SAJJAD ALI SHAH, J.---In this direct appeal is challenged judgment and decree dated 18-3-1991 of High Court of Sindh at Karachi, whereby Divisioin Bench has partly allowed High Court Appeal No,55 of 1990 of appellants herein to the extent of grant of interest while dismissing appeal on all other pleas. Partly allowing cross-objections decree granted by learned Single Judge was modified and granted in the sum of Rs, 3,12,000 in favour of the respondents and against appellant No, 1 (Pakistan Steel Mills) with cost throughout. Impugned judgment and decree contain further direction for apportionment of decretal amount as follows:--
(i) Respondent No,1 =Rs, 1,00,000.
(ii)Respondent No,2 =Rs, 2,12,000.
2. Briefly stated the relevant facts giving rise to this appeal are that respondents Nos. 1 and 2 are father and mother respectively of Malik Moazzam, who was employee of Pakistan Steel Mills Corporation Limited (appellant No, 1) as Switch Board Attendant and died on 20-3-1983 at the age of 20 years when he fell down from Russain Hydraulic Telescope (Elevator) from a height of 15 feet while painting an electric pole. He died due to severe head injury. At the time of accident Rana Abdul Razzaq (appellant No, 2) Crane Operator was operating the elevator. Father and mother of deceased filed Suit No, 255 of 1984 as claim under section 1 of the Fatal Accidents Act, 1855 in the High Court of Sindh at Karachi on original side praying for judgment and decree in the sum of Rs,5,04,000 with cost and interest at 14% per annum from the date of the suit till the realisation of the decretal amount. Main ground urged was that their son died due to negligence and mishandling of elevatorby Rana Abdul Razzaq, Crane Operator.
2. It is averred in the plaint of claim that father of deceased is a retired person and mother is a household lady and both of them were being supported financially by the deceased and are deprived of financial benefits after his death. At the time of death deceased was 19 years old and was healthy, energetic and hard working bright young boy of sober habits. He had passed his Matric (Technical School Certificate Examination) from Sindh Board of Technical Education in 1980 in Radio Electronic Trade. Alongwith job he also intended to acquire higher education and was enrolled as candidate of the Board of Intermediate Education Karachi in Science (Pre-Engineering Group). Financial loss is calculated in the plaint as under :--
(1) Loss of 20 years earnings at the present rate of earnings at Rs,1,300 p.m. 1,300 x 12 x 20= Rs,3,12,000 (2)Loss of further increments, increased earnings, future prospect etc., based on a fair average of Rs,1,000 p.m. 1,000 x 12 x 20= Rs 2 40 000 Rs,5,52,000 Deduct expenses of maintaining and personal expenses of deceased at Rs,200 p.m. 200 x 12 x 20= Rs,48 000 Rs,5.04,000
4. Both appellants herein filed joint written statement in the suit as defendants Nos. 1 and 2. Factum of accident is admitted with plea that deceased was performing his normal duties of maintenance work of street light with the aid of Telescope Elevator when due to his own negligence he fell out of the fence (safeguard) of the said elevator when resulted in his death. It is submitted that though defendant No,2 was driver on the vehicle on which the said elevator was fixed but neither he nor anyone else was operating the said elevator at the time of accident. Claim of financial loss of parents of deceased is disputed. In view of the pleadings of the parties following 8 consent issues were framed :--
(1) Whether the suit is not maintainable under the Fatal Accidents Act. 1855?
(2) Whether the suit is not maintainable in view of the provisions of the Workmen's Compensation Act, 1923?
(3) Whether the defendant No, 1 forced the plaintiffs son Malik Moazzam to undertake the painting of electric pole in contravention of the terms and conditions of employment or whether it was his normal duty?
(4) Whether the death of plaintiffs son Malik Moazzam was caused due to defendantscarelessness, negligence and/or mishandling of the hydraulic elevator?
(5) Whether the deceased Malik Moazzam fell out of the elevator due to his own negligence?
(6) What damages, if any, are the plaintiffs entitled to claim from the defendants?
(7) Whether the defendants are liable jointly and/or severally to pay damages/compensation to the plaintiffs; if so, how much and on what basis?
(8) What should the decree be?
5. In the suit proceedings in the trial Court, plaintiffs examined P.W.1 Malik Abdul Habib (father of deceased) Exh. 5, who deposed that his son died on account of negligence. And wrong operation of elevator by defendant No,2. He produced copy of the report of accident (Exh. 5/4) sent by Steel Mills to the Commissioner Workmen's Compensation. He further stated that his son earned between Rs, 1,400 to 2,100 per month depending upon overtime and gave whole salary to his mother. His son was studying in night college in first year and wanted to do his B.Sc. He produced documents Exhs. 5/7, 5/8, 5/9 and 5/10 in support of the claim that his son had passed Matric and was pursuing further studies in night college. It may be mentioned that at the time when this witness gave evidence he was 65 years old. P.W.2 is Mst. Umme Salamah Exh. 6, who is mother of the deceased. She stated that income of his deceased son was bewteen Rs,1,500 to 2,500 per month. Deceased used to give whole salary to her and took Rs,5 or 10 every day for his personal expenses. Deceased had passed Matric and alongwith job was pursuing higher studies. She deposed that her father died at the age of 105 years and age of her father-in-law was 80 years when he died. She further stated that she has four sons and three daughters. Her eldest son is married and before marriage he used to give her whole salary but after 'marriage paid her only Rs,1,000 per month. Her second son paid her at times and some times he did not pay. Her third son paid her entire salary. All sons and daughters lived with her. Eldest son is Intermediate, second son is a Graduate, third son is B-Tech. And deceased had passed Matric and was in Inter-Science.
6. In the trial Court defendants in the suit examined three witnesses. D.W.1 is Rana Abdul Razzaq (defendant No, 2) who deposed that he worked in the Crane Section of construction base of the Steel Mills. Deceased used to work with him. On the day of accident deceased was painting electric pole and while painting the fourth pole, he asked to be lifted upwards. All of a sudden boom fell down with which deceased also fell down because of jerk. Deceased fell down from the height of 8 or 9 feet, became injured and was removed to the Health Centre but he died. He further stated that boom fell down because of mechanical fault and he did nto operate the crane wrongly. D.W.2 is Farooq Ahmad Khan, XEN Incharge, Crane Section and he deposed that on receiving intimation on the telephone he came to the place of accident. He brought with him Russian Expert. He found the telescopic tower of the crane broken and fallen on the ground. He found that winch rope of the crane was loose. He and Russain Expert took telescope to workshop and found supply line of gear which operated the rope was broken which had caused the accident. He produced report as Exh.8/1 and could not say as to what was the reason or cause of breaking of supply line of gear.
D.W.3 Afreen Ahmad Jafri is Assistant Manager in General Services Department of the Steel Mills. He deposed that deceased was working under him as Switch Board Attendant and his duty was to accompany the electrictian wherever there was work and to switch off and on and do other maintenance work assisting the Electrician. His other duties were to change the bulbs and correct fuses. Painting was done by the employees of that department including Switch Board Attendants.
7. After evaluation of evidence, trial Court came to the conclusion that death was due to negligence and/or mishandling of elevator for which defendants are liable and further on average a sum of Rs,700 per month would have been made available by deceased to plaintiff No, 1 for a period of 4 years and again on average a sum of Rs,900 would have been made available by him to plaintiff No, 2 for period of 16 years. Issues Nos. 1 and 2 were not pressed. Resultantly decree was passed for Rs,33,600 in favour of plaintiff No,1 and for Rs,1,72,800 in favour of plaintiff No,2 with proportionate costs payable by the defendants jointly and/or severally with interest at 14% per annum from the date of the suit till the date of the payment. High Court appeal has been partly allowed and partly dismissed in terms stated in paragraph 1 of the judgment.
8. We have heard in sufficient detail Mr. Khalid M. Ishaque A.S.C. For the appellants and Mr. Shaikh Abdul Aziz, A.S.C. For respondents. It was contended before us that application of principle of res ipsa loquitor to the present case by both the forums in the High Court was not apt for the reason that it was not attracted because of pleadings of the parties. In the plaint specific plea was taken and negligence and carelessness were attributed to appellant No, 2 (Rana Abdul Razzaq) Crane Operator, and claim. Was made that deceased was forced by appellant No,1 (Steel Mill) to undertake the painting of electric pole which was not included in his normal duties. In the circumstances written statement filed and evidence led by appellants was confined to rebuttal of specific allegations made in the plaint.
9. Perusal of paragraphs 3, 4 and 5 of the plaint shows that specific pleas were made as contended on behalf of the appellants in the above paragraph. It would not be out of place to mention here that plaintiffs in the suit, who are father and mother of deceased, were- not present in the Mill when accident took place and were not eye-witnesses. They had to rely upon information supplied to them by the Mill. In paragraph 12 of the plaint, it is stated that by letter dated 7-12-1983, plaintiffs had requested defendant No, 1 to furnish to them statements of witnesses and report of the enquiry conducted in respect of the unfortunate accident but defendant No, 1 (Steel Mill) failed to supply the same. Plaintiffs thereafter served a legal notice dated 9-2-1984 to the defendants for payment of claim but the defendants did not deem it proper to give any reply or even acknowledge the same. About paragraph 12 of the plaint, reply in the written statement is that it is not admitted. Issue No, 4 is to the effect whether death of plaintiffs son Malik Moazzam was caused due to defendants carelessness, negligence and/or mishandling of the hydraulic elevator. Issue No, 5 is to the effect whether deceased Malik Moazzam fell out of elevator due to his own negligence. Issue No, 7 is to the effect whether defendants are liable jointly and/or severally to pay damages/compensation to the plaintiffs, if so, how much and on what basis. It would not be out of place to mention here that issues were framed in the trial Court with the consent of the parties.
10. In the paper book at page 84 is notice dated 9th August, 1986 under Order 12, Rule 8, C.P.C.
Requiring defendants in the suit to produce documents in the Court on 26-8-1986 pertaining to the service of the deceased and enquiry report of accident alongwith statements of the witnesses and notice of accident on Form J-I under Rule 76/77 of West Pakistan Factories Rules, 1962. Copies of this notice were sent to Pakistan Steel Mill and Mr. Kamal Mansoor Alam, Advocate for defendants at his office address. In the paper book which is before us, there is no indication anywhere that these documents were produced and shown to the plaintiffs before recording of evidence. Malik Abdul Habib, P.W.1 (father of deceased) stated in the examination-in-chief on 24-3-1987 that he had sent notice under Order 12, Rule 8, C.P.C. For production of documents and he produced photo copy of that notice alongwith his affidavit Exh. 5/1. He also produced copy of report of accident Exh.
5/4 sent by the Steel Mill to the Commissioner, Workmen's Compensation but there is no clarification whether he received this copy from Steel Mill or Commissioner, Workmen's Compensation. Defendants in the suit examined D.W.2 Farooq Ahmad Khan, XEN In-charge, Crane Section, who deposed that he came to the spot after the accident and inspected the crane alongwith Russain Expert and found that supply line of the gear which operated the rope was broken, which caused the accident. He sent such report which he produced in the Court as Exh. 8/1.
He was unable to say as to what was the reason or cause of breaking of supply line of the gear. In cross-examination, he admitted that he had not brought any documents. He also denied that accident took place because of wrong operation by the operator. Report Exh. 8/1 is on the record which is dated 22-3-1983 when accident took place on 20-3-1983. It is mentioned in this report that Telescopic Truck is operated by Rana Abdul Razzaq, Crane Operator. Relevant portion from the report is reproduced as under:- "The place of accident was inspected by the undersigned and the telescopic truck was also examined and it was observed that connection of gear with drum was disconnected due to mechanical defect and rope of drum became loose therefore tower swung forwardly and caused the accident..
11. From what is stated above, it becomes crystal clear that contention of Mr. Khalid Ishaq is untenable that principle of res ipsa loquitur is not applicable in this case and such application by two forums in the High Court of Sindh took appellants by surprise as they produced only that evidence which was necessary in view of specific allegations made in the plaint. First of all, there were consent issues and Issues Nos. 4 and 5 relate to the determination of the question of liability of death of employee whether on him or employer. Father and mother of deceased cannot be blamed for not proving negligence because neither they were eye-witnesses nor present at the spot nor they had any means to obtain relevant information which was in the exclusive knowledge of defendants. Parents knew only this much that their son had died while working in the Mill.
Negligence is proved on the part of defendants by their own evidence. Deceased fell out from elevator while painting electric pole. D.W.1 Rana Abdul Razzaq (defendant No, 2) was present at the spot when accident took place. He was operating the crane. Deceased was up in the elevator and this witness had admitted that deceased had asked for the crane to be lifted upwards. Suddenly boom fell down and deceased also fell down. Last line of his cross-examination is that he did not operate the crane wrongly. In cross-examination he has admitted that he was operating the crane.
D.W.2 Farooq Ahmad Khan, XEN, Incharge Crane Section has admitted in his evidence that supply line of gear which operated the rope, was broken which caused the accident. He further stated that he did not know the reason or cause of breaking of supply line of gear. D.W.3 Afreen Ahmad, Assistant Manager also admitted that painting of electric poles was part of duty of the deceased. It is, therefore, proved from the evidence of the defendants that accident occurred on account of mechanical fault due to negligence of the defendants. Mechanical fault could have been detected by the Mill and corrected. There is no evidence that it was done. Now if defendants in the suit took plea that accident had occurred on account of negligence of deceased himself then it was their duty to produce evidence to show that elevator was in perfect order and there was no defect in it and deceased fell down on account of his own negligence.
12. Res ipsa loquitur means that the things speak for themselves. This doctrine applies firstly, when the thing that inflicted the damage was under the sole management and control of the defendant and secondly, that occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to why or how the occurrence took place. In such circumstances defendants have to persuade the Court that accident did not occur on account of their negligence. In this context evidence is evaluated by the Division Bench of the High Court in appeal and relevant paragraph from the impugned judgment is reproduced as under:- "We have further noted that Exh. 5/4 is supported by the evidence of D.W.1 who stated that While painting the deceased asked the crane to be lifted upwards and all of a sudden the boom fell down. This shows that when the deceased asked to lift the crane upwards appellant No, 2 must have started operation. The possibility of wrong operation causing the accident cannot be ruled out particularly as the appellants have not offered any explanation for the alleged mechanical failure of the elevator. Nor have they given any reason for this failure."
13. We are in agreement with finding of the Division Bench of the High Court on appeasement of evidence on the question of negligence for which defendants in the suit are liable as stated above.
In connection with doctrine of res ipsa loquitur our attention has been drawn to the case of Qazi Arifuddin and another v. Government of Sindh through Secretary, Ministry of Health and others PLD 1991 Kar. 291 in which it is held by a learned Single Judge of High Court of Sindh that in suit for damages in accident cases normally the rule is that it is for the plaintiff to prove negligence. In some cases this principle may cause hardship to plaintiffs because it may be that true cause of accident lies solely within the knowledge of defendants who caused it. This hardship is however, avoided to a considerable extent by the maxim res ipsa loquitur. This maxim means that an accident may by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other cause and in such a case mere fact of the accident is prima facie evidence of such negligence. We agree and approve the explanation given by the High Court of res ipsa loquitur. In the present case we are satisfied that the maxim has been applied by two forums in the High Court correctly and appropriately.
14. On behalf of appellants it was contended by Mr. Khalid Ishaq that principle formulated by the High Court for assessm ent of pecuniary loss was not correct inasmuch as firstly deceased would not have continued supporting father and mother for 20 years as he was supposed to marry and support his own family. Secondly deceased had brothers, who are earning members and can support parents. Thirdly Court should have allowed 1/3rd and not 2/3rd as quantity of compensation as damages. All these contentions can be dealt with together as they relate to assessm ent of damages. There is no hard and fast rule or clear cut definite formula for assessment of damages as contemplated D under section 1 of Fatal Accidents Act of 1855. This question came up for detailed examination by this Court in the case of Sri Manmatha Nath Kuri v. Muhammad Mukhlesur Rahman PLD 1969 SC 565 in which it is held that pecuniary loss will be loss resulting to the parties beneficially entitled as consequence of death and an estimate has to be made by the Court. Assessm ent of damages in such a case, must therefore necessarily be to some extent of a rough and approximate nature based more or less on guesswork for it may well be impossible to accurately determine the loss, which has been sustained by death of a husband, wife, parent or child. No definite hard and fast rule can 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 financially suffered by those who bring the action. In estimtating such damages, the Court will no doubt take into account the age of deceased, his or her health, earning capacity and even chances of advancement.
15. In this case there is no dispute about certain facts which are that deceased was a young boy of about 20 years and had passed examination and obtained Technical School Certificate from the Sindh Board to Technical Education. He was studying in night college and planned to complete his B.Sc. He came from lower middle class joint family and his all four brothers are reasonably educated and working as is apparent from evidence of mother and father of deceased. Salary of deceased was between Rs,1,300 to 1,400 and he was getting over-time for which pay-slips have been produced. Mother of deceased deposed that (=eased wanted to be Engineer and gave her whole salary taking from her Rs, 5 to 10 every day for pocket-money. Appellate Court after examining evidence and seven judgments of the High Court in reported cases concluded as per consensus of judicial pronouncements that personal expense of 1/3rd of income is to be exclu. Ded.
Mr. Khalid Ishaq argued against the proposition and stated that 2/3rd should be excluded for the reasons that there are other brothers, who are earning members and constributing and further deceased would have married and decreased the amount of contribution as he would be expected to support his own family and possibly live separately. Last suggestion of decreasing contribution on marriage and living separately is speculative possibility and is not to be acted upon as against reasonable expectation of not leaving joint family even after marriage as per evidence produced by parents of deceased. Appellate Court, while determining future prospects and progressive increase has fixed average income of deceased at Rs,2,000 per month. Reasons assigned are, with which we agree, that deceased was technical hand aimed at higher study in that the line plus inflationary conditions requiring increase..In salary from time to time.
16. For determining period of compensation, guesswork is to be made as to how long the beneficiaries are going to live. In this context Appellate Court has made a departure from following age of 60 or 65 years as normal average age as held consistently in number of decisions by the superior Courts but, in doing so, the Appellate Court has given sound reasons. Appellate Court was impressed by the evidence produced by parents of deceased in the. Court, which showed longevity in the family. Mother of deceased was 53 years old, when her evidence was recorded and she stated that her father died when he was 105 years old and her father-in-law died, when he was 80 years old. Father of deceased was 65 years old when his evidence was recorded and he was in perfectly good health and he was 67 years old, when decision was announced by Appellate Court and this was considered as living proof of longevity by the Appellate Court and for such valid reasons at the appellate stage 20 years of expectancy of life was allowed as against fixed age. We do not see any flaw or legal infirmity in this finding.
17. Mr. Khalid Ishaq, learned ASC for appellants during the hearing of appeal contended before us that question of quantum of compensation in this case should be decided on the basis of Islamic Common Law, particularly in the light of the fact that Diyat of woman is half of man. On our query learned counsel replied that this point as such was not raised in the two forums of the High Court, which dealt with this case at earlier stage nor there is 'any finding from the Court of competent jurisdiction that provisions of section 1 of the Fatal Accidents Act, 1855 are repugnant to the tenets and Injunctions of Islam requiring necessary amendment. In support of contention, Mr. Khlid Ishaq relied upon and produced copy of judgment in unreported Civil Appeal No,178-K of 1989 titled Pakistan Steel Mill v. Nazir Hussain Shah in which Bench of three Judges, in similar circumstances, declined to interfere on the strength of case-law cited therein for the reason that data and material available on the record of the appeal was not enough to give verdict. For the same reasons we also do not accept the contention.
18. For facts and reasons aforementioned we uphold the impugned judgment and dismiss this appeal which has no merits. There will be no order as to costs.