1. The plaintiffs who are father and mother of deceased Babar Hussain who died on account of falling of the roof and collapse of walls of public latrine upon him have filed this suit for recovery of Rs.20,00,000 under Fatal Accidents Act, 1855.
2. The facts leading to this case are that on 15-1-1990 the deceased Baber Hussain urged by his natural call went to use the public latrine constructed and maintained by defendant No.2 situated at Lea Market main bus stop for public use and immediately after his entering into the latrine the roof and walls all at once got collapsed. Consequently, deceased Baber Hussain got severe injuries and ultimately succumbed to the fatal injuries and died on the spot. The plaintiffs attributed the tragic death of deceased to the negligence, default, wrongful act, lack of foresight of defendant No.2 as they failed to take reasonable and adequate care in erecting constructing maintaining periodical inspection and repairing from time to time in removing the patent and latent defect of the said latrine. In addition to that it was also pleaded by the plaintiffs that the construction was not done according to the required standard and as such due to lack of maintenance and carelessness in repairing the latrine the same became dilapidated and ruined.
3. The defendant No.1 was served but did not contest the matter. Accordingly he was debarred and was proceeded ex parte. The defendant No.2 filed written statement wherein they have taken the stand that they used to auction the latrines alongwith others to the contractors yearly. According to defendant No.2 the latrine was in good condition before it was auctioned and there was no complaint from the contractor as well as from local users. It was further contended that the latrines were kept and managed/maintained by the said contractors who was fully responsible for the maintenance of the latrine. It was further averred by them that roofs and walls of the latrine collapsed due to natural wear and tear and as such the responsibility for the collapse and death of deceased Baber Hussain was denied.
4. On the basis of aforesaid pleadings the following issues were framed:--
(i) Is the claim of the plaintiffs covered by the Fatal Accidents Act?
(ii) Are defendant No.1 in general and defendant No.2 in particular responsible for proper maintenance of the latrine owned by the defendant No.2?
5. (iii)Can the defendants shift the responsibility of keeping the latrine in safe condition upon the contractor and they are absolved of their responsibility?
6. (iv)Did the latrine collapsed due to the negligence of the defendants?
(v) If issue No.4 is not proved what is the cause of the collapse of the structure?
7. (vi)What was the life expectancy of the deceased?
(vii) To what damages, if any, are the plaintiffs entitled?
(viii) Relief?
8. The plaintiffs have examined the attorney of plaintiff Mairaj Bibi who produced special power of attorney, copy of police report, dated 15-1-1990, three snaps showing the place of incident, N.I.C. of plaintiff and N.I.C. of the attorney and Muhammad Siddique who produced Exh.5/8. The defendants did not cross-examine the plaintiffs witnesses and nor they produced any witness. My issuewise findings are as follows; Issue No.2 The onus to prove this issue lies upon the defendants. The plaintiffs have pleaded that defendant No.2 under the control and management of defendant No.1 was obliged to construct, erect and maintain the public latrines to be used by public in general. The defendants were stated to be owing the duties of maintenance of public, latrines and was responsible to take reasonable care to provide safety to general public from any danger or injury by keeping the wall and roof in a safe, serviceable and harmless condition and it was their duty to ensure that its use will not cause any harm or injury to the users who were entitled to use the same. The defendant No.2 did not deny this fact specifically that they construct, erect and maintain the public latrines for the public use but they have come out with this defence that the said public latrines were auctioned alongwith others to the contractors yearly. The defendants have failed to produce any document or witness to support their version. They have even did not disclose the name of the contractor to whom the said latrine was auctioned. Thus, in the circumstances the defendant No.2 has not been able to discharge their burden. It is settled law that when anybody denies liability on the ground that the worker was engaged by contractor, the burden to prove existence of contract and terms thereon lay on the shoulder of owner and in case owner led no evidence to prove such contract such burden not being discharged and the owner held liable to pay compensation. The counsel for plaintiffs in this relied upon 1974 SCM R 269. I, therefore, answer this issue in affirmative.
9. Issue No.1 The Fatal Accidents Act, 1855 stipulates the award of compensation in favour of specified beneficiaries envisaged therein to compensate the pecuniary loss suffered by them on account of death their bread earner due to negligence, default and wrongful act of the wrong doers. In this case the plaintiffs have alleged that their son had died on account of negligence and default in performance of duties on the part of defendants as they failed to take reasonable care in construction and maintenance of public latrine which collapsed and consequently the roof and walls fell down on the deceased while he was using the same. Therefore, the suit is fully maintainable and is covered under the provisions of Fatal Accidents Act, 1855. The counsel for plaintiff has placed reliance on the case of Municipal Corporation of Delhi v. I. Subhawanti AIR 1966 SC 1750 wherein it was held as under:-- "Fatal Accidents Act, 1855. Collapse of Clock Tower abutting highway---Clock Tower owned by Municipal Corporation---Municipal Corporation is responsible for damages for loss of life caused whether by patent or latent defects."
10. He has also placed reliance on the case of Kuppammal v. M.&.S.M.Ry. Co. Ltd. AIR 1938 Mad. 117 wherein it has been held as under:-- "Tort. Negligence---Public latrine erected by Corporation against compound wall of Railway Company---Knowledge to company that if wall not kept in proper repairs it would cause danger to those using latrine---Duty of company to repair wall---Wall falling and killing two persons using latrine---Latrine wall in reasonable good condition---Company and not Corporation held liable for damages."
11. In view of above I answer the issue affirmative.
12. Issue No.3 The burden to prove this issue heavily lies on the defendants. The defendants have failed to produce any witness and even a single document in this regard. They even failed to disclose the name of the contractor to whom they awarded the same, as such the defendants without all such material on record cannot shift the responsibility of keeping the latrine in safe conditions upon the contractor and as such they cannot be absolved from their responsibility. I answer this issue in affirmative.
13. Issue No.4 This issue deals with negligence of the defendants. In view of findings on above issue whereby I hold that it the duty of defendants that they are responsible for proper maintenance of the latrine in question but the falling down of the roof and walls at once are prima facie proof of negligence unless the same is disproved by cogent and reliable evidence which the defendants have failed to adduce the same. Hence, I answer this issue in affirmative.
14. Issue No.5 This issue is related to issue No.4 as it deals with the negligence of the defendants relating to collapse of structure of the said public latrine. Since defendants did not produce any evidence on record I answer this issue in affirmative.
15. Issue No.6 The preponderance of the judicial pronouncements holding 70 years to be average life span in Pakistan for the purpose of determination of quantum of damages in fatal accidents cases as such in view of settled law 70 years can safely be taken to be the life expectancy, in Pakistan. Since in this case the deceased was unmarried the life expectancy of deceased would not be considered for the purpose of assessm ent of damages as it is settled law that whenever an unmarried person dies leaving behind the father and mother who are the specified beneficiaries under the scheme of Fatal Accidents Act, 1855 the beneficiary having the lesser of the ages among them will be considered for the purpose of quantum of damages as such in this case the age of mother which is lesser than the age of father i.e. 40 years will be primarily used for finding the years for which the pecuniary loss was sustained on account of death of deceased and will be calculated, thus, 70- 40=30 years will be ages for which the compensation will be granted to the parents.
16. Issues Nos.7 and 8 Both these issues are inter-related and pertain to assessment of damages caused on account of wrongful death of deceased Baber Hussain to be granted in favour of parents. It is undisputed and unrebuttal that deceased used to earn Rs.175 to Rs.200 per day on account of supply of water through water bags in various residential as well as commercial units in the area of Lee Market.
17. Thus, holding an average a sum of Rs.200 per day will give Rs.6.000 to be earning per month and an annual loss of earning comes to Rs.7,22,000. According the following calculation will give the net loss of earning:--
(a) Loss of earning for 30 years (7,22,000 x 30)Rs. 21,60,000
(b) Add 20% as chances of increment on the aggregate for overall yearsRs. 4,32,000
(c) Gross loss of pecuniary benefits (21,60,000 + 4,32,000)Rs. 25,92,000
(d) Less 1/3 on account of personal expenses Rs. 8,64,000Rs. 17,28,000 Total Rs. 17,28,000 Accordingly I decree the suit of the plaintiffs in the sum of Rs.17,28,000 to be paid jointly and severally alongwith 14% mark-up from the date of tiling of suit till realization.