The brief facts of the case are, that the suit was filed for recovery of Rs.15,50,000 against the defendant, under the Fatal Accidents Act, 1855 on account of death of the son of the plaintiff namely, Muhammad Rehman aged 11 years who died on 29-5-1996 on account of electric shock caused to him when he came into contact with an energized pole erected on Street No.3 Mustafa Taj Colony Korangi, Karachi.
1. It is the case of the plaintiff that the electricity is supplied by Karachi Electric Supply Corporation, a statutory body/Corporation responsible for supplying electricity to Karachi as, it is their job to look after, construct, maintain and keep the citizen safe from electrical current A from any of their installations. It is the case of the plaintiff that electric poles on which the live wires are erected are liable to be insulated in the proper manner so that the electrical current passing through the wires do not energize the poles.
2. It is the case of the plaintiff that sometimes in the last week of May, 1996 all the electricity poles maintained and erected by K.E.S.C. in Gali Nos.2 and 3, Mustafa Taj Colony Korangi, Karachi were energized due to lack of maintenance, defect/operational fault. It is stated that the people from the area complained to the complaint center on 29-5-1996 but, the K.E.S.C. failed to rectify or take precautionary measures to curb the danger involved. It is stated that K.E.S.C. neither reached nor bothered to go, to do the needful. It is on the same day, whilst the deceased Muhammad Rehman, a boy of 11 years while coming to his house passed through Gali No.3, Mustafa Taj Colony, Korangi, Karachi on bicycle, unaware of the prevailing danger, came into contact with the energized pole which was due to the negligence of K.E.S.C. the defendant. Upon coming into contact with the pole, the said boy fell down speechless alongwith the pole. After the incident, one Aslam and Javed of the area, managed to isolate him from the energized pole, with the help of the wooden planks. The said deceased was taken to the Sindh Government Hospital, Korangi, where he was declared dead, on account of electric shock. It is, therefore, the case of the plaintiff, that the death was caused due to the negligence, default and wrongful act of the defendant who had failed to take adequate measures to curb the danger that prevailed in the said Mohallah.
3. On account of the above, it is stated that a legal notice of 13-2-1997 was served upon the defendant. In the said legal notice the plaintiff had claimed a sum of Rs.2 million for pecuniary loss caused by the negligence of the defendant.
4. The plaintiff had stated the deceased Muhammad Rehman was of 11 years and was healthy and of simple habit and was expected to survive to the age of 70 years on account of his sound health.
In view of the above, in the suit a sum of Rs.15,50,000 has been claimed stating that, the young boy had started, at that tender age selling various commodities and was expected to set up his own stall of fruit etc. whereby he would earn reasonable profits.
5. The defendants filed their written statement, in which they have taken preliminary objections as to the non-maintainability due to the non-joinder of National Insurance Corporation, and that the plaintiff has no locus standi in the present suit. However, on merits, the contents of the plaint have mostly been denied. It has been stated that there was a general complaint regarding leakage of electric current that had been lodged by Mr. Zulfi at 13-40 hours on 29-5-1996 at the complaint center of K.E.S.C., however, no specific pole number etc. had been given in Sector 43-A, Mustafa Taj Colony, Korangi, Karachi. It is their case that upon receipt of the complaint a lineman immediately went there who attended the complaint and on his going there on ground he found that there was no sign of current leakage. The defendant has stated that the entire story that had been narrated is concocted, incorrect and fabricated and that in fact, the residents in that area generally place illegal hooks/jumpers (commonly known as "Kundas") on the mainline and draw electricity from such lines directly so as to avoid payment of electricity charges. It is the case of the defendant that it is because of this unlawful and unauthorized linkage to the electricity wires that, such a position could occur and such leakage could be there, on account of entanglement on the various live wires having touched to the said main lines. It is stated in the written statement that the deceased might have touched the pole and expired due to the electrocution. However, it was not on account of the negligence on the part of the defendant as the defendant rectified the pole immediately on receipt of the complaint. The entire emphasis has been laid on the generality of knowledge of the unlawful connections (Kundas) system, which, is stated to be the cause for the electrocution. It is stated that, because of such unlawful activity and because the residents of the area do not remove the same, it is the residents who should penalize rather the defendant. It is stated that the defendants are only responsible to repair the broken wires and such other duties as that may be required to perform and K.E.S.C. is not responsible for authorized acts, and by law are not liable to compensate and make good the loss, thus, caused. The defendants have denied that they are liable to make any payment under the Fatal Accidents Act.
Following consent issues were filed by the parties:-- (1)Whether the deceased Muhammad Rehman died on 29-5-1996 due to electric shock owing to negligence, default and wrongful act of the defendants, if so, its effect?
(2)Whether the defendant is liable to pay compensation to the plaintiff, if so, to what extent?
6. Evidence was led by both the parties. The plaintiff examined herself and one Abdul Sattar. The said plaintiff has produced death certificate of the deceased Muhammad Rehman aged 11 years issued by the Sindh Government Hospital, Korangi wherein the cause of the death has been shown as electric shock as Exh.P.2. She has also produced the notice sent to the defendant as Exh.P.4. In her affidavit-in-evidence, the contents of the plaint have been narrated and has claimed a sum of Rs.15,50,000 as damages/compensation on account of the fact that the said Muhammad Rehman was expected to survive upto the age of 70 years. She has stated that her age is 38 years and she could have derived personal benefit to the extent. She has calculated the said amount in the affidavit to reach the aforesaid figure. I had asked Mr. Nasir Maqsood to draw out the detailed statement in accordance with the evidence that has been led. Such statement has also been filed today. The plaintiff was cross-examined. In her cross-examination she has stated the fact that the deceased Muhammad Rehman died of electric shock coming into the contact with the electric pole. She stated that she was in the house when the incident took place when one Abdul Sattar came and informed her of the incident. She stated that when she came out the said boy was brought in an unconscious state. On examination she stated that there were no Kundas installed in the Mohlla on the poles specifically the offending pole.
7. In the affidavit filed by Abdul Sattar, the person who had informed the plaintiff, has reiterated the entire incident, and such is in line with the statement of the plaintiff in the plaint and her evidence.
It has categorically been stated that the pole was energized and that the said boy Muhammad Rehman coming into contact with the said pole got energized with heavy load current and fell down on the ground. He stated that the said boy was removed by wooden planks and ropes from the poles, where after he was evacuated to the Government Hospital, where he was declared as dead due to severe electric shock. He said that it is after 2 days that the K.E.S.C. dispatched their patrolling staff who came to the residence of the plaintiff and condoled the death of her son and departed after noting down the particulars of meter, house number and name and address of the residents. To show that there was 'proper electricity connection in the area, the said witness has also filed a bill of electricity in which amounts payable for use of electricity have been shown and paid.
8. The defendants examined two of their employees the first being one Mahfooz Khan, a service attendant and the other being Aijaz Ali, Electrical Engineer as their witnesses. In the affidavit-in- evidence filed by the said Mahfooz Khan, it is stated that mother of the deceased informed that due to the Kunda affixed on the poles current had reached the bottom of the pole and he said that, therefore, it is not the fault of the K.E.S.C. He has not denied the death of the boy due to the current by the energized pole. The death has not been denied, the cause of the death has not been denied.
The only denial is that of the negligence on the part of the K.E.S.C. In the cross-examination he stated that the people in general use Kundas in Korangi and this is a practice for the last 10 years.
He admitted, therefore, that he knew all these facts since long. He stated that he received 22 complaints in the month of May, 1996 in respect of faults in poles pertaining to Mustafa Taj Colony, Korangi, Karachi and on average two to four complaints are received in respect of faults of poles.
He stated that maintenance is done each year and that maintenance basically includes checking and inspection of safety wire, guard wire etc. He was asked as to what guard wires were. He said that the guard wires are installed on poles to prevent the poles from being energized in case of touching of any wire/hook to the poles. By this it is suggested that each pole is required to have a guard wire and that, in case a live wire comes into contact with a pole the pole would not be energized. Therefore, it would mean that where the live electric wire comes into contact with the pole without a guard wire the same could be energized. He stated that the detail in respect of the installation of Kundas as also hooks if found on the poles are kept by the maintenance department in writing and he had no concern with the same. He stated that the complaint slip produced by him alongwith the affidavit-in-evidence is not in his handwriting nor does it bear the signature of the consumer. He stated that he is not aware of any incident which occurred in Mustafa Taj Colony, Korangi, Karachi in May, 1996, nor did he attend the plaintiff Mohallah at the time of electrocution.
He is, not also aware of the Kundas/hooks installation at the Mustafa Taj Colony, Korangi, Karachi.
He is also not aware of the incident of electrocution resulting in the death of Muhammad Rehman on 25-9-1996 in Gali No.3, Mustafa Taj Colony, Korangi, Karachi after coming into contact with the energized poles. He, however, said that K.E.S.C. is not liable and there is no negligence on the part of K.E.S.C.
9. Affidavit-in-evidence filed by Aijaz Ali basically stated the same, that, the electric poles are energized because of the unlawful Kunda system and has said that, because they could not go there, therefore, meter reading could not be taken and that, because of the direct system the people of the Mohallah. are liable to suffer. He has produced as Annexure "B" to his affidavit one bill of one Abdul Sattar of House No.223 of Sector 43-A, Mustafa Taj Colony, Korangi, Karachi in which it is written that the bill is on average due to hook connected directly. He has also produced various photographs to show that there is in general, a Kunda system in the area. He also denied that there is any liability of the K.E.S.C. and that it is the people who are liable. In the cross-examination it has been stated that he was posted in Korangi from February, 1997 and that he was not the signatory of the written statement and was personally not conversant with the facts of the case of the accident.
He stated that photographs that have been filed alongwith the affidavit were taken in May, 2000.
He has given details as to how the complaint is activated and acted upon and said that according to him those linemen and staff who attended the complaint are still in the employment of the defendant. In cross-examine, he stated that the K.E.S.C. has its own police station and that, immediate action is taken against the person using Kundas/hooks/jumpers in the area. He also stated that the K.E.S.C. conducts annual/periodical routine inspection/maintenance of electric installation including wires and poles and in the event inspection team finds Kundas/hooks a comprehensive report is sent to the maintenance department and action is immediately taken for removal of the same. He, however, stated that it is in the knowledge of the defendants for about 15 years that the people are using Kundas in Karachi. He also admitted the fact that despite their knowledge the K.E.S.C. has not pointed out any Kunda/hook installed in Mustafa Taj Colony, Korangi, Karachi or any instruction for its removal. He also stated that no F.I.R. or complaint has been made to the police department in this respect. He has stated that "it is incorrect to suggest that the deceased Muhammad had died due to illegal Kunda system or theft of electricity. I have only enclosed alongwith affidavit-in-evidence snaps and , bills of K.E.S.C.". The cause of the death and the factum of the death have been pleaded. The evidence of the plaintiff as also the plaintiff's witness is on record giving the fact of death and cause thereof.
It is the case of the plaintiff that, the death is not denied. The cause of death is not denied. The place of death is not denied. In the circumstances, the onus of proof shifted on the defendants to show that it is not due to their negligence that the death occurred. It is the case of the plaintiff that the electricity poles were that of the defendants and it is they who knew the dangers of it being electrocuted/energized. It is the defendants who should have maintained them as such the defendants are liable to compensate the defendants. He said that as a general rule it is upon the plaintiff to prove negligence and not for the defendant to disprove it, but in those cases where the true cause of death lies solely within the knowledge of the defendant, this hardship is avoided by invoking the rule of res ipsa loquitur, which means "Things speak for themselves". He has relied on innumerable judgments in which cases the following has been held:-- In the case of Mst. Kamina v. Al-Amin Goods Agency, reported as 1992 SCMR 1715, it was held that:-- "In the cases under Fatal Accidents Act, 1855 general rule is that burden of proof with regard to negligence is on plaintiff to prove negligence and not for the defendant to disprove it but in cases where true cause of accident lies solely with the knowledge of defendants then this hardship is avoided by invoking the rule of res ipsa loquitur (the thing speaks for itself). In such circumstances where accident speaks for itself, it is sufficient for plaintiffs to prove the accident and nothing more.
It is then for the defendants to persuade the Court that the accident arose not through their negligence. In support of this proposition, reference can be made to the case of Ursulina D'Lima and others v. Orient Airways Limited and another PLD 1960 Kar. 712 in which case-law on the subject is aptly discussed. It was held in that case that it could not be ruled out that plane met with the disaster for the aforesaid defect and the defendants should have proved that there was no inherent defect in the machinery of the aircraft."
In the case Pakistan Steel Mills Corporation Ltd. v. Malik Abdul Habib reported as 1993 SCMR 848, it was held that:-- "Res Ipsa Loquitur means that the things speak for themselves. This doctrine applies firstly, when the thing that inflicted the damage 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 this context evidence is evaluated by the Division Bench of the High Court in appeal and relevant paragraph from the impugned judgment is reproduced as under-- We have further noted that Exh.5/4 is supported by the evidence of D.W.1 who stated that while painting the deceased asked the crane to be lifted upwards and all of a sudden the boom fell down. This shows that when the deceased asked to lift the crane upwards appellant No.2 must have started operation. The possibility of wrong operation causing the accident cannot be ruled out particularly as the appellants have not offered any explanation for the alleged mechanical failure of the elevator. Nor have they given any reason for this failure'.
We are in agreement with finding of the Division Bench of the High Court on appraisement of evidence on the question of negligence for which defendants in the suit are liable as stated above.
In connection with doctrine of res ipsa loquitur our attention has been drawn to the case of Qazi Arifuddin and another v. Government of Sindh through Secretary, Ministry of Health and others PLD 1991 Kar. 291 in which it is held by a learned single Judge of High Court of Sindh that in suit for damages in accident cases normally the rule is that it is for the plaintiff to prove negligence. In some cases this principle may cause hardship to plaintiffs because it may be that true cause of accident lies solely within the knowledge of defendants who caused it. This hardship is, however, avoided to a considerable extent by the maxim res ipsa loquitur. This maxim means that an accident may by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other cause and in such a case mere fact of the accident is prima facie evidence of such negligence. We agree and approve the explanation given by the High Court of res ipsa loquitur. In the present case we are satisfied that the maxim has been applied by two forums in the High Court correctly and appropriately."
In the case of Kulsoom v. Jalil Ahmed Khan reported as PLD 1964 Kar. 72 it has been held that:-- "It thought that their liability could, therefore, be judged by applying the principle of res ipsa liquotur; that is to say, by examining whether the accident itself indicates the negligence of the driver or not. The principle has been explained by Salmond in his work on Torts at page 451 (Edn.
XIII) as follows-- 'The rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases of considerable hardship to the plaintiff, because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it'.
The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the principle of res ipsa loquitur. There are many cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to the jury, and it is for the defendant, if he can persuade the jury that the accident arose through no negligence of his. The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused."
Clark and Lindse11 have explained the doctrine in their book on Torts Edn.XI, at p.399 as follows:-- "If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability.
The'doctrine applies (1) when the occurrence suggests, as a matter of reasonable inference, that it was the result of the negligence of the defendant or of someone for whose acts or omissions he is responsible, (2) the cause of the occurrence is unknown, and (3) the presumption of negligence raised by the occurrence is not rebutted by any explanation based on additional facts proved."
In the case of P.I.A. v. Ursulina D.Lima reported as PLD 1966 Kar. 580, a Division Bench of High Court observed that:-- "It is as it ought to be, because the doctrine of res ipsa loquitur does not embody an entirely new and independent principle of law but is derived from the body of considerations that apply to cases of negligence.
The convenient and succinct formula, said Morris, L.J. possesses no magic qualities; nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin. It is only a convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant without having to allege and prove any specific act or omission on the part of the defendant."
The expression res ipsa loquitur means; the things speaks for themselves.
"The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of some one for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition; (3) there must be no evidence as to why or how the occurrence took place." Page 796 by Clark and Lindsell, 12th Edn.
It is not necessary for shifting back the burden of proof or rebutting the presumption that the actual manner and cause of the accident be established by him who is taken to have been negligent. That would be asking for an impossibility when the necessary information is lacking. On the contrary shifts in the burden of proof follow the line of probabilities, therefore, the presumption can be dislodged by offering any plausible explanation which attributes the accident to some other cause than negligence Woods v. Duncan (1)"
In the case of Nasreen v. Quality Steel and others reported as PLD 1981 Kar. 561, it was held that:-- "In my view in cases of this nature a duty is cast on the employer to use reasonable care in keeping its machinery, the use of which might otherwise be dangerous to persons in its employment in proper condition and free from defect. The evidence adduced by the plaintiffs in this case and the admitted circumstances of accident are sufficient to show that the cause of accident was some defect of mechanical nature in the crane. The causes of accident in such circumstances will be deemed to be primarily in the knowledge of defendant 1, who was responsible for keeping the crane in good working condition free from defect. In these circumstances the burden of showing the exact nature of defect in the machine and negligence of defendant No.1 cannot be thrown entirely on the plaintiffs as maxim 'res ipsa loquitur' would apply which shifts the burden in such cases on the defendant to prove that the accident did not arise on account of any negligence on their part or defect in the machine. The fact that the cause of accident is unknown is by itself not sufficient to prevent the plaintiffs from recovering damages if the proper inference can be drawn from the circumstances which are known that it was caused by negligence of the defendant. The snapping of the wire rope of the crane during its operation and falling of the load from a crane are itself sufficient circumstances to show that the crane used by defendant 1 was not free from defect as ordinarily the wire rope of a crane while lifting a load will not get snapped and throw away the load. It cannot be denied that the responsibility of keeping the crane in good condition and working order was on defendant No.l. It also cannot be disputed that the accident of the kind in,which the deceased died cannot take place in ordinary course of working of a crane unless some defect of a mechanical nature is present there. These circumstances and the evidence recorded in the case afford reasonable grounds in the absence of an explanation from defendant No.1, to hold that the accident arose for want of care on the part of defendant No.l. In such circumstances, the maxim quoted above will apply with its full vigour."
In the case of Kandan v. Al-Hayat Services (Pvt.) Ltd., reported as 1988 CLC 525 at pp. 529 and 530 it has been held that:-- "As already pointed out, the facts and circumstances of the case show that the defendant was in a better position to know as to how the incident took place, and that the plaintiffs witness could not be expected to be present there. In such situation the principle of res ipsa loquitur is applicable which has been explained by Salmond in his work on Torts at p.451 (Edn.XIII) as follows-- The rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases one of considerable hardship to the plaintiff, because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. The hardship is avoided to a considerable extent by the principle of res ipsa loquitur. There are many cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to the jury, and it is for the defendant, if he can persuade the jury that the accident arose through no negligence of the defendant that a reasonable jury could find without further evidence that it was so caused'."
In the case of Khatoon v. Noor Sher Khan, reported as 1988 MLD 1236 it was held that:-- "There is an other aspect of the case. In suit for damages in accident cases normally the case is that it is for the plaintiff to prove negligence. In some cases the above principle may cause hardship to the plaintiff, because it may be that the true cause of the accident lies solely within the knowledge of the defendants who caused it. This hardship is, however, avoided to a considerable extent by the maxim res ipsa loquitur. The maxim means that an accident may by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other case, and that in such a case the mere fact of accident is prima facie evidence of such negligence."
In the case of Al-Hayat Services v. Kandan, reported as 1989 CLC 2153, it was held that:-- "This maxim means that in all the circumstances of a given case the res speaks and is eloquent 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. In Bhurmal and Mitra Motor Association v. Reghunath Bansilal Kasal AIR 1963 Born. 144 the maxim was explained as follows-- When the thing is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care'.
In Barkway v. South Wales Transport Co. Ltd. (1950) 1 AB ER 392 Lord Porter in his speech observed-- The doctrine is dependant on the absence of explanation, and although it is duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the faces speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or noe."
In the case of Government of Punjab v. Mst. Kamina, reported as 1990 CLC 404 at pages 413 and 414 it was held that:-- "Coming to the second question, it may be observed that res ipsa loquitur (thing speaks for itself) is a principle which in reality, belongs to the law of torts. In Billard v. North British Railway Co. (1923) SC 11 L 43 Lord Shaw said, body would have called it a principle if it had not been in Latin, while, warning against the finding to magnify this expression into a rule of substantive law, Mr. Shaw conceded that this phrase ' simply has place in the scheme of, and search of causation upon which the mind sets itself working'. In the same case Lord Medan emphasized. 'It is not safe to take the remarks which have been made as the principle of res ipsa loquitur in one class of cases and apply them indiscriminately to another. class'.
Salmond on the Law of Torts (15th Edition, R.F.V. Heuston p.310) has suggested not to treat this maxim as a special rule of evidence. This is what he says-- .... Much of the confusion is due to a failure to appreciate that cases where res ipsa loquitur applies may vary enormously in the strength, significance and cogency of the res proved. There are many cases in which the most eminent Judges have been divided on the question whether an inference of negligence could properly be drawn from the facts proved or admitted. Looked at in this light, it is not easy to see why the maxim should be treated as a special part of the law of evidence'.
Lord Dunedan in Ballard's case (supra), thought no more a rule of evidence than a means of shifting the onus to prove negligence.
As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. .But the peculiar circumstances constituting the event or accident, in a peculiar case, may themselves proclaim in concordant, clear, and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming from the defendants. To emphasise the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have management and control use due care. But according to some decision, satisfaction of this condition alone is not sufficient for res ipsa loquitur to come into play and it has to be further satisfied that the event which caused accident was within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which tell their own story of being off-spring of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle, one car ramming another from behind, or even a head on collision on the wrong side of the road (see per Lord Normand in Burkway v. South Wales Transport Co. (1950) 1 AER 392, at 399 Cream v. Smit (1965) 1 WIR 1454.
Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that res must not only bespeak negligence, but pin it on the defendant.
In an unreported D.B. case of KTC v. Mst. Hajra in H.C.A. No.70 of 1988, dated 14-7-1990 a Division Bench comprising of Justice Imam Ali Qazi and Justice Saeeduzzman Siddiqui, observed that:-- "As a matter of general rules of evidence it is the plaintiff who has to prove his case and the responsibility is never on the defendants to disprove negligence. But in case where causes of accident happens to be solely within the knowledge of the defendant and accident is proved it will then entirely be for the defendant to prove that the accident was not caused due to his negligence.
In the latter case the maxim: res ipsa loquitur is attracted and the facts in such case will speak for themselves."
In an unreported D.B. case of Pakistan Steel Mills v. Malik Abdul Habib in H.C.A. No.55 of 1990, dated 18-3-1991, a Division Bench of this Court comprising of Mr. Justice Saleem Akhtar and Mr. Justice Aslam Arain observed that:-- "The admitted facts and circumstances speak about themselves and shift the burden on the appellants. The principle has been considered in various authorities which have been quoted by the learned Single Judge. The same was considered Farrakh Hamid Rizvi v. Managing Director and others in 1989 MLD 3533 where the following observation was made-- The normal rule is that it is for the plaintiffs to prove negligence but as in some cases considerable hardship is caused to plaintiffs as the true cause of the accident is not known to them but is solely within the knowledge of the defendants who caused it, the plaintiffs can prove the accident but cannot prove how it happened to establish negligence on the part of the defendants. This hardship is sought to be avoided by applying the principles of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident "speaks for itself" or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for plaintiffs to prove the accident and nothing more. It will then be for the defendants to establish that the accident happened due to some other onus than their own negligence. Salmond on the Law of Torts (15th Edition) at page 106 states that 'the maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendants that a reasonable jury could find without further evidence that it was so caused. ... where the maxim is applied the burden is on the defendants to show either that in fact they were not negligent or that the accident might more probably have happened in a manner which did not connect negligence on their part. For the application of the principle, it must be shown that the jeep was under the management of defendant No.1 and that the accident is such as in ordinary course of things does not happen if those who had management used proper care."
In another unreported D.B. case of Mst. Hajira Begum v. KTC in Suit No.610 of 1985, dated 12-3-1988 it was held that:-- "In suits for damages in accident cases normally the rule is that it is for the plaintiffs to prove negligence. In some cases the above principle may cause hardship to the plaintiffs, because it may be that the true cause of accident lies solely within the knowledge of defendants who caused it. This hardship is, however, avoided to a considerable extent by the maxim res ipsa loquitur. The maxim means that an accident may by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other causes, and that in such a case the mere fact of the accident is prima facie evidence of such negligence.
In such cases it is sufficient for the plaintiffs to prove accident and therefore, a presumption of negligence arises. The burden then shifts on the defendants to show that the accident could not be avoided at any costs."
Similar view has been taken in the cases of Iqbal Hussain Jafrery v. K.E.S.C., reported as 1994 CLC 1903 at p.1908, Hassan Nawaz Khan v. Municipal Corporation Multan reported as 1994 MLD 1995, K.T.C. v. Kaisar Janan reported 1995 CLC 196 at p.200(b), Road Transport Board N.-W.F.P. v. Mst. Gul Zarina reported as 1995 CLC 83; Jahangir Services (Pvt.) Ltd. v. Rukhsana Begum reported as PLD 1995 Kar. 329, at 335(b), Amina v. Government of Pakistan reported as 1995 MLD 1922 at p..1928(d), Nisar Ahmed v. Mst. Uroos Fatima reported as 1996 MLD 1913 at pp.1918 to 1921, Mst. Shamim Akhtar v.
Javedan Cement reported as 1997 CLC 955. Karim Bux v. -K.E.S.C. reported as 1997 CLC 507; Shah Bashir Alam v. Arokey Chemical Industries Ltd. reported as 1997 MLD 2308 at 2321, 2334, 2341, Punjab Road Transport Corporation, Lahore v. J.V. Gardner reported as 1998 CLC 199; Mst. Nafisa Begum v.
Muhammad Ismial reported as 1989 CLC 2218; Farrukh Hamid v. M.D. Pak Arab Refinery reported as 1989 MLD 3533, Qazi Rafiuddin v. Government of Sindh reported as PLD 1991 Kar. 291 at p.295; Din Muhammad v. Faqir Muhammad reported as PLD 1970 Lah. 442; Mst. Momina Bai v. Ghulam Muhammad reported as PLD 1977 Kar. 685 at p.687, Mst. Kamina v. AlAmina Goods Transport Agency reported as 1988 CLC 898; Ursulina D'Lima v. Orient Airways Ltd. reported as PLD 1960 Kar.
712 at 718; Government of Pakistan and others v. Ishrat Begum and others reported as 1999 MLD 768 and Vicar Ahmed v. Blue Lines (Pvt.) Ltd. reported as 1989 CLC 229.
10. The law in this regard is now well-settled. In the present case the facts speak for themselves. The cause of death is electrocution by electricity poles. Even if it is taken to be correct that there were Kundas in the locality, the defendants are to blame. According to them, the defendants have their own police force, and that they could remove the Kundas. They chose not to do so, causing death of the young boy. It was within their knowledge that electricity could cause damage and could even kill. The defendants ought to have been extra-cautious. The boy could have no knowledge of the existence of an energized pole. If the defendants would have been cautious and would have carried out their duty diligently, this accident could have been avoided. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the principle of res ipsa loquitur.
There are many cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to the jury, and it is for the defendant, if he can persuade the jury that the accident arose through no negligence of his. The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused. The above principle as enshrined by the doctrine of res ipsa loquitur is fully applicable to the facts of this case. The position that has to be seen is, that when the burden has shifted on to the defendants, have they discharged the same. I have gone through the evidence of both the witnesses of the defendants. I do not find that they have been able to establish that they are not liable. In fact the witnesses do not even know the facts. The lineman, who according to the witnesses went to the site, though in the service of the defendants, has not been examined. No person has been examined who had knowledge of the case. Admittedly when the defendants say that there is Kunda system, they state that they had knowledge, and despite the fact that they had the power and authority, they did not act to remove the same. There is, however, no direct evidence that there were Kundas, especially in respect of the pole which was energized. No evidence has been led that the defendants have been maintaining the system, though they are liable to do so. The defendants have, thus, miserably failed to show that they acted diligently.
11. In the present case having come to the conclusion that the principle of res ipsa loquitur is fully enforceable I have to now see whether the defendants were liable to keep their apparatus namely, electrical poles, wires and other items in order. Such is provided in the Electricity Rules, 1973 in Chapter VI, Rule 49 which reads as under:-- "49. Construction, insulation and earthing of apparatus.--- (1) All apparatus shall be sufficient in power and size and of sufficient mechanical strength for the work it may be required to do, and so far as is practicable, shall be so constructed, installed, protected, worked and maintained as to prevent danger.
(2) All insulating material shall be chosen with special regard to the circumstances of its proposed use. It shall be of mechanical strength sufficient for its purpose, and so far as is practicable, shall be of such a character or so protected as fully to maintain its insulating properties under working conditions of temperature and moisture.
(3) No live parts shall be exposed as to capable of being touched by persons not intended to have access to them.
(4) Every part of a system shall be kept efficiently insulated from earth except that--
(i) the neutral point of a polyphase system may be earthed at one point only;
(ii) the mid-voltage point of any system, other than a concentric system, may be earthed at one point only."
12. From the above it is clear that it is the defendants are in law required to maintain the electrical systems. The law has been made to protect the people who are not aware of the lurking danger of the electrical equipments. It is prescribed that the electrical installations have to be properly earthed. In evidence the witness has admitted that if the guard wires was installed, even if there was any leakage, due to the fact that it would be earthed, any person touching the pole could not be electrocuted. Had the defendants been strictly in accordance with the Rule 49 of the Electricity Rules, 1973 the deceased boy presumably could have been saved. In the event the defendants would have acted in accordance with the known law/rules, the risk of electrocution could have been totally eliminated. This could have been only in the knowledge of the defendants. The negligence of the defendants has caused the death of the young boy. Mr. Nasir Maqsood has referred to various cases in which superior Courts have held the aforesaid.
In the case of Chairman, WAPDA v. Naseer Ahmed reported as 2000 CLC 1926, it was held that:-- "It is the duty and obligation of the officials of the petitioners to take care/to check all the installations of electrification including the electric poles whether those 'are short---circuit or not.
The respondent/plaintiff brought sufficient evidence on record that the pole was earthed and the buffalo died due to electric shock. It is, settled preposition of law where a person has suffered personal , injuries on account of the negligence of another, he is entitled to-damages for personal suffering and for loss of enjoyment of life and also on actual pecuniary loss resulting to and the expenses reasonably incurred by him."
In the case of Sultana Babi and another v. Karachi Electric Supply Corporation reported as 1999 CLC 273, it was held that:-- "In the instant case the plaintiffs have discharged their burden successfully by proving that deceased Taj Muhammad died due to electrocution on 25-4-1999. No tangible or convincing evidence was led in rebuttal by K.E.S.C. to disprove such accident and to prove that they had taken all reasonable care and caution to avoid such accident. It is settled that where it is proved that the death was a direct cause of electrocution, the burden shifts upon K.E.S.C. to prove that all care, caution and precautionary measures were taken to possibly avoid happening of any breaking of overhead wires. In the abovementioned circumstances of the case, I am inclined to hold that deceased Taj Muhammad died due to negligence and wrongful acts of defendant No.1 and that it was not an act of God for which any concession could be extended to K.E.S.C."
On the similar question Mr. Nasir Maqsood has also referred to the following cases:--
(i) Mst. Rafiqan through Attorney v. K.E.S.C. 1999 CLC 1812,
(ii) Shah Bashir Alam and others v. Messrs Arokey Chemical Industries Ltd. 1997 MLD 2308,
(iii) Karim Baldish v. K.E.S.C. 1997 CLC 507,
(iv) S. Iqbal Hussain Jaffery v. K.E.S.C. 1994 CLC 1903,
(v) Barkat Ali Khan and others v. K.E.S.C. PLD 1983 Kar, 204,
(vi) Mst. Sharifan and others v. K.E.S.C. PLD 1981 Kar. 701, and '
(vii) Iftekhar Hussain and others v. K.E.S.C. PLD 1959 (W.P.) Kar. 550, In addition to the above, Mr. Nasir Maqsood has also referred to an unreported judgment of this Court in H.C.A. No.372 of 1999 in which it was held:-- "Mr. Abdul Samad Khan Ghori, learned counsel for the appellant in the first place argued that the accident took place because an unauthorized connection had been . taken from the pole by the organizer of the marriage party. Though such statement has been made in the affidavit-in- evidence filed by the only witness for the appellant that deponent clearly admitted in cross- examination that he was never aware of the incident till he was briefed a few days ago and that he was not posted in the area or conducted an inquiry at the relevant time. Therefore, were afraid that such statement cannot be given much weight.
In any event, it is settled law that appellant is required to maintain their wires in proper shape and take appropriate measures to prevent accidents. In fact their witness himself admitted that guard wires are required to be installed in every pole to ensure that whenever live wire falls its effect is neutralized. There is no explanation for non-existence of the guard wires.
Learned counsel next argued that the accident occurred due. to the negligence of those who had organized the marriage party and had also stolen electricity. He has, however, not been able to refer any legal principle whereby on account of contributory negligence of some person other than the respondents or the deceased, the appellant is absolved of liability. For these reasons, we find no force in this appeal and dismiss the same in limine."
13. From the above, it is abundantly clear that it was the duty of the defendants to have managed, looked after and acted prudently to secure the citizen from any untoward events. In any event, it is settled law that appellant is required to maintain their wires in proper shape and take appropriate measures to prevent accidents. When the thing is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. In fact their witness himself admitted that guard wires are required to be installed in every pole to ensure that whenever live wire falls its effect is neutrilised. There is no explanation for non- existence of the guard wires. The defendants were well-aware of their duties and if they were not, they ought to have been. Even if there were unauthorized Kundas/hooks by the residences it was the duty of the defendants to have acted promptly to remove them, especially, when they had sufficient force, power and authority to do so. It is the duty and obligation of the officials of the petitioners to take care/to check all the installations of electrifications including the electric poles whether those are short-circuit or not. Having not acted prudently, and admittedly so, they have acted negligently wherefore they are liable to be penalized for their negligent attitude and approach towards the citizens and, especially, in the present case the son of the plaintiff who expired due to the fact that he was electrocuted by an energized pole. It is settled law that where it is proved that the death was a direct cause of electrocution, the burden shifts upon K.E.S.C. to prove that all care, caution and precautionary measures were taken to possibly avoid happening of any energisation of the poles. In the abovementioned circumstances of the case, I am inclined to hold that deceased boy Muhammad Rehman died due to negligence and wrongful acts of defendant and that it was not an act of God for which any concession could be extended to K.E.S.C.
14. The question now comes what is the quantum that is liable to be paid. The plaintiff has claimed a sum of Rs.15,50,000 from the defendant and, according to her such evidence has been led. The summary of the statement of claim as reflected by the evidence led by the plaintiffs and not contested in evidence by the defendants has been filed by the plaintiff, which is as under:-- Statement of claim
1. Account claimed and assessed.Rs.15,50,0002.
Name and age of deceased Muhammad Rehman 11 years.
3.Date of accident: 29-5-1996 Name and age of beneficiary entitled for compensationRelation Age
1. Mst. Keneez Begum widow of Ghaffar AliMother 38 year Quantum of damages
(i) Average life span in Pakistan (in view of preponderance of judicial pronouncement).70 Years
(ii) The deceased was 11 years and was engaged . in selling Cholay and Confectionary articles/items near the Government High School in both the shifts and in the night he used to sell Moong Phali and boiled eggs in his locality in winter season and used to earn Rs.60 to 80 per day, thus bringing the monthly income on average i.e. (70x30)Rs. 21,00
(iii) The deceased was expected to open his own sale store for fruits and could have earned a sum of Rs.200 to 250 per day after attaining the age of 18 years. Thus, bringing (200x30 = 6000 per month) and 6000 x 12 = Rs.72,000 was the expected annual income after attaining the majority.Rs. 25, 200 (iv)Thus, the per annum before attaining the age of 18 years comes to 2100x12)
(v) Income for 7 years till attaining the age of 18 years 11+7 (25,200x7)Rs. 1,76,000 (vi)Since the mother was aged 38 years, and as such in view of average life span of 70 years she would have expected pecuniary benefits for 32 years.
Out of which the loss ofRs. 18,00,000 . pecuniary benefits till 18 years i.e. for 7 years comes to Rs.1,76,400 and for remaining (32- 7=25 years) after attaining the age of majority at the rate of Rs.72,000 per annum comes to Rs.72,000x25 = (vii)The addition of Rs.1,76,400 and Rs.18,00,000 will give the loss of pecuniary benefits for entire 32 years asRs. 19,76,400 (viii)Increment at the rate of 20% per annum will also be added to comprehend the advancement of the life (19,76,400/5)Rs. 3,95,280
(ix) Total (vii+ viii) Rs. 23,71,680 Deductions:
(x) A sum of Rs.1/3rd will be deducted on account of personal expensesRs. 7,90,560
(xi) Net loss of pecuniary benefits (x-ix)Rs. 15,81,120 14-A. The Courts in Pakistan in the various judicial pronouncements have observed that the average life span of a Pakistani would be around 70 years. No doubt, this could be less or more, which no one can predict, but it will naturally be in respect of a person of an ideal health, surroundings and the manner in which the person stands. There is nothing on record and has also not been contradicted by the defendants as such, I shall take the life span 70 years. I, however, disagree with the manner and method of calculation. The plaintiff has calculated the total earning for the period upto 32 years being the number of years remaining for the plaintiff to enjoy the benefits of the earning of the deceased. What has not crossed the mind of the plaintiff is that at a certain point of time in life the said deceased would have married and would have had his own family. The benefits, therefore, would have substantially reduced to the mother namely, the plaintiff.
In view of the above, I have broken the pecuniary benefits in two parts namely, the period during which he would have remained unmarried and the period during which he would have married but still taken care of his mother, the plaintiff. I have estimated the age at which he would have married, as 26 years. Therefore, till the deceased would have reached the age of 26 years, I would allow the deduction of personal expenses of the deceased at the rate of 1/3rd of his income as the personal expenses of the deceased, whereafter I would allow 60% as personal expenses of the deceased, though this may be at a lower pedestal. In view of the calculation that the deceased son was 11 years of age and it would have taken him 15 years to reach the age of 26 years, for the said 15 years the calculations is done separately. For the balance of 17 years the calculations are separate. The total of the two shall be taken as the net loss of pecuniary benefits. The calculation is as follows:--
(a) For the first 15 years till attainment of the age of 26.
72,000 x 15 Rs.1,080,000 1/3rd being the personal expensesRs.3,60,000 Deduction 10,80,000-3,60,000 Total Rs.7,20,000
(b) As regards the balance of 17 years the same is calculated as under:-- 72,000 x 17 Rs.12,24,000 Increment at the rate of 20% per annum:Rs.2,44,000 Total Rs.12,24,000 + Rs.2,44,000 Rs.14,68,000 Less 60% Rs. 8,80,800 Rs.5 87 2000 Total (A) + (B) = (Rs.7,20,000 + 5,87,200)Rs.1,30,7200 The total pecuniary loss, therefore, would be an addition of Rs.7,20,000 and Rs.5,87,200, comes to Rs.13,07,200.
In view of the above, the suit is decreed against the defendants for the aforesaid amount of Rs.1,307;200 with costs of the suit.