1. ' KHILJI ARIF HUSSAIN, J.---The appellant filed appeal against the judgment dated 17-5-2002 passed by learned Single Judge in Suit No.261 of 1991 filed by the respondent.
2. ' The brief facts of the case are that the respondents filed suit against the appellant for recovery of Rs.2,000,000 under Fatal AccidentsAct, 1855. In the plaint it is stated that on 25-5-1989, two Kundiman, Boota Masih and Younus Masih under the directions of their superior officers went inside the manhole of Ejector of Lyari Pumping Station, which was lying Choked. It is stated that when they failed to come out and did not respond the call of the staff present outside, the deceased Rustam Baloch, who was on duty as pump driver went inside to ascertain the situation where he also succumbed to the poisonous fumes like the two Kundiman and consequently died. The case set up by the respondent was that the Rustam Baloch died during the discharge of the duty and his death was attributed to the negligence of the appellant.
3. ' The appellant filed written statement and denied the allegations. On the basis of the pleadings between the parties following issues were framed:
(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?
4. (6A) Whether the 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?
5. ' After recording the evidence of both the parties by judgment dated 17-5-2002, suit was decreed for a sum of Rs.5,88,000 against the appellant and the appellant aggrieved by the said judgment preferred this appeal.
6. ' Heard Mr. Abdul Karim Khan learned Advocate for the appellant.
7. ' Learned Advocate questions the judgment only on the ground that the deceased Rustam Baloch was not acting under the directions of his superior officers and as such his death has not occurred during the discharge of his duty and the appellant is therefore, not liable to compensate the respondent. In support of his contentions, learned Advocate mainly relied upon the findings of the learned Single Judge on Issue No.4. The learned Single Judge while deciding the Issue No.4 observed that the Rustam Baloch cannot be said to have died while performing his duties.
8. ' We have gone through the memo. Of appeal as well as plaint and documents annexed with the appeal. From the perusal of the said documents it appears that two Kundimen were inside the manhole and when they neither respond to the call of the staff at site nor came out, the deceased Rustam Baloch went inside under the directions of the superior officers of the Kundiman.
9. We are of the view that although the deceased was not under obligation to follow or obey the directions of the superior officers of the Kundiman, neither or less, the deceased was working in the appellant company and the directions were given by the officer of the Appellant Company and in compliance of such directions though not binding on the deceased that the deceased went inside the manhole without providing necessary precautions by the appellant and officer present at site, resulting that the deceased also met with the same incident.
10. In the impugned judgment, learned Single Judge after taking into consideration the evidence in detail came to the conclusion that it was the responsibility of the superior staff of the appellant while Rustam Baloch volunteered to go inside the manhole for protecting him from any hazard inside the manhole particularly when Rustam Baloch was not a professional Kundiman and he had no special knowledge about the danger of the manhole. The learned Single Judge also held that no one from the staff of the appellant took any effort to either stop Rustam Baloch from going inside or to provide him any safety measures before he enters in the manhole. It was the duty of the concerned staff present there to either stop Rustam Baloch or to provide sufficient protection.
11. While discussing the rescue doctrine, the learned Judge came to the conclusion that in the circumstances prevailing at site Rustam Baloch rightly took the decision to go inside the manhole to save the life of the human being without knowing the danger inside the manhole and it was the duty of the staff of the appellant present at site either to ask thedeceased not to go inside or provided him proper and safety measures lc which the appellant staff failed to provide.
12. For the foregoing reasons alone the appellant is liable compensate deceased family, as held by the learned Single Judge.
13. ' In the case of Karachi Transport Corporation v. Latifur Rehman (1993 SCM R 1149) the Hon'ble Supreme Court had observed as to follows:- "We may also observe that a Government Department/ Functionary is not expected to raise frivolous pleas in an action brought by a citizen of his lawful claim, with the object to deny it or to prolong litigation in respect thereof. Such a practice is to be deprecated in the strongest terms. The officials responsible for the same should be made accountable for their above uncalled for an unjustified approach, particularly in cases arising out of fatal accidents, the approach of the Government Department/Functionaries should be humane and pragmatic, all efforts should be directed to ensure that an aggrieved person gets his reasonable, admissible claim promptly, without loss of time."
14. ' In the case of Government of Pakistan v. Ishrat Begum (1999 M LD 768), Mr. Justice Syed Saeed Ashhad Hon'ble Chief Justice of this Court after discussing various case-law held as under:-- "All the aforecited authorities the pronouncements/averments made are that the government functionaries should avoid unnecessary and frivolous pleas in litigation instituted by the aggrieved or, affected party for recovery of his lawful claim particularly in cases arising out of fatal accident and on the contrary the Government Department/Functionaries should ensure that the aggrieved or affected persons get their rights, entitlement or relief in a reasonable manner promptly without any loss of time. It has further been declared that the attitude of the Government Department/Functionaries is to resist a genuine claim arising out of a fatal accident, considerable amount on litigation instead of settling the matter with the dependants of the deceased is not only deplorable but also against the spirit of speedy and inexpensive justice."
15. ' In the case of State of Rajasthan v. Rameshwar Lal and Munni Bai (1986 ACC 281), the Indian High Court observed as under:-- "I may for while take a role of a poet, philosopher or reformer, rather than a Judge; but it is this restraint which is responsible for the widespread feeling that 'Judge live in ivory towers" a feeling which even if untrue or partially true, should be repelled by imparting speedy, cheap, social, ready and real justice to the lowest in the ladder i.e. a tiller, a workman a-cobbler etc. And not ' The suit was filed by the legal heirs of deceased minors, ages by using bandy sword of contempt only "from 14 years to two years about 13 years ago and are still waiting to get the relief.
16. Learned Judge awarded a very reasonable compensation to the respondent and instead of providing said compensation to the deceased family members the appellant preferred this appeal which we are of the view is highly objectionable and unappreciated on the part of the Government functionaries.
17. ' For the reasons discussed above the appeal is dismissed in limine.