1989 PLP 2153 (CLC)

SALEEM AKHTAR, J.‑‑The respondent filed suit under Fatal Accidents Act for recovery of Rs.6,00,000 alleging that his son Subra Manium who was an employee of the appellant died on 18‑2‑1985 due to burn injuries caused in the kitchen due to default and negligence of the appellant. The suit was filed for damages suffered by him and also for the benefit of his wife i.e. mother of the deceased. Briefly the facts as alleged in the plaint are that on 15‑2‑1985 while the deceased in the usual course of his duty was performing job of sweeping, the cook who was outside the kitchen asked him to put off the burning flame of the gas stove. No sooner he tried to put it off he caught fire and was severely burnt. He was taken to Jinnah Hospital where he died on 18‑2‑1985. The death was caused due to neglect and default of the appellant and his employees. It was alleged that the deceased was earning Rs.550 per month. He was also working in private houses and used to additionally earn Rs.600 per month and was planning to go to Middle East for employment within two or three months. The appellant riled written statement in which the employment of the deceased and the fact that he died due to burn injuries on 18‑2‑1985 was admitted. It was however denied that the accident was caused due to default or negligence of the appellant or any office employee. It was averred that the duty of the deceased did not require him to be in the kitchen especially at 1 p.m. and he was loitering around the kitchen of his free will. When cook Haider Zaman was in the process of burning charcoal in the Sigree to prepare Tikka the deceased voluntarily offered to burn the charcoal. The deceased without taking any precautionary measures and without consulting any body negligently continued to pour kerosene oil on already ignited charcoal holding the kerosene oil tin in his hand which caught fire. The deceased died subsequently due to burn injuries. The appellant gave him prompt medical care and rushed to the hospital. 1t has been denied that the deceased was forced to put off the burning flame of gas stove or that the accident was caused by burning flame of gas stove. It was contended that his salary was Rs.380 per month and not Rs.550 as alleged. The case was fixed for evidence on 10‑2‑1987 but as the appellant and his witnesses did not appear the respondent filed his affidavit of evidence and the Court granted a decree for Rs.3,00,000 against the appellant. On 19‑2‑1987 the ex parte decree was set aside and after recording the evidence of the parties the learned Single Judge by the impugned judgment decreed the suit in the sum of Rs.1,20,000 with proportionate cost and interest at the rate of 6 per cent per annum with the direction that the respondent shall fill claim form for obtaining compensation from the Insurance company and if the compensation is awarded to the respondent within six months the same shall be deducted from the decree passed by the Court. We have heard Mr. Mustafa Lakhani Advocate the learned counsel for the appellant and Mr. Muhammad Maqsood the learned counsel for the respondent. The learned counsel for the appellant has taken us through the entire evidence. Mr. Mustafa lakhani the learned counsel contended that it was the duty of the respondent to prove that the incident occurred due to the negligence on the part of the appellant which he has failed to prove. He has further contended that m the evidence it has nowhere been stated that incident was caused due to appellant's negligence or wrongful act. So far the death of the deceased due to burn injuries is concerned it has not been disputed by the parties but the manner and the accident which has caused the death has differently been stated by them. No doubt the initial burden is upon the person alleging the accident and death to prove it and once he discharges this burden it shifts to the other side. But where death or the‑incident is not denied but different version of the incident causing death is stated then if such allegations constitute facts which are exclusively within the knowledge and possession of the defendant then even if the version alleged by the plaintiff is found to be weak or incorrect, the defendant is bound to prove his averment. Taking the evidence of the respondent first it may be noted that he could not state anything about the incident because he was not present there. Whatever he has stated is hearsay. Abdul Zubair stated that Kenwal Restaurant is on the ground floor and adjacent to it is the open space where Kabab is prepared but the incident occurred in the kitchen which is not on the ground floor but on eighth floor. About Haider Zaman he stated that he cooks food and does not prepare Kabab. He however is not an eye‑witness of the incident. Whatever he has stated is only on the information received from the workers. This is the entire evidence with regard to the incident and it is difficult from these facts to clearly establishes how the incident occurred. Since the deceased has died while on duty within the hotel premises the appellants have given an account of the incident and it is to be seen whether they have been able to establish their case. It may be noted that from the circumstances and evidence on record, it is clear that all the facts regarding incident occurred within the appellant's premises who have its exclusive knowledge. Therefore, the burden is entirely upon them to establish and reveal those facts. The appellants have examined Syed Altaf Sajjad, their Assistant Manager and attorney. He has stated that there was barbacue outside the kitchen which is on the 8th Floor and the gas stove is inside the main kitchen. At the time of incident he was in his office as Chief Security Officer of the hotel. He has not seen anything. He has also stated that it was the duty of the deceased to clean kitchen and furniture. According to his inquiries, Haider Zaman was preparing Tikka and he went inside the kitchen when he heard cries. He rushed and saw that the deceased was holding tin of kerosene oil and there was flame all over. Haider Zaman stated that he was inside the kitchen and Tikka was prepared outside the kitchen. He went inside the kitchen to put Tikka in the washing machine and at that time the deceased was pouring kerosene oil on the barbecue (sighri). He had asked him not to do so but he did not desist and caught fire. In cross‑examination he stated that he had not seen the incident himself. He thus contradicts his own statement and the learned Single Judge was justified in disbelieving this witness. Therefore, there seems to be very scanty evidence on record with regard to the incident. As stated earlier the incident and death in the hotel has not been denied and it has to be seen whether it was caused due to negligence of the appellants. In every case negligence is not a question of evidence as in certain circumstances inference can be drawn from the true facts. Where a person is charged with the duty to exercise care then it is for him to establish that reasonable care was taken to avoid acts or omissions which could be reasonably foreseen which may cause physical or bodily injury. The appellants are running hotel which is not only a residential hotel but for cooking food. They are maintaining a kitchen on the 8th Floor. According to the appellant's witness there is barbecue outside the kitchen. Considering the allegations and the nature of business carried out by the appellants they are expected to maintain fire security arrangements at all such points and places where d is possible that some incident may occur due to fire. The kitchen is the most vulnerable point from where fire may start engulfing the entire hotel including the residential rooms. In these circumstances it was the duty of the appellants to have produced evidence to show the manner in which they discharged this duty. From the evidence it is clear that the appellants have not produced any convincing evidence to show the active measures they had taken to protect against such incidents. It has not been stated that the gas stoves were free from defect. From the entire evidence it seems that there was no arrangement to extinguish the fire immediately as no extinguisher seems to have used by the person who were present at the time of incident. Even if the contention of the appellants that the deceased was pouring kerosene oil on the charcoal is accepted it seems that it was a most negligent method employed for burning the charcoal. It is a matter of common knowledge that charcoal is ignited by using inflamable material which may include kerosene oil but once it starts burning such inflamable materials are not used. The appellants have maintained throughout that the deceased was pouring kerosene oil on burning charcoal. The kerosene oil is used for igniting the charcoal and not at a time when it starts burning and flames leap up. The very theory adopted by the appellant seems to be unbelievable. It is unthinkable that a person who is only charged with a duty to clean the furniture and kitchen would voluntarily take upon himself the job of burning charcoal outside the kitchen unless he has been asked by somebody on behalf of the hot to do this job. Therefore, the incident as related by the appellants does not stand to reason nor it has been proved. The learned Single Judge has pressed in service the maxim known as res ipsa loquitur. Mr. Lakhani the learned counsel for the appellants has very vehemently contended that this maxim was misplaced and was not applicable to the facts of the present case. This maxim means that in all the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained with the result that the natural and reasonable inference from the facts has to be drawn. But it must be made clear that such inference should not be based on conjectures and surmises. The burden is on the plaintiff to prove the actual cause of accident but in case where it is not possible for him as such facts are within the exclusive knowledge of the defendant then in those circumstances, if the incident is proved, the defendant is called upon to explain its conduct to bring about the correct and true facts. Due to non‑accessibility to vital part of the evidence the plaintiff is put to great disadvantage, therefore, this maxim is applied to avoid the , rigors created by procedural difficulties. In Bhurmal and Mitra Motor Association v. Reghunath Bansilal Kasat AIR 1963 Bom. 144 the maxim was explained as follows:‑ "When the thing is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Winfield and Jolowiez on Tord, 11th Edition at page 99 explained the maxim res ipsa loquitur in the following manner. "In order to discharge the burden of proof placed upon him it is usually necessary for the plaintiff to prove specific acts or omissions on the part of the defendant which will qualify as negligent conduct. Sometimes, however, the circumstances are such that the Court will be prepared to draw an inference of negligence against the defendant without hearing detailed evidence of what he did or did not do. Thus, for example the presence of an unlighted vehicle on the road at night will, if there is no other lighting, be regarded as pirma facie evidence of negligence on the part of the driver. It is important to appreciate, however, that this means no more than that, in the absence of an explanation from the defendant, the plaintiff has discharged his burden of proof. The inference of negligence is by no means irrebutable, and the nature of the evidence required from the defendant in rebuttal will depend in each case on the strength of the inference against the standard of care called in the circumstances." It was further observed as follows:‑ "What, then must the defendant do to discharge this burden? In principle, if the maxim is no more than a convenient way of expressing the idea that the plaintiff can raise a prima facie case by circumstantial evidence, the answer can only be that he must do sufficient to rebut the inference of negligence raised by the plaintiff, and what that entails will, as we have seen, carry with it strength of the inference and the standard of care called for in the circumstances. Certainly the defendant will be exonerated if he shows how the accident actually occurred and if this true explanation is consistent with due care on his part; and if he cannot do this he will still escape liability it he proves that there was no lack of care on his part or on the part of persons for whom he is responsible." In Barkway v. South Wales Transport Co. Ltd. (1950) 1 All E.R. 392 Lord Porter in his speech observed:‑‑ "The doctrine is dependent on the absence of explanation, and although it is duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the faces speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not." This doctrine has been explained in Halsbury's Laws of England as follows:‑ "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence tells its own story or negligence on the part of the defendant the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part." The maxim res ipsa loquitur is a rule of evidence which is applied where although the offending act is proved the cause or negligence cannot be it established by the plaintiff due to non‑accessibility to such evidence or because such evidence is exclusively within the knowledge of the defendant. The learned Single Judge has quoted Solmond on Torts and Clark and counsel in support of the applicability of this principle. He has reached the following conclusion: "The next question would be whether for the purpose of assessing damages the period for which the deceased would have lived is to be taken into consideration or the period which his parents are likely to survive is to be considered. There are conflicting opinions on the question as to whose age would be material for the purpose of assessing the compensation. The claim is being made by the parents of the deceased for the damages which they have suffered due to the death of their son. They could have enjoyed the income that they received from their son only till their lifetime. I am in respectful agreement with the views of learned Single Judge of this Court in the case of Muhammad Siddique and another v. Gul Majeed and 2 others PLD 1980 Kar.

78. The learned Judge has observed "in my view no hard and fast rules can be laid for the purpose of determining a reasonable period or reasonable amount for the purpose of computing compensation to be paid to the parents of deceased son involved m the accident. It will vary from case to case according to the facts of each case." We are in agreement with the conclusion drawn by the learned Single Judge. From the above discussion it is clear that the burden placed on the appellants has not been discharged and, therefore, the finding that the death of the deceased was caused due to the negligence and default of the appellants and their employees cannot be disturbed. The next question is about the quantum of damages. The respondent had claimed that the deceased was earning Rs.550 per month as salary and Rs.600 from private work. In this regard the respondent !gas examined himself. According to him he used to go on duty at 7 a.m. and come back at 2 p.m. So far additional amount of Rs.550 is concerned there does not seem to be any effective cross‑examination. Abdul Zubair states that the deceased was earning about 00, Rs.500 or. Rs.550 per month. His duty hours were from 7 a.m. to 3 p.m. and bonus was also paid to the workers every three months. These facts have not been challenged in cross‑examination. It has been brought on record that this witness was previously working and has been dismissed by the appellant. Ratan is the third witness who is respondent's neighbour and knew the deceased. He also stated that he was earning a salary of Rs.550 and earning Rs.550 per month from private work. He however stated that he does not know at what places he used to work privately. On the other hand the appellant has examined Syed Altaf Sajjad who has stated that the deceased was drawing salary of Rs.190 per month and allowance of Rs.190. Thus his total salary was Rs.380 per month. Ashraf Eassai was also examined on behalf of the appellants who also stated that the deceased was drawing salary of Rs.380 per month. He has produced the application for employment made by the deceased 'on printed form and also the form for recommendation for payroll change. From this form it seems that the deceased was posted in food and beverage department and on 26‑10‑1984 his salary was Rs.380 per month. He was appointed on probation of three months with effect from 26‑10‑1984. He died on 18‑2‑1985 i.e after expiry of the probation period. The appellants have not produced the salary register or any other document to show that this salary was paid even after completion of probation period. This clearly shows that certain material documents necessary for determining the pay at the time of death has not been produced. In these circumstances it would be proper to infer that the deceased was drawing a salary of at least Rs.500 per month which seems to be less than the minimum wages prescribed by Labour Laws. The evidence with regard to private work is very scanty and cannot be trusted. The deceased was 18 years old at the time of his death. The respondent was about 49 years of age and the deceased mother was about 45 years of age. The respondent has not led any evidence about his expectancy of life therefore it should be estimated at 60 years. The deceased according to the evidence used to spend Rs.100 for his personal expenses and used to pay the remaining salary to his mother. In this way the respondent would have been maintained at the rate of Rs.4,800 per year. The mother would have benefited at least for a period of 15 years. The respondent and the mother of the deceased have suffered damage of Rs.72,

000. We therefore modify the decree of the learned Single Judge and decree the suit in the sum of Rs.72,000 with proportionate cost and interest at the rate of 6% per annum from the date of suit till recovery. The amount of compensation shall be shared by the respondent and his wife equally. AA./H‑173/K Decree modified.