2003 PLP 215 (CLC)

‑‑‑‑S. 1‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑‑Contributory negligence, plea of‑‑‑Defendant denied any negligence on its part and alleged contributory negligence on the part of the deceased‑‑‑Defendant admitted in evidence that while a number of persons had to cross the railway lines, neither protective measures even by way of construction of overhead bridge had been undertaken by the defendant nor there was anyone from the defendant to control the pedestrian traffic in order to avoid any incident or any warning sign was placed‑‑‑Effect‑‑‑No measures to prevent such incidents having been taken by the defendant, deceased could not be held to have acted negligently‑‑‑High Court declined to interfere with the judgment and decree passed by the Judge in Chambers of High Court ‑‑‑Intra‑Court Appeal was dismissed in circumstances. Jawaid Farooqui for Appellant. Nasir Maqsood for Respondents. Date of hearing: 8th October, 2002. SABIHUDDIN AHMED, J.‑‑‑This Appeal is directed against the judgment and decree of a learned Single Judge, dated 5‑4‑1997 awarding Rs.9,09,995 in favour of the respondents. Without going into unnecessary details it might suffice to say that the respondents being the parents of one Muhammad Mazhar Hani was an employee of Pakistan National Shipping Corporation and was working in the premises of the appellant having a gate pass issued by the appellant. He was crossing a railway line in the normal course of his work when all of a sudden the shunting of wagons started without warning and his chest was pressed between the shock buffers of the two railway wagons. The respondents filed a suit for compensation in the sum of Rs. 32,00,000 under the Fatal Accidents Act. The only point raised in this appeal was that the trial Court was not justified in awarding the decretal amount as there was no negligence on the part of the appellant and that the unfortunate incident can be substantially attributed to contributory negligence on the part of the deceased. Having gone, through the record, we have noticed that it was admitted in evidence that while a number of persons are required to cross the railway lines, no protective measures even by way. of construction of an overhead bridge being undertaken by the appellant: It was also stated in evidence that there was no one from the KPT to control the pedestrian traffic in order to avoid such incident nor was any warning of any sort administered in the circumstances, when no measures to prevent such incident seem to have been taken by the appellant we fail to see how the deceased could be held having acted negligently. For the foregoing reasons we find no substance in the appeal and would dismiss the same alongwith pending interlocutory application with costs. Q.M.H./M.A.K./T‑36/K Appeal dismissed.