' Plaintiff being father of deceased Rafiq Ahmed has filed this suit for recovery of Rs,1,500,000 under Fatal Accidents Act. 1855 (hereinafter referred to as the Act. 1855) against the employer of his deceased son who died on 8-12-1989 within the premises of the factory of Messrs Fazal Flour Mills.
Plot No,60, Sector 28. Korangi Industrial Area. Karachi. This suit has been filed for the benefit of the legal representatives of the deceased other than entitled under section 1 of the Act.
1855. They are mother Mst. Surriya Bashir, grandmother Mst. Asghari Begum and grand-father Sami Khan in addition to plaintiff/father.
2. The case of the plaintiff is that he is the father of deceased Rafiq Ahmed who was working as Cleaner with the defendant No,1 under the administrative control and management of defendants Nos.2 and 3: that on 3-10-1989, deceased, as usual, went to the factory where he was forced and compelled by the defendant No,3 namely Azimuddin to go down in the 30 feet deep hallow range built in a vertical quare shape in which wheat was to be poured. It is claimed in the plaint that through some automatic process, large quantity of wheat was used to be stored in that deep hollow range as the function of the factory was to produce wheat flour. It is further the case of the plaintiff that the defendants in gross negligence ordered, filling of the hollow range without realising that the deceased Rafiq Ahmed was still cleaning the same. As a result of pouring of mounds of wheat over the said deceased he died of suffocation and Asphyxia. In this background, the plaintiff has claimed monetary compensation/damages for the wrongful and negligent acts of the defendants.
3. Defendants have filed their joint statement denying the allegations of the plaint as well as entitlement of the plaintiffs to claim monetary compensation. However, they have admitted that the deceased was working as a cleaner and was assigned the work of cleaning the floor of the mills. They have also denied that the deceased was ordered to go down the bin (hollow range). It is claimed in the written statement that the deceased died due to his negligence and met his death, as a result of negligent performance of some act. No specific act or omission involving an element of negligence on the part of deceased was pleaded and this joint written statement of the defendants. They have prayed for dismissal of the suit with cost. As a result of the above pleadings, following issues were adopted by the Court with the consent of the parties on 13-5-1999.
(i) Whether the suit filed by the plaintiff is maintainable under Fatal Accidents Act, 1855?
(ii) Who are the legal heirs of the deceased Rafiq Ahmed?
(iii) What were the jobs assigned to the deceased Rafiq Ahmed?
(iv) Whether the deceased was forced and compelled by the defendant No,3 to go down the 30 feet deep hollow bin as alleged in para. 4 of the plaint?
(v) Whether the defendants did not take any care about the deceased after his death?
(vi) Whether the deceased died due to the negligence of the defendants as alleged and whether defendants are liable jointly and severally to pay damages?
(vii) What was the age of the deceased at the time of his death and what is the expectancy of his life?
(viii) What was the daily earning of the deceased?
(ix) What are the funeral expenses of the deceased Rafiq Ahmed?
(x) Whether the plaintiffs is entitled to damages of Rs,1,550,000 (Rupees fifteen lacs and fifty thousand only)?
(xi) Whether the plaintiffs is entitled to cost and interest as claimed?
(xii) To what relief, if any, the plaintiffs is entitled?
4. In support of his case, the plaintiffs has examined himself as P.W.1 (Exh.5) and P.W.2 Dr. Abdul Razzak (Exh.6). The defendants have produced four witnesses; D.W.1 Muhammad Akhtar (Exh.7) who is the partner of defendant No,3, defendant No,2, Abdul Ghafoor (Exh.8), defendant No,3 Azimuddin (Exh.9) and D.W.4 S.M. Idress (Exh.10). Both the parties have produced several documents in order to prove and disproved the above issue. My findings on the above issues are as follows:-- Issue No,1
4. This issue was not pressed by Mr. A.F.M. Mukarim.
Issue No,2
6. In para. 1 of the plaint, it is shown that father, mother as well as grand-father and step grand- father are legal heirs of the deceased. It is settled law that the beneficiaries as defined in section 1 of the Act, 1855 are different from legal heirs as defined under the personal law of that affected party. The benefit is limited to the real parents, spouses and real children of the deceased. Brothers and sisters and grand-parents are excluded from the category of beneficiaries as defined in section 1 of the Act, 1855. Therefore, it is only the plaintiff/father and mother of the deceased who are entitled to claim damages and to maintain this suit. See Rasheed Abdul Hafeez and 3 others v.
Ahmad and another 1991 CLC 370. Issue No,2 is answered accordingly.
Issue No,3.
7. In the plaint, it is claimed that deceased Rafiq Ahmed was employed as Cleaner. In para. 5 of the written statement this fact was admitted that the deceased was employed as a Cleaner and was assigned the work of cleaning the floor. Both the prosecution witnesses are outsiders in so far as the factory premises is concerned. D.W.1 Muhammad Akhtar who is partner of defendant No,1 has also admitted in his examination-in-chief that the deceased was employed by them as Cleaner.
D.W.2 Abdul Ghafoor has admitted that he was incharge of the bin at the relevant time and has also admitted that the deceased was employed as Cleaner but for the ground floor. In view of this admitted fact it is held that the deceased was employed by the defendant No,1 as Cleaner.
Issues Nos.4, 5 and 6
8. Since all these three issues are inter-connected they are discussed jointly. P.W.1 Bashir Ahmed who is father of the deceased has stated that his son was employed only 20 days before his death and that he used to serve under the supervision of defendants Nos.2 and 3; that on 18th October, 1989, the deceased went to perform his duty in the morning and visited the house at about 1-00 p.m. For lunch when he told his parents that after lunch he has to go down in the hollow range (Bin) for cleaning; that on the same day at about 3-45 p.m., another cleaner, Naushad, working with the deceased came and informed the plaintiff that Rafiq Ahmed had died due to sudden pouring of bulk of wheat in the hollow range (Bin) while he was cleaning the same; that the plaintiff rushed to the factory and reached there at about 4-00 p.m. Where he found the dead body of his son lying on a cot. It was further stated by the plaintiff that several labrourers gathered around the dead body and upon his inquiry, made from the owner of the mills, they told him that his son died as it was the Will of the God. He has further stated that defendant No,2. Abdul Ghafoor pointed out to him the hollow range/bin where his son died. The plaintiff insisted for referring the dead body to some doctor but it was denied by the defendants who also prevented the plaintiff from reporting the incident to the police. However, the plaintiff called a photographer who took some photographs of the deceased which have been filed alongwith the plaint as well as brought on record during deposition of the plaintiff as Exh.5/1 to Exh.5/3.
9. The above incident was also referred to the Landhi Police Station by the plaintiff which was reported in the station diary produced as Exh.5/4. The dead body was referred for post-mortem examination to Jinnah Postgraduate Medical Centre, Karachi where post-mortem was conducted by Dr. Abdul Razzak, P,W.2. The plaintiff has also produced the Medical Certificate of cause of death, dated 8-10-1989 issued by the J.P.M.C. As Exh.5/6. This medical certificate show cause of death of the deceased as cardio respiratory failure due to Asphyxia. The plaintiff has also claimed that after seeking the factory premises, he has found that the working conditions of the labrourers were unsafe and unsatisfactory.
10. Th.: claim of the plaitniff/P.W.1 that his son deceased Rafiq Ahmed was asked by the defendants to go down in the hollow range/bin to clean the same has been denied by the defendants whose case is that deceased was engaged for cleaning ground floor of the mill and that he voluntarily went to the 4th floor where the mouth of the allow range/Bin was situated and from where, as alleged by the plaintiff, the deceased was asked to go down to clean the bin. The death of deceased Rafiq Ahmed within the premises of defendant No,1 has not been denied.. The case of the defendants that the deceased died his natural death is also belied from the suggestion put by their counsel in the cross-examination of the plaintiff where it was suggested that the deceased entered the hollow range/bin unauthorisedly and that he died due to his own negligence. D.W.1 has failed to disclose any cause of death of deceased in his evidence. He has admitted that deceased died at about 2/3 p.m. Within the premises of the mill. D.W.2 defendant No,2 has admitted during his cross-examination that the dead body of deceased Rafiq Ahmed was lying under the heap of wheat consisting about 25 bags and that some other people went down and dug the body of the deceased out. Even D.W.3/defendant No,3 has admitted in his cross-examination that while he was coming after offering prayers, he saw that labrourers were bringing the body of the deceased from the bin. All this evidence is sufficient to hold that the deceased died an unnatural death within the premises of defendant No,1 and that his dead body was found in the bin/hollow range under the bulk of wheat.
11. In the aforesaid circumstances, Mr. Nasir Maqsood has relied upon the doctrine of res ipsa loquitur. This is a rule of evidence, which provides that the plaintiff is required to prove the factum of accident whereafter the burden is shifted upon the defendant to prove that the accident occurred not due to his or their negligence. In support of this rule. Mr. Nasir Maqsood has referred to the following cases:-
(i) Kandan v. Al-Hayat Services (Pvt.) Ltd. 1988 CLC 525;
(ii) AI-Hayat Services v. Kandan 1989 CLC 2153;
(iii) Pakistan Steel Mills Corporation Ltd. v. Malik Abdul Habib 1993 SCM R 848;
(iv) Mst. Shamim Akhtar v. Javedan Cement 1997 CLC 955; and
(v) Qazi Arifuddin v. Government of Sindh and others PLD 1991 Kar. 291;
12. The scope and definition of maxim "res ipsa loquitur" as defined by a learned Single Judge of this Court in the case of Qazi Arifuddin (ibid) was upheld by a Full Bench of the Honourable Supreme Court in the case Pakistan Steel Mills Corporation Ltd. (cited at serial No,iii above). It was held, inter alia, "This doctrine applies firstly, when the thing that inflicted damages was under the sole management and control of the defendant and, secondly, that occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to why or how the occurrence took place. In such circumstances, defendants have to persuade the Court that accident did not occur on account of their negligence." In the case of Kandan (supra) the deceased was an employee of Hotel Mehran who died due to an accident caused by burns received in the kitchen of the defendants hotel. This doctrine was applied and the suit for monetary compensation was decreed. Appeal filed against the said judgment/decree was also dismissed by a division bench of this Court and the said doctrine was upheld. See Al-Hayat Services v. Kandan 1989 CLC 2153. After making reference to the cases Bhurmal and Mitra Motor Association v.
Raghunath Bansilal Kasat AIR 1963 Bombay 144, Barkway v. South Wales Transport Co. Ltd. (1950) 1 All E.R. 392 and Halsbury's Laws of England, it was observed as follows:-- "This maxim means that in all the circumstances of a given case the res speaks and is element because the facts stand unexplained with the result that the natural and reasonable inference from the facts has to be drawn. But it must be made clear that such inference should not be based on conjectures and surmises. The burden is on the plaintiff to prove the actual cause of accident but in case where it is not possible for him as such facts are 'within the exclusive knowledge of the defendant then in those circumstances, if the incident is proved, the defendant is called upon to explain its conduct to bring about the correct and true facts. Due to non-accessibility to vital part of the evidence the plaintiff is put to great disadvantage, therefore, this maxim is applied to avoid the rigors created by procedural difficulties..."
' For further reference, see Ursilina D'lima v. Orient Airways Ltd. PLD 1960 Kar. 712, and its appeal order in P.I.A. v. Ursulina D'Lima PLD 1966 Kar.
580. Karim Bux v. Karachi Electric Supply Corporation 1997 CLC 507, Government of Pakistan v. Ishrat Begum 1999 M LD 768 and Government of Punjab v. Mst. Kamina and others 1990 CLC 413 which view was upheld by a full bench of Hon'ble Supreme Court in Mst. Kamina and another v. Al-Amin Goods Transport Agency and 2 others 1992 SCM R 1715.
13. In the instant case, it has been proved by the plaintiff that his deceased son Rafiq Ahmed was an employee of defendant No,1 and on the day in question he was within the premises of the factory.' It has also been successfully established by the ocular evidence as well as medical evidence that deceased Rafiq Ahmed died an unnatural death. As a result of these facts, the burden is shifted upon the defendants to prove that the deceased Rafiq Ahmad died not because of their negligence. The evidence produced by defendants is mutually destructive, sketchy and does not inspire confidence. All the three defence witnesses by their conduct had attempted to conceal the real cause of death but, one witness stated that he saw other employees bringing out the dead body of deceased from the bin/hollow range. In such circumstances, the maxim res ipsa loquitur is fully attracted. It is, therefore, held that deceased Rafiq Ahmed died unnatural death during his employment with defendant No,1 and within its premises. I am inclined to hold further that deceased Rafiq Ahmed died due to negligence of the defendants.
14. In alternate, it was also argued but faintly by Mr. A.F.M. Mukarim that if the deceased died unnatural death due to the negligence of defendants Nos. 2 and 3, then defendant No,1 cannot be burdened of the liability to pay damages and compensation. Reliance was placed on a case Storey v. Ashton (4) QB.D 476. In that case, it was held that since the day in question being Saturday/holiday, the acts of negligence by a driver of horse cart could not make his employer liable as the negligence was not committed during the course of employme"t as servant. Since then much water has flown under the bridge and now the law stands changed to the disadvantage of the defendants. Now, the law is that master is equally liable for the wrongful acts of servants at least in two cases; firstly, where tortious act was committed under the authority of the master and, secondly, master having himself authorised to commit tortious acts. I am fortified in my view by a decision of a division bench of this Court comprising Syed Haider Ali Pirzada and Muhammad Aslam Arain, JJ. (as they then were) in the case Mukhtiar Begum v. Karachi Transport Corporation and another 1992 MLD 1710 where reference was made to several reported judgments from English and Indian jurisdiction. Appeal filed by Karachi Transport Corporation in the case of Mukhtiar Begum (ibid) was dismissed by the Hon'ble Supreme Court (Karachi Transport Corporation and others v. Mukhtiar Begum and others 1998 SCM R 807) and the view of division bench was upheld. At this stage, it would be relevant to quote views of the Division Bench of this Court in Mukhtiar Begum 1992 M LD 1711 at 1715 which read as follows:-- "...So far as this question is concerned, it may be said that ordinarily the master is not liable for the tortious acts of his servants. This general rule is, however, subject to certain exceptions. The master would be liable for the wrongful acts of his servants at least in two cases. The first class of cases are those where the tortious act itself is committed under the authority of the master. In such cases, (here is no difficulty about fastening liability of the master. The master, having himself authorised to commit the tortious act, becomes in a way privy to the wrongful act itself. In such a case the servant will be treated as the agent of the master for committing the act, and the master would, therefore, be equally liable with the servant for the damages suffered by the party as a result of the tort committed by the servant. Difficulty, however, may arise in cases where the master hasn't authorised the servant to commit the tortious act. In such cases, the question as to whether the master is liable for the tortious acts of the servant would depend on the facts of each case. If the tortious act committed by a person constitutes merely a mode of doing the authorised act, that is an act which falls within the scope of employment of a servant, the master would be liable for the damages suffered by the victim as a result of such an act. This would be so in cases where the tortious act is so connected with the scope of employment of the servant as to have a casual relation with the same or to be an incidental result of it. The occasion for the tortious act in such cases is provided by the authorised act with the result that one becomes ancillary to the other."
14. In the instant case, it was not pleaded by the defendant No,1 that they were not aware of the instructions given by their employees to the deceased. Nor anything was said by the defendants Nos.2 and 3 in their deposition. This plea was raised during the stage of arguments and, therefore, in absence of any evidence in support of such defence it is not liable to be sustained. Accordingly, it is held that all the defendants are jointly and severally lible/responsible for wrongful and negligent act as a result of which son of the plaitniff died. In the aforesaid circumstances, it is proved that defendant No,1 is fully liable for its negligence as well as the negligence of its other employees. All the three issues are answered accordingly.
Issues No,7
15. In plaint it was claimed by the plaintiff that his son deceased Rafiq Ahmed was 18 years of age at the time of his death. The same fact was reiterated by him in his examination-in-chief. The medical certificate of cause of death Exh. 5/6 also shows the age of deceased as 18 years. No question was put by the defendants in the cross-examination of the plaintiff. Or P.W.2 Dr. Abdul Razzak who conducted post-mortem of the body of deceased that their assessment as to the age of the deceased was not correct. In this view of the matter, I am inclined to hold that deceased Rafiq Ahmed was 18 years of age at the time of his death.
Issue Nos.8 and 9
16. It was stated by P. W.1 Bashir Ahmed that deceased used to receive Rs,200 to Rs,225 per week as wages and that he was a boy of good health and simple habits. It was further claimed that as a part-time worker, he used to work at a tailoring shop and thereby used to earn Rs,2,500 per month.
It is also claimed by P.W.1 in his deposition that the deceased used to work as domestic servant at night and thereby was getting Rs,1,000 per month. In total it was estimated by the father of deceased (P.W.1) that the deceased was earning approximately a sum of Rs,4,500 per month and was the only bread winner of the family. Again these claims were not denied by the defendant which amounts to admission. The entire case of the defendants is that deceased died due to his own negligence. Except that, the defendants have not contested the case on the issue of age of the deceased and his income.
17. In so far claim of the plaintiff that the deceased after working in the mill till 4:00 or 4:30 p.m., used to work as part time as tailor in a ladies tailoring shop is concerned, it appears to be a convincing story. But the further claim of the plaintiff that in the night, he used to work as a domestic servant is not convincing. No doubt the boy who died at 18 years of age must be having good stemina and ambition but this will not enable him to work round-the-clock without any rest and leisure.
Accordingly, I am inclined to hold that the deceased was earning around Rs,1,000 per month from defendant No,1 and Rs,2,5000 from part-time stitching job. Therefore, his total salary comes to Rs,3,500 per month. This issue is answered accordingly. The plaintiff has claimed that he had spent a sum of Rs,8,000 towards funeral expenses and against that the defendant has paid a sum of Rs,596.10 as funeral expenses. Again this claim of the plaintiff was not disputed by the defendants.
Therefore, it is held that the plaintiff has incurred a sum of Rs,8,000 on the funeral of his son Rafiq Ahmed. Reliance is placed on the case Punjab Road Transport Board v. M. Muhammad Sadiq and another 1987 CLC 933 at 938.
Issues Nos.10, 11 And 12
18. Since all these issues involve question of grant of relief to the plaintiff, I intend to discuss the same jointly.
19. Under issues Nos.4, 5 and 6, it has been held that deceased Rafiq Ahmed died unnatural death within the premises owned and managed by the defendants. It has also been held that all the defendants are jointly and severally liable/responsible for their wrongful and negligent act. Plaintiff has claimed a sum of Rs,15 lacs as damages for the pecuniary loss he and his wife have suffered due to death of their only son. It has also been established that deceased was earning Rs,1,000 per month as salary defendant No,1 and Rs,25,00 from part-time stitching job. Thus, at the time of death he was earning Rs,35,000 per month. The plaintiffs will not be entitled to his proportionate share in these incomes for the life span of the deceased. In case where the life expectancy of a deceased is less than the life expectancy of the beneficiaries then the quantum of damages is to be calculated on the basis of the life span of such deceased. Thus, the damages would be calculated on the basis of life expectancy of the beneficiaries. It has not been denied that the plaintiff/father was of 51 years of age while mother Mst. Surraiya"Bashir was of 38 years of age.
Now-a-days, the Courts generally treat 70 years to be the average life span in Pakistan. Therefore, I am inclined to hold that the plaintiff (father) is entitled to pecuniary benefits for 19 years and Mst.
Surraiya (mother) for 32 years.
(a)Annual salary/income of the deceased at the rate of Rs.3,500 per month.Rs.00,42,000.00 (b)Aggregate loss of pecuniary benefit for 32 yearsRs.13,44,000.00 (c)20% increase on the aggregate income on account of inflation and expectation of future income.Rs.02,68,800.00 (d)Gross loss of pecuniary benefits.Rs.16,12,800.00 (e)1/3rd deceased on account of personal expenses of the deceased.Rs.05,37,600.00 (f)Net loss of pecuniary benefit.Rs.10,75,200.00 (g)Funeral expenses Grand TotalRs.8,000.00 Rs. 10,83,200.0020. Following is the estimation of the claim to which beneficiaries of the deceased Rafiq Ahmed are entitled:--
21. In the aforesaid circumstances, this suit is decreed for Rs,10,83,200 (Rupees ten lacs, eighty three thousand and two hundred only with cost.
Both the parents of deceased Rafiq Ahmed shall be entitled to equal share in the above decretal amount.