azad Jammu and Kashmir.
REGISTRAR"
Thus, the first legal point raised by the defendants-appellants stands repelled.
8. Both the Courts below have recorded concurrent findings of facts. Leaving aside the oral and other evidence brought on the record by the parties, there is very cogent un-rebutted documentary as well as oral evidence of impartial and reliable witnesses. On the application of defendants-appellants, the trial Court appointed, Sheikh Ayyaz Bashir, the learned Civil Judge Kotli, as Commission, who inspected the spot, prepared site plan, recorded the statements of the witnesses, consequently, the report Exh. 'DA' along with site plan Exh. 'DB' was tendered in evidence; He also appeared as witness and got his statement recorded in which he deposed that the report Exh. 'DA' has been prepared by him after spot inspection in presence of counsel for the parties, father of the plaintiff and the S.D.O, Electricity Department. His statement remained unchallenged and none of the parties cross-examined him. Thus, according to celebrated principle of law, even if all other evidence is excluded, this documentary evidence is not challenged, hence, it has attained the status of admitted piece of evidence. It will be useful to reproduce here the same as under:- {{ARABIC TEXT}} Thus, the report of the Commission, which was appointed on the application of defendants- appellants, and whose statement and report remained unchallenged is a cogent piece of evidence, fully admissible, reliable and unimpeachable.
9. The appreciation of this report clearly proves that after construction of the house, Exh. "DA", (the place of incident), the department has installed 11000 K.V Electric Transmission Aerial Line and the distance of wire ropes of this line from the shed of the house is 4 to 6 inches. After this incident, the wire ropes have been replaced and present distance is only three feet from the shed. Thus, there remains no doubt that the Electricity Department has installed so high intensity aerial lines just at a distance of 4 to 6 inches from the residential building without taking any care or caution which resulted into the tragic incident in which a child has become disable for his whole life. Therefore, in presence of this evidence, no further proof or evidence is required to decree the suit. Thus, in the light of this conclusion, it has become obviously clear that both the subordinate Courts have recorded findings after due appreciation of evidence, hence, the question of misreading or non- reading does not arise. Therefore, the defendants-appellants have failed to make out any legal point for interference in the impugned judgment and decree.
10. In the Azad Jammu and Kashmir, the Electricity Act, 1910, (hereinafter to be referred as Act, 1910), along with the Electricity Rules 1937 (hereinafter to be referred as Rules, 1937), has been adapted and enforced. Under this statute, some standards and parameters for installations of supply lines of the electricity are laid down. Under rule 69 (2) (3) of Rules, 1937, for aerial lines of the Electricity, minimum height has been provided as under:- "69. Height from ground and distance from building:
(1) .................................
(2) Where an aerial line is on a consumer's or on owner's premises, the height of every conductor from any mineral or refuse dump and from parts of buildings or structures to which persons have access shall, unless the conductors are adequately guarded, be not less than 15 feet or such greater heights as may be necessary to prevent danger."
(3). The owner of the aerial line shall be responsible for ensuring that the provisions of sub-rules (1) and (2) are observed."
Thus, it is clear that the Department of Electricity is under the statutory obligation to maintain the prescribed standards and take the precautions as are laid down in these rules.
11. The minute analysis of evidence speaks that the tragic incident took place due to negligence of the Electricity Department which resulted into permanent physical disability of the plaintiff- appellant. Thus, throughout the rest of his life he will have to suffer with the feeling that he is no more a normal man and cannot enjoy amenities of life as normal person can do.
Thus, in such like cases, compensation in addition to compensation for mental and physical pain suffered, is separate that is awarded on account of loss of earning capacity. Our this view finds support from the case titled Ramesh Chandra v. Randhir Singh and others, reported as [AIR 1977 Allahabad 330], wherein paragraph 31 of the judgment speaks as following:- "31. Coming to the second part of the contention, the relevant section in the Motor Vehicles Act regarding awarding of compensation is S. 110-B. It only states that the Claims Tribunal shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just. It would thus, appear that the Claims Tribunal has a very wide discretion in the matter of award of compensation. When a person is physically disabled on account of any accident, he is not only deprived of his earning, but he also suffers in mind and body on account of the accident.
Throughout the rest of his life he suffers with a feeling that he is no more a normal man and cannot enjoy the amenities of life as a normal man can do. In the instant case, one foot of the claimant had to be amputated and the functioning of the other leg also got impaired on account of the fracture, with the result that through out the rest of his life he cannot walk except with the aid of crutches. It is, therefore, obvious that throughout the remaining part of his life he would be a crippled man. He will find himself handicapped in the company of other fellow beings. The fact that he will not be able to even walk freely will be a source of permanent mental torture for him. This is besides the fact that, for some time after the accident, the claimant would have also suffered physical pain and agony. The compensation awarded to a person for this mental and physical pain and suffering is separate from the compensation that is awarded to him on account of his loss of earning capacity, and it has been so recognized in a number of cases..."
12. While awarding compensation in such like cases where a person has been permanently disabled, the Courts have to consider the factors for estimation of damages of the annual dependency of the numbers of years purchased. This principle has been discussed in the case titled M/S Chaurasia and Co., Chhatarpur and another v. Smt. Pramila Rao and others, reported as [AIR 1975 Madhya Pradesh 31]. It will be useful to refer here paras 10 and 11 of the report which reads as under:- "10. The principles on which damages are assessed in a case of fatal accident have been discussed by a Division Bench of this Court in Kamla Devi v. Kishanchand, AIR 1970 Madh Pra 168.
After referring to the relevant Indian and English authorities it was pointed out that the assessment of damages in ordinary cases resolves into estimating the proper annual dependency, the multiplicand and selecting the number of years' purchase, the multiplier. This method of arriving of the amount of damages has again been approved by the House of Lords in Taylor v. O'Connor, 1871 AC 115. The object is to estimate what amount should be awarded so that its income supplemented by drawings on capital may yield the amount of annual dependency during the remaining period of dependency or the estimated remainder of the working life of the deceased which ever may be shorter. The multiplier selected is not equal to the number of years of dependency or to the remainder of the working life of the deceased; it is much less, for it takes into account that instead of yearly payments a lumpsum is being awarded and that contingencies may arise in future to cut short the period of dependency. Growing inflation has led to the caution of emphasizing that the sum to be awarded should be assumed to be invested in 'growth' stocks carrying a low rate of dividend; (Taylor v. O'Connor 1871 AC 115 (supra). This, in fact, is the same thing as saying that valuation should be made of an annuity on the basis of low interest rates such as 4 to 5 % which assume that the money values are steady but involve a higher number of year's purchase; [See Munkman Damages for Personal Injuries and Death 5th edition p. 157]. Notice has also to be taken of the pecuniary benefits which become available to the dependents as a result of the death of the deceased and which would not have been available to them had the deceased lived. In England, under the Fatal Accidents Act, 1959, "any insurance money, benefit, pension or gratuity which has been or will or may be paid in respect of the death" has to be disregarded in computing damages.
There is no such corresponding law in India and, therefore, these benefits must be brought into account in the award of damages as was previously done in England; "
11. The relevant facts found in the instant case are that the deceased was 44 years of age and he was earning Rs. 312/- p.m. In Government service. He would have continued in service till the age of 58 years and may have got reemployment for a year or two. The estimated remainder of the working life of the deceased thus comes to 16. The claimants are the deceased's widow of nearly the same age, two minor sons aged 10 and 6 and one minor daughter aged 2. The dependency would have thus lasted for the whole of the remaining working life of the deceased. The Tribunal has estimated that the deceased must have been spending Rs. 200/- per month for the maintenance of the dependants. So the annual dependency comes to Rs. 2400/-. Applying a multiplier of 11, the amount that would compensate for the loss of dependency works out of Rs.
26400/-. The present value of an annuity of Rs. 2400/- for 16 years on the basis of interest rate at 5% also comes nearly to the same amount; [See Archer's Loan Repayment and Compound Interest Tables, 10th edition p. 366]. The claimants are and will be getting a family pension of Rs. 120 per month for a total period of five years which they would not have got had the deceased been alive.
The benefit flowing from this pension must be deducted from the amount of compensation to be awarded for loss of dependency. The total amount received or to be received as pension works out to Rs. 7200/-. But as this amount has not been received in a lumpsum but in monthly installments, it would be proper to deduct only Rs. 6000/- on this account. The compensation payable after this deduction works out to Rs. 20, 400/-. The claimants have also been paid a gratuity of Rs. 2800/- which they would not have received but for the death of the deceased. It has, however, come in evidence that the deceased on retirement would have got a gratuity of Rs. 4680/- and a pension of Rs. 100/- per month. The claimants would have certainly got some benefit out of this amount of gratuity and pension had the deceased been alive and this loss has also to be taken into consideration. Speaking roughly, the loss on this account can be taken to have squared up the gain of the amount of gratuity received by the claimants. So the total amount of compensation payable to the claimants works out to Rs. 20,400/-. The Tribunal in making its award did not take into consideration the amount of pension received by the claimants and did not apply correct principles, the award must, therefore, be modified."
13. In cases where a person lost his life or became disable for whole of his life, while calculating the expected age, the Courts have considered 65 years. In the case titled Jafar Ali & another v. Sind Road Transport Corporation and others, reported as [PLJ 1981 Karachi 264], while dealing with such like eventualities, it is observed as follows:- "12. In the judgments delivered during the last decade, superior Courts of our country have taken the expected span of life as 60 or 65 years but the recent trend in the judgments is to except 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 was suffering from any malady or disease which, on medical authority, was likely to curtail the life span of the deceased. 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 as the expected age of the deceased but may accept 66 years or even more depending on the assessm ent made on the evidence on record.
In the present case the evidence is that the deceased Amjad Ali was a boy in excellent health.
Evidence has also come on record that the normal age in the family is more than 65 years. The plaintiffs have, however, claimed damages on the basis of 65 years as the expected age of the deceased. In view of the evidence of plaintiff as regards the span of life in his family which has gone unchallenged, I accept 65 years as the expected age of the deceased as well as the parents of the deceased, plaintiff in this suit.
13. The evidence shows that the deceased was the only male child of the plaintiffs, and after the birth of three children, the other two being daughters, plaintiff No.1 had undergone an operation so that he cannot have any more children. Evidence has also come on record to the effect that in this family joint family system was followed and, being the only son, the deceased would have lived with his parents. Even otherwise, on the facts of the case, it is reasonable to assume that the deceased, after he had started earning would have been a source of financial benefit to the plaintiffs. In the circumstances it has now to be assessed as to how much would have been the total benefit to the plaintiffs in terms of money had the deceased not died on account of the accident.
14. Plaintiff No.1 has deposed that the deceased wanted to become an engineer and in nine years time, he would have become an engineer and at that time, his age would have been 23 years. It was further deposed that plaintiff No.1 expected his initial earning in the range of Rs. 2500/- per month and later on increasing to about Rs. 5000/- per month. Plaintiff No.1 was expecting that after about 10/12 years the deceased had he lived, would have started giving at least Rs. 1000/- per month to the plaintiffs. Plaintiff No.1 was spending Rs. 400/- per month on the education and upkeep of the deceased which expense was likely to increase to Rs. 600/- p.m. It, therefore, follows that plaintiff No.1, whose total emoluments were Rs. 1500/- per month, was spending about 1/3rd on the education and upkeep of the deceased. In view of the evidence on record, I am of the opinion that after he had started earning, on an average the deceased would have been giving at least Rs.
500/- per month to the plaintiffs during the remainder of their lives. I have taken this figure of Rs.
500/- per month on the basis of the average expected future earnings of Rs. 2000/- per month of the deceased as an engineer. Had he lived, the deceased would have been expected to get married with every likelihood of getting children. Keeping all this into consideration and also the family custom, 1/4th of the average monthly income comes to Rs. 1,500/- which the deceased was most likely to spent on the plaintiffs or either of them.
15. At the time of the filing of the suit in 1977, plaintiff No.1 was 39 years of age and plaintiff No.2 was 30 years old. If, after 10 years, the deceased had started earning, plaintiff No.1 would have been 49 years and plaintiff No.2, 40 years of age. Plaintiff No.1 then would have 16 years and plaintiff No.2, 25 years left out of their expected span of lives. In my view, therefore, the plaintiffs or either of them could expect an income of Rs. 5000/- per month for 25 years and the total amount calculated thus comes to Rs. 1,50,000/-."
Thus, keeping in view the principle of law enunciated by the superior Courts in the light of peculiar facts of this case it is emerged that the appellant-plaintiff a young boy who met the accident at the age of 9/10 years, a student of class III, permanently lost his right arm whereas left arm and abdomen also got impaired, thus, has become disable for rest of his life. He has brought on record his whole family background which remained un-rebutted. While applying the principle of annual dependency and the year purchased, compensation determined by the Courts below does not appear to be an adequate one, therefore, we are of the view that enhancement of compensation for the ends of justice is necessary. The trial Court has granted the compensation to the tune of Rs.
10,00,000/- (ten lac) for mental torture to the plaintiff-appellant and his family members whereas Rs. 10,00,000/- (ten lac) as compensation for permanent life disability.
14. So far as the award of compensation to the family members of the appellant-plaintiff is concerned, in our considered view, none of them has filed any suit or claimed the same. It is their right and they must have claimed, therefore, in our view, grant of compensation for agony suffered by his family members, is not justified. The compensation awarded for personal mental torture and agony only to the appellant-plaintiff is justified. Thus, the amount of Rs. 10,00,000/- (ten lac) as compensation for mental torture, after deducting the amount of compensation awarded to the other family members, is reduced to Rs. 5,00,000/- (five lacs).
15. As far the compensation of permanent disability of plaintiff-appellant is concerned, the trial Court has awarded Rs. 10,00,000/- (ten lac) in an arbitrary manner whereas according to hereinabove, cited case law, for permanent disability, the Courts have laid down the formula for calculation of compensation on the basis of expected life and the years purchased. The plaintiff met the accident at the age of approximately 10 years and keeping in view the average life of his family members and principle of law hereinabove referred, his expected life, is determined as 65 years. Thus, it means that 55 years of his age shall be considered as the years purchased for calculation of compensation.
16. Although, the appellant claimed that according to his family background and his personal wish, he may become a Commissioned Officer and earn tens of millions. He claimed that his initial pay should have been Rs. 20,000/- per month. He may be right in his expectations but for safe administration of justice if at least, minimum wages rate is considered at the relevant time it may not be less than Rs. 8,000/-, thus, it can be safely held that at least minimum per month expected future earning could not be less than minimum wages. If it is considered that with his ability, he could at least earn 1/ 4th of such wages, the calculation of 3/ 4th comes to Rs. 6000/- per month.
Thus, by calculating the years purchased at the rate of 3/ 4th of minimum wages, the amount of compensation is determined as Rs. 39, 06,000/- (thirty nine lac and six thousands). The decree awarded by the trial Court stands modified to this extent and while accepting the appeal of the plaintiff-appellant, his suit is decreed to the tune of Rs. 1,50,000/- as costs for treatment, Rs.
5,00,000/- (five lac), as compensation for mental torture to the plaintiff and Rs. 39, 06,000/- (thirty nine lac and six thousand) as his expected earning of the years purchased. Thus, a decree to the tune of total Rs. 45, 56, 000/- (Forty five lac and fifty six thousands) is granted to the plaintiff.
17. While considering this case as one of public importance, we also deem it necessary to direct the Government and the Electricity Department to strictly maintain the standards required in the statutes for installation of electric aerial supply lines. The Secretary Electricity, shall take necessary steps and issue directions to the functionaries of the department to conduct survey and ensure that all the electricity supply lines are installed according to the prescribed statutory standard and if any modification or alteration is necessary, it must be carried out. It is also clarified that enjoyment of benefits of property is constitutionally guaranteed fundamental right of every citizen, therefore, it is the duty of the department and other electricity supply agencies to install the electric supply lines in such a manner that the enjoyment of fundamental rights of property by a citizen should not be interrupted or adversely affected. If for peaceful and beneficial enjoyment of fundamental rights of property of a citizen, any alteration, modification or change is necessary, it must be carried out. It is further observed that it is the duty of the Department to maintain and take all such precautionary measures to protect the citizens and the property from any damage or injury due to their aerial lines. If any injury is caused to any person or property due to failure of Electricity Department or any other Electricity Supplying Agency to install or maintain the installed aerial electricity supply lines according to the statutory prescribed manner, the liability shall be upon the department and the concerned officials.
18. In the light of peculiar facts of this case, it has been fully established that the Electricity Department has miserably failed to fulfill the statutory requirements and standards laid down in Act, 1910 and Rules made thereunder. Therefore, failure on the part of the department and its officials does not only amount to negligence but also is misconduct and malpractice. In such state of affairs, there remains no alternate except to grant relief to the plaintiff-appellant.
For the above stated reasons, the appeal No.146/2010 filed by the defendants-appellants, having no force stands dismissed while the appeal No. 147/2010 filed by plaintiff-appellant is accepted with the above modification of relief as stated in para 16 hereinabove.