' This is a suit for recovery of Rs,20,00,000 under the Fatal Accidents Act, 1855 against the Province of Sindh, Karachi Water and Sewerage Board and its Executive Engineer.
2. Facts as set out in the plaint are that on 25-2-1989, two Kundimen Boota Masih and Younis Masih under the direction of their superiors went inside the manhole of Ejector Machine of Lyari Pumping Station, which was lying chocked. In that process when they failed to come out and did not response to the calls of the staff present outside, the deceased Rustam Baloch who was on duty as pump driver was also directed by his superiors to go inside to ascertain the situation. Accordingly, Rustam Baloch in obedience went inside the manhole who also succumbed to the poisonous fumes like the two Kundimen and consequently died. The case of the plaintiffs is that Rustam Baloch died during the discharge of his duties. His death was attributed to negligence of the defendants.
3. He left behind the present plaintiffs as his dependents. It was contended that the plaintiffs are entitled for compensation of Rs,20,00,000 for the loss caused to them due to death of Rustam Baloch.
4. Summons were issued to the defendants. Defendant No,1 was declared ex parte while defendants Nos.2 and 3 filed their joint written statement denying the allegations of the plaint.
5. On 22-12-1991 the Court framed the following issues:--
(1) Whether the suit is barred by law of limitation?
(2) Whether the deceased Rustam Baloch was a Kundiman or Pump Operator?
(3) Whether the cleaning of the Sewer Line is the duty of a Kundiman or a Pump Operator?
(4) Whether deceased Rustam Baloch died while performing his official duties?
(5) Whether deceased Rustam Baloch died due to his own voluntary act or due to negligence of the defendants?
(6) Whether the defendants provided adequate safety appliances and measures to the deceased to undertake hazardous operation?
(6A) Whether acceptance of employment by the son of the deceased (Rais Ahmed) in lieu of his deceased father coupled with compensation of Rs,25,000 on humanitarian grounds by the defendants has not compensated the plaintiffs? If so, whether the plaintiffs are entitled to any further compensation as claimed in the above suit?
(7) Whether the compensation claimed by the plaintiffs is proportionate, just and reasonable?
(8) What should the decree be?
6. The plaintiffs produced Ms. Husn Bano P.W.1, who produced Exh.P.l/1, i,e, her affidavit in evidence; Exh.P.1/2, heirship certificate dated 24-5-1989 containing the names of the legal heirs of the deceased; Eich.P.1/3, Identity card of the deceased; Exh.P.1/4 death certificate issued by Lyari General Hospital; Exh.P.1/5 death certificate issued from K.M.C. She also examined P.W.2 Noor Muhammad an eye-witness of the incident. The defendants Nos.2 and 3 examined D.W. Irshard Ahmad the Executive Engineer of the defendant No,2.
7. Heard learned counsel for the parties. On the statement of the counsel for the defendants Nos.2 and 3 that the defendant No,2 being statutory body can be sued and can sue under its own seal.
The counsel for the plaintiffs do not press the suit against the defendant No,
1. The findings are as under--
8. Issue No,1.--The incident took place on 25-2-1989, while the plaint was presented in Court on 2-1- 1991. It is not denied that plaintiffs Nos.1 to 4 were minor at the time of incident as well as filing of the suit, therefore, the plaint was filed in the year 1991 by the minors through their next friend Ms. Husn Bano widow of Rustam Baloch. Mr. Nasir Maqsood has referred to the cases of Farazuddin and another v. Pakistan Navy through Commanding Officer and another (1991 CLC 1866) and Muhammad Hanif v. KTC (2002 CLC 765). In View of the above case-law, it is held that the suit is in time.
9. Issues Nos.2 and 3.--There is no controversy as to the nature of work of deceased Rustam Baloch. It is admitted that he was a pump operator and not Kundiman, therefore, it is held that Rustam Baloch was simply a pump operator and not a Kundimen and it was not his duty to go inside the Kundi and clean the same. These issues are, therefore, answered accordingly.
10. Issue No,4.--It has come on record that deceased Rustam Baloch at the relevant time was performing his duty as a pump operator. It is further established that he belongs to one department while the Kundimen belong to the other department of the defendant No,2. It also appears from the record that no superior officer of Rustam Baloch was present at the place of incident. The plaintiffs examined P.W. Noor Muhammad who stated that he was present at the time of the incident and saw the whole incident. He stated that when two Kundimen failed to come out of the manhole, the superior staff of defendant No,2 directed the deceased to go inside and find out as to what was the situation in the manhole. Whereupon Rustam Baloch in obedience of the directions of the superior went inside without being provided any protective measures and met the same fate as that of two Kundimen. It has come on record through the evidence that Rustam Baloch was not subordinate to the department under which the Kundimen work. In fact there was no superior of Rustam Baloch available at the spot. He was not bound by the directions/orders of the officers of the Kundimen. The plaintiff has failed to prove that the deceased Rustam Baloch was bound to obey the orders of the persons available at that relevant time. It cannot therefore, be said that he was ordered or compelled by any of them to go inside the manhole as alleged by the plaintiff. The Rustam Baloch therefore, cannot be said to have died while performing his duty.
11. Issues Nos.5 and 6.---Since the above issues are interconnected, the same are taken up together. As observed above, Rustam Baloch was not duty bound to oblige the orders of the officers of other department. It is, therefore, to be believed that he volunteered himself to go inside the manhole. It has come in the evidence of the eye-witnesses and has not been categorically denied by the defendants in their evidence that besides two Kundimen there were available superior staff of the defendant No,2. They saw Rustam Baloch going inside the manhole.
12. The question remains here is, as to what was the responsibility of the other supervisory staff of the defendant No,2 while deceased Rustam Baloch volunteered to go inside the manhole for protecting him from any hazard inside the manhole? It appears that Rustam Baloch was not a professional Kundimen and he had no special knowledge about the dangers of the manhole. It also appears that no one from the staff of the defendant No,2 took any effort to either stop Rustam Baloch from going inside or to provide him any safety measures before he entered into the manhole. It was duty of the concerned staff present there to either stop him from going inside or provide him sufficient protective safety measures. Nothing has come on record to show that any such effort was made by any of the staff member of the defendant No,2. It can safely be held that the staff of defendant No,2 was negligent which caused the death of Rustam Baloch. Mr. Nasir Maqsood learned counsel for the plaintiff has rightly relied upon the "Rescue Doctrine" and referred to "Casualty Claim Practice, Sixth edition, by Donald, J. Hirsch, page 57, Item 312 which is reproduced as under:-- Rescue Doctrine.
"This is an extension of the doctrine of foreseability. The defendant must foresee that, it' his negligent act places an injured person in a perilous position or imminent danger, it is reasonable to expect that others will come to the aid of the injured person. It is likewise reasonable to expect that, if any of the rescuers are injured in the process of giving such aid, the injury to the rescuers could be considered as consequential in the sense that the defendant's negligence was the proximate cause not only of the victim's injuries but also of the injuries to the rescuers."
13. In addition to the above, he also referred to the case of the Ward v. T.E. Hopkins & Son Ltd.; Baker and another v. T.E. Hopkins & Son Ltd. (1959) 3 All ER page 225 in support of the said proposition.
14. Issues Nos.6A, 7 and 8.--As these issues are connected to each other and pertain to assessment of compensation, so those are taken together. It is admitted by both the sides that after the incident a sum of Rs,25,000 was paid by the defendants to the heirs of deceased Rustam Baloch on humanitarian grounds and also provided a job to the son of the deceased. The ex gratia payment will not be a bar for filing the suit under the provisions of Fatal Accidents Act, which contemplates the liability on the determination of negligence, default and wrongful act on the part of wrongdoers. However, the amount paid on humanitarian grounds is to be deducted from the gross amount assessed. Likewise a job provided to the son of deceased by defendant No,2 will not debar the plaintiffs from claiming the compensation for the loss caused to them on account of unnatural death of Rustam Baloch.
15. Mr. Nasir Maqsood, learned counsel submitted with the permission of the Court, a revised statement of claim, which is reproduced as under:-- STATEMENT OF CLAIM Quantum of damages:
(i) Average life span in Pakistan: 70 years [in view of preponderance of judicial pronouncement].
(ii) Expected loss of pecuniary benefits: (70--50) 20 years
(iii) The deceased was 50 years and was working as Pumping Driver with Karachi Water & Sewerage Board and was stated to be getting salary of Rs,1,200 per month. The deceased was expected to earn from this job till the age of superannuation i,e, 60 years for 10 years more i,e, by the year 2000. The judicial notice can be taken of the fact that the minimum wages allowable even to the unskilled labour had been undergoing frequent increment, which started from Rs,1,500 in 1992 and kept on increasing with the passage of time and now the minimum wages of an unskilled labour in the country is not less than 3,500 but the deceased being the pump driever was an skilled person but for the sake of calculation a moderate sum on the average scale for overall years of the job may be taken as Rs,2,500 per month. Thus, for 10 years it will come to [2500 x 12 x 10] Rs,300,000.
(vi) For remaining 10 years after the retirement he was expected to earn even the minimum allowable to an unskilled labour, which ranges from 3000 to 3500 per month in the prevalent situation. But for the sake of calculation a conservative figure of Rs,3,000 may be taken to comprehend the probabilities and as such at this rate of monthly income the prosepective income for 10 years comes to rupees [3000 x 12 x 10] Rs,3,60,000 ' The aggregate loss of pecuniary benefits for 20 years comes to (93,00,000 + 3,60,000) Rs,6,60,000.
(vi) Increment at the rate of 10% per annum will also be added to comprehend the advancement of the income in life. Rs,66,000.
(vii) Total gross loss of pecuniary benefits (6,60,000 + 66,000) = Rs,7,26,000.
Lesss: (viii)1/6th will be deducted on account of personal expenses. Rs,1,21,000.
(ix) Rs,25,000 paid by the KW&SB on Rs,25,000 humanitarian grounds.
(x) Net loss of pecuniary benefits (7,26,000 [1,21,000 plus 25,000]) Rs,5,80,000.
' FURTHER ADD:
(a) Damages for loss of association under the head of consortium. Rs,5,000.
(b) Funeral expenses Rs,3,000.
(xi) Total loss of pecuniary benefits (5,80,000 + 5,000 + 3,000) Rs,5,88,000.
16. The statement was examined and was found to be in order. After deducting a sum of Rs,25,000 already paid to the legal heirs of deceased Rustam Baloch, they are entitled to a sum of Rs,5,88,000 as compensation for the loss of life of Rustam Baloch with mark-up at 7% per annum from the date of filing of the suit till the realization. The suit decreed accordingly against the defendants Nos.2 and 3 jointly and severally.
17. In view of the statement of the counsel for the plaintiffs the suit is dismissed against the defendants as not pressed.