' MUHAMMAD ZAHOORUL HAQ, J.-This High Court Appeal is directed against the judgment and decree passed by a Single Judge of this High Court on the Original Side in Suit No, 201 of 1971, dated 23rd December, 1980. The relevant facts were that Muhammad Nasim was working with the appellant as Mechanical Engineer. He died on 26th May, 1970 as a result of accident in the premises when he was directing the installation of a Lathe Machine in the premises which had been lifted by a Crane and while it was under the process of being put down in the required place the rope of the Crane snapped with the result that the jib of the Crane fell upon Nasim who died. The respondent Mst. Nasreen and her 3 minor sons and daughters filed a suit for damages under the Fatal Accidents Act on the basis that the accident was result of negligence of the appellant-Company who had not been maintaining the Crane properly. The appellants resisted the Suit by filing their written statement and denying that they had been responsible for the accident. The following issues were framed in the Suit :-
(1) Whether the injuries and subsequent death of deceased was caused due to any wrongful act or neglect or default of defendants Nos. 1 and 2 jointly or severally ?
(2) Whether the deceased did not discharge his duty with due care and caution and himself was negligent and responsible for the alleged accident ?
(3) Whether the crane in question was a discarded one with insufficient strength ?
(4) What was the age of the deceased at the time of accident ?
(5) Whether the expectation of average earning of the deceased at the rate of Rs, 1,600 per month is without any basis or justification ?
(6) Whether the deceased would have continued to earn upto the age of 65 years ?
(7) Whether the age of the widow and the minors as stated is correct ?
(8) What loss was caused to the estate of the deceased on account of the injuries suffered by him and his subsequent death ?
(9) What loss was suffered by the plaintiff as the beneficiaries of the deceased and also as heirs to his estate ?
(10) Whether the deceased was insured for a sum of Rs, 17,000 with any insurance Company ?
(11) Whether the amount of claim is grossly exaggerated ?
(12) To what relief, if any, the plaintiffs are entitled ?"
2. On behalf of the respondent Mst. Nasreen widow of the deceased was examined. Rahim Bakhsh son of Wali Muhammad ex-Foreman of the Company, Abdul Sattar son of Umar the broker through whom the Crane was purchased by the appellants and one Abdul Rahim the Steel broker were examined. The appellant examined the Deputy Manager G. Cunningham.
3. The learned Single Judge disbelieved Abdul Rahim in respect of his presence at the time of incident. But he believed Rahim Bakhsh who had stated that he was personally present at the time when the accident took place and Nasim died. He had given the particulars of the incident He was employed with the appellant as Foreman in 1970. He stated that the Crane of the Company was lifting up a Lathe Machine and while lifting the Boom of the Crane got loose and the Lathe Machine called guide which was to be lifted in the Lathe Machine fell down with the liver (jib) of the Crane on the deceased who was grievously injured. He stated that the wire which was holding the Boom had actually snapped. He also stated that the Crane was in movement with very heavy load and when the wires snapped the Boom swerved and hit the deceased. This was the only Crane with the Company at that time which was purchased second-hand. The witness deposed that he had experience of 40 years. He said that the Crane was old and operator used to work for one or two hours before operating the Crane. He stated in cross-examination that the accident did not take place on account of fault or negligence on the part of Muhammad Nasim deceased. He stated that Crane was in the charge of transport department and Habibullah was incharge of the same. He said that when Crane was lifting the guide it was in upward position and the deceased was standing at a distance of about 15-16 feet. Earlier he had deposed that deceased was required to be there under his normal duties and in order to fit in the guide to the lathe machine. The deceased was moving according to the movement of the Crane away from the boom.
4. P. W. 3 Abdul Sattar Omer had merely acted as a broker for the appellant for the purchase of a Crane which was old but in working condition which had been lyin; at Hyderabad Road. Mrs. Nasreen proved that she was widow of Nasim. She had four children from him. Father and mother of Nasim were living when he died in the accident. Deceased was mechanical engineer with appellant at Rs, 800 per month. He had done diploma in mechanical engineering from N. E. D.
College. He had good health. His father was living and was 75 years old. His mother died in 1979 aged 69 years. Members of deceased family have lived upto 65 years generally. Deceased was 31 years old. She filed documents to show the qualifications of deceased.
5. In cross-examination she admitted that she was serving in a college. She received only Rs, 6,000 from Insurance Company which she utilized towards Court-fees. Father of the deceased had retired from P. W. D.
6. The appellants had examined their Deputy Manager in defence. He produced letter of appointment of deceased Exh. 9/2, dated 25th April, 1970 which provided that he would be on probation of 6 months. Report of the incident Exh. 9/4 was lodged by the appellant which showed that appellant died while giving instructions to the Crane operator who was lifting a heavy part of the Roll Turning lathe machine when the jib of the crane became loose and fell on the engineer. He had no personal knowledge of the accident. The crane had been purchased and it had been got repaired and on 5th January, 1970 Assistant Manager (maintenance) had certified that it was fit for use. Rahim Bux was in the rolling section. He admitted in cross-examination that the crane had been purchased in November/ December, 1969 and Assistant Manager had taken 2 months in certifying the workability. He had no personal knowledge about working state of the crane.
Maintenance was the responsibility of Workshop and transport department of which Mr. S. D.
Hussain and Mr. Habibullah were incharge. He could not say if maintenance work on the crane was being carried out regularly. That crane had been disposed of. He could not say if the crane was in a fit state of working on the date of the incident.
7. The learned Single Judge decreed the Suit for Rs, 2,33,820 minus Rs, 6,000 received by the plaintif from Insurance on the basis of an average monthly income of Rs, 1,600 for 27 years after the deceased had died. Rs, 500 per month out of Rs, 1,600 was regarded as personal expenses of deceased and Rs, 1,100 was portioned between the different plaintiffs for various terms of years. The learned Single Judge had found that the deceased was about 32 years and would have lived normally upto the age of 60 years. It was further found by him that the deceased was not negligent in performing his duties when the accident took place. The most important issue decided by the learned Single Judge was that it was incumbent upon the defendant/appellant, in the circumstances of this case, to show that it was not negligent, and he was of the view that since the appellant was unable to explain the accident, it was incumbent upon it to advance positive proof that it had taken all reasonable steps to avert foreseeable harm. He applied the maxim res ipsa loquitor in the case as the matter was within the exclusive knowledge of the defendant. Finally he came to the conclusion that the defendant/appellant used the crane which, taken as a whole, was not fit for the performance for which it was applied and thus defendant No, 1/appellant was negligent and reasonable for the accident which caused the death of deceased Muhammad Nasim.
8. Mr. Fakhruddin, learned counsel for the appellant has submitted that there was no evidence of any negligence at all in this case. This submission is of no real use because the case has been decided on the basis of the evidence of Rahim Bux and others who had proved that the crane used by the appellant was an old one and that it was in the process of its operation that the wire of the crane snapped whereby the jib of the crane fell down and it was the consequent swerving action of the boom of the crane which caused the death of the deceased. In these circumstances a duty had been cast upon the appellant to show that they had kept the crane in a fit condition and it had taken steps to maintain the same properly. But appellants did not even examine the incharge of their maintenance or transport departments in this respect. It was for the defendants/appellant to explain as to why this accident took place and to show positively that the same was not the result of any negligence on their part. The wire rope of the crane does not normally snap during its operations, and therefore, wire repel snapping at the relevant time should have been explained by the appellant. Their failure to do so leads one to conclude that the crane had not been properly maintained. It is on record that the crane was an old one and it is further on record that its rope wire had not been changed as is apparent from Exh. 9/6 which showed that the wire rope had not been changed. Of course it has been stated therein that wires were in good state but that was the Certificate of 5th January, 1970 and this crane had been used for 4 months thereafter and it was, therefore, necessary for the appellants to show that there had been a regular examination and maintenance of the crane and inspection of its wire ropes to avoid any possibility of accident but the same has not been proved at all and hence the responsibility of the appellants is apparent.
9. Moreover, we found that the learned Single Judge was more than justified in relying upon the maxim Res ipsa loquitur. He had relied upon AIR 1974 SC 890 where a Truck owned by Public Works Department had caught fire on its way and while jumping from the truck, at the caution of the truck driver, the deceased was hit by a stone and died. In that case the Truck was in order and if the truck caught fire in the course of journey on account of mechanical defect then it would not be attributed to negligence of the driver. The Supreme Court of India in that case held that if the plaintiff proves the result and not any particular act or omission producing the result but the circumstances make it more probable than not that it was caused by the negligence of the defendant then, the doctrine of res ipsa loquitor is said to be applied. The defendant has to give a positive explanation as to how the accident had in fact occurred and the explanation should be of such a count as to exonerate the defendant from any charge of negligence. In case such explanation was not available then it is incumbent upon the defendant to adduce positive proof that he had taken all reasonable steps to avert foreseeable harm. The Supreme Court of India noted that the driver of the vehicle was in its management and such an accident does not happen in the ordinary course of driving and there was no evidence as to how the truck caught fire and there was no explanation by the defendant about it. It was a matter within the exclusive knowledge of defendant and it was not possible for the plaintiff to give evidence as to cause of the accident.
10. The above observations of the Supreme Court of India are very much relevant for the purpose of present case. It was for the appellant to give an explanation of the accident and to bring such circumstances before the Court which could exonerate the appellant from their responsibilities in the matter of the accident or at least to bring positively to the notice of the Court that they had taken all precautions to see that the accident did not take place. But the same has not been done by the appellants and hence their responsibility in the matter was undoubted.
11. Mr. Fakhruddin, then contended that there had been a contributory negligence by the deceased Nasim as he had not taken proper care to avoid the accident and was standing at a place which involved risk. He submitted that there were other persons standing there and working but they had not been hit. We do not agree with this submission. Witness Rahim Bux has clearly stated that the deceased was responsible for the installation of that lift, therefore, he was there under a duty. He also stated that Nasim was moving according to the movement of the crane away from the boom.
He also stated that the crane was moving with a heavy weight and when the wire snapped the boom swerved and hit the deceased. It is clear, therefore, that the deceased was taking ordinary care of himself but he could not foresee the sudden snapping of the wire and consequent swerving of the boom, and therefore, he could not be said to be negligent or to have being guilty of contributory negligence. Rahim Bux has clearly stated that the deceased was at a distance of 15 to 16 feet from the crane It is, therefore, obvious that the deceased had taken reasonable care o safeguarding himself by keeping himself 15 to 16 feet away. The accident was, therefore, not on account of his negligence but on account of the sudden snapping of the wire on account of a heavy load and consequent and instant swerving action of the boom of the crane which the deceased could not avoid. Other persons present were saved by their good luck.
12. The counsel for the appellant also contended that the average pay of Rs, 1,600 assessed for the deceased was on very high side. We find, however, that the learned Judge has rather been conservative in taking moderate view. The learned Judge has found that the deceased had brilliant academic career and he had started in November, 1963 on a salary of Rs, 300-25-600/30-900. He had been sent to Japan for training and within a space of 6 years he had started earning a salary of Rs, 800 per month and, therefore, he had bright chances for future. It was reasonable to expect that after 20 years of service the deceased might have drawn Rs, 2,500 per month and in between Rs, 1,600 per month. These are reasonable and moderate estimates taken by the learned Single Judge. In fact if we consider the present scale of different people it appears that the estimate of the learned Single Judge was on the low side. We can take judicial notice of the fact that the low paid staff who was getting the salary of Rs, 200 per month in 1968-69 is now getting a salary about Rs, 800 per month, which is a rise of 400% in a space of 14 years. In fact the depreciation of the value of rupee would have justified a higher estimate of the expected pay of the deceased for last 10 years of his expected life as he was a trained technician from Japan. Therefore, we are of the opinion that the estimate of future earnings of the deceased were more than justified and in fact they were rather on the low side considering the present state of affairs of the pays drawn by different groups.
13. Mr. Fakhruddin had also submitted that the deceased was merely a probationer with the appellant and it was not certain whether his services could be confirmed. The appellants have not given any evidence that the deceased was either incompetent or negligent or in any way inefficient and, therefore, on account of his brilliant career it was natural to expect that the deceased would have been confirmed in his post and could have made a good headway in life.
' This appeal is, therefore, found to be without merit and is hereby dismissed with costs.