' This judgment will dispose of three regular second appeals (R.S.A.-190/84, R.S.A.-195/84 and R.S.A.-172/84) as the questions of fact and law arising in these appeals are one and the same and as these appeals arise out of the one suit filed by Mst. Ruqiya Begum against WAPDA and Shaukat Hussain.
2. The facts necessary for the disposal of these appeals are that on 28th March, 1970, Shahid Mahmood, minor son of Mst. Ruqiya Begum, plaintiff-appellant in R.S.A.-190/84, was playing in a street when he touched the earth-wire installed outside the factory premises of Shaukat Hussain appellant in the other two appeals. As there was electric current in the said earth-wire Shahid Mahmood got electric shock and died at the spot. Mst. Ruqiya Begum filed on 26-10-1970 a suit for the recovery of damages amounting to Rs,50,000 against WAPDA and Shaukat Hussain the proprietor of the said factory. It was asserted in the plaint that the death of her minor son was caused on account of negligence of the defendants who left the said wire uncovered and unsafe and, therefore, were liable to pay damages for the mental shock received by her and the monetary loss suffered by her on account of death of her minor son. WAPDA and Shaukat Hussain defendants in the suit denied their liability to pay the damages. The case of Shaukat Hussain was that death was caused on account of an accident and that the electricity fittings installed had been approved by WAPDA and were in order. WAPDA, on the other hand, asserted that the responsibility, if any, to pay the damages lie on Shaukat Hussain, owner of the factory who had installed the earth-wire at a place accessible to the public.
3. The learned trial Court on the basis of the pleadings of the parties framed necessary issues and after recording evidence decreed the suit of Mst. Ruqiya Begum, plaintiff-appellant, awarding damages to the extent of Rs,16,000 only against both the defendants. The damages of Rs,16,000 were awarded by observing that the deceased child was expected to earn one lac rupees in case he had not died and the plaintiff being the mother was entitled to get 1/6th share in the estate of the deceased as prescribed by Muhammadan Law. Mst. Ruqiya Begum feeling dissatified with the decree passed by the learned trial Court filed an appeal for the enhancement of the amount of damages whereas WAPDA assailed the decree by filing a separate appeal contending that no decree could be passed against it as it was not established on record that WAPDA was in any way responsible for the death of the minor. Shaukat Hussain did not file any appeal against the aforesaid decree but he preferred cross-objection in the appeal of Mst. Ruqiya Begum. The learned Additional District Judge, Multan disposed of these appeals vide judgment, dated 26-2-1984. The cross-objections filed by Shaukat Hussain were dismissed as barred by time. The appellate Court, however, held Mst. Ruqiya Begum entitled to receive Rs,8,000 as damages on account of mental shock received by her due to the death of her son. It will be noted that Mst. Ruqiya Begum was held entitled to receive Rs,8,000 on a ground different from the one given by the learned trial Court in its judgment. Thereafter, Shaukat Hussain filed two appeals and Mst. Ruqiya Begum also filed an appeal (R.S.A.-190184) in this Court.
4. Learned counsel for Mst. Ruqiya Begum, appellant argued that WAPDA was equally liable along with Shaukat Hussain and that the learned Additional District Judge had erred in law in recording the contrary finding and in accepting the appeal of WAPDA. He also argued that the claim of damages made in the plaint should have been allowed in to as Mst. Ruqiya Begum was entitled to receive damages on two counts, viz, (i) due to loss of monetary assistance which the mother would have received from her son had he continued to live and (ii) on account of mental shock received due to the death of her son.
5. Learned counsel for WAPDA argued that WAPDA in no way was responsible as the death occurred due to the presence of the electric current in the earth-wire installed outside the factory premises of Shaukat Hussain. It was also argued that earth-wire was neither the service line of WAPDA nor WAPDA 'had failed to exercise control because it was never brought to its notice that the wire had developed any defect requiring it to disconnect the electric connection.
6. I have gone through the evidence on record and I find that the submissions made by the learned counsel for WAPDA are not without force. The evidence available on record failed to establish liability of WAPDA and as such the learned lower appellate Court was justified in holding that WAPDA cannot be held responsible for the death of the minor cause due to electric shock. The appeal of WAPDA was rightly accepted. In view of above, second appeals of Shaukat Hussain as against WAPDA is hereby dismissed.
7. As regards the liability of Shaukat Hussain his learned counsel argued that the cross-objections should have been dealt with and disposed of before proceeding to deal with the two appeals on merits; that Shaukat Hussain was not heard in the two appeals by the learned Additional District Judge; that the mother had no locus standi to bring the suit as the father of the deceased boy was alive and had not even joined the mother in bringing the suit; and that the running of electricity in the earth-wire was merely accidental and was the result of rain which fell during the previous night. It was added that Shaukat Hussain had taken all the precautionary measures and was not aware that the earth-wire had become alive and dangerous to life and in these circumstances Shaukat Hussain cannot be held liable to pay damages on account of the death of the minor boy.
Learned counsel also referred to the report lodged, in Roznamcha of the police Exh. P. 3, by the father of the deceased boy where it was stated that the death was accidental.
8. I have gone through the record in order to appreciate the submissions of the learned counsel for Shaukat Hussain. The plea that the cross-objections should have been decided before proceeding to deal with the appeals has no merit. Neither any provision of law nor any precedent was cited in support of this argument. The learned B appellate Court after dismissing the cross-objections on the ground of limitation proceeded to examine the appeals on merits and in my view no illegality was committed in dealing with the appeals in this manner. The next plea that Shaukat Hussain was not given an opportunity to defend the appeals as respondent or that he was not heard is without substance. There is nothing on record to support this plea. This plea has also' not been taken in the memos of appeals. Shaukat Hussain has c also not filed affidavit of the learned counsel who had argued the appeal before the lower appellate Court in support of this plea. This plea is, therefore, repelled. The third plea that the mother had no locus stand to bring the suit is equally devoid of force as under general law as well as under Fatal Accidents Act, 1855, a mother is entitled to recover damages on account of the death of her son. The mother is one of the beneficiaries mentioned in the Shedule of the aforesaid Act. Coming to the last submission it is pertinent to note that the assertion that the electric current came into the earth-wire due to rain which fell during the previous night was not repeated by Shaukat Hussain while appearing as his own witness. It is also in his evidence that people of Mohallah had lodged complaint with the WAPDA that wire connected with the drain used to get electrified and that the same may be set right. He further added in the cross-examination that he was not informed of this in writing. It is evident from his statement that electric current came into the wire dumped in the street drain. It is also in the evidence that the wire which was coming from within the factory premises had been dumped in the ground near the drain outside the factory premises and that the death was caused as current was running in the said wire. It is also pertinent to note that no suggestion was put to Mst. Ruqiya Begum or to her witnesses that the earth-wire was in perfect condition and that Shaukat Hussain, defendant-appellant had taken all the necessary precautions or that the current happened to pass at the fateful moment due to rain during the previous night. The arguments of the learned counsel do not stand substantiated by E the evidence on record. The witnesses of the plaintiff deposed during evidence that the earth-wire had been dumped out side the factory premises in the lane near the drain and that the boy died as soon as he came in contact with the wire. Aktitar An (D.W. 2) S.D.O. In his statement deposed that the current appears in such wires due to negligence of a consumer and that the wire in question had been joined with the electric motor of the consumer. In view of above, it cannot be urged with success that the respondent was not liable on account of loss of life of Shahid Mahmood.
9. This brings me to the question of damages which Mst. Ruqiya Begum, appellant is entitled to receive. Learned trial Court, awarded Rs,16,000 as damages observing that the plaintiff being mother of the boy was entitled to get 1/6th of the expected earnings of the boy amounting to rupees one lac. The learned first appellate Court on the other hand awarded Rs,8,000 as damages on account of mental shock received by the mother due to the death of Shahid Mahmood. The approach made by both the learned Courts below does not appear to be correct. For finding out the applicable principle guidance may be sought from the case of Sri Manmatha Nath Kuri v.
Moulvi Muhammad Mokhlesur Rehman and another PLD 1969 SC 565. In this case Hamoodur Rehman, the then Chief Justice observed:- "Assessm ent of damages in such a case must, therefore, necessarily be to some extent of rough and approximate nature base more or less on guess work, for it may well be impossible to accurately determine the loss which has been sustained by the death of a husband, wife, parent or child. No definite o hard and fast rule can, as such, be laid down as to the matters which should be taken into account. But this much can be said that only such damages can be given as can be shown to have been financially suffered by those who bring the action. In estimating such damages the Court will, no doubt, take into account the age of the deceased, his or her health, earning: capacity and even the chances of advancement. There must, however, be evidence of reasonable expectation of pecuniary advantage and not of a 'mere speculative possibility'. Thus, parents may recover for the loss of the probability that the deceased child would have contributed towards their maintenance F and children may recover for the loss of education, comfort and position in society which they would have enjoyed if the fat he had lived and maintained the income which had died with him. The basis of the assessment is not the requirement of plaintiff but the money value of the assistance which the deceased might probably have given had he continued to live. It is a misconception to think that under the Fatal Accidents Act it is necessary for the plaintiff to show that the deceased was actually an earning member of the family and that he devoted some of his earnings for the maintenance or support of the family. In an action of this nature damages can be recovered in respect of the reasonable expectation of the value of the services that the deceased might have rendered to the members of the family. If in addition to this the evidence also established the prospective earning capacity of the deceased then the loss for that too will certainly be compensated."
' The damages in the instant case have, therefore, to be assessed on the basis of the principle deducible from the above quoted observations. The boy at the time of death was possessed of good health and was aged 7 years, The life span of the members of the family as deposed to by Mat. Ruqiya was 60 to 70 years, The husband of Mst. Ruqiya was aged 32 years at the time of death of the boy and the same can be taken to be the age of the mother. In various precedents the life span of the people in this country has been taken to be 60 to 65 years, I would, therefore, hold that the boy was expected to live till the age of 60 years and that will also apply to the mother Mst.
Ruqiya Begum, plaintiff/appellant. In our society a person starts earning at the age of 20 years so it can be inferred that the mother would have received financial aid from her boy when he had reached the age of 20 years, i.e, after expiry of 13 year had he not died in the year 1970. The mother as such would had received assistance for a period of 15 years, The damages as observed in the afore noted Supreme Court case is to be awarded for the loss of the probability that the deceased child would have contributed towards the maintenance of the mother. In other words it is the money value of the assistance which the deceased might probably have given had he continued to live. The boy belongs to an ordinary family and keeping in view the overall circumstances I am of the view that the boy might have contributed Rs,100 per mensem for the maintenance of the mother out of his monthly earnings. The amount of damages calculated at this rate for a period of 15 years comes to Rs,18,000 Mst. Ruqiya Begum appellant is also entitled to recover damages on account of shock suffered which is valued at Rs,5,000 Mst. Ruqiya Begum, as such, is entitled to receive Rs,23,000 in all. The to Mst. Ruqiya Begum is accordingly modified and she is held entitled to receive Rs,23,000 as damages from Shaukat Hussain. She will also be entitled to receive interest at the rate of 6% per annum from the date of decree of this Court till realization. The appeal of Mst.
Ruqiya Begum thus succeeds to the extent indicated above and that of Shaukat Hussain is dismissed.
10. The parties are left to bear their own costs.