This is a suit for the recovery of Rs.1,95,708 under the Fatal Accidents Act of 1855, for damages on account of the death of Shah Jafar Alam on 9-9-1970, due to electrocution at about 2-30 p.m in the electricity panel room of defendants' factory at Gharo, District Thatta. The suit has been filed on behalf of 3 heirs of the deceased. Plaintiff No. l is the father, plaintiff No.2 is the mother and plaintiff No.3 is the widow of the deceased.
2. The deceased had joined service with the defendants in 1966. On 22-8-1970 the deceased was married to the plaintiff No.3 and on account of his marriage, the deceased took leave. After the expiry of leave, he joined duty on 8-9-1970, at the defendants' factory at Gharo. At about 2-30 p.m.
On 9-9-1970, the deceased died on account of electrocution in the electricity panel room of the factory. On 10-9-1970, the post-mortem of the body of the deceased was done and then the body was brought to Karachi for burial.
3. According to the plaint; plaintiffs Nos. l and 2 migrated to Pakistan in 1968 at the request of the deceased, who had also assured them that he would maintain and support them. After coming over to Pakistan, plaintiffs Nos. l and 2 became Pakistan Nationals. It is also claimed that the deceased was contributing to the maintenance and support of his parents. Extensive arguments were addressed by the learned counsel for the parties with reference to the contents of paras. 6 and 13 of the plaint and, therefore, I consider to reproduce these 2 nara2ranhs:--- "6. After hearing of this accident, Mr.S.H. Sulaiman and Mr. A.A. Hussain, relations of the deceased and of the plaintiffs, went to the factory of the defendants at Gharo. They saw the panel room where the deceased had died of electrocution. The roof of this room was badly leaking due to rains, its floor was Completely wet with water, and the walls were so damp that the dampness was apparent to the naked eye.
13. The plaintiffs are not aware of the actual circumstances under which the deceased met his death, but things speak for themselves that he died of electrocution caused due to negligence and/or default on the part of the defendant in wrongful not properly maintaining the electric installations at their factory which presumably carried very high voltage of electricity."
4. At the time of his death, the deceased was about 30 years of age. He was then drawing a salary of Rs.613 per month, as admitted by the defendants in para. 9 of their written statement. According to the plaint, the deceased was in excellent health at the time of his death and considering the family background, the normal expectation of his active life was estimated as 70 years. However, for -the purposes of the suit, the normal expectation of his -life was taken by the plaintiffs as 65 years. The case of the plaintiffs is that the deceased died in the course of his employment with the defendants while on duty, and the death was caused by the wrongful act, neglect and/or default on the part of the defendants. The plaintiffs, as representatives of the deceased, claimed the amount in the suit under the Fatal Accidents Act, 1855, as calculated in Schedule ' A' to the plaint which is reproduced here:--- SCHEDULE ' A'
Full normal expectation of life------------------.65 years.
Age of deceased at the time of death---------..28 years, Remainder expected life of deceased .---------37 years.
Salary at time of death ------.... Rs.610 Less 1/3 for personal needs .....Rs.203 Balance ...------Rs.407.00 Annual income------.12 x Rs.407=Rs.4884 37 x Rs.4,884=Rs.1,80,708 Less Insurance money received---.10.000 Balance---------------------Rs. 1,70,708 Plus Consortium for Plaintiff No.3---------.Rs. 25,000 Total Claim------------Rs. 1,95,708."
5. Perusal of Schedule ' A' to the plaint shows that out of the monthly salary of the plaintiff 1/3rd has been deducted on account of personal expenses of the deceased and the balance has been claimed for a period of 37 years as loss on account of the death of the deceased. From the amount so calculated a sum of Rs.10,000 has been deducted on account of insurance money received by the plaintiffs from the defendants as beneficiaries under the Group Insurance Scheme for the factory staff of the defendants. A further sum of Rs.25,000 has been claimed on account of loss of consortium on behalf of the widow, plaintiff No.3 in the suit.
6. In the written statement filed by the defendants, the cause of death is admitted to be result of electric shock. It was, however, denied that the defendants maintained the electric installations wrongly or improperly in their factory. It was not denied that the electrocution of the deceased was caused due to negligence or default on the part of the defendants. The allegation in the plaint that the deceased died in the course of his employment with the defendants while on duty was also denied. It was averred in para. 13 of the written statement that the plaintiffs were fully aware of the true and actual circumstances of the death of the deceased. Para. 16 of the written statement is reproduced here:--- Para. 16.---That with regard to para. 15 of the plaint it is denied that the deceased died in the course of his employment with the defendants Company while on duty. It is submitted that the deceased was on the production side of the defendant and had nothing to do with the electricity or electrical wiring of the factory for which qualified staff was appointed. The said staff was present at the factory on the day death took place. The deceased did not have any business to go to the electricity panel room, which is separate. His death was on account of his own negligence and on account of deceased's acts of omission and commission for which defendant is not liable. It is denied that the defendant is liable for Rs.1,95,908 or any other amount. Without prejudice, it is denied that the plaintiffs 1 and 2 are entitled to any amount. "
7. Following consent issues proposed by the learned counsel for the parties were adopted by this Court on 7-2-1972:---
(1) Whether the deceased was in excellent health and man of simple and other sober habits and was expected to live up to 65 years?
(2) Whether the plaintiffs are the only legal heirs of the deceased?
(3) Whether the plaintiffs Nos.1 and 2 were the dependants of the deceased?
(4) Whether the deceased died in the course of his employment?
(5) Under what circumstances the death had been caused and what is the effect? Recast by order dated 22-12-1972.
(6) Are the plaintiffs or anyone of them entitled to any decree?
8. On behalf of the plaintiffs, only plaintiff No. l examined himself as Exh.57. After the evidence of plaintiff No. 1, the side of the plaintiffs was closed.
9. I have heard at great length arguments of Mr. Mansoor Ahmed Khan, learned counsel for the plaintiffs and Mr. Mansoorul Arfin; learned counsel for the defendants. I now propose to deal with the issues framed in this case.
10. Issue No. l "Whether the deceased was in excellent health and man of simple and sober habits and was expected to live up to 65 years?" .
11. The other question which requires determination while dealing with Issue No. l is the age up to which the deceased was expected to live his life had not been cut short by the accident. In para. 12 of the plaint it is claimed that, considering the family background, the normal expectation of the active life of the deceased be taken as 70 years, but for the purposes of the case the damages were claimed on the basis that he would have lived up to the age of 65 years. In the evidence apart from the fact that when the plaintiff No. 1, father of the deceased, gave evidence on 14-5-1978, he gave his age as 76 years, no other evidence has been led relating to the "family background" in respect whereof reliance was placed in para. 12 of the plaint. Learned counsel for the parties have referred to various decisions of the superior Courts of our country had also of the Indian jurisdiction in connection with the expected age of a person up to which he was expected to live in case his life was not brought to an end by an accident. I would, however, here refer only to the judgments of our High Courts and the Supreme Court of Pakistan in this behalf. Reference was made by learned counsel to the following reported judgments:--
(i) PLD 1959 Karachi 550.
(ii) PLD 1960 Karachi 785..
(iii) PLD 1963 Karachi 841.
(iv) PLD 1963 Dacca 290.
(v) PLD 1969 SC 565.
(vi) PLD 1970 Lahore 442.
(vii) PLD 1973 Karachi 636.
(viii) PLD 1976 Karachi 131.
(ix) PLD 1977 Karachi 685.
I may also refer to the following other recently reported judgments on the question of average expectancy of life:---
(x) PLD 1975 Karachi 914.
(xi) PLD 1-977 Karachi 542.
(xii) PLD 1980 Karachi 78.
(xiii) PLD 1980 Karachi 146.
(xiv) PLD 1980 Karachi 271.
12. (i) In the case of Iftikhar Hussain v. Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550 the age of the deceased at the time of his death was 45 years. On the question relating to the expected age of the deceased Qadeeruddin, J. Held as follows:- "The deceased was 45 years of age at the time of his death, kept good health and was a man of simple habits. He could be easily expected to live and carry on the trade of running a shop up to the age of 65 years."
(ii) In the case of Bashir Begum v. Muhammad A.I Premji PLD 1960 Kar.785 the age of the deceased at the time of fatal accident was 35 years and Wahiduddin, J. Was of the view that the normal expectation of the life of the deceased was about 20 years, that is, he would have lived up to the age of 55 years.
(iii) In Nusrat A.I V. U.K. Construction Co. PLD 1963 Kar.841 the age of the deceased at the time of his death was 30 years. A.R. Khaural, J. Held that the deceased could be easily expected to live and carry on his employment up to the age of 55 years at least.
(iv) PLD 1963 Dacca 290 is a Division Bench decision of the Dacca High Court in the case of Mammatha Nath v. Muhammad Mokhlesur Rehman, The deceased in that case was a girl of 6 years and the suit was brought by her parents for damages. The ages of the father and mother of the deceased were 47 and 32 years respectively at the date of death. Of the deceased. On the question of the expected age the Dacca High Court was of the following view:--- "It can be expected that the parents and the girl would live up to the age of sixty years each considering the normal age of living in this country."
(v) PLD 1959 SC (Pak.) 565 (Mammatha Nath v. Muhammad Mokhlesur Rehman) is the judgment of the Supreme Court of Pakistan in: appeal against the judgment of Dacca High Court reported in PLD 1963 Dacca 290.
Judgment of the Dacca High Court was affirmed by the Supreme Court but in the judgment in appeal there is no discussion or decision on the point of expected age.
(vi) PLD 1970 Lahore 442 is the report of the judgment of a Division Bench of the Lahore High Court in the case of Din Muhammad v. Faqir. Muhammad. The deceased had died at the age of 29 years and the Lahore High Court took 60 years as the expected age.
(vii) In the case of Qudsia Begum v. Younus Khan PLD 1973 Kar. 636 Fakhruddin G. Ebrahim, J. Held as follows:--- "As regards the normal expectation of life, Mr. Mushtaq Hussain, the learned counsel for the plaintiff was good enough to invite my attention to several decisions of this Court, where 60 years has been held to be life expectancy in Pakistan. The learned counsel contended that in view of the improved conditions of living it may now be reasonable to hold the life expectancy at 65 years. I am, however, not inclined to depart from the more conservative view of this Court that 60 years is the normal life expectancy in Pakistan."
(viii) In the case of Rukayabai v. Secretary of Defence PLD 1976 Kar.131 Mushtaq A.I Kazi, J. On the question of average expectation of life observed as follows:--- "The deceased was 40 years of age and the average expectation of life being about 65 years he may have lived for 25 years more. "
(ix) In PLD 1977 Kar. 685 (Momin Bai v. Ghulam Muhammad) Naimuddin, J. Accepted 60 years as the normal expectancy of life.
(x) PLD 1975 Kar. 914 (Shamsun Nissa v. Karachi Road Transport Corporation) is the other reported judgment of Fakhruddin G. Ibrahim, J. In this judgment also the learned Single Judge followed his earlier view in PLD 1973 Kar.636 and held as follows: "The deceased was at the time of his demise about 45 years old. It is in the evidence that he was possessed of good health. The question that next arises for consideration is the normal expectancy of life of the deceased. Mr. Sharaf Faridi, the learned counsel for the defendant No. l contended that it must be 60 years and not 65 years as contended on behalf of the plaintiffs. In majority of cases decided by this Court 60 years has been held to be life expectancy in Pakistan. I have also adhered to this conservative view in a case reported in Mst. Qudsia Begum v. Younus Khan and 4 others PLD 1973 Kar.636 and I see no reason to make any departure."
(xi) In his judgment in the case of Ayeshabi v. Abdul Ghafoor PLD 1977 Kar.542 Zaffar Hussain Mirza, J. Was of the following view:--- "The deceased is established to have been a person of sober habits and sound physique and was the only earning member of the family. Taking the ordinary life expectancy of the deceased at least up to the age of 65 years, the deceased would have provided maintenance to his family for the next 21 years if he had not been out off by the accident."
(xii) In the case of Muhammad Siddique v. Gul Majeed PLD 1980 Kar.78 Ajmal, J. Held 60 years to be the expected age of the deceased. Para. 8(a) of the judgment of Ajmal, J. Is reproduced here:--- "The plaintiffs have claimed an amount of Rs.56,600 calculated for the period of 41 years at the rate of Rs.200 per month minus 1/3rd being the amount of personal expenses of the deceased. While computing the period of 41 years the plaintiffs have assumed 65 years as the expected age of the deceased. On the other hand Mr. Umrani, the learned counsel. For the defendants Nos.1 and 2 has referred to the case of Qudsia Begum v. Younus Khan and 4 others PLD 1973 Kar. 636 and the case of Mst. Momin Bai and 3 others v. Ghulam Muhammad and 2 others PLD 1977 Kar. 685. In both the above cases, it was held that the expected age was 60 years. In a few cases decided by me recently, I had also accepted 60 years as the expected age. I accordingly hold that the amount of the compensation is to be computed on the basis of 60 years as the expected age of the deceased. "
(xiii) In the case of Nusrat Jehan Begum v. Karachi Municipal Corporation PLD 1980 Kar. 146 Ajmal, J.
Again assumed the normal span of life as 60 years. The deceased in that case had died at the age of 38 years.
(xiv) Expected average age in fatal accident case was again taken as 60 years by Ajmal, J. In the case of Dianat Fatima v. Abbas Khan PLD 1980 Kar. 271 where the deceased had died at the age of 50 years.
13. Case-law briefly discussed in the previous paragraph shows that the expected age in fatal accident cases has been taken from 55 years to 65 years. During the last decade, however, the Courts have been taking 60 to 65 years as the expected age, but the recent trend in the judgments is to accept the conservative figure of 60 years. In my view also the normal span of life in Pakistan should be taken as 60 years in fatal accident cases if there is no evidence on record that the deceased was suffering from any malady, illness 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 was more than 60 years, the Court may not restrict itself to 60 years as the expected age of the deceased or the concerned beneficiaries but may accept 65 years or even more depending on the assessment made on the basis of the evidence on record.
14. ISSUE No.2: "Whether the plaintiffs are the only legal heirs of the deceased?"
Section 1 of the Fatal Accidents Act, 1855, provides that an action for compensation under the Act shall be for the benefit of the wife, husband, parent and child of the deceased. Evidence of plaintiff No. l shows that the deceased was married a few days before his death and that plaintiffs Nos. l and 2 were the parents and the plaintiff No.3 the widow of the deceased. This evidence has not been controverted. In the circumstances, I hold that plaintiffs are the only legal representatives of the deceased under section 1 of the Fatal Accidents Act, 1855, entitled to bring a suit under that Act.
Issue No.2 is decided accordingly.
15. ISSUE No.3: "Whether the plaintiffs Nos. 1 and 2 were the dependants of the deceased?"
As observed earlier, the suit has been filed by the parents and the widow of the deceased. Under section 1 of the Fatal Accidents Act, 1.855,' the suit can be filed for the benefit of the wife, husband, parents and child of the deceased and in every such suit the Court can pass a decree for damages as it may think proportioned to the loss resulting from such death to the parties from whom and for whose benefit such suit is brought. In para. 9 of the written statement of the defendants it has been denied that the parents of the deceased, plaintiffs 1 and 2 in the suit were dependent of the deceased. Evidence of plaintiff No. l shows that plaintiffs 1 and 2 migrated to Pakistan on 16-4-1968 at the request of the deceased, who was employed at that time with the defendants, and thereafter the parents also started living with the deceased. The deceased was married to the plaintiff No.3 on 22-8-1970, and it follows that she also started living with the deceased, alongwith plaintiffs 1 and 2. At the time of death of the deceased, plaintiff No. 1, who is an Advocate, was practising at Karachi. The total salary which, the deceased was getting at the time of his death from the defendants was only Rs.613 per month, and out of this amount, according to the evidence of plaintiff No. 1, the deceased was giving about Rs.400 to the plaintiffs. At that time the house, in which the plaintiffs and the deceased were residing, was rented at Rs.300 per month.
In his cross-examination, plaintiff No. l has stated that his other son is a doctor and at the time of accident he was in Bahama Island, and that the earnings of this other son were muchless that the earnings of the deceased, and after the death of the deceased this other son had started supporting the parents but at the time of the accident he was not supporting them. Plaintiff No. l had also admitted that he was using his own savings towards their maintenance. He has further stated that after arrival in Pakistan he got some work and had not completely retired.
The evidence on the question of maintenance of the plaintiffs by the deceased in brief is that the salary of the deceased was not very much and out of this salary he had to support and maintain himself and the plaintiffs; plaintiff No-1 himself was earning and had savings of his own which were also being utilized for maintenance; and that the other son of plaintiffs Nos.1 and 2 was earning much more than the deceased, and after the deceased's 'death started supporting his parents.
From this evidence it is difficult to draw the conclusion that the deceased was or could support the plaintiffs Nos.1 and 2. On the contrary I have reached the conclusion that out of his small salary plaintiff No. l was supporting himself and after his marriage he supported his wife also for a few days before he died. I am, therefore, of the view that the deceased was not maintaining plaintiffs l and % and at the time of his death from his salary he was maintaining only himself and plaintiff No.3. In para. 9 of the written statement it is the case of the defendants that plaintiffs Nos.1 and 2 were not dependent on the deceased. It is not the case of the defendants in their written statement that plaintiff No.3 was also not dependant on the deceased. Wordings of Issue No.3 also confirm this. In the circumstances, I decide this issue in favour of the defendants and hold that plaintiffs 1 and 2 were not dependent on the deceased and financially no loss was caused to them on account of the death of the deceased. Loss could only be caused to the widow, plaintiff No.3, who was dependent on the deceased.
16. ISSUE NO.4: "Whether the deceased died in the course of his employment?"
It is an admitted position that on the date of his death, the deceased died in the factory of the defendants at Gharo at about 2-30 p.m. There is a denial in the written statement of the defendants that the death of the deceased took place during the course of his employment, but no plea was taken that at the time the death occurred, the factory was closed. In fact, it is an admitted position that on 9-9-1970 the deceased was on duty. Further, Eith.11 is a report of the Chief of the Caustic Soda Plant of the defendants at Gharo dated 9-9-1970, which document was filed by the defendants, in which he says that he was sitting in the technical office when one Muhammad Anwar, an operator of soda plant informed him that the deceased, the engineer on duty, had got an electric shock. Before the writer of the report reached the place of accident a doctor had already reached there and was examining the deceased. After examination, the doctor informed that the deceased had died at 14-40 hours. From this document (Exh.11) it is abundantly clear that the deceased had died on account of electric shock while on duty. Apart from this in para. 14 of the written statement it is mentioned that the deceased became "entitled" to sum of Rs.9,000 under Workmen's Compensation Act, 1923 and this amount had been deposited by the defendants with the Commissioner for Workmen's Commissioner, Hyderabad, in favour of the deceased. Under the Workmen's Compensation Act, the compensation is payable only if an employee dies during the course of his employment. The fact that the defendants have admitted that the deceased was entitled to the amount of Rs.9,000 under the Workmen's Compensation Act is an additional but independent reason for coming to the conclusion that the deceased died during the course of his employment. In the circumstances, I decide this issue in favour of the plaintiffs and hold that the deceased died in the course of this employment with the defendants.
17. ISSUE No.5: "Under what circumstances the death had been caused and what is the effect"?
On this issue Mr. Mansoor Ahmed Khan had first argued that the principle laid down in the English case of Rylands v. Flectcher reported in (1866) L.R. 1 Ex.265 would be applicable. In that case the defendants got made a reservoir on their land through an independent contractor. When the reservoir was filled, the water escaped through an old disused mine under the plaintiff's land into the plaintiff's mine and flooded it. The plaintiff took action against the defendants claiming damages. On appeal in the Court of Exchequer Chamber, the defendants were held liable on the basis of the rule of absolute liability. This rule enunciated in the judgment of Blackburn, J., which is now universally known as the rule of absolute liability laid down in Rylands v. Fletcher was subsequently approved by the House of Lords. The famous passage from the judgment of Blackburn, J. Is quoted here:--- "We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damages which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs' default; or perhaps that the escape was the consequence of vis majure, or the act of God."
For this rule of absolute liability laid down in Rylands v. Fletcher to apply it is required that the escape of the dangerous thing must be not only from the control of the person who keeps it but must also be an escape to some other place not subject to his control. Mr. Mansoorul Arfin, counsel for the defendants, had contended that in the instant case there had been no escape of electricity from the defendant's factory as the accident had taken place inside the factory. I agree with learned counsel for the defendants that, as there was no escape of electricity from the defendants' factory and the electrocution of the deceased took place inside the factory, the rule of absolute liability laid down in Rylands v. Fletcher does not apply in this case.
18. The mainstay of the case of counsel for the plaintiff on this issue, however, was the rule of evidence known as res ipsa lequitur, that is; the thing speaks for itself. According to Charlesworth on Negligence, 6th Edition, paragraph 266, this maxim comes into operation---
(1) on proof of the happening of an explained occurrence;
(2) when the occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and
(3) the circumstances point to the negligence in question being that of the defendant rather than that of any other person.
19.Learned counsel for the plaintiff very strongly urged that in the present case it has been admitted by the defendants that the death of the deceased occurred due to electrocution in the factory of the defendants and the factory where the death had taken place was in the control of the defendants. According to learned counsel, the precise reason for the death of Shah Jaffar Alain has remained unexplained but the occurrence is such which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff and the fact that electrocution had taken place within the factory of the defendants points to the negligence being that of the defendants rather than that of any other person. It. Was contended that the three requirements of the rule of evidence known as res ipsa loquitur mentioned in para. 266 of Charlesworth on Negligence, 6th Edition, having been fulfilled, the burden of proving that there was no negligence on the part of the defendants was on the defendants and as to evidence has come from the defendants, they having chosen not to lead evidence, this issue should be decided in favour of the plaintiff.
20. Mr. Mansoor Ahmed Khan had further referred to para. 556 of Charlesworth in support of this contention that electricity is a dangerous thing and it is not necessary for the plaintiffs to prove that electricity is a dangerous thing. According to counsel, whoever is in control of premises in which there is live electricity, is required to take every possible care that injury is not caused to any person, and in case injury or death is caused to any person in such premises, and the exact reason for such injury or death remains unexplained except for the fact that such injury or death was caused due to electric shock, it would be presumed under the law that injury or death was caused due to negligence of the person in control of the premises, and if such person is interested in avoiding such liability, the burden of proving that there was no negligence on his part is on him and not on the claimant.
(i) AIR 1927 PC 230.
(ii) AIR 1934 Lah. 63.
(iii) AIR 1934 Lah. 398.
(iv) AIR 1931 Born. 97.
(v) AIR 1953 Bhopal 26.
(vi) PLD 1960 Kar. 712.
(vii) PLD 1966 Kar. 580.
(viii) PLD 1959 Kar. 550.
21. (i) In the case of Sardar Gurbakhsh v. Gurdial Singh AIR 1927 PC 230, the Privy Council was of the opinion that the true object to be achieved by a Court of Justice could only of furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it and the story can then be subject in all its particulars to cross-examination.
(ii) In the case of Bishandas v. Gurbaksh Singh AIR 1934 Lah. 63, a Division Bench of the Lahore High Court comprising Addison and Monroe, JJ. Had observed that failure of party, coming forward with a case, to give evidence on matters within his knowledge, ought to a be a weighty factor, when the value of the case put forward on his behalf is appraised.
(iii) In the case of Purandas v. Kartar Singh AIR 1934 Lah. 398 the same Division Bench of the Lahore High Court held that if a petitioner, who was the best informed person about a matter, does not come forward to give evidence, it may be taken as an indication that he could say nothing convincing to support his case.
(iv) In the case of Martand v. Radhabai AIR 1931 Born. 97, a Single Judge of the Bombay High Court had observed that it is the bounden duty of a party personally knowing the facts and circumstances to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness could be the strongest possible circumstances which will go to discredit the truth of his case. The learned Judge in that case relied upon AIR 1927 PC 230 (ibid).
(v) In Abdul Kareem v. Babulal AIR 1953 Bhopal 26 it was held that where the plaintiff has not gone into the witness-box in spite of the fact that factual allegations were made against him and were supported by defendants' evidence, this would be the strongest possible circumstance to discredit the truth of his case.
(vi) Ursulina v. Orient Airways PLD 1960 Kar. 712 relates to the crash of the plane belonging to Orient Airways on the night of 14-3-1963 at Tripura on its flight from Karachi to Dacca. The legal heirs of the deceased, who was an employee of the defendant and performed the duties of a Flight Steward and who died alongwith all other persons on board, had filed a suit for damages under the Fatal Accidents Act. Waheeduddin Ahmed, J. In his judgment in that case held that in a case under the Fatal Accidents Act, the general rule as to the burden of proof in regard to negligence on the part of the defendant is that it is for the plaintiff to prove negligence and not for the defendant to disprove it, but in those cases where the true cause of the accident lies solely within the knowledge of the defendant this hardship is avoided by invoking the rule of res ipsa loquitur (the thing speaks for itself). According to the learned Single Judge, in those cases where the accident speaks for itself and the rule res ipsa loquitur becomes applicable, it is sufficient for the plaintiff to prove the accident and nothing more, and it is then for the defendant to persuade the Court that the accident arose not through their negligence. In that case, the facts were that the machinery of the aircraft was not in proper condition and it had a defect in its hydraulic system which was rectified but the plane had a return again to Delhi Airport after take off from there and reported the same defect. The defect was again attended to and the plane then again took off from Delhi Airport and ultimately crashed at Tripura. In the circumstances, the learned Judge held that it could not be ruled out that the plane met with the disaster for the aforesaid defect and the defendant should have proved that there was no inherent defect in the machinery of the aircraft. The learned Judge had come to the said conclusion applying the rule of res ipsa loquitur, as according to the learned Single Judge, there was no direct evidence about the cause of the crash and there could be none as none of the persons travelling in the aircraft survived.
(vii) The judgment of the learned Single Judge reported in PLD 1960 Kar. 712 was affirmed by an L.P.A. Bench in the case of P.I.A. Corporation v. Urshulina PLD 1966 Kar. 580.
(viii)In the case of Iftekhar Hussain v. Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550, the facts were that after rainfall on the day of the incident, an electric light wire that was stretched overhead in a lane in Karachi broke down as it was not in a fit state to withstand rain and lay dangerously on the road loosely hanging from the electric pole. Information that it had broken down was given early to the defendant, but the defendant neglected to pay attention to it, and the deceased while returning from his shop and walking on his way to his house through the dark lane came into contact with the wire and died on the spot. The plaintiffs' case was that the not work of the overhead electric wires, which had been constructed by the defendants, was highly dangerous to life and that the accident took place because of the neglect and fault of the defendant. The neglect and fault of the defendant were alleged to have consisted of its inattention to detect the fault of the wire and its failure to repair in time the broken wire. The judgment in that case was delivered by Qadeeruddin Ahmed, J. Who, while dealing with the guiding principle of law relating to proof of neglect and default, referring to a passage from Halsbury's Laws .Of England, Vol. XXIII (Edition II) in paras. 956 and 957 at pages 671-74, observed that the general rule is that the burden of proving negligence is on the plaintiff in the first instance, but where there is a duty oft the defendant to exercise care and (quoting Halsbury) "the circumstances, in which injuries complained of happened are such that with the exercise of the requisite care, no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendant's control, the inference is that the defendant is liable, and his inference is strengthened if the injurious agency is inanimate".
Qadeeruddin Ahmed, J. Further observed in his judgment that there was no doubt that the business operations of the defendant company had an obvious element of peril in them to the life and safety to the public and as such it was the duty of the defendant to exercise care for protecting the members of the public against that danger and the degree of care had to be of high order because wires had frequently broken down on rainy days. Qadeeruddin Ahmed, J. Had also referred to the following passage from Halsbury's Laws of England:--- "If there is an obligation on the defendant to use reasonable and proper care and the injury is traced directly to some defect in the tackle or machinery, it is not necessary for the plaintiff to show the precise nature of the defect, since the inference from the fact of the defect is sufficient to throw on the defendant the burden of showing that the defect was one for which he was not to blame."
It the circumstances of the case, the learned Single Judge came to the conclusion that the burden of proving that it was not negligent was on the defendant --company and held on evidence that the defendant-company was negligent in the maintenance of the wire which broke down due to some physical defect in it.
22. Learned counsel for the plaintiff also referred to section 114 of the Evidence Act and Illustration
(g) to that section. Section 114 is to the effect that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the fact of the particular case.
According to Illustration (g) the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Learned counsel also relied upon Chapters V and VI of the Electricity Rules, 1937 made under the Electricity Act, 1910, and applicable at the time the accident had taken place in 1970.
23. In view of the admission by the defendants that the death of the deceased was due to electrocution in their factory, and as the exact cause of death remained unexplained, the defendants not leading any evidence, it was urged by counsel for the plaintiffs, relying upon the reported judgments referred to in para. 21 above, that the defendants were negligent. It was contended that in the facts of this case the doctrine of res ipsa loquitur applied.
24. Mr. Mansoorul Arfin, counsel for the defendants, however, argued that on the facts of the case the rule of res ipsa loquitor was not applicable, and apart from urging that the judgments relied upon by the counsel for the plaintiffs were either distinguishable or not applicable to the facts in the instant case, sought support from the following reported judgments:---
(a) (1944) 1 K.B. 421.
(b) (1950) 1 A.E.R. 392.
(c) (1918) 2 K.B. 523.
(d) PLD 1976 SC 748.
(e) (1887) 12 AC 41 (f)(1909) 2 K.B. 652.
(g) (1887) 18 Q.B. 685.
(h) (1936) 3 A.E.R. 200.
(i)(1951) 1 AER page 1078.
25. (a) In the case of Eason v. London and North Eastern Railway Company reported in (1944) 1 K.B.
421 the facts were that a child of 4 years fell through a door in the corridor of a train belonging to the defendant-company while the train was running. The child was injured and a claim for damages was filed against the railway company. There was no evidence as to how the door of the train was opened. It was held that the mere fact that the door was opened was not of itself prima facie evidence of negligence against the railway company. Goddard, L.J. In his judgment in this case observed that it was impossible to say that the doors of an express corridor train travelling from one city to another city were continuously under the sole control of the railway company in the sense in which it is necessary that they should be for the doctrine of res ips liquitor to apply. In the words of Goddard, L.J.: " ... Passengers are walking up and down the corridors during the journey and get in and out at estopping places. I do not want it to be thought that I am minimising the duty of the company.
Before a train leaves a station the company must see that the carriage doors are closed. They are not under an obligation to inspect the off-side doors of the carriages at every stop. There must be reasonable inspection, and they must do to the best they can.
(b) In the case of Barkway v. South Wales Transport Company Limited, a judgment of the House of Lords reported in (1950) 1 A.E.R. 392, the facts were that the deceased had died while travelling as a passenger in the respondents' bus which at the time of the accident was being driven at a speed of about 25 miles per hour in a "black out". The front tyre burst and the bus fell over an embankment. Evidence was given in the case that the cause of the bursting of the tyre was a fracture due to some heavy blows on the outside of the tyre leading to the disintegration of the inner parts. According to the evidence, such fracture might occur without leaving any visible external mark but a competent driver would be able to recognise the difference between a heavy blow enough to damage the strings of the tyre and a lesser blow. According to the plaintiffs the defect in the tyre, would have been revealed if adequate steps had been taken regularly to inspect them and that the defendants were negligent in not requiring their drivers to report occurrences which might result in such fractures. The defendants' case was that they had a satisfactory system of tyre inspection which took place twice a week. In the facts of this evidence, the House of Lords held that the evidence showed that the defendants had not taken all the, steps they should have taken to protect passengers because they had not instructed their drivers to report heavy blows to tyres likely to cause such fractures.
Learned counsel for the defendants had drawn my attention to this judgment in connection with the discussion therein of the doctrine of res ipsa loquitur. House of Lords had held that the application of the doctrine of res ipsa loquitur was no more than a rule of evidence affecting onus of proof of which the essence was that an event which in the ordinary course of things, was more likely than not to have been caused by negligence was by itself evidence of negligence, depended on the absence of explanation of an accident but, although it was the duty of the defendants to give an adequate explanation, if the facts were sufficiently known the question ceased to be one where the facts spoke for themselves and the solution must be found by determining whether or not on the established facts negligence was to be inferred. Learned counsel has cited this passage from the judgment of the House of Lords in support of his contention that where facts were known, the rule of res ipsa loquitur did not apply.
(c) In the case of Cole v. De Trafford (No.2) reported in (1918) 2 K.B. 523 the facts were the plaintiff had entered the service of the defendant as a chauffeur. The defendants' garrage had folding doors. In the upper part of one of the doors there was a glass window. The glass was 1/2 inch thick and weighed about 20 lbs. On one occasion while the plaintiff was opening the garrage door in order to take in the defendants' car, the glass in the window fell out into his hand and injured it. On examination it appeared that the inside bleedings which with some putty kept the glass in position were missing at the top and one of the sides, and that at some time a nail had been driven into the wood of the door at one of the top confers of the window to secure the glass. In an action to recover damages for the injuries owning to the negligence of the defendant in not having had the garrage inspected, when the dangerous condition of the window would have been discovered, there was evidence that this dangerous condition must have existed for some months, but it was not known either to the plaintiff or to the defendant. There was no evidence whether a garrage ought to be periodically inspected, nor when the defendant's garrage was inspected, if at all, nor how long the defendant had been in occupation of it. On this evidence the Court of Appeal held that there was no evidence of personal negligence in the defendant and that, therefore, she was not liable.
"It is said here that 'res ipsa loquitur'. The accident does talk, but all it appears to me to say is that there was a defect in the premises of some standing, which would have been discovered by reasonable inspection when that inspection was made; and that someone unknown did discover it, and applied an improper and imperfect remedy. I do not think it is an illegitimate inference to find that the person who discovered it was a servant of the person who was then in occupation of the premises. This the accident seems to me to inform us. It does not inform us how long the defendant has been in possession of the premises, or whether the person who put the nail in it was a servant of the defendant or not. It does not inform us whether the defendant has been in possession so long that according to the practice of reasonably careful people she would have examined, or caused to be examined, this window (which is not a window made to open) for latent defects. For I do not know of any obligation on a new occupier entering premises apparently free from defect to examine the whole premises for latent defects, either immediately on entry, or on the entry of each fresh servant. And I do not think a country Court jury, who are not as a rule people who keep motor- cars, are entitled to find without evidence what is the ordinary practice as to examination of a garrage. It appears to me that, while the accident tells me something, it leaves untold a state of things which, according to the true facts, may make or not make the defendant liable. And to prove a state of facts consistent with liability or non-liability does not support the plaintiff's case: Wakelin v. London and South Western Railway Co. Where the jusy had seen the level crossing on which the man was found and the curve approaching it, but their verdict was set aside."
(d) In the case of Basheeran v. Pakistan PLD 1976 SC 748 the facts were that the deceased, a steam engine fitter in the loco-shed of Pakistan Railways met with an accident while engaged in fixing iron sheets on the roof of a newly constructed battery charging room in the loco-shed. He was getting down after fixing the sheet when his foot slipped from the ladder and he fell on the ground suffering head injury which proved fatal. Evidence was led on behalf of both the parties. In the circumstances Supreme Court of Pakistan held that the plaintiffs had failed to make out of a case for payment of compensation under the Fatal Accidents Act. The Supreme Court, while dealing with the question of negligence on the part of the employers had this to say:--- "According to the evidence led by the appellants Muhammad Nazir had completed the job and was climbing down the wooden ladder when his foot slipped and he fell from a height of 19 feet suffering head injury which resulted in his death. It is stated by one of the defendants evidence that it was a movable ladder. It meant that the ladder could be moved from one place to another and not that the ladder was hanging in the air. In any case there is no averment in the plaint or statement by any witness that there was any defect in the ladder. It did not move, snap or give way while Muhammad Nazir fixed the iron sheets or while he was climbing down. On the contrary the plaintiff's own witnesses have stated that as Muhammad Nazir was climbing down his foot slipped and he fell down. The slipping of the foot is not associated with any defect in the ladder or the position in which the ladder was fixed. It cannot, therefore, be said that the superior officers of Nazir Ahmed were in any manner negligent within the purview of section 2 of the Fatal Accidents Act in providing safety measures which could have avoided the accident resulting in his death."
(c) In the case of Jane Wakelin v. London and South Western Railway Company reported in (1887)
12 AC 41, a railway line crossed a public footpath.
The approaches to the crossing were guarded by hand gates. A watchman who was employed by the railway company to take charge of the gates and crossing during the day was withdrawn at night. The dead body of a man was found on the line near the level crossing at night. The man had been killed by a train which carried the usual headlights but did not whistle of otherwise give warning of its approach. No evidence was given of the circumstances under which the deceased got on to the line. An action was brought against the railway company for damages on the ground of negligence. The House of Lords held that the railway company was not liable. Lord Halsbury, in the judgment in this case, observed as follows:--- "In this case I am unable to see any evidence of how this unfortunate calamity occurred. One may surmise, and it is but surmise and not evidence, that the unfortunate man was knocked down by a passing train while on the level crossing; but assuming in the plaintiff's favour that fact to be established, is there anything to show that the train ran over the man rather than that the man ran against the train?
The evidence appears to me to show that the injuries which caused the death of Henry Wakelin were occasioned by contact with an engine or a train belonging to the respondents, and I am willing to assume, although I am by no means satisfied, that it has also been proved that they were in certain respects negligent. The evidence goes not further. It affords ample materials for conjecturing that the death may Possibly have been occasioned by the negligence, but it furnishes no date from which an inference can be reasonably drawn that as a matter of fact it was so occasioned. "
(f) In the case of Wing v. London General Omnibus Company reported in (1909) 2 K.B. 652, the facts were that a bus belonging to the defendant company, in which the plaintiff was a passenger, slidded upon a road the surface of which was greasy from rain, and ran into an electric light standard, and the plaintiff was in consequence injured. At the trial of an action brought by the plaintiff in respect of the injuries caused to her, there was no evidence given on behalf of the plaintiff of anything beyond the abovementioned facts in the nature of negligence on the part of any servant of the defendants in the driving or management of the bus, or of any defect in the construction or condition of the bus, but it was apparently assumed, and it was not disputed by the defendants, that such buses, however, well-constructed, had a tendency to skid when the road was greasy. The Court of Appeal by a majority of 2 to 1 held that upon these facts the defendant- company was not liable.
Vaughan Williams, L.J. In his judgment in this case held as follows:--- "I think that the fact that the defendant-company placed such a carriage on the road to ply for passengers was no evidence of negligence or nuisance, having regard to the fact that motor omnibuses have been running in the street of the metropolis for several years. No doubt the mere fact of the accident may be prima facie evidence of negligence when the accident itself is evidence of a defect in the particular carriage, as was the case in Christie v. Griggs, (1809) 2 Camp.
79; Sharp v. Grey (1833) 9 Bing. 457; but I do not think that an accident resulting from the tendency of motor omnibuses, however, well constructed and designed, to skid is any evidence of negligence or of nuisance. "
(g) In the case of Thomas v. Quarternaine reported in (1887) 18 Q. B. Page 685 the facts were that the plaintiff was employed in a cooling room in the defendant's brewery. In the room there were a boiling vat and a cooling vat, and between them was a passage which was in part only 3 feet wide.
The cooling vat had a rim raised 16 inches above the level of the passage but it was not fenced or railed in. The plaintiff went along this passage to pull a board from under the boiling vat. This board stuck fast and then came away suddenly so that the plaintiff fell back into the cooling vat and was burnt. He filed a suit for damages under the English Employers Liability Act, 1880. Court of Appeal by a majority of 2 to 1 held that the defence arising from the maxim volenti non fit injuria had not been affected by the Act of 1880 and applied to the case in question and that, therefore, there was no evidence of negligence arising from a breach of duty the part of the defendant towards the plaintiff and that the plaintiff was not entitled to recovery.
Bowen, L.J. In his judgment observed as follows:--- "In order to answer the first inquiry, whether the defendant had been guilty of negligence, the first step to be taken must be to consider what is the duty toward the plaintiff that it is alleged the defendant has broken for the ideas of negligence and duty are strictly correlative, and there is no such thing as negligence in the abstract, negligence is simply neglect of some care which we are bound to exercise towards somebody. The common law imposes on the occupier of premises no abstract obligation at all as to the State in which he is to keep them----provided that he carried on no unlawful business and is guilty of no nuisance. In the case of premises that contain an element of danger, a duty arises as soon as there is a probability that people will go upon them: but it is a duty only towards such people as actually do go. It is not a duty in the air, but a duty towards particular people. The occupier is bound to use all reasonable care to prevent such persons from being hurt. It is obvious that this duty must vary according to the character of the danger, and the circumstances under which the premises are to be visited. It differs in the case of hidden dangers, and the case of dangers that are palpable and visible: it may vary according to the age and comprehension of the visitor. In the case of bare licensees, and those who come on the premises on the occupier's business and his invitation. The only obligation on the occupier is to take such precautions as are reasonable in each instance to prevent mischief."
(h) In the case of Collingwood v. Home and Colonial Stores Limited reported in (1936) 3 A.E.R. 200 the plaintiff filed a suit for damages against the defendant. The plaintiff's premises were next to the premises in which a fire started due to some unknown defect in the electrical wiring. The plaintiff's premises were damaged by the water used for extinguishing the fire. It was held by the Court of Appeal that in the absence of any proof of negligence by the defendants in the installation or the maintenance of the electrical wiring, they were not liable in damages to the plaintiff. According to the Court of Appeal the doctrine of Rylands v. Fletcher does not apply to the use of water, gas or electricity for ordinary domestic purposes, which must be distinguished from the handling of them in bulk, in mains or reservoirs.
Lord Wright in his judgment referred to the case of Rickards v. Lothian (1913) A. C. 263, decided by the Privy Council and reproduced extracts from the judgment of Lord Moulton in that case. In that judgment Lord Moulton had observed as follows:--- "It would be wholly unreasonable to hold an occupier responsible for the consequences of such acts which he is powerless to prevent, when the provision of the supply is not only a reasonable act on his part but probably a duty. Such a doctrine would, for example, make a house--holder liable for the consequence of an explosion caused by a burglar breaking into his house during the night and leaving a gas tap open there is, 'in their Lordships' opinion, no support either in reason or authority for any such view of the liability of a landlord or occupier. In having on his premises such means of supply he is only using these premises in an ordinary and proper manner, and although he is bound to exercise all reasonable care, he is not responsible for damage not due to his own default whether that damage be caused by inevitable accident or the wrongful acts of third persons. "
After quoting the above passage from the judgment of Lord Mouiton to Rickards v. Lothian, Lord Wright observed as follows:--- "I think that these words apply precisely to the electric wiring which everybody, almost all people, nowadays have in the houses which they occupy whether for domestic use, or for purposes of trade as the defendants did. There is nothing in the installations of such wiring which, to my mind, brings his case within the principle of Rylands v. Fletcher. It is perfectly true that electricity, like gas and water, may be regarded from the point of view as a dangerous thing, and the principle of Rylands v. Fletcher has been applied to persons who carry, in their property or in their mains, gas, water or electricity. (The Lord Wright refers to certain case). But in all these cases there was nothing comparable to the ordinary domestic installation of electric wiring for the ordinary comfort and convenience of life. In all these cases these dangerous things were being handled in bulk and in large quantities.
There was a carriage or an accumulation of the dangerous things. These cases undoubtedly come within the principle of Rylands v. Fletcher but they seem to me to be very different in principle and in result from the case of the ordinary domestic pipes for gas or water or for wiring electricity. "
(i) In the case of Bolton v. Stone reported in (1951) 1 AER page 1078, the facts were that during a cricket match the batsman hit a ball which struck and injured the plaintiff who was standing on a highway adjoining the cricket ground. The ball was hit out of the ground at a point at which there was a protective fence rising to 17 feet above the cricket pitch. The distance from the batsman to the fence was some 78 yards and that to the place where the plaintiff was hit about 100 yards. The ground had been occupied and used as a cricket ground for about 90 years and there was evidence that on some six occasions in a period of over 30 years a ball had been hit into the highway, but no one had been injured. The plaintiff claimed damages for negligence from the defendants as occupiers of the ground. The House of Lords held that for an act to be negligent there must be, not only a reasonable possibility of its happening but also injury being caused thereby and on the facts of the case the risk of injury to a person on the highway resulting from the hitting of a ball out of the ground was so small that the probability of such an injury would not be anticipated by a reasonable man and, therefore, it was held that the defendants were not liable to the plaintiff.
26. Before dealing with the several cases cited by learned counsel for the defendants, I may again briefly refer to the facts of this accident as they have come on record. It is an admitted position that the deceased lost his life on account of electric shock received by him in the factory of the defendants. I have already held that the death of the deceased was caused during the course of his employment with the defendants. The plaintiffs had alleged in the plaint that two relations -of the deceased had gone to the factory of the defendants at Gharo where they saw the electricity panel-room where the deceased had died of electrocution. It is further alleged in para. 6 of the plaint that the roof of this room was badly leaking due to the rains, its floor was completed wet with water and the walls were so damp that the dampness was apparent to the naked eye. However, in para. 13 of the plaint it has been stated that the plaintiffs were not aware of the actual circumstances under which the deceased met his death but according to the plaintiffs things speak for themselves that the deceased died of electrocution caused due to negligence and/or default on the part of the defendants in wrongfully and not properly maintaining the electric installations at their factory which presumably carried very high voltage of electricity. In the written statement, the cause of death is admitted to be the result of electric shock but it has been denied that the defendants maintained the electric installations wrongly or improperly in their factory. It was also denied that the electrocution was caused due to negligence or default of the defendants.
In para. 13 of the written statements, however, a specific plea is taken by the defendants that the plaintiffs were fully aware of the true and actual circumstances of the death of the deceased, but in the written statement these "true and actual circumstances of the death" are not at all given. It has been further pleaded in para, 16 of the written statement that the deceased was working on the production side of the defendants and had nothing to do with electricity 'or electrical wiring of the factory for which qualified staff was appointed. It has also been pleaded that the said staff was present at the factory on the day the death took place and that the deceased did not have any business to go to the electricity panel room which was separate. It was finally pleaded that the death of the deceased took place on account of his own negligence and on account of deceased's acts of omission and commission for which the defendants are not liable.
27. As already observed no evidence has been led by the defendants, and on behalf of the plaintiffs, only plaintiff No. l has given evidence but as regards the exact circumstances which led to the death of the deceased obviously no evidence could be given by plaintiff No. l as he was not present in the factory at or around the time of the death. It may further be noted that naturally the deceased could not give evidence as he died in the accident. The question which is posed for decision by this Court is that where in such circumstances it is admitted that the death was on account of electrocution in the electricity panel---room of the defendants' factory and no other evidence has been brought on record by either party in relation to the death of the deceased, is it to be presumed that the death was caused on account of negligence on the part of the defendants or is it to be held that as no evidence has been brought on record about the actual circumstances of the death of the deceased by the plaintiffs, the suit against the defendants is liable to be dismissed.
28. In my view answer to the question whether in a particular case the doctrine of res ipsa loquitur applies or not depends upon the nature of the accident and the facts of that case. However, where the facts are known, that is the exact details of how the incident or accident had taken place are known there would be no occasion for application of this principle of res ipsa loquitur. This is so, as in such a case where the exact details are known, the decision would depend on the facts, and on the known facts the Court would decide whether or not the accident has taken place on account of the negligence of the defendant. The occasion for application of this principle of res ipsa loquitur would only rise where the exact details of the accident are unknown or remain unexplained and in such an event the plaintiff might ask the Court that in the absence of the details as to how the accident has taken place, the mere fact of the accident having taken place raises a presumption that the accident had taken place on account of the negligence of the defendant. As has been observed in several judgments referred to above, the decision in such cases depends on whether it is more probable that the accident had taken place on account of the negligence of the defendant rather than for any other cause. It is in the light of these principles that the facts and principles enunciated in the cases cited by the learned counsel for the defendants are to be considered.
29. (a) Eason v. London and North Eastern Railway Company was the case of the child falling through a door in the corridor of the train belonging to the defendant. It was held that the mere fact that the door was open was not by itself prima facie evidence of negligence on the part of the Railway Company. In that case evidence had come on record that there was reasonable inspection by theRailway Company and that the .Door was fitted with a lock of the most modern and approved type which was in perfect working order. The Court came to the conclusion that the door was in a condition which was perfectly safe unless some evil persons interfered with it. It was also held that the doors of a corridor train travelling from one city to another city could not be continuously under the sole control of the railway company. The facts of this case are clearly distinguishable from the facts of the instant case. Firstly in the instant case the place where the death of the deceased took place was within the control of the defendants. They in the instant case no evidence had been led as to the care and caution that had been taken by the defendants. In the case of Eason there was evidence on record which had shown that the defendant-company was not negligent and finally from the evidence that had come on record the probable cause of the opening of the door which led to the unfortunate accident was held not to be negligence of the Railway Company, as it had been shown that they had taken all possible care, but that some evil persons during the journey between two stations must have opened the door leading to the accident.
(b) In the case of Barkway v. South Wales Transport Company Limited, the deceased was a passenger in bus and died as the bus, after the burst tyre fell over an embankment. House of Lords, on the, facts of that case, came to the conclusion that the defendant-company were negligent. As observed earlier, learned counsel has relied upon this judgment for the proposition that where facts were known the rule of res ipsa loquitur will not apply. I am in complete agreement with this principle. In Barkway's case all the relevant facts came on record through evidence led on behalf of the parties and on the facts the House of Lords found the defendant-company to be negligent, In the instant case the details about how the deceased was electrocuted have remained unexplained, whereas in Barkway's case all the facts were known and on those facts the House of Lords was of the view that the principle of res ipsa loquitur was not applicable as the facts were known. As observed earlier, the House of Lords held the defendant to be liable. The principle on which reliance has been placed by counsel for the defendants in Barkway's case is not applicable to the facts of the present case as here the facts are not known.
(c) In the case of Cole v. De Trafford, where the plaintiff, who was a driver, had injured his hand while opening the garrage door, all the facts which led to the accident and resultant injury had been brought on record through evidence by the parties and on such evidence it was found that there was no negligence on the part of the defendant. In that judgment, as observed earlier, Picford, L.J. Had defined the maxim res ipsa loquitur to mean that an accident may by its nature be more consistent with its being caused by negligence for which the defendant is responsible then by other causes and that in such a case the mere fact of the accident is prima facie evidence of such negligence, Pickford, L.J. Has very correctly defined the maxim and I am in agreement with the definition given by the learned Judge. That case is also distinguishable from the instant case as in that case also all the facts were known. I may repeat here that in each case the Court considers the facts and circumstances brought on record and takes a decision on the particular facts and circumstances of that case and, therefore, the decision depends upon the particular facts and circumstances of the case. In a case where the exact details and facts about the accident remain unexplained, the Court has to consider and decide whether the doctrine of res ipsa loquitur would be applicable. If the doctrine does not apply, the burden remains on the plaintiff and as the same is not discharged the Court will decide the case against him. If on the other hand, the Court comes to the conclusion that the principle applies, the burden is on the defendant and on account of his failure to discharge the burden, the defendant will be held liable.
(d) In the case of Basheeran v. Pakistan, decided by our Supreme Court, also the facts were known.
The evidence brought on record had already shown that there was no defect in the ladder and the accident had taken place as the deceased had slipped himself. On the facts which clearly explained the exact reason for the death of the deceased, Supreme Court of Pakistan came to the conclusion that the defendant Railway was not negligent and resultantly not responsible for the accident. That case is also distinguishable as in that case all the facts were known and it was also brought on record through evidence that there was no defect in the ladder and the precise cause of the accident was the slipping of the deceased himself from the ladder.
(c) In the case of Jane Wekelin v. London and South Western Railway Company, the deceased had lost his life apparently on being hit by a train at a road crossing. There was no evidence as to how the accident had actually taken place. The House of Lords held that the Railway Company was not liable. According to Lord Halsbury, the evidence which had come on record furnished no date from which an inference could be reasonably drawn that as a matter of fact that accident had taken place on account of the negligence of the railway company. I would again emphasize the principle that in all such cases where there is no evidence regarding the exact details or facts giving rise to theaccident, the Court has to decide on the material befor it whather or not the principle res ipsa loquitur applies.
(f) In the case of Wing v. London General Omnibus Company, the plaintiff had been injured on account of the bus, in which the plaintiff was travelling, skidding upon a road, the surface of which was greasy from rain. On the facts of that case, the Court of Appeal came to conclusion that the defendant-company was not liable as no evidence had been given about the negligence on the part of any servant of the defendants in the driving of management of the bus or of any defect in the construction or condition of the bus. The case was decided on the particular facts and the there fact of skidding was held not to amount to negligence on the part of the defendant. In my view the facts and decision in the case of Wing do not help the contention of learned counsel for the defendants moreso as all the facts were known in that case.
(g) In the case of Thomas v. Quartermaine also the exact facts leading to the accident were known. The accident had taken place on account of the action of the plaintiff himself. The Court of Appeal in these circumstances decided in favour of the defendant holding that they were not negligent. The fact being known, the case is distinguishable from the instant case. Even otherwise the evidence on record had shown that he accident had taken place on account of the negligence of the injured plaintiff.
(h) The next case relied upon by Mr. Mansoor-ul-Arfin was the, decision of the Court of Appeal in the case of Collingwood v. Home & Colonial Stores Limited. In that case plaintiff's premises, which was next to the premises of the defendant, had been damaged on account of a fire which started in the defendant's premises due to an unknown defect in the electrical wiring. The Court of Appeal decided that, on the facts of that case, the principle of Rylands v. Fletcher did not apply. The Court of Appeal was of the view that the doctrine of Rylands v. Fletcher did not apply to the use of water, gas or electricity for ordinary domestic purpose, which must be distinguished from the handling of them in bulk, in mains or reservoirs. That case is also distinguishable from the instant case as in that case it had been decided that the principle of Rylands v. Fletcher did not apply to use of water, gas or electricity for ordinary domestic purposes, which must be distinguished from the handling of them in bulk, in mains or reservoirs. That case is also distinguishable from the instant case as in that case it had been decided that the principle of Rylands v. Fletcher did not apply to use of water, gas or electricity for ordinary domestic purposes. Rylands v. Fletcher is a rule placing absolute responsibility and lack of negligence on the part of the defendant is no defence, I am of the view that in case of electricity, even for domestic purposes, the occupier is under an obligation to take all necessary steps to ensure that injury is not caused to persons who came to his premises. If any injury is caused and it is shown that injury was caused not due to any negligence on the part of the occupier, the occupier will not be responsible, but, in my view, the occupier is required to show that he was not negligent. The passages from Rylands v. Fletcher of Lord Moulton are to the effect that having electricity in domestic premises in an ordinary and proper use of the premises. However, Lord Moulton has further observed that he is bound to exercise all reasonable care and only if damage has been caused which is not due to his own default, he is not responsible. According to Lord Moulton if the damage is caused by an inevitable accident or the wrongful acts of third persons, the occupier would not be responsible. I take this passage from Lord Moulton's judgment to mean that the occupier of the premises is responsible if he has not taken all the reasonable care and in the case of electricity, the occupier must come forward and give evidence that he had taken all reasonable care to see to it that visitors and other persons coming on his premises are not injured on account of electricity or electric shock.
(i) The last case relied upon by learned counsel for the defendants in this behalf was the case of Bolton v. Stone in which the plaintiff had been injured on the highway on account of being hit by a cricket ball. All the facts we know and had come on record and the House of Lords was of the view that for an act to be negligent there must be not only a reasonable possibility of its happening but also injury being caused thereby and on the facts of that particular case it was held that the risk of injury to a person on the highway resulting from the hitting of a cricket ball out of the ground was so small that the probability of each an injury would not be anticipated by a reasonable man and, therefore, it was held that the defendants were .Not liable. The facts of that case are distinguishable from the instant case. In the case of electricity, the occupier or owner of the premises as a reasonable man has to take great care to ensure that injury is not caused to persons coming on the premises for a lawful purpose. The duty of care is greater as the consequences from a negligent use of electrical installations, fitting and vires is in most cases fatal.
The victim does not usually retain second chance. Death or injury resulting from an electric shock has no relevance to the injury being caused on account of a cricket ball being hit out of the ground and which had taken place only at times during a period of 30 years, as was proved by evidence in the case of Bolton v. Stone. This judgment also is of no help to the learned counsel for the defendant, the additional reason being that the facts were known in that case and on the facts a decision was reached that the defendants were not liable.
30. I may here dispose of an argument raised by Mr. Mansoor Ahmad Khan, learned counsel for the plaintiffs, based on the deposit of Rs.9.000 by the defendant under the Workmen's Compensation Act, 1923 with the Commissioner for Workmen's Compensation, Hyderabad. As observed in para.16 of this judgment, in para. 14 of the written statement filed by the defendant it is stated that the deceased became "entitled" to this amount. According to counsel this fact of deposit of Rs.9,000 counsel with the admission on the defendant proves the case of the plaintiffs that the deceased lost his life on account of the negligence of the defendant. The contention was that this amounted to an acknowledgment of liability. Under the Workmen's Compensation Act, 1923, provisions for liability of the employer for payment of compensation for injuries or death caused to an employee during the course of his employment are incorporated in section 3 thereof. A bare reading of section 3 of the 1923 Act would show that the contention of Mr. Mansoor Ahmad Khan is without any substance. A deposit with the Commissioner for Workmen's Compensation of Compensation for death of an employee by an employer or even an admission by the employer that he is liable to pay compensation on account of the death of an employee under the provisions of the Workman's Compensation Act, would not amount to an acknowledgment by the employer that the death of the employee was caused due to negligence or default of the employer.
31. In the instant case, the exact details or facts regarding the death of the deceased remain unknown. The factory including the electricity panel room where the deceased was electrocuted were, in the control of the defendant company. Neither any plea was taken nor any issue raised that at the time of the accident the premises were not under the control of the defendant. It is not the case of the defendant that the factory premises had been rented to any third party or that its possession or control was with some other party for instance a contractor. For all intents and purposes I will take the factory premises including the electricity panel room at the relevant time to be under the control of the defendant. The argument of learned counsel for the defendants that the electricity panel room of the factory should be considered to be under the control of the deceased at the time of his electrocution is misconceived. Deceased was only an employee of the defendant and his death by electrocution took place in the factory premises during the course of his employment with the defendant. I do not see how, in the circumstances, it should be presumed that the electricity panel room was under the control of the defendant. No basis or foundation has been laid for raising such presumption through evidence.
32. A specific plea was taken in para. 16 of the written statement that the deceased was on the production side of the defendant-company and had nothing to do with electricity or electrical wiring of the factory and the deceased did not have any business to go to the electricity panel room which is separate and that qualified electricity staff was appointed by the defendant and the said staff was present in the factory when the deceased was electrocuted. What were the duties of the deceased, what he could do or what he could not, which area of the factory was out of bounds for the deceased all these facts were within the knowledge of the defendant. None of the plaintiffs could be saddled with such information. They would not be expected to be conversant with the roster of duties of the deceased. In not coming forward and giving evidence about these facts which were within their knowledge and not within the knowledge of the plaintiffs, the Court isentitled to presume that had evidence been given in respect of these matters, the same would have gone against the defendant. I, therefore, have reached the conclusion that the deceased had gone to the electricity panel room of the defendant's factory in connection with the work assigned to him under employment with the defendant.
33. It was contended by Mr. Mansoor-ul-Arfin that this was a case where facts were known or ought to have been within the knowledge of the plaintiffs. Learned counsel very strongly urged that the plaintiffs cannot succeed in this suit as they did not examine Mr. S.H. Sulaiman and Mr. A.A. Hussain who are mentioned in para. 6 of the plaint. Para. 6 of the plaint has been reproduced in para. 3 of this judgment and accordingly to the plaintiffs these two relations of the plaintiffs went to the factory of the defendant and saw the panel room of the factory where the deceased had been electrocated. According to para. 6 of the plaint, the roof of this room was badly leaking due to rains, its floor was completely wet with water, and the walls were so damp that the dampness was apparent to the nacked eye". According to Mr. Arfin, evidence of M/s. S.H. Sulaiman and A.A. Hussain about the facts alleged in para. G of the plaint was available with the plaintiff but the same was not produced and no explanation has been given for its non-production by the plaintiff. In my view the following factors are relevant and require consideration in this regard:---
(i) Apart from para. 6 of the plaint para. 13 is also to be looked into. In para. 13 the plaintiffs say that they are not aware of the actual circumstances under which the deceased met his death but have relied on the maxim res ipsa loquitur. According to me paras. 6 and 13 of the plaint are to be read together.
(ii) Even if the evidence of M/s. S.H. Sulaiman and A.A. Hussain was adduced, it would not have brought on record the exact fact as to how the deceased was electrocuted and this finds support from para. 13 of the plaint according to which the plaintiffs were not aware of the actual circumstances under which the deceased met his death.
(iii) According to the evidence these relations had gone to the factory a few hours after the death of the deceased whereas according to Exh. 11 Staff of the defendant as well as doctor were in the panel room within minutes or even seconds of the electrocution of the deceased. Apart from this, qualified electricity staff of the defendant was on duty and present on the date of the accident (para. 16 of the written statement). This shows that more or less exact or in any case correct information as to how the deceased was electrocuted was available with the defendant.
(iv) Para. 13 of the written statement is very significant inasmuch as it is averred therein by the defendant that the plaintiffs were fully aware of the true and actual circumstances of the death of the deceased. In my view by this averment, considered in the light of the facts mentioned in the previous sub-paragraph, what the defendant is saying is that the true and factual circumstances of the death of the deceased are no secret and they are known to the plaintiffs as those are known to the defendant. The exact facts have, however, not been explained in the written statement and as no evidence was led on behalf of the defendant, the actual circumstances of the death of the deceased, if known to the defendant, were never brought on record.
34. I am, therefore, of the view that failure of the plaintiffs to examine M/s. S.H. Sulaiman and A.A.
Hussain is not fatal to the case of the plaintiffs. At the most the presumption would be that the facts stated in para. 6 of the plaint have not been proved and if they had come in the witness-box their evidence would have gone against the plaintiffs in so far as the allegations in para.6 are concerned. But as observed earlier, better or exact .Information was available with the defendant.
35. Now I come to the most important and crucial point in the case and that is whether in the circumstances and on the admission of the defendant that the deceased died due to electrocution, the case of the plaintiffs that the death was the result of negligence on the part of the defendant stands proved or is that suit to be dismissed on account of the failure on the part of the plaintiffs to lead evidence for proving negligence of the defendant. It is, therefore, to be determined whether the maxim res ipsa loquitur is applicable in the instant case. I may here again refer to the three factors which according to Charlseworth must be present before this rule comes into operation in a particular case and these are:
(i) Happening of an unexplained occurrence;
(ii) occurrence is one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff; and
(iii) the circumstances point to the negligence in question being that of the defendant rather than that of any other person.
This analysis of the rule of res ipsa loquitur has not been challenged by Mr. Mansoor-ul-Arfin. I now proceed to consider whether in the instant case the aforesaid ingredients of the rule are present.
36. (i) The deceased died on account of electrocution. The exact circumstances in which his death took place, however, remain unexplained. I have already observed in para. 33 of this judgment that the contention of Mr. Arfin that the plaintiffs were aware or ought to be aware of the facts and circumstances in which the deceased died could not be substantiated. Admittedly the plaintiffs were not present in the factory premises at or around the time the incident occurred. I have already observed that at the time of the accident, the factory premises including the electricity panel room were under the control of the defendant. The deceased is not available to bring on record the exact facts and circumstances in which he lost his life. In this situation the plaintiffs could not be expected, by any principle of law or evidence, to give or procure evidence on this point. If at all there was any evidence of this occurrence, I am of the view that it would have been available with the defendant and not with the plaintiffs. In para. 33 hereinabove, I have discussed the reasons for my view in this regard. If in fact evidence relating to the exact circumstances in which the deceased met his death was available only with the defendant and they did not come forward to adduce such evidence, the presumption would then have been that had such evidence been given it would have gone against the defendant. It is pertinent to note that on 28-9-1977 an application for adjournment had been filed on behalf of the defendant (C.M.A. 2905 of 1977) on the ground that necessary witnesses were not available at Karachi and on 23-8-1978 a list of three witnesses was filed on behalf of the defendant but no one was examined by the defendant. Suffice it to say that on record the circumstances of the death remain unexplained and the plaintiffs are not to be blamed for this state of affairs.
(ii) As regards the second requirement of the rule of res ipsa loquitur, I may make a mention about the various reported judgments cited by the learned counsel for the defendant. I have already discussed these judgments in sufficient details and commented upon them. As for those cases where the exact facts were known, I have observed earlier, there was no occasion for application of the maxim res ipsa loquitur as this rule applies only when the occurrence is unexplained. Other cases relied upon by learned counsel were distinguishable. It may be pointed out that facts in none of the cases relied upon by Mr. Arfin were on all fours to the facts of the instant case. No doubt principles relating to the applicability or otherwise of the maxim res ipsa loquitur were enunciated in several of these judgments and I found no occasion to differ with any such principle, the decision in the present case depends on the facts of this case and the inferences and. Presumption that arise from the admitted and/or proved facts in the normal and usual course of things. In the present case the admitted fact is that the deceased was electrocuted in the electricity panel room of the factory of the defendant. The exact facts and circumstances of his death remain unexplained. I have already held that the deceased died on duty during the course of his employment with the defendant and that he had not gone to the electricity panel room unlawfully or in contravention of any instructions but had gone there in connection with the work assigned to him under employment with the defendant. The area ruled by unexplained facts and circumstances in the present case is, therefore, very small. The precise point that is to be determined is whether in the ordinary course of things death took place---
(a) on account of suicide committed by the deceased by intentionally touching any live wire or by poking his finger in any electrical gadget in the electricity panel room; or
(b) on account of negligence of the deceased; or
(c) the death occurred on account of negligence on the part of somebody else.
It is not necessary to dilate on the first possibility. There is nothing on record to indicate that the deceased had any suicidal tendencies. Unless there is evidence to the contrary, a person would not commit suicide. As regards the happening of the second possibility, the matter has to be seen and considered from different angles. It is an admitted position that the deceased was an engineer and had been working in the defendant factory for several years. During his several years of service, it can safely be presumed, he must have visited the electricity panel room on several occasions. In the face of these admitted facts can it be said that the deceased was electrocuted because of his own negligence? In my view it is more probable that the deceased was electrocuted not on account of his own negligence but as a result of a short-circuit or some defect in the wiring or in the electrical installations and gadgets in the electricity panel room. In the absence of evidence that all reasonable care had been taken for properly keeping and maintaining the electrical installations and gadgets and wiring in the electricity room, the view that I have taken is in consonance with normal course of things. In his case no evidence was led by the defendant and as such there is no evidence as to the State of affairs inside the electricity panel room. The deceased cannot be blamed for any defect or any thing wrong with the wiring or electrical installations and gadgets in the electricity panel room as he was neither incharge of this room nor a member of the electricity staff of the defendant. As per the written statement of the defendant there was separate qualified electricity staff of the defendant.
(iii) The third requirement of the rule of res ipsa loquitur is that circumstances point to the negligence being that of the defendant rather than that of any other person. The factory premises including the electricity panel room were in control of the defendant at the relevant time. In view of my finding that the second requirement of the rule of res ipsa loquitur had been met and the factory being under the control of the defendant, the inescapable conclusion is that the accident was on account of the negligence of the defendant.
37. I have accordingly reached the conclusion that on the facts of this case with the admitted position that death took place in the factory premises of the defendant due to electrocution, the rule of res ipsa loquitur came into play shifting the burden of proving that there was no negligence on their part on the defendant. Defendant having led no evidence thereby not discharging the onus of proof, I hold that the death due to electrocution of the deceased was caused on account of the negligence on the part of the defendant. Issue No.5 is answered accordingly.
38. ISSUE No.6: "Are the plaintiffs or any of them entitled on any decree?"
On this issue the contention of Mr. Mansoorul Arfin learned counsel for the defendant, was that there was no evidence on record to show that the deceased was spending any amount out of his salary on plaintiff No.3, the widow, and resultantly no financial loss has been caused to plaintiff No.3 on account of the death of the deceased. According to learned counsel, in the absence of evidence that the plaintiff No.3 has been deprived of any financial benefit on account of the death of the deceased, the Court will not grant any compensation to her. In this context and as regards the basis for calculation of compensation, learned counsel has referred to the following judgments of the superior Courts of our country:
(a) PLD 1960 Kar. 785.
(b) PLD 1969 SC 565.
(c) PLD 1966 Kar. 567.
(d) PLD 1963 Kar. 841.
(e) PLD 1959 Kar. 550.
(a) In the case of Bashir Begum v. Muhammad A.I Premji reported in PLD 1960 Kar. 785, while discussing question regarding the basis on which the beneficiaries of the deceased should be compensated, Waheeduddin, J. Had to say:--- "There are certain broad general principles to determine the amount claimed the chief amongst them being the loss of reasonable pecuniary benefit to the beneficiaries. This can be determined by taking into consideration the following facts:---
(1) The not annual income of the deceased and what was the future prospectus in respect of earning.
(2) Whether the claimants have gained financially in the death?
(3) The expected amount of maintenance of the deceased?
(4) What was the expected life of the deceased and the present worth of the receiving amount lost to the beneficiaries."
(b) In the case of Manmatha Nath Kuri v. Muhammad Mukhlesur Rehman PLD 1969 SC 565 the Supreme Court while discussing the principles to be kept in mind by the Courts in connection with assessm ent of damages in fatal accident cases, observed as under:--- "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 the death of a husband, wife, parent or child.
No definite or 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 and children may recover for the loss of education, comfort and position in society which they would have enjoyed if the father have lived and maintained the income which died with him. The basis of the assessment is not the assistance which the deceased might probably had given had he continued to live."
(c) The next case referred by learned counsel for the defendant is a Division Bench judgment of the High Court of West Pakistan (Karachi Bench) in the case of Federation of Pakistan v. Bibi Shazadi reported in PLD 1965 Kar. 567. In his judgment Kadir Nawaz S. Awan, J. Had observed that it is for a plaintiff to adduce evidence affording reasonable basis for the ascertainment of pecuniary loss inflicted and that the principle in each case is whether the damages claimed are the natural and reasonable result of the defendant's act. While on this point the learned Judge further observed that the damages must be fixed solely with reference to the pecuniary loss sustained by the relatives of the deceased in respect of financial contribution or in respect of reasonable expectation of future pecuniary benefit from the deceased.
(d) In the case of Nusrat A.I v. U.K. Construction Co. Reported in PLD 1963 Kar. 841, A.R. Kharal, J.
Observed that under section 1 of the Fatal Accidents Act, 1855, it is the loss resulting from the death caused on account of wrongful act of the defendants to the beneficiaries and for which damages, limited by directions of the section, are to be given.
(e) In the case of Iftikhar Hussain v Karachi Electric Supply Corporation Limited PLD 1959 Kar. 550 Qadeeruddin, J. Referring to the principles for assessment of damages under section 1 of the Fatal Accidents Act, 1855, had observed that damages can be awarded only to those beneficiaries who have suffered pecuniary loss. He further observed that such loss is not confined to the provision of necessities of life and that the Court will also take into consideration chances of increase in income of deceased which according to the learned Judge is an important part of the beneficiaries expectations.
39. There is consensus of authority on the principles that for a beneficiary to become entitled to compensation under section 1 of the Fatal Accidents Act, 1855, there must be evidence of reasonable expectation of pecuniary benefit or advantage and not of a mere speculative possibility. In the absence of such evidence of reasonable expectation of pecuniary benefit or advantage, the Court will reject the claim for compensation. Further, the extent of the compensation will be restricted to the financial damages suffered by the concerned beneficiary.
However, to employ the words of the Supreme Court of Pakistan PLD 1969 SC 565 at 586, assessm ent of damages in fatal accident claims must necessarily be to some extent of a rough and approximate nature based more or less on guess--work. As regards the general principles for determining the amount of compensation four factors which require consideration have been specified by Waheeduddin, J. In PLD 1960 Kar. 785 and this judgment was relied upon by Fakhruddin G. Ebrahim, J. In his judgment in the case of Qudsia Begum v. Younus Khan, reported in PLD 1973 Kar. 636. I am in respectful agreement with the broad principles laid down by Waheeduddin, J. And apply the same in determining the compensation in the present case.
40. In view of my finding on Issue No.3, plaintiffs Nos. 1 and 2 are not entitled to any compensation as they have not suffered any pecuniary loss on account of the death of their son. The only question which remains to be determined under this issue, therefore, is whether in fact any financial loss has been caused to plaintiff No.3 and if so, to how much compensation is she entitled. According to Mr. Mansoor-ul-Arfin neither plaintiff No.3 took the witness stand nor is there any evidence on record of any financial loss to the widow. The present case is distinguishable from usual cases that are filed under section 1 of the Fatal Accidents Act, 1855. In the instant case the deceased was married to the plaintiff No.3 on 22-8-1970 and he died on 9-9-1970 i.e. The married life of plaintiff No.3 lasted only 17 days. It would be asking too much to expect plaintiff No.3 to give evidence about how much of the salary the deceased was spending on her when her total life as a wife of the deceased was 17 days. It has been proved by the evidence of plaintiff No. l that the deceased was married to the plaintiff No.3 on 22-8-1970. Address of all the plaintiffs in the plaint is the same. Parents were living with the deceased. After marriage the presumption is that plaintiff No.3 also started living with the deceased. There cannot be a presumption to the contrary. While discussing Issue No.3 I had referred to para. 9 of the written statement where the defendant has taken the stand that plaintiffs Nos.1 and 2 were not dependent on the deceased. It was never the case of the defendant that the plaintiff No.3 was also not dependent on the deceased. Plaintiff No.3 as wife of the deceased was dependent on the deceased and as such she is entitled to claim compensation under section 1 of the Fatal Accidents Act, 1855.
41. The next point requiring determination is the quantum of loss. In my findings on Issue No.3 I found that the deceased was not supporting his parents. As a result his entire salary was available to him. As a husband it was not only his moral but also his legal duty to maintain his wife. His salary at the time of his death was Rs.613 per month. There is no evidence that plaintiff No.3 gained financially on account of the death of her husband. On the contrary she has been deprived of the financial support and pecuniary benefits which she was to get throughout her married life from the deceased. Keeping in view the chances of increase in his emoluments in future as it can be reasonably expected that the salary of the deceased would have increased and other relevant factors, I consider that on an average plaintiff No.3 could reasonably expect a sum of Rs.300 per month from the deceased. Mr. Mansoor-ul-Arfin had contended that the widow, plaintiff No.3, was only 17 years of age at the time of death of the deceased and, while estimating that he reasonably expected that the salary of the deceased would have increased and other relevant factors, 1 consider that on an average plaintiff No.3 could reasonably expect a sum of Rs.300 per month from the deceased. Mr. Mansoor-ur-Arfin had contended that the widow, plaintiff No.3, was only 17 years of age at the time of death of the deceased and, while estimating the compensation chances of her remarriage have also to be kept under consideration so also the probability that she could start earning herself, As regards the remarriage no evidence has come on record that she has remarried and in my view, unless there is evidence on record that she has in fact remarried or that she was intending a second marriage, such consideration is not relevant As regards the probability that she may have or would in future start earning herself. I am again of the view that this probable factor is also irrelevant as even in such a situation plaintiff No.3 could reasonably expect regular financial support from her husband. In any case I have taken a conservative figure of Rs.300 per month.
42.I have taken the age of plaintiff No.3 as 17 years at the time of the death of the deceased, as mentioned by learned counsel for the defendant. I have already held the normal span of life of the deceased to be 60 years and calculated at the rate of Rs.300 per month the total compensation for 30 years i.e. The remaining period of the expected life span of the deceased, works out to Rs.1,08,000 to which plaintiff No.3 is entitled. The claim of Rs.25,000 for consortium for plaintiff No. 3 is rejected for which no foundation was laid.
43. I accordingly pass a decree in the sum of Rs.1,08,000 in favour of plaintiff No.3 against the defendant with proportionate costs. Suit of plaintiffs Nos. l and 2 is dismissed.