1. ' This is a suit for recovery of Rs,32,58,000 filed under the Fatal Accidents Act, by the plaintiff who are parents of the deceased Muhammad Mazhar Hani who died on 25-5-1989 within the premises of the defendants.
1. The facts as disclosed in the plaint are that the plaintiffs are the parents of deceased Muhammad Mazhar Hani. He was the eldest son of the plaintiffs having been born on 25-3-1964 at Sukkur. That the deceased Muhammad Mazhar Hani was employed as a 5th Engineer at M. V.
2. Hunza of P.N.S.C. And on 25-5-1989 he had gone to his P.N.S.C. Office and thereafter, he went to port area at East Wharf. It is alleged that while the deceased was crossing the Railway Line near the berth of M. V. Islamabad, all of sudden the shunting of wagon started without warning and his chest was pressed between the shock buffers of the railway wagons. The deceased was thereafter taken to hospital where he died.
2. It is further alleged that at the relevant time neither the defendants nor the Pakistan Railway had any arrangement for maintaining precaution as required at the time of shunting of the wagons.. It is further alleged that the shunting of wagons was being carried out exclusively by the employees of the defendants namely Abdul Qadir s/o Abdul Ghafoor a driver of the Fleet Section of Traffic Department of defendants. He was operating a tractor for touching for the Railway wagons and according to him, he on the verbal signals of cargo-men of defendants, namely Ahmed and Muhammad, had started the shunting but as a matter of fact no precautionary measures were taken, though such operations required adequate caution as is done by the Railways. The death of Muhammad Mazhar Hani the son of the plaintiffs was wholly attributable to the negligence of the defendant in taking (1) adequate precautions and (2) their total failure to ensure safety measures at the time of shunting of wagons.
3. The defendants filed written statement in which the death of Muhammad Mazhar Hani in the accident is not denied. They admitted the collision in which the deceased and the wagon was involved but regarding the death of deceased Mazhar Hani they put forward their own version of the accident attributing contributory negligence on the part of the deceased. The defendants have further pleaded that they acted in obedience to the working rules and have adopted all precautionary measures required before and during the shunting of wagons.
4. Out of the pleading of the parties, the following issues were framed:
(1) Whether death of deceased Muhammad Mazhar M. Hani on 25-5-1989 at railway crossing near berth No,10 took place due to wrongful act, default and negligence of Abdul Qadir, driver, of Fleet Section of Traffic Department of defendant, Trustees of the Port of Karachi in shunting of the wagons without warning and without taking precautionary measures, with the result that chest of the deceased was pressed between the shock buffers of the railway wagons?
(2) Whether the defendants and their employees did not take adequate precaution, at the time of shunting of the railway wagons, to prevent any mishap to the passersby and to the crew and personnel of the ships?
(3) Whether death of Muhammad Mazhar M. Hani was wholly attributable to negligence of the defendants in taking adequate precautions?
(4) Whether deceased Muhammad Mazhar M. Hani was drawing a salary of Rs,5,537 per month at the time of his death?
(5) Whether income of the deceased would have increased from time to time as incorporated in paras. 14 and 15 of the plaint?
(6) What was the life span in family of the deceased?
(7) Whether the plaintiffs are entitled to get from the defendants a compensation amounting to Rs,32,58,000 with cost and interest as prayed, in view of circumstances leading to death of deceased?
(8) What would the decree be?
3. ' I have heard both the learned counsel for the parties.
4. The plaintiffs in this case have examined P.W.1 (plaintiff) Muhammad Athar P.W.2 Mussali Khan, P.W.3, Muhammad Naseem Khan P.W.4 Sadiq Raza Rizvi and the defendants examined D.W.1, Muhammad S.H., D.W.2, Abdul Qadir, D.W.3, Ahmed Z. D.W.4, Haroon and D.W.5 Mudabbir.
5. ' Issues Nos.1, 2 and 3 can be taken up together as they pertain to the aspect of the negligence and rest of the issues can be dealt together which involved the quantum of damages. Mr. Nasir Maqsood argued that while admitting the accident, the defendants have put forward their own version of accident. According to him it is settled principle of law that in the fatal accident case if the factum of accident is admitted, the presumption of negligence arises and the burden shifts on the defendants to disprove negligence and to further prove that they had taken complete care and precautionary measures to avoid any mishap. He further submitted that when the defendants put their own version of accident, the defendants take upon themselves, the burden to prove their version and if they fail to persuade the Court about their version, the version of the plaintiff will be believed and in this situation the defendants Will have to show that they had taken enough precaution and it was only the negligence of deceased which had given rise to the injuries complained of. Considering the arguments pleadings and the evidence on record the plaintiffs have proved the accident by oral evidence as well as by documentary evidence and moreso the factum of accident is admitted by the defendants. In this connection there is evidence of P.W.11 Musalli Khan who was an eye-witness who said in the examination-inchief that "there was no warning of any sort before the tractor shunted the wagons. There was no one from K.P.T. To control pedestrian traffic in order to avoid such accidents". This wirness could not be shaken in cross- examination by the defendants in any manner whatsoever and that the presence of this witness on the scene of occurrence was not disputed in any manner and as such the evidence of the plaintiff corroborated by the evidence of eye-witness proves beyond doubt that accident had taken place on account of lack of precaution and proper maintenance while shunting the Railway wagons.
6. ' The relevant case on the point is 1995 M LD 633 (Mst. Sakina and 3 others v. M/s. National Logistic Cell). In this case it has been held that: "In this case when the defendant has given a different version of the manner in which the accident is said to have happened, then the burden would lie on the defendants to prove their version. In these circumstances, the version of the plaintiffs would be accepted as the true version."
7. ' The other case is 1989 CLC 2153 (Messrs Hayat Services (Pakistan) Limited v. Kandan).
8. "The principle laid down in this case is that factum of death during course of employment admitted by employer but different version of the incident causing death stated by the employer. Where death or incident was not denied but the manner and the accident which had caused death was differently stated then if such allegations, constitute facts which were exclusively within the knowledge and possession of the employer, then even if the version alleged by plaintiff was found to be weak or incorrect employer was bound to prove his averment---Deceased having died within the premises of employer's establishment while on duty, facts of deceased's death being within the exclusive knowledge of employer, burden was entirely upon him to establish and reveal those facts."
9. That the P.W. No,1 Muhammad Athar Hussain has produced the report of the enquiry conducted by the Assistant Commissioner and S.D.M., Harbour Karachi, this report supports the version of the plaintiff, the relevant paragraph of this report is as under: "This Court is of the opinion that the accidental death of Muhammad Mazhar M. Hani is due to the negligence of the shunter Abdul Qadir s/o Abdul Ghafoor who is the employee of the K.P.T. In the Traffic Department. It is, therefore, the K.P.T. Is legally bound to pay the damages/compensation otherwise face the legal trial."
10. ' Further as already pointed out, the evidence of P.W.2. Musalli Khan reflects the correct version of the accident, who in his evidence said that the 5th Engineer had come down from the ship. Some railway wagons were standing on the railway track just in front of the ship. Just as the Fifth Engineer was crossing through the railway track between the wagons, a tractor shunted the wagon and as a result of which the wagons closed in and the Fifth Engineer was squeezed between the two wagons. At that time he was standing on the gangway of the ship. On seeing the Fifth Engineer having been squeezed between two wagons, he raised cries. There was no warning of any sort before the tractor shunted the wagons. There was no one from the K.P.T. To control the padestrian traffic in order to avoid accidents. There is no overhead bridge to cross over the railway track. In cross-examination this witness stated that he was on duty on the gangway at that time. He further stated that it is normal for everybody to go from the ships to the other side of the railway track by crossing the railway track. In cross-examination no question was put to this eye-witness to belie his statement that: "There was no one from the K.P.T. To control the padestrian traffic in order to avoid such accidents.
11. There was no warning of any sort before the tractor shunted the wagon."
12. ' From the side of the defendant, no eye-witness has been examined. D.W.1 Muhammad S.H. In his examination-in-chief said that at that time he also warned the people around the area by shouting and he also used to blow a whistle, if necessary, so that the people may take note of the shunting vehicles.
13. ' This witness did not say that at the relevant time, he blew the whistle. Further, in cross he said that there were a lot of public men in the area besides the employees of K.P.T. ' ln this situation, if for a moment, it is presumed that this witness had warned the people by shouting then the "shouting" of one person by mouth will not amount to providing sufficient safeguard to the people present around the area.
14. ' Mr. Jawaid Farooqui, the learned counsel appearing for the defendants argued that in the written- statement the plea of contributory negligence has not been taken by the defendants but the plea of negligence on the part of the deceased has been taken, therefore, the burden was upon the plaintiff to prove their case. He argued that the deceased was negligent. He argued that as soon as the shunting started, the deceased tried to cross the railway line. He argued that the defendants were not negligent as such no damages are to be paid by them. He further argued, that the enquiry report is not hiding and the same cannot be considered. He cited unreported judgment in Suit No,525 of 1989 (Muhammad Mossa v. Karachi Water and Sewerage Board and another) and Suit No,687 of 1988 (Gulab v. Karachi Port Trust and others). The facts of these cases are different from the facts of the present case.
15. ' In this case, the defendants have given a different version of the accident that the deceased tried to cross the railway line, while the shunting had started. Firstly, no witness of the defendant has supported this version in evidence. None of the witnesses of the defendants was an eye-witness.
16. The version of the accident given by P.W.2 Musalli Khan is to be accepted, as he was a natural witness and was on duty at the relevant time.
17. ' In the case reported in 1995 M LD 633 (Mst. Sakina and others v. M/s. National Logestic Cell), it has been held that if the defendant has given a different version of the manner in which the accident is said to have happened, then the burden would lie on the defendants to prove their version.
18. In the present case, the defendant has not proved that the deceased tried to cross the Railway track when shunting had started. In these circumstances, the version of the accident pleaded by the plaintiff would be accepted as true version. The issues Nos.l, 2 and 3 have been proved through the evidence adduced on behalf of the plaintiffs.
19. ' The defendants' counsel relied upon 1994 CLC page 1903 (S. Iqbal Hussain Jafry v. K.E.S.C.) relying upon para.2 of the judgment at page 1908.
20. It does not help the defendant in any manner. The plaintiffs have proved the accident and the manner in which the accident took place has been u proved by P.W.2 Musalli Khan, who had not been cross-examined on the point of negligence on the part of the defendants in taking sufficient/necessary precautionary measures at the time of shunting the wagon. The burden of proof was shifted upon the defendant to show from their evidence that they had taken all the precautionary measures to avoid the accident. Which they have miserably failed to prove.
21. Considering the above evidence and the case-law, the issues Nos.1, 2 and 3 are decided in the affirmative.
22. ISSUES NOS. 4 to 7: ' These issues are regarding the income of the deceased and compensation and liability of the defendants, the same are dealt with together.
23. ' The plaintiff examined himself and produced Death Certificate of the deceased as Exh.1/B, Original N.I.C. Of the deceased as Exh.1/F(a), Pakistan Marine Academy Certificate 1982-83 as Exh.1/J, Apprenticeship certificate dated 12-1-1987 as Exh.1/K, original appointment letter dated 10-3-1987 as Exh. 1/L, Salary Certificate from P.N.S.C. As Exh.1/M.
24. P.W.4 Syed Sadiq Raza Rizvi produced the last pay certificate of the deceased as Exh.4/1. Tenure of Service of the deceased, as Exh.4/2, Rules of 1983 as Exh.4/3, Rules of 1985 as Exh.4/4a, Rules of 1989 as Exh.4/5, Testimonial as Exh.4/6 and other documents. lt is proved that deceased at the time of his death was a young man of 25 years, working as Fifth Engineer with P.N.S.C. And his salary according to the last pay certificate Exh.4/1 was Rs,5,537 p.m.
25. ' The plaintiff's counsel submitted the statement of claim on the basis of 70 years being the normal life span in Pakistan as has been held in several cases decided by the Superior Courts.
26. ' The plaintiff's counsel in his statement claimed the income of the deceased which he would have earned after qualifying the examination of 4th Engineer and then as 3rd Engineer and IInd Engineer and ultimately qualifying the examination of the Chief Engineer. This claim is based only on his assumption.
27. ' It is very difficult in this case to consider the various amounts as shown in paras. 14 and 15 of the plaint and in statement filed by the plaintiff's counsel and to award compensation on the basis of such assumptions.
28. ' No doubt that the deceased was a young man of 25 years of age and had a brilliant carrier ahead of him. According to his Higher Secondary Certificate Exh.1/G he was placed in 'A' Grade. According to Exh.1/J, which is passing out certificate from Pakistan Marine Academy, Karachi he was awarded Extra First Division and according to his Apprenticeship Certificate issued by Karachi Port Trust, the remarks about his ability and conduct were "Good".
29. ' As observed earlier, that in this case it is very difficult to determine the actual loss accurately though considering the testimonials of the deceased I am convinced that there were good chances of his qualifying to better positions but still one cannot aspect with certainty that up to what position he would have qualified. There is no clear cut definite formula for assessment of damages as contemplated under the Fatal Accidents Act of 1855 and the pecuniary loss is to be estimated on more or less on guesswork in cases where it is not possible to determine the loss accurately. I am fortified by the judgment reported in 1993 SCM R 848, (Pakistan Steel Mills Corporation Limited v. Malik Abdul Habib and another).
30. In view of the above discussion, Issue No,4 is decided in the affirmative holding that the monthly salary of the deceased at the time of his death was Rs,5,537. Issue No,6 is decided that the life span as held in several cases, is 70 years in Pakistan as such I hold that the life span in the family of the deceased would be 70 years.
31. ISSUES NOS.5 AND 7: ' In view of the observations made earlier these issues are decided as {{TABLE}} under: Monthly income as proved. Annual income. Income for 15 years. Add 20% on account of expected increase in income for the benefit of the beneficiaries as accurate loss cannot be determined. Less 1/3 on account of personal expenses. Net loss to the beneficiary Rs,5,537 Rs,5,537 X 12 = 66,444 Rs,66,444 X 15 = 9,96,660 Rs, 3,68,332 Rs,13,64,992 Rs,4,54,997 Rs,9,09,995 {{Table}} The suit is decreed for Rs,9,09,995 against the defendants with costs and interest at 14% per annum from the date of the suit till payment of the entire amount.
32. ' Muhammad Athar Hussain, the father of deceased who was aged 55 years will get a sum of Rs,5,15,661 while the mother Mrs. Munawar Jehan who was aged 57 years will get a sum of Rs,3,94,329.