1. This is a suit for recovery of Rs. 10,00,000 under the Fatal Accidents Act, 1855.
2. Briefly the case of the plaintiff is that on 17-7-1988 at about 4-50 an electric wire that was is trothed overhead and bracketed from the place on the street in Sector 5-F Orangi Town, Karachi broke down due to some paysrcal defect and fell down dangerously on the road where deceased Syed Tahir A.I aged 21 years and another was pending. While loosely hanging from the electric pole consequently both died due to falling of the wire on them. The nearest centre of the area was informed about the breaking of overhead wire, but the defendant's complaint centre paid no head to it. In the meantime, it started raining heavily and said broken wire was also lying unattended.
2. The wire fell down upon the, deceased and another fellow directly from the pole and he fell down speechless and died alongwith another person, on the spot on account of lack of care and negligence of defendant. It is further the case of the plaintiff that deceased was aged about 21 years and was working as Postman, his monthly salary was Rs. 1,350 and in addition to that he used to earn tips and payments paid by the people on receiving money orders and letters which comes to Rs. 500 per month on average. It is further alleged that deceased used to earn Rs. 1,200 to Rs.
3. 1,500 on puncture shop of his father and also earned Rs. 600 to Rs. 800 per month to have keep cycles for renting purposes.
3. The defendant filed their written statement and raised preliminary legal objections as well as additional plea of suit being not maintainable and liable to be dismissed on the ground that the plaintiff has not joined the necessary parties in above case. It is further asserted that defendant (K.E.S.C.) is governed by Federal Government, therefore, the Ministry of Power and Water was the main party besides Pakistan Insurance Corporation and others, therefore; it is hit by mis-joinder and non joinder of necessary parties. It is further contended that plaintiff has no cause of action and the suit is based on mala fides and the alleged incident did not take place due to the negligence of the defendant. It is further contended that on the day of incident, there were heavy rains in Karachi and whenever there is bad weather or heavy rains, the defendant used to publish in newspapers with proper warning to the general public to be careful but people do not care and never feel their own responsibilities. The defendant has categorically denied the carelessness and negligence on their part and pointed out that on the day of incident due to heavy rains electric meter at House No. L-22 Sector F-5 was burnt and broken, therefore, meter was not burnt out and short circuit did not take place. When the above complaint was brought to complaint centre the same was immediately stopped and removed. The suit of the plaintiff is based on presumptions.
4. Out of the above pleadings the following issues were settled by the Court:-- (1)Whether the suit is not maintainable?
4. (2)Whether the suit is bad for non-joinder of necessary parties?
5. (3)Whether death of Syed Tahir A.I on 17-7-1988 at 4-50 p.m. In the Street of Sector 5-F Orangi Town, Karachi was due to negligence and lack of care and improper maintenance of wires by the officers of the defendants, in allowing a live electric wire to hang loosely from an electric pole of sector 5-F, Orangi Town, Karachi?
6. (4)Whether deceased Syed Tahir A.I was earning Rs. 1,350 p.m, as pay and Rs. 500 p.m. On account of tips?
7. (5)Whether the deceased prospects of promotion to the post of Post Master with salary at Rs. 5,000 p.m.?
8. (6)Whether deceased Syed Tahir A.I was also working in the evenings at a Cycle Shop and was earning Rs. 600 to Rs. 800 p.m. From' that?
9. What should the decree be?
10. The plaintiff filed his affidavit-in-evidence as well as examined three more witnesses, namely, Zahoorul Haq, Israr Ahmad and Haji Nadeem but none of them were cross-examined by the defendant because their right to cross---examination was debarred twice first on 7-9-1994 and then on 24-2-1998.The defendant were given time to produce their evidence and file their affidavit- in-evidence but they failed to do so, hence on 5-5-1998 the side of IAA the defendants was closed.
11. My issue-wise findings are as follows:-- ISSUE NO.1.
12. This issue pertains to negligence on the part of the defendants. It is an admitted position that the defendants have not denied the cause of death but maintained that the suit is not maintainable on account of mis-joinder and non joinder of necessary parties. The defendants further submitted that when they came to know about this unhappy incident, they immediately discontinued the electricity. The case of the plaintiff is that an electric wire that was stretched overhead and bracketed from the pole on the street broke down due to some physical defect and fell down dangerously on the road. In the present case the plaintiff has proved that the deceased died as a result of electrocution by live electric wire. In fatal accident case, it is settled principle that once the accident is admitted, the presumption of negligence arises and moreso when the defendants give their own version of accident, which is different from the version of the plaintiff the defendants take upon himself the burden to prove the manner of accident pleaded by him. In the present case the defendants have failed to cross-examine the plaintiff and his witnesses and put forward their defence in rebuttal. Even the defendants have failed to lead evidence to substantiate their version taken in the written statement, as such it is a cardinal principle of law that the plea raised in the written statement would have no effect in absence of evidence in proof of the same. Moreso, averments in the pleadings would not constitute evidence unless they are proved by evidence and as such invites serious consequences.
13. Thus, failure to cross-examine on the material aspects of negligence to the plaintiff's witnesses would lead to the conclusion that the defendants have admitted the truth and veracity of the same. Accordingly, I answer this issue in affirmative.
14. ISSUE N0.2.
15. On the point of whether the suit is bad for non joinder of necessary parties, the learned counsel for the plaintiff has not argued any specific arguments. However, he has relied upon certain judgments of this Court where K.E.S.C. Has been a party and similar issues were raised and not allowed. In fact in some of the cases it was not pressed by the defendants as the burden of proving the same lay upon the defendants. The defendant has also filed their written statement and has not stated anything in respect of this issue. In fact the only sentence that has been used by him is to the effect that the plaintiff failed to join necessary parties in the above case. Who were the necessary parties and how by not making them as to the proceedings the case would be defeated has not been stayed, therefore, this issue is answered in the negative.
16. ISSUE N0.3.
17. This issue has already been answered ISSUES NOSH and 5.
18. On this issue the plaintiff has examined one Zahoorul Haq who is Assistant Superintendent Post Office New Karachi. He has stated that the deceased was earning Rs.1,245 per month. He has further gone on to state that a few days before his death, the deceased was promoted as a Postman as prior to that he was in effect a Packer in the Federal 'B' Area Post Office. According to him a Postman who is a matric can be promoted up to the position of clerk. The deceased was matriculate. According to him a Postman would be getting about Rs.2,111 which would include the pay and allowance and the clerk would get approximately Rs.300 more. This examination-in--- chief is unrebutted as no, cross-examination has taken place. As regards Rs.500 per month on account of tip is concerned, there is no evidence on record to verify this claim. The father of the deceased Syed Shoukat A.I has also been examined and he has repeated that he was getting tips from people to whom the letters and money orders were delivered which comes to Rs.500. No evidence has been brought on record and the evidence of Zahoorul Haq does not show whether the deceased had any change of promotion. He was a matriculate and at the age of 21 years it is difficult for a person to continue with his studies. The deceased's father has not given any evidence and no question has even, been put by the plaintiff's Advocate whether the deceased was interest in furthering his education which would have resulted in his promotion in his career. On the other hand his father's evidence (P.W.5) states that he used to work late in the night in the cycle shop owned by his father. The possibility of young man improving his education are not there.
19. ISSUE.No.6 By virtue what has been observed above it is clear that the income of the deceased at the time of death was Rs.1,245 which was his monthly salary. The other income has not been proved as regards tips is concerned and in respect of the earning from the Cycle shop it has to be taken into consideration that he was working for a few hours in the evening. The entire day in the Cycle shop was spent by his father. Therefore, considering the average income I hold that his gross earning from the salary as well as tips and Cycle shop would be about Rs.2,200. As at time of the death of the deceased the plaintiff who is father was 56 years old. He has, therefore, been deprived by the death of the deceased of pecuniary benefits. The mother of the deceased at the time of death was 51 years. Computing the loss of pecuniary benefits from the age of the mother the number of years shall be computated at 19 years i.e. After taking the average life span in Pakistan as 70 years.
20. Gross income on the basis of earning at the time of death per month: 2200 x 12 x 19 =Rs. 501,600.00 Less 1/3rd of the income of account of the personal expenses of theRs. 167,124.00 deceased equal balance.Rs. 3,34,476 Add: 20 % or aggregate income on expected increase in incomeRs. 66,895 Total:Rs. 401, 371 The plaintiff is, therefore, entitled to recover from the defendant Rs.401371 + loss of profit at the rate of 7 % per annum from the date of the suit till payment and costs of the suit.
21. On similar issues of death due to electrocution the following are the case-laws relied on by the plaintiff:-- (1)PLD 1959 Karachi at page 550.
22. (2)FLD 1983 Karachi at page 353., (3)1994 CLC at page 1903.
23. (4)1997 CLC at page 501.
24. (5)Unreported judgment in Suit No. 1224 of 1989 authored by Justice Abul Inam dated 14-1-1998: (Copy enclosed).
25. On the point of, the Res ipsa loquitur the following are the citations: (1)PLD 1960 Kar. 712 and 718 (B&C) Ursulina Wlim. v. Orient Airways Ltd. Justice Wahiduddin Ahmed.
26. (2)PLD 1964 Kar. 72, 76 and 77(A) Kulsoom v. Jalil Ahmad Khan, Justice Qadeerudin Ahmed .
27. (3)PLD 1966 Kar. 580 at 592 and 593, para.(14) K.L.& M. PIA v. Ursulina D` Lima, Justice Qadeeruddin and Justice Illahi Bux Ihsani (DS).
28. (4)PLD 1970 Lah. 442 at 447(c), Din Muhammad v. Faqir Muhammad, Justices A.R. Sheikh and Muhammad Afzal Khan.
29. (5)PLD 1977 Kar. 685 at 687(a), Mst. Momina Bai v. Ghulam Muhammad Justice Naimuddin (6)PLD 1981 Kar. 561 at 566, 567 and 568, Nasreen v. Quality Steel and others, Justice Saeeduzzaman Siddiqui.
30. (7)1984 CLC 2071 at 2075, paras. 9, 10 Quality Steel v. Nasreen, Justice A.I Nawaz and Justice Zahoorul Haq (D.B.).
31. (8)1988 CLC 525 at 529 and (c and d) Kandan v. A.I Hayat Service (Pvt.) Ltd., Justice Ahmed A.I U.
32. Qureshi.
33. (9).1988 CLC 894 at 898(b), Mst. Kamina v. Al-Amin Goods (Pvt.) Ltd., Justice Abdur Rehman.
34. (10)1988 MLD 1236 to 1239 Khatoon v. Noor Sher Khan, Justice Haider A.I Pirzada.
35. (11)1989 CLC 229 at 232, 233 and 234 Vicar Ahmad v. Blue Lines (Pvt.) Ltd. Justice Abdur Rehman.
36. (12)1989 CLC 2153 at 2157, 2158 and 2159 Al-Hayat Services v. Kandan, Justice Saleem Akhtar and Imam A.I Kazi.
37. (13)1989 CLC 2218 at 2225 and 2226, para. 13, Mst. Nafeesa Begum v. Muhammad Ismail, Justice Wajihuddin Ahmed.
38. (14)1989 MLD 1228, 3533 at 1231 and 1232 (C&D) Farrukh Hamid v. M.D., Pak-Arab Refinery, Justice Haider A.I Pirzada, (15)1990 CLC 404 at 413(b) 414, Government of Punjab v. Mst. Kamina and others, Justices Haider A.I Pirzada and Allahdino G. Memon (D.B.).
(16) PLD 1991 Kar. 291 at 295(a) Kazi Arifuddin v. Government of Sindh, Justice Haider A.I Pirzada.
39. (17)1992 SCMR 1715 at para. (3) 1720(b), Mst. Kamina v. Al-Amin Goods Agency, Justice Ajmal Mian, Justice Sajjad A.I Shah, Justice Saleem Akhtar.
40. (18)1993 SCMR 848 at 855 and 856 (paras.12-13), Pakistan Steel Mills Corporation Ltd. v. Malik Abdul Habib, Justice Saeeduzzaman Siddiqui. Sajjad A.I Shah and Justice Ajmal Mian.
41. (19)1994 CLC 1903, Iqbal Hussain Jaffery v. K.E.S.C. Justice G.H. Malik.
42. (20)1995 CLC 196(b) K.T.C. v. Kaisar Jehan, Justice Syed Haider A.I Pirzada and Justice Nazim Hussain Siddiqui.
43. (21)1995 CLC 83 Road Transport Board N.W.F.P. v. Mst. Gul Zarina, Justice Jalaluddin Abbasi and Justice Mrs. Khalida Rachid.
44. (22)PLD 1995 Kar. 329(b) Jahangir Services (Pvt.) Ltd. v. Rukhsana Begum, Justice Shafi Muhammadi.
45. (23)1995 MLD 1922, Amina v. Government of Pakistan, Justice G.H. Malik.
46. (24)1996 MLD 1913, Nisar Ahmed v. Mst. Uroos Fatima, Justice Hamid A.I Mirza.
47. (25)1997 CLC 955, Mst. Shamim Akhtar v. Javedan Cement, Justice Rana Bhagwan Das.
48. (26)1997 CLC 507, Karim Bux v. K.E.S.C., Justice Rana Bhagwan Das.
49. (27)1997 CLC 925, Muhammad Moosa v. K.W. & S.B. Justice Rana Bhagwan Das.
50. (28)1997 MLD 2308, Shah Bashir Alam v. Arokey Chemical Industry Ltd. Justice Nasir Aslam Zahid.
51. (29)1998 CLC 199 Punjab Road Transport Corporation Lahore v. J.V. Gardner, Justice Malik Muhammad Qayyum and Justice Seed-ur---Rehman Farrukh.
52. On the point of Normal Life Span in Pakistan being 70 years the following case-laws are there:-- (1)Mst. Mariam v. Maulana Ismail and another 1986 MLD 2027 (Kar.).
53. (2)Pehlwan Khan and another v. Sindh Employees' Social Security Institution and 3 others 1986 MLD 2061 (Kar.).
54. (3)Nafeesa Begum v. Muhammad Isma il and another 1989 CLC 2218 (Kar.).
55. (4)Naseer Khan and another v. Muhammad Yousuf and another 1989 CLC 1970 (Kar.).
56. (5)Abdul Rashid and another v. Muhammad Anwar and 2 others 1990 CLC 370 (Kar.).
57. (6)Rasheed Abdul Hafeez and 3 others v. Ahmed and another 1991 CLC 370 (Kar.).
58. (7)Mst. Saman Seema Habib and others v. Nadaria Transport Service and another 1992 CLC 950 (Kar.).
59. (8)Mst. Bibi Surat Jan v. Mir Azam Khan and 2 others PLD 1993 Kar. 168.
60. (9)Rafique Jabir v. Superintendent of Police and 2 others 1993 CLC 1751 (Kar.).
(10) Syed Akbar A.I and 5 others v. Pak Steel Mills Ltd., Karachi and 2 others 1993 MLD 1759 (Kay.) .
61. (11)Pakistan Steel Mills Corporation Ltd. And others v. Malik Abdul Habib and another 1993 SCMR 848.
(12) Mst. Mima and others v. Mukhadam Wali and another 1993 MLD 610 (Kar.).
(13) Muhammad Ilyas v. Pak Steel Mills Co. Ltd 1994 MLD 2484 (Kar.).
(14) Syed Iqbal Jaffari v. K.E.S.C. 1994 CLC 1910 (Kar.).
62. 15Saira and another v. Zonal Municipal Corporation 1995 MLD 113 (Kar.).
(16) Ameena v. Government of Pakistan) 1995 MLD 1922 (Kar.).
63. (17)Shadman v. K.T.C. 1995 CLC 986.
64. (18)Umeruddin v. Sher Gul Khan Niazi 1995 GLC 1164 (Kar.).
(19) Mai Nooran v. N.L.C. 1995 CLC 1969 (Kar.).
65. (20)Dost Muhammad v. Pakistan Steel Mills 1996 CLC 530 (Kar.)
(21) Chaman Beg v. K.T.C. And others 1996 CLC 1714 (Kar.)(sic).
(22) Khatoon Bibi v. K.T.C. 1996 MLD 1197 (Kar.).
(23) Mst. Shamim Akhtar v. Javedan Cement 1997 CLC 955 (Kar.), (24)(Karim Bux v. K.E.S.C.) 1997 CLC 507 (Kar.).
(25) Muhammad Moosa v. K.W. & S.B.) 1997 CLC 925 (Kar.).
(26) Jalil Ahmad Siddiqui v. K. T. C. 1997 CLC 1510 (Kar.).
66. (27)Fozia Begum v. K.T.C. 1997 CLC 1297 (Kar.).
(28) Roshan Jan v. Pakistan 1997 CLC 1417 (Kar.).
(29) Sabiha Riffat v. K.T.C. 1997 CLC 631 (Kar.).
67. (30)Shan v. K.T.C. 1997 MLD 2556 (Kar.).
(31) Muhammad Usman v. Pak Steel 1997 MLD 2763 (Kar.).
(32) Amina Begum v. Pakistan Steel 1997 MLD 2842 (Kar.).
(33) Mst. Shahida A.I v. K.T.C. 1997 MLD 2682 (Kar.).
(34) Afzal Hussain v. K.T.C. PLD 1997 Kar. 253 (Kar.).
(35) Anis-ur-Rehman v. Government of Sindh 1997 CLC 615 (Kar.).
(36) Gul Khan v. K.T.C.) 1997 CLC 932 (Kar.).
(37) Waseema v. K.T.C. 1998 CLC 574 (Kar..).
(38) Muhammad Athar Hussain v. K.P.T.C. 1998 CLC 933 (Kar.).
(39) Punjab Road Transport Corporation v. J.B. Gardner 1998 CLC 199 (Kar.).