1. This suit for recovery of Rs,12,00,000 under the Fatal Accident Act, 1855, has been filed by the plaintiff, her husband Sarni Dad Khan, aged 45 years, died on 21-7-1988 while coming in contact with live electric wire loosely hanging from the pole of service road near market Sector No,5-G, New Karachi.
2. The deceased left behind under mentioned legal heirs and the instant suit has been filed by the plaintiff for her own benefit as well as that of other legal heirs:-- S.No. Name Relation Age 1 Ehsan son 13 years 2 Rehana daughter (married)24 years 3 Rukhsana daughter (married)22 years 4 Shabana daughter (married)18 years 5 Sana daughter 4 years 6 Rafiqan widow 40 years 7 Bonayadi Begummother 70 years It is the case of the plaintiff that on 21-7-1988 at about 10 a.m. an electric wire on the service road near market, Sector 5-G, New Karachi was lying broken down due to some physical defect dangerously but the complaint centre of the defendant paid no attention to it and in the meantime the deceased who happened to pass over the said road was electrocuted as a result whereof his death occurred. The death of the deceased, according to the plaintiff, was caused due to negligent and improper maintenance by the defendant of its electric wires inasmuch as the defendant failed to provide safety measures for protecting the citizens against the inherent danger of electrocution from such dangerously hanging/broken a electric wire. According to the plaintiff, on account of death of the deceased, caused due to negligence of the defendant, the plaintiff and other legal heirs of the deceased have been deprived of the earning and other benefits to the tune of Rs,12,00,000 as the deceased who, at the time of death, was 45 years of age, was carrying on the business of Kabaria and used to earn Rs,300 to Rs,350 per day. Besides, the deceased was intending to open his own wholesale shop of spare parts from where he could have generated Rs,12,000 to Rs,15,000 per month. The deceased further used to earn a sum of Rs,600 per month by doing some domestic work. Apart from loss of earning of the deceased on account of his death a sum of Rs,5,000 has been claimed by the plaintiff as funeral expenses.
3. The defendant was served and has filed its written statement denying the averments made in the plaint with regard to the negligence on the part of the defendant. It has been averred by the defendant in its written statement that on 21-7-1988 double neutral BC wire SWG 6 from PMT Pole No,49 was broken down and the deceased suddenly touched the same which resulted into his death. The delay in refixing the broken electric wire has also been denied by the defendant so also the factum of physical defect in the electricity lines of the defendant. The claim of the plaintiff has been termed by the defendant as false.
4. On the basis of pleadings of the parties, following issues were framed:--
(1) Whether the suit is bad for non-joinder, if so, to what effect?
(2) Whether the death of deceased Samidad Khan was occasioned due to direct result of touching the overhead broken wire by the deceased or negligence of the defendant not properly maintaining the overhead electric wire?
(3) Whether the defendant corporation carelessly failed to repair broken overhead wires without delay on receipt of information?
(4) Whether Corporation is liable to pay compensation to the plaintiff' on account of death so caused to the deceased Samidad Khan as alleged in the plaint?
(5) What should the decree be?
(6) Whether the plaintiff' is entitled to cost and interest as claimed?"
5. The plaintiff, in support of her case, has examined herself' as Exh.5, one Abdul Rashid as Exit 1() and Nazeer Ahmed as Exh.11. The defendant has examined one Zaheer Shaikh as Exh.12 in its defence.
6. The learned counsel appearing for the parties have filed their respective written arguments and my finding on the aforesaid issues is as under: Issue No,1 This issue was not pressed by the defence counsel. Issues Nos.2 and 3 As common questions for determination have been raised in these two issues, I propose to deal these issues together.
7. The plaintiff Mst. Rafiqian in her affidavit-in-evidence has stated that her husband deceased Samidad Khan aged 45 years. died on ,21-7-1988 as a result of coming into contact with live electric wire which had snapped due to physical defect. The nearest complainant centre of the area was informed about the breaking of overhead wire but the defendant complaint centre did not pay any heed to it without undue delay. It has further been asserted by the plaintiff that death of her husband was caused due to negligence and improper maintenance of its wires by the defendant. The plaintiff has further stated in her affidavit-in-evidence that in view of death of her husband she and other legal heirs of the deceased have been deprived of the earning of the deceased to the extent of Rs,12,00,000 which the deceased could have earned if he did not have to die in the circumstances stated above. Mst. Rafiqian has further stated in her affidavit-in-evidence that the deceased was doing the business of Kabaria and used to earn Rs,300 to Rs,350 per day and he was intending to open a wholesale shop which would have earned him Rs,12,000 to Rs,15,000 per month. The plaintiff in her affidavit-in-evidence has further stated that the deceased used to perform domestic work of the value of Rs,600 per month. Apart from the aforesaid expenses the plaintiff has also claimed a sum of Rs,5,000 as funeral expenses, Plaintiff Mst. Rafiqan was subjected to thorough cross-examination by the Advocate for the defendant and she has admitted that her husband, at the time of his death, was earning a sum of Rs,1,200 per month. As to the cause of death or on the allegations of the plaintiff in respect of physical defects in electric wires and negligence and improper maintenance of the wires by the defendant, not a single question was put to the plaintiff by the defence during the course of cross- examination. P. W.1 Abdul Rasheed who had filed his affidavit-in-evidence has stated that on 21-7- 1988 he was standing at the bus stop of Sector 5-G, New Karachi, when he saw that the electric wire which was streched overhead on the service road near market area broke down due to some physical defect and was loosely hanging from the pole in a dangerous position. It has further been stated by the said witness that the deceased Samidad Khan happened to pass over the service road where the electric wire was loosely hanging and suddenly the deceased came into contact with it which caused instant death of Samidad Khan, It his further been stated by the said witness that the deceased died on account of negligence and failure of defendant to perform its statutory duty as electric wires in the said area were prone to breakage due to lack of maintenance and rustication. According to the said witness, the defendant did not manage and maintain the overhead wires in the area since their installations and due to erosion/rustication caused to the wires, its connection with the pole had weakened. The people of the area had lodged numerous complaints with the defendant but no action to manage and maintain the wires in a proper manner was taken by the defendant. P.W. Abdul Rasheed was cross-examined but the learned counsel for the defendant but nothing substantial from defence point could be extracted. P.W.3 Nazir Ahmed was examined by the plaintiff and he, too, had filed his affidavit-in-evidence in Court.
8. The testimony of this witness is only to the extent of earning capacity of the deceased. According to this witness, the deceased used to earn Rs,300 per day and was intending to open his wholesale shop from which the deceased could have started earning a sum of Rs,12,000 to Rs,15,000 per month. This witness of the plaintiff was also subjected to cross-examination by defence counsel and, at least, to the extent of earning of deceased in the sum of Rs,300 to Rs,350 per month statement of this witness could not be shaken in the cross-examination.
9. The defendant in its defence examined one Zaheer Shaikh, an engineer of the defendant, through affidavit-in-evidence. This witness alongwith his affidavit-in-evidence has filed photo copies of extracts from officials record of defendant as Exhs.12/1 to 12/3. D.W. Zaheer Shaikh in his affidavit-in- evidence has stated that the electric wires were broken due to strong wind, torrential rains and due to bad wheather on 21-7-1988 and no negligence.can be attributed to the defendant. It has further been stated by the said witness that immediately on getting information about the breaking of wire, necessary steps were taken by the defendant for rectifying the electricity line. It has further been stated by the witness that there was no physical defect in the line/wire of the defendant as thorough check up and periodical maintenance of the same is carried out by the defendant. As to the age and earning capacity of the deceased, it has been stated by the said witness that deceased was about 55 years old and used to buy articles from the house and sell the same in the market and used to earn Rs,1,000 to. Rs,1,200 per month.
10. From appraisal of the evidence brought on record by the parties one fact is established beyond doubt that the electric wire on the service road near market area, Sector 5-G, New Karachi, broke down on 21-7-1988 and the deceased who happened to pass from there was entangled in the same which caused his death. The question which remains to be determined now is whether the defendant was negligent in maintaining the broken electric wire. It is a settled law and in case of such a nature all that the plaintiff is required to prove is that the deceased died as a result of electrocution by a live electric wire which was broken and was A lying unguarded and unattended.
11. Death of deceased in such circumstances is a prima facie proof of failure on the part of the defendant to take proper care because overhead wires, if properly maintained, are not, ordinarily, expected to break down. Burden of proof of lack of negligence, in such circumstances, shifts on the defendant to show that it had taken all the precautionary measures to avoid any fatal injury to any one. If any case-law in this connection is required, reliance can be placed on a judgment of this Court in the case of S. Iqbal Hussain Jaffery v. Karachi Electric Supply Corporation 1994 CLC 1903.
12. The defence in support ,of its case in respect of absence of negligence on the part of the defendant has filed photo copies of extracts from official record of the defendant as Exhs.12/1 to 12/3. Exh.12/1 is photo copy of a report wherein entry in respect of the incident which is subject- matter of this suit has been incorporated. This report is not signed by any official of the defendant and, in fact, is a mere narration of the happening of 21-7-1988 incident. In so far as Exh.12/2 is concerned, it is also a report of incident and does not show/reflect any steps/action taken by the defendant for proper maintenance of the overhead electric wire. Exh.12/3 in my opinion is neither here nor there inasmuch as the same is dated 1-12-1987 whereas the incident had taken place on 21-7-1988. In any event, the incident of breaking of wire had taken place in respect of Pole 49, Sector 5-G, New Karachi, and the said pole does not find any mention in the said report as admitted by the witness of the defendant in his cross-examination. Another point which has been urged by the learned counsel for the defendant in respect of absence of negligence on the part of defendant in properly maintaining the electric wire is that on the day of incident there were heavy rains and wind storm in Karachi due to which the electric wire broke down. In the written statement filed by the defendant no such plea has been raised by the defendant. The learned counsel for the defendant has relied upon admission on the part of the plaintiff during her cross-examination where the plaintiff has admitted that on the day of incident it was raining and wind was also blowing fast. In my view, rains and fast wind are common feature in every part of the country.
13. Unless the defendant, in order to escape their liability/responsibility of wire breaking due to rains or fast wind, brings some evidence on record as to the velocity and fierceness of wind storm and rains, the defendant cannot be permitted to urge that electric wires had broken down due to heavy rains and fast wind. In the instant case, except a bare admission of the plaintiff in her cross- examination no other evidence to prove the fierceness and velocity of heavy rains and fast wind has been brought on record by the defendant. The same could have been proved by the defendant by examining an official of metrological department of Karachi but the defendant failed to do so. In any event, in case the breakage of the wire was on account of rain and fast wind then why only one wire and no other wires running parallel to the broken wire were also broken. The factum of breaking one wire alone is definite pointer towards not taking proper care of maintaining its system by the defendant. Accordingly, I hold that wire had not broken due to heavy rains and fast wind on 21-7-1988. The upshot of the above discussion is that Issues Nos.2 and 3 are answered in the affirmative and I held that death of the deceased Samidad Khan was caused due to negligence on the part of defendant in not properly maintaining the electric wire.
14. Issues Nos.4, 5 and 6 Issue No,4 pertains to liability of the defendant to pay compensation to the plaintiff on account of death, so caused, of the deceased whereas Issue No,6 which, in fact, should have been Issue No,5 relates to whether the plaintiff is entitled to cost and interest claimed. The issue No,5 which, in fact, should have been Issue No,6 is as to what should the decree be?
15. The plaintiff in this suit has claimed a sum of Rs,12,00,000 as damages for her as well as for the benefit of other legal heirs of deceased Samidad Khan. The amount of damages claimed has been calculated by the plaintiff on the basis of earning capacity of the deceased at the time of his death which according to the plaintiff and her witness was Rs,300 to Rs,350 per day. Besides, the deceased, according to the plaintiff and her witness P.W.3 Nazeer Ahmed, was planning to start his own wholesale shop and would have earned Rs,12,000 to Rs,15,000 per month. In so far as the monthly income/earning of the deceased at the time of his death is concerned, it may be stated that although the plaintiff in the plaint as well as in the affidavit-in-evidence has stated that the deceased at the time of his death was earning Rs,300 to Rs,350 per day yet in the cross- examination plaintiff Mst. Rafiqan has in unequivocal terms admitted that her deceased husband's monthly income was Rs,1,200 only. In my view, there can be no better witness in respect of earning of a person other than his family member and specially the wife. In the face of such categorical admission on the part of plaintiff Mst. Rafigan that her deceased husband was earning Rs,1,200 per month, I am not inclined to believe the testimony of P.W.3 Nazeer Ahmad so also the statement of Mst. Rafician that the deceased was earning Rs,300 to Rs,350 per day. In so far as the statement of plaintiff Mst. Ration and her witness P.W.3 Nazeer Ahmed in respect of deceased's intention to open his wholesale shop I am afraid that such statement is not confidence inspiring inasmuch as except for a bald statement to this effect no other evidence material has been laid by the plaintiff to establish the fact that deceased was intending to open his wholesale shop and that by doing so- he would have earned Rs,12,000 to Rs,15,000 per month. In my view no imaginary damages can be awarded by the Court. The deceased as per the own statement of the Advocate for the plaintiff, filed as and by way of statement of claim, was of the age of 49 years at the time of his death. By now, it is a well-established law that normal life expectancy of a person in Pakistan is 70 years and there is plethora of case-law on this point including the case reported in PLD 1993 Kar, 168, Under these circumstances, the plaintiff and other legal heirs of the deceased have been deprived of benefits of earning of deceased, for a total 21 years. The amount of loss/damage sustained by the plaintiff and other legal heirs of deceased, therefore, comes to Rs,3,07,400 on the basis of following calculation:-- Gross income on the basis of earnings at the time of death, at Rs,1,200 per month i,e, Rs,14,400 per annum, for 21 years; Rs,3,02,400 Minus personal expenses of the deceased, which keeping in view the monthly income of the deceased, in my opinion, cannot be more than Rs,200 per month, i,e, Rs,2,400 per annum, for 21 years; Rs, 50,400 Balance Rs,2,52,000 Plus 20% on the aggregate income on account of expected increase in income Rs, 50,400 Plus funeral expenses Rs, 5,000 Total Rs, 3,07,400 The plaintiff and other legal heirs of the deceased as mentioned in para.1 of the plaint are, therefore, entitled to damages amounting to Rs,2,97,980 with interest there on I@ 14% per annum from the date of filing of the suit till its realization.