1. This suit for recovery of Rs,8,50,000 under the Fatal Accident Act arises from the unfortunate demise of a three years' old child Naeemuddin, who was the son of the plaintiff. The said demise, according to the plaintiff, occurred on account of deceased Naeemuddin falling into an uncovered manhole required to be maintained by the defendant No,1 in the area of Metrovelle I. It is contended that the defendant No,2 were required to take adequate measures for fencing and covering the manholes and on account of their failure to do so are liable to compensate the plaintiff, his wife Bibi Razia and his parents Qiyamuddin and Bibi Hajra.
2. The defendant No,2 filed a written statement denying the allegation that the child died on account of falling in the manhole. It is admitted that the said defendant is responsible to keep manholes of underground drainage safely closed, fenced and covered throughout Karachi. It is, nevertheless, contended that all the manholes are being properly covered and whenever there has been a complaint of theft or removal of manhole cover, it is promptly attended. Moreover, it is alleged that in any event the parents of such a small child are required to take active care and should not expose the child to situations which could lead to such unfortunate incidents. Therefore, the plaintiff having himself has contributed to the unfortunate occurrence and is not entitled to compensation. Upon the pleadings of the parties the following issues proposed by the defendants were adopted:--
(1) Whether the suit as framed is maintainable in law?
2. (2)Whether the plaintiff and other person's named in para. 1 of the plaint are the legal heirs of the deceased Muhammad Naeemuddin?
3. (3)Whether deceased Muhammad Naeemuddin actually died on to falling in the open manhole on 10-9-1988?
4. (4)Whether the death of deceased Muhammad Naeemuddin was reported to the area Police Station?
5. (5)Whether the K.W. & S.B. or the parents of deceased Muhammad Naeemuddin are responsible for his alleged death?
6. (6)Whether the plaintiff maintains any workshop as alleged.
7. (7)Whether the compensation claimed is not frivolous, exaggerated and over-estimated?
8. (8)Whether any cause of action has accrued to the plaintiff for filing the above suit?
9. (9)What should the decree be?
3. The plaintiff and his father Qiamuddin gave evidence through affidavits and were duly cross- examined by the learned counsel for the defendants Nos. 1 and 2. The defendant examined one Khaliqur Rehman, the then Executive Engineer of the defendant No,2 serving in the area of the accident and was cross-examined. This witness also produced the Register containing complaints in the area and the relevant photo copy of the relevant extract, after examining the original, was brought on record as Exh.6/1. Having gone through the evidence and the record and heard the arguments of Mr. Nasir Maqsood on behalf of the plaintiff and Mr. Muhammad Yousha Rizvi on behalf of defendant No,2 I produced to record my findings on each of the issues: ISSUE NO.1.
4. The plaintiff claims to have filed this suit in a representative capacity on behalf of and for the benefit of the mother and the grandparents of the deceased child. However, the procedure laid down by Order 1, Rule 8, C.P.C., does not appear to have been followed. Therefore, while there could be no dispute as to the plaintiff's own right I was doubtful whether he could pursue the claim on behalf of other beneficiaries, namely, the mother, and grandparents of the child. Nevertheless, learned counsel has pointed out that the special provision of section 1 of the Fatal Accidents Act, clearly provides that every suit brought by and in the name of the representative of the person deceased shall be for the benefit of his wife, husband, parents and child. As such no objection can be taken to the maintainability of the suit.
10. ISSUE NO.2.
5. By this issue the plaintiff has reiterated the contents of para. 1 of the plaint in his affidavit-in- evidence and has neither been cross-examined by the defendants nor has any evidence in rebuttal adduced. As such this issue is decided in negative.
11. ISSUE NO.3.
6. On this issue the plaintiffs father Qiamuddin has given an eye-witness account of the incident.
12. He has stated that on 10-9-1988 at about 10-00 a.m. while he was standing in the gallery of his house, he personally saw the child Naeemuddin fell into the open gutter, which is at a distance of a few feet from his house. He has stated that it took him a minute and a half to reach the spot, but that was also too late. The gutter was full of water. It was about six feet deep. Nobody from the locality was present. By the time the child was pulled out he was already dead. He was not taken to hospital and as such no postmortem was conducted. When people from the locality learnt about the incident, they expressed their fury over the negligence of the defendant. In the evening representatives from the Metrovelle Welfare Society approached him. Thereafter, a meeting was held condoling the death and condemning negligence of the defendant. The following day a Press release issued by the office-bearers of the Welfare Society and Leaders of other Social Organization was published in the Daily Newspapers. This witness has also produced clippings from ,Daily Jang, Aman and Hurriat regarding the Press Releases Exh.5/2. The tex of the Press Release is produced as Exh.5/3. The plaintiff himself has stated that he received information about his son's death at 10-00 a.m. and reached his house at 10-45 a.m. The workshop where the plaintiff runs his business is at about 6/7 miles from his house. He admitted that no F.I.R., regarding the incident was lodged. He has further stated that the manhole had remained open for quite sometime and he had approached the authorities of the defendant No,2 many times for redress.
13. The information about the manhole was also given by his father and other residents of the locality.
14. He, however, admitted that no complaint in writing was made by him.
7. The defendant's witness Khaliqur Rehman has also stated "I am personally in knowledge of the fact which I received on the next date of the incident that one boy had fallen down in the manhole.
15. One Saghir Hussain, Assistant Engineer, who has since retired had informed me about this incident".
16. This witness has himself stated that he was informed by his Assistant Engineer Saghir Hussain on the next day of the incident that a boy had fallen down in the manhole. After the incident he visited the site alongwith the concerned staff and found that manhole to be duly covered. He further stated that he had also visited the site 2 - 3 days prior to the incident and had found the manhole to be covered. He produced extracts from the complaint Register, relating to such manholes for the period between 26-8-1988 to 27-9-1988. The extract seems to show that no complaint in respect of the manhole in front of the house of the plaintiff was entered in the complaint.
8. Indeed the case set up by the defendant is that the manhole in question was duly covered. In the first instance it may be observed that the duty to keep manholes covered is required to be performed by the defendant No,2 in the interest of public safety irrespective of any complaint being lodged. Moreover, the relevant extracts themselves show that on an average about 10 complaints were being registered every working day. It cannot, therefore, be assumed that the defendants were performing such a sensitive duty with any amount of efficiency. Furthermore,, the remarks column in the Register shows that some of the complaints were not attended. At the same time it appears that the complaints were not registered every day. For instance seven complaints appeared to be registered on 26-8-1988. There is no complaint on the following day and 13 complaints were registered on 28-8-1988 out of which two were not attended. Again there is a gap of five days whereafter 10 complaints are registered on 3rd September, 1988 and another 10 On 4- 9-1988. On the last page produced as Exh.6/4 a direction has been recorded addressed to Mr. Saghir Hussain to provide 15 manholes covers at the site office. All these facts point out that leaving manholes uncovered was a normal incident of the defendants' performance. The fact that a complaint in respect of the manholes in front of the plaintiffs house was not registered or that it was found covered after such a tragedy had taken place, therefore, is of no consequence. On behalf of the plaintiff clear and precised evidence regarding the death of the child has been tendered which has not been shaken in cross-examination. The defendants had not led any evidence to show that such death occurred due to any other reason, but have taken a general stand to the effect that manholes are properly covered and hence the plaintiff's version is not probable. However, the extract from the Register produced on their behalf themselves indicate that such manholes are quite frequently found uncovered and in the circumstances much importance cannot be attached to the fact that a complaint about this particular manholes was not made or registered. In the circumstances the issue is decided in the affirmative.
17. ISSUE NO.4.
18. 9.The plaintiff has himself admitted that the death was not reported to the police as such the issue is decided in the negative.
19. ISSUE NO.5.
20. 10.The defendants have alleged that the unfortunate accident took place on account of the negligence of the plaintiff and his family members rather than the defendants. It is indeed true that the parents or guardians of a three year's old child are expected to be vigilant and attempt to ensure that the child does not leave the house by himself. This by itself however, does not absolve the defendant from performing their obligation to keep all manholes duly covered and this responsibility has been acknowledged by the defendants in their written statement as well. Mr. Nasir Maqsood, learned counsel for the plaintiff relied upon a recent judgment of this Court in the case of Muhammad Moosa v. K.W. & S.B. (1997 CLC 925). In the aforesaid case in most identical circumstances, where a three year's old girt died by falling into an uncovered manhole, my learned brother Rana Bhagwandas, J. was pleased to reject the defence of contributory negligence of the part of the plaintiff and proceeded to hold that the defendant were solely liable for the consequences of such accident. I am not pursuaded to take a different view and am also inclined to think even where an adult is exposed the same risk in case manholes are left uncovered that the deceased was a three year's old child might be of little consequence. In any event the fact that the manhole was only at a distance of about six feet from the plaintiff's house and the child was being watched by his grand-father at the time of incident negates the defence of contributory negligence. I would, therefore, held that the defendants are responsible for the death.
21. ISSUE NO.6.
22. 11.The plaintiff and his father Qaimuddin have categorically stated in evidence that the plaintiff maintains motor mechanic workshop. The defendants have not led any evidence in rebuttal nor has any attempt been made to shake the plaintiff's evidence on this score in cross-examination. It must, therefore, be answered in the affirmative. I may, nevertheless, add that since the plaintiff has only claimed that the deceased was expected to earn about Rs,3,000 per month and since such an amount keeping in view the present value of money and wage rate, can be reasonably expected to be earned by a person following any vocation, a finding on this issue either was in insignificant.
23. ISSUE NO.7.
24. 12.Under this issue I propose to discuss and decide the amount of compensation that the plaintiff must be entitled to claim. The plaintiff has claimed a total amount of Rs,8,50,000. In the plaint it is alleged that the deceased was expected to live upto the age of 75 years. The plaintiff intended him to join the plaintiff's workshop at the age of 10 years, where he could assist his father in doing owned job of the monetary worth of Rs,400 to Rs,500 per month. At the age of 17 years, after learning the work in automechanic with an earning capacity of Rs,1,000 to Rs,1,500 per month. Soon thereafter he could establish his own workshop and earned Rs,4,000 to Rs,5,000 monthly.
25. Furthermore, at the age of 10 years he was also expected to perform domestic work of the monthly value of Rs,2,500. Mr. Syed Muhammad Yousha Rizvi, learned counsel for the defendant, on the other hand, only contended that it was impossible to predict the time of demise of the child and the entire claim of compensation was purely conjecture and ought to be rejected in toto. This contention was put across quite seriously.
13. Indeed the question of life and death as well as shape of things to come are entirely in the hands of Almighty Allah and it is impossible to predict how long a person can live or for that how much would he earn and who would benefit from his earnings. Nevertheless Courts of law have laid down certain clear principle upon which compensation for actionable wrongs like the present one are awarded while a great deal of discretion is available such discretion, like all judicial discretions are required to be exciseable upon the settled principles. I therefore, directed Mr. Nasir Maqsood to prepare a calculation sheet to show that the amount claimed by the plaintiff could be awarded in accordance with the principles laid down by Courts in similar cases, learned counsel placed reliance on judgment of this Court in the case of Dost Muhammad v. Pakistan Steel Mill Ltd. (1996 CLC 530) and in accordance with the principles laid down by G.H. Malik, J. (as his Lordship then was) work-out the compensation payable, as follows:-- QUANTUM OF DAMAGES: (i)Average Life span in Pakistan: 70 years (ii)The deceased was aged 3 years and was expected to learn automechanic work with his father as he was also a Auto-Machanic and as such could have learned by assisting his father from the age of 10 years and by the age of 18 years he could have become perfect Auto-Mechanic.
26. (iii)At the age of 18 years he could have started earning sum of Rs,3,000 per month which is the minimum earning capacity of a skilled worker in Pakistan and as such can be considered for the purpose of assessm ent of damages.
27. (iv)Annual income per year comes to Rs,3000 x 12 at the age of 18 years. Rs,36,000 (v)Since the mother was aged 20 years, while claiming loss of pecuniary benefit, her age being lesser will be considered and as such 70,- 20 will be the years for determining the compensation.
28. (70 - 20 years) = 50 years (vi)Since the deceased was aged 3 years and he was expected to earn at the age of 18 years, 15 years will be deducted from the 50 years to find the period for the purpose of assessment of damages (50 - 15): 35 years
(vii) Thus (35 x 36000) will give an amount of gross loss of pecuniary benefits:Rs,12,60,000
(viii) 20% increments at the rate of 20% per annum will also be added to comprehend the advancement in the life: Rs,2,52,000 Total: (vii + viii) 15,12,000 Deductions: LESS: (a)A sum of Rs,1/3rd will be deducted from the above amount on account of personal expenses (15,12000 -3) = Rs,5,04,000 (b)A sum of Rs,6000 per year i,e, Rs,500 per month for 15 years on account of up-keep of the deceased till he starts earning will also be deducted (Rs,6000 x 15):Rs 90.000 (c)Net loss of pecuniary benefits will be obtained by deducting both deduction of personal expenses and his up-keep from the total amount vide (a & b). So, it comes to (5,04,000 + 90,000) = 5,94,000 (Rs,15,12,000 - 5,94,000) Rs, 9, 18,000 But the amount claimed is only.Rs, 8, 50,000 14.In view of the principle laid down by G.H. Malik, J. in Dost Muhammad's case and having verified that the calculation presented is in accordance with such principle, I do not find the claim of Rs,8,50,000 to be exaggerated. The defendants have also been unable to prove contributory negligence on the part of the plaintiff for mitigating, quantum of damages/compensation.
29. Accordingly this issue is decided in the negative.
30. ISSUE NO.8.
31. 15.No argument was addressed on the question that no cause of action had arisen to the plaintiff, therefore, I treat this issue as having been dropped.
32. Before concluding, however, I may add that at the stage of final arguments Mr. Muhammad Yousha Rizvi raised question that the defendant No,2 is not responsible for providing drainage and sewerage facilities in the SITE area. Mr. Nasir Maqsood contended that responsibility for rendering such services had already been admitted in the written statement and in evidence and the defendants could not take such a plea at such belated stage, nevertheless, keeping in view the principle that a pure question of law may be raised at any stage, I granted Mr. Rizvi an opportunity to place before the Court any documents of which judicial notice could be taken to show that as a matter of law the responsibility for providing such services in the area in question did not devolve on the defendant No,2 but on some other agency. The following day, however; Mr. Rizvi was unable to place any such Notification or legal instrument but placed before me a booklet prepared by the Chief Engineer Sewerage of defendant No, 2 on the occasion of Golden Jubilee celebration of Pakistan. At page 57 of the said booklet, SITE has been described as one of the areas the sewerage system whereon is not under defendant No,2. The aforesaid document, however, is not one of which judicial notice can be taken under Article 89 of the Qanoon-e-Shahadat Order. Moreover, an employee of the defendant No,2 who brought this document explained that while no services were being provided by defendant No,2 in the Industrial Area of SITE, such services were being also rendered in the residential area Metrovelle falling within the jurisdiction of SITE Police Station. In view of the above the question raised by Mr. Rizvi looses significance. For the foregoing reasons the suit is decreed in the amount of Rs,8,50,000 with 14% mark-up from the date of decree till the final payment is made and costs.