' The plaintiff's son was five years old when he died by falling into an uncovered manhole within the area of Malir Extension Police Station on 9-1-1989. He left behind the plaintiff and his father Faqir Muhammad as his surviving legal heirs. This suit has been filed by the plaintiff for recovery of Rs,8,50,000 under the Fatal Accident Act. At the time of the suit the plaintiff is said to be 28 years old while her husband Faqir Muhammad was aged 32 years.
2. The written statement was filed by the defendant No,2, Karachi Water and Sewerage Board which is the body responsible for keeping the manhole duly covered. The factum of demise of the child and the recovery of his body from the manhole, was not denied. It was, however, contended that such demise did not occur by his falling into the uncovered manhole but after his death body was thrown into the manhole which was duly covered. It was also urged that the death occurred owing to sheer negligence of the parents of the child who were required to take care of him. The amount claimed by way of compensation was also disputed.
3. The parties filed the following consent issues which were adopted:--- "(1) Whether the death of the deceased child Muhammad Salim was caused on account of negligence, actionable wrong and default in performance of the duties by the defendants in not keeping the manhole covered and fenced, if so, its effect?
(2) Whether the dead body of the deceased was recovered from covered manhole, if so, its effect?
(3) Whether the father of the deceased gave a statement in writing that, staff of defendant No,2 is not responsible for death, if so, its effect?
(4) Whether the defendants are liable jointly or severally to pay the compensation/damages to the plaintiff, if so to what extent?"
4. The plaintiff examined himself and closed her side. Despite opportunities given no witness on behalf of the defendant appeared in. The Court and, therefore, their side was closed. The case came up before me for arguments and arguments were addressed by Mr. Nasir Maqsood for the plaintiff and Mr. Yousha Rizvi for the defendant. After hearing the learned Advocate I announced the short order, decreeing the suit in the sum of Rs,5,85,000 against the defendant No,2 with 14% interest from the date of decree till payment. The following are my reasons and issue wise findings.
' Issue No,1.
5. The duty to keep manholes duly covered and take preventive measures to avoid such incidents indeed devolves upon the defendants and this has not been denied by the aforesaid defendants even in their written statement. Failure to perform such duty or take proper care indeed amounts to an actionable wrong and the said defendant is liable in damages as has been held by my learned brother Rana Bhagwandas, J., in Muhammad Moosa v. Karachi Water and Sewerage Board (1997 CLC 925). I have myself followed this view in Suit No,527 of 1989, decided on 6-3-1998. The facts of these? Cases were almost identical to the present one inasmuch as unfortunate death of a small child was caused by his falling into an uncovered manhole. The question left to be decided is whether the plaintiffs son died by falling into such manhole. The plaintiff entered the witness-box and was duly cross-examined. She deposed on oath that a manhole which was about 2-1/2 feet wide and 8 feet deep was lying uncovered at the end of the street outside her house for about four months prior to the unfortunate incident. Her husband had complained about the same in writing to the defendant No,2 but received no response. She further deposed that the body of her son was taken out from the uncovered manhole and water was overflowing. After the incident some officers from the defendant No,2 came to their house to offer condolence and sought pardon for the tragedy. In cross-examination she categorically repudiated the suggestion that her husband had given it in writing to the defendant No,2 that she did not hold the staff of the defendant No,2 responsible for the death or that he had forgiven them. The suggestion that the main hole was already covered, the suggestion that the Karachi Water and Sewerage Board Staff is vigilant in covering the manhole and the suggestion that the dead body was thrown into the main hole after removing the cover were categorically repudiated. As against this there is no evidence in rebuttal on behalf of the defendant. In the circumstances Issue No,1 is decided in the affirmative and it is held that the defendant No,2 are liable to compensate victim of such negligence.
' Issues Nos.2 and 3.
6. It was expressly pleaded by the defendant No,2 that falling into the manhole was not the cause of the death of the child but only after his death his dead body was thrown into the manhole which was duly covered. On the face of it such plea appears entirely incredible unless there is strong evidence to support it. The defendants have not even bothered to narrate the circumstances which could possibly make the plea plausible. Along with the written statement, however, they have annexed a photo copy of a piece of paper purported to be signed by the plaintiffs husband i,e, the father of the deceased to the effect that he does not hold the staff of defendant No,2 responsible for his child's death as the dead body was recovered from a gutter which was duly covered. This document, however, has not been duly proved as neither the maker of the document nor any person familiar with his signature, has tendered it in evidence. It was to even shown to the plaintiff during her cross-examination.
7. Apart from the above legal position the circumstances under which the statement seems to have been executed have been explained. In the plaint itself the plaintiff has stated that after the incident some staff members of the defendant No,2 came to condole the death, represented for the same, obtained the signature of her husband on a paper telling him that they would help him financially but did nothing thereafter. The defendants have pleaded that such statement was made voluntarily and the allegation of obtaining signatures fraudulently with promise of financial help has been denied. The position, however, appears to be clearly understandable. Apparently realising that the defendant No,2 would be liable to compensate the plaintiff and the concerned officials could be taken to task for their negligence, such officials approached the plaintiffs husband and managed to secure his signatures on a document purporting to absolved the defendant No,2 or their staff members. Otherwise it is impossible to believe that if the child had died for some order reason why the cause of his death was not stated in the document and in case it was not known to the parents why an F.I R. Was not lodged? In fact if the staff of the defendant happened to find a dead body while uncovering manhole they should have promptly reported the matter to the police themselves. In the circumstances I find the that the dead body was recovered from a covered manhole to be patently preposterous. Apart from its legal inadmissibility the statement signed by the father of the deceased appears to be neither true nor voluntary. Neither the maker of the statement nor anybody else has given any evidence to prove the correctness of the statement and even if the father of the deceased purported to absolve the defendant No,2 or its staff member, the same could have no effect on the plaintiffs statutory rights to claim compensation under the Fatal Accidents Act. The two issues are answered accordingly.
' Issue No,4.
8. As far as the question of joint and/or the several liability of the two defendants is concerned it might suffer to say that the defendant No,2 is an independent legal entity constituted under the Sindh Local Government Ordinance and the mere fact that the defendant No,1 i,e, the Government of Sindh exercises certain supervisory powers does not make the Government liable to compensate the plaintiff. No independent cause of action against the Government has been shown. As such the suit against the defendant No,1 dismissed. We now come to the question of liability of the defendant No,2, if any.
9. The fact that the demise of the child occurred on account of falling into a manhole having been established the defendants were required to show that they had taken all reasonable care to prevent the occurrence of such accident. However, except for a bald general denial and a statement to the effect that the defendants always maintain manholes efficiently, there is nothing on record to snow that such care was taken. The defendants chose not to adduce any evidence.
Indeed a plea has been taken into the effect that the accident occurred owing to negligence of the parents of the children not taking proper care. 1 regret such plea cannot be accepted in view of the pronouncement of this Court in the case of Muhammad Moosa v. Karachi Water and Sewerage Board (1997 CLC 925) to the effect that small children of this age are bound to move about in streets close to their houses and the defiantness cannot be absolved of their duty to take measures for preventing such accidents. The plaintiff in her cross-.Examination has clearly stated that though she is supposed to take care of her child but it is very difficult to confine them within the four walls of the house and it is incorrect that the accident took place due to her negligence. No evidence is led by the defendants. It is settled law contributory negligence must be proved by the party asserting the same and even if such plea is established the same would only mitigate the amount payable by way of compensation, but would not wipe out liability.
10 Coming to the quantum of compensation it may be observed that it is impossible to quantify the pain and suffering of parents of a child who has died in such circumstances. In awarding compensation in cases of Fatal Accidents the Courts are required to take into consideration the life expectancy of the plaintiff, the earning potential of the deceased and the amount he is expected to contribute to the family after making allowance for his personal expenses and the amount that may be reasonably expected to be spent on his upkeep till he is able to earn is to be deducted therefrom. Keeping all these factors into consideration I am of the view that a lump sum compensation of Rs,5,86,000 would serve the interest of justice. The suit is decreed accordingly with 14% interest from the date of decree till payment is made. There will be no order as to costs.
' These are the reasons for the short order, dated announced on 24-2-1998.