1. ' This is a suit for recovery of Rs,15,50,000 under the Fatal Accidents Act, 1855; filed by the plaintiffs against the defendants, stating therein that they are father and mother respectively of the deceased Badaruzzaman aged 19 years who died due to coming in contact with live electric wire loosely hanging from the pole.On main road of Sector 4-F, Orangi Town, Mominabad Police Station on account of negligence, lack of care and default in performance of the duty on the part of the defendant No,1 whereas the defendant No,2 covers the third party risk of defendant No,1 in case of accidents arising out of electrocution. It is stated that defendant No,1 is responsible for construction and maintenance, properly looking after the net work of over head wires, poles and other electric installations constructed by the defendants in Karachi including. Sector 4-F, Orangi Town, Karachi.
2. It is stated that on 25-4-1991 at about 0830 hours, an electric wire which was stretched overhead on the main road at Sector 4-F, Orangi Town near Mominabad Police Station broke down on account of lack of care and pre-caution on the part of defendant No,1 and fell down dangerously on the road, loosely hanging from the electric pole. The nearest complaint center of the area was informed about the breaking of overhead wire but the defendant No,l's complaint centre paid no attention to it without undue delay when the deceased Badaruzzman alongwith his relative Taj Muhammad was passing from that 'road on their way to work came in the contact to the said broken wire lying unattended on the road without any warning from the defendant No,1 and consequently both fell down speechless and died, which death of the deceased Badaruzzaman was caused by negligent and improper maintenance of its wire which broke down due to some physical defects and caused the tragic death of two persons including the deceased. It is stated that defendant No,1 has failed to maintain the system of periodical check-up of rusty wires to remove and identify the loose and rust wires having some physical defects likely to fell down, like the wire in question which fell down on account of their omission and resulted in the fatal casuality of deceased which the defendant No,1 was under an obligation and also owed a duty to the public including the deceased that the electric poles and wires are properly maintained and that requisite protective measures in the wire is automatically disconnected in case the wire is broken which defendant No,1 absolutely failed to maintain and discharge consequently the said act of the defendant was wrongful, amounted to misfeasance, non-feasance and actionable wrong for which the defendant No,1 was liable to pay damages/compensation to plaintiffs. It is also stated that the deceased Badaruzzaman, aged 19 years was very healthy and was a person of very simple habits and used to care much for the plaintiffs and the deceased could have survived upto the age of 80 years due to his sound health, advanced medical treatment and improvement in scientific treatment and because of the death of the deceased, the plaintiffs have been deprived of expected earning of deceased amounting to Rs,15,50,000 as the deceased was working as Mason in SITE area and was very much perfect and skilled in Masonary work involving plaster of the floors, brick erecting, mozaic, designing and tiling of the walls and floors and the deceased used to earn Rs, 100 to Rs,200 per day and further the deceased used to have work on contract from local contractors and builders and used to have much margin in those works and contracts by getting the work done through other persons on lower prices and he used to earn a sum of Rs, 5.000 to Rs, 6,000 per month. It is also stated that the deceased was attempting to find out some job in Middle East countries and he could have easily gone there after couple of years and could have started earning a sum of Rs,20,000 to Rs,25,000 per month and could have been able to support his parents/plaintiffs in more befitting manner and the deceased used to give all of his earning to the plaintiffs except Rs,250 which he used to deep for his personal expenses. The plaintiffs also claimed a sum of Rs,15,000 towards funeral and allied expenses consequent upon the death of deceased and prayed for a sum of Rs,15,50,000 as compensation against the defendants.
3. ' The defendant No,1 filed written statement wherein it denied that deceased died due to electric shock on 25th April, 1991 and that they were involved in any way, in causing the death of deceased.
4. However, complaint of wire broken was received on phone via Deputy Commissioner (West) Office at 8-30 a.m. For which a gang was dispatched who isolated the wire and reported back the complaint centre. The said defendant also denied that the wire stretched overhead on the main road at Sector 4-F Orangi Town, near Mominabad Police Station broke down on acount of lack of care and pre-caution on the part of the defendant No,1 and the death of deceased was purely accidental and not due to any negligence on the part of answering defendant. The defendant No,2 filed written statement denying therein the averments made in the plaint and stated that the electric wire was loosely hanging from the pole on main road of Sector 15, Orangi Town and the answering defendant covered the third party risk of defendant No,1 in cases where the negligence of the defendant No,1 is established, proved under the existing law.
5. ' On the pleadings of parties, Court settled the following issues:
(1) Whether the deceased Badaruzzaman died due to the negligence of defendant No,1?
(2) Whether the death of deceased was the result of an accident?
(3) Whether the defendant No,2 is also liable to pay any compensation to the plaintiffs jointly and severally as allegedly claimed?
(4) Whether the plaintiffs are entitled to cost and interest/mark-up/profits?
(5) What should the decree be?
6. ' The plaintiff examined Khan Zaman as Exh. 5 who produced Special Power of Attorney as Exh. 5/1, photocopy of National Identity Card of deceased as Exh. 5/2, photocopy of death certificate of deceased as Exh. 5/3. The defendant No,1 filed affidavit in evidence of Muhammad Anwar who was cross-examined by the plaintiffs' learned counsel. Issues Nos. 1 and 2: Death of deceased Badaruzzaman is not denied. The plaintiff's witness Khan Zaman, the attorney of the plaintiffs, has deposed that deceased died unnatural death by coming into contact with live stretched wire in front of police outpost when one Taj Muhammad also died on account of the same incident as he happened to be in company of the deceased. He has produced death certificate of deceased Exh.
7. 5/3.- This witness was cross-examined and stated that he was present at the time of incident and that electric live wires were broken and deceased walked over without knowing their presence. He further stated that he went to the place of incident from his house on coming to know about the death of deceased. He denied that K.E.S.C. Was not responsible for unnatural death of deceased or that deceased himself acted carelessly and negligently. D.W. Muhammad Anwar in his affidavit-in- evidence has stated that a complaint of wire broken was received on phone through Deputy Commissioner at , 8-30 a.m. Accordingly, a gang was dispatched who isolated the wire and reported back. He sated that the wire broken stretched overhead on the main road at Sector 4-F Orangi Town near Mominabad Police Station broke down on- count of lack of care and pre-caution on the part of the defendant No,1 . It is further stated that report was lodged at Police Station Mominabad and as per police report the incident was declared as accident and he denied that there was delay on the part of defendant No,1 's complaint centre in attending the complaint. It is further stated by the defendant's witness that the death of deceased Badaruzzaman was purely accidental and it was not due to any negligence on the part of defendants or their officials and the defendants were not liable to any compensation. This witness was cross-examined at length by the learned counsel for plaintiffs wherein he sated that on the date of incident he was posted in Spencer Building in planning department and had no connection with the complaint centre in Mominabad, Organgi Town. He stated that the place of incident from the complaint center would take about fifteen minutes. He stated that the maintenance department looked after the poles and wires. He stated that he was not aware whether any survey was carried out of the pole from which wire fell. He stated that he has not surveyed the poles before coming to this Court. There were six wires which fell from the pole and they were neutral wires and of copper and he was not knowing the life of copper wire. He admitted that the testing department was responsible for regularly checking of the wires to see whether they were in fit condition and there was a guard wires system on each pole and the function of the guard wires was that when any wire fell then it is rendered dead. He admitted that wires normally fall due to overloading, theft or interference by the consumers. He was not aware whether any such record was kept in respect of these wires. He denied that the death of two individuals occurred due to negligence of KESC and due to lack of maintenance of wires and due to not taking the necessary security measures to prevent the accidents. He denied that the wires fell because they had been rusted or that they had become physically defective.
8. ' The above evidence adduced by parties would show and prove that deceased met with unnatural death because of falling of live electric wire upon him. Admittedly, there is nothing on record to show that the wire fell down because of any act or omission on the part of the deceased. Nothing has been produced by the defendant to show that there has been some misuse or interference of the subscribers of the adjacent persons of locality. It has been admitted by the defendants that it was their responsibility to install and maintain the poles and wires periodically for which necessary record is to be maintained by the concerned department of defendant No,1. No record has been produced certifying that the wires so fell/broken were properly installed and were found fit periodically. In failure thereof to produce reliable, satisfactory evidence, the version/testimony of the plaintiffs' witness would be believed considering that unnatural death of deceased has not been denied which happened because of his contact with live wire. Had there been an automatic system with the poles from where the wires were to extend on their being broken, the same would have become dead but as the same remained alive after being broken down would show that there was a fault and negligence on the part of defendants. In the circumstances, it is held that deceased Badaruzzaman died due to negligence on the part of defendant No,1. As the death was occurred because of the negligence, misfeasance and non-finance of the defendant, therefore, it could not be said that the death of deceased was the result of accident. The death occurred because there was negligence on the part of the defendant to maintain the wire system and keep automatic system in proper condition and operation but the same was not maintained by the defendant, therefore, the incident of death took place. In the circumstances issue No,1 is answered in the affirmative while issue No,2 in answered in negative.
9. ' ISSUE NO 3.
10. ' As there has been negligence on the part of the defendant in maintaining the proper condition of the poles and wires, therefore, defendant No,2 would also be liable to compensation to the plaintiffs jointly and severally with the defendant No,l. Issue No,3 is answered accordingly.
11. ' ISSUE NO.4.
12. ' As the defendants did not settle the claim of plaintiffs with them and contested their claim even in the Court after filing of the suit, therefore, plaintiffs would be entitled to cost so also the profits on the decretal amount.
13. ' ISSUE NO.5.
14. ' P.W.1 Khan Zaman has stated that deceased was aged 19 years at the time of his death and in support of the same, he has produced photocopy of his National Identity Card which mentioned the date of birth as 1971 of the deceased. The average life span in Pakistan is considered to be 70 years. Reference may be made toto (i) S. Iqbal Hussain Jaffery v. Karachi Electric Supply Company (1994 CLC 1903 at 1910) and (ii) Mst. Bibi Surat Jan v. Mir Azam Khan and two others (PLD 1993 par.
15. 168). Learned counsel for plaintiffs has submitted that the age of surviving beneficiaries viz. The plaintiff No,2, mother, was of 40 years whereas plaintiff No,1, father of deceased expired during the pendency of suit, therefore, there would be loss of pecuniary benefits for 70 - 40 = 30 years and the deceased according to learned counsel was earning average Rs, 125 per day, therefore, for a month it would come to Rs, 3,750 and for thirty years loss 3750 x 12 x 30 would come to Rs, 13,50,000 adding 20% increment chances on overall expenses would come to Rs,13,50,000 divided by 5 = Rs,2,70,000, therefore, gross loss of pecuniary benefits for thirty years would come to Rs,13,50,000 plus Rs,2,70,000 = Rs,16,20,000 less 1/3rd personal expenses, Rs,16,20,000 divided by three would come to Rs,5,40,000, therefore, net loss of pecuniary benefits would come to Rs,16,20,000 minus Rs,5,40,000 would come to Rs,10,80,000 whereas the amount claimed by the plaintiffs in the plaint is Rs,15,50,000.
16. ' The plaintiffs have not filed any reliable or satisfactory documentary evidence showing that the deceased was a mason by profession. Even a contractor/builder, with whom he worked, has not been examined to support the case of plaintiffs that deceased used to earn averagely Rs, 125 per day. There is no material evidence to show that the deceased could have earned more after some time so as to give him benefit of increment of 20% overall aggregate income. The plaintiffs have not cared to come in the witness-box to depose what has been stated in the plaint. The attorney Khan Zaman has been examined but he has not stated as to how he was connected with the deceased or with the plaintiffs. The attorney of the plaintiffs in the cross has stated that he was present at the time of accident and deceased walked over the live wires which were broken without knowing their presence but thereafter he has stated that he went to the place of accident from his house on coming to know about the death of deceased. This would show that the attorney was not even present at the place of incident and he had no knowledge about the facts of the case. However, the admitted position as said above is that the deceased died because of electrocution due to negligence on the part of the defendant No,1 and at least the young deceased could have fetched Rs,2,000 per month out of which he could have spent Rs,500 per month at least on his person consequently there would be a loss of Rs,1,500 for the beneficiaries/plaintiffs. In the circumstances, Rs,1,500 x 30 x 12 = Rs,5,40,000.
17. However, in view of the evidence whatever has been placed, suit of the plaintiffs is decreed for the sum of Rs,5,40,000 with costs and mark-up at the rate of 14% from the date of suit till its realization jointly and severally against the defendants.