2000 PLP 112 (MLD)

(4) Whether the death of deceased Muhammad Naeemuddin was reported to the area police station? (5) Whether the K.W. & S.B or the parents of deceased Muhammad Naeemuddin are responsible for his alleged death? (6) Whether the plaintiff maintains any workshop as alleged? (7) Whether the compensation claimed, is not frivolous, exaggerated and over‑estimated? (8) Whether any cause of action has accrued to the plaintiff for filing the above suit? (9) What should the decree be?

5. Both the sides adduced evidence. While the respondent appeared in the witness‑box and examined his father Qiyamuddin appellant examined Khaliqur Rehman Executive Engineer serving in the area where this episode took place. This witness produced a Register of complaints relating to the area and relevant photocopy of the relevant extract to demonstrate that no complaint with regard to the uncovered manhole was ever lodged with the agency.

6. Upon scrutiny of the evidence, learned Single Judge by a well considered and elaborate judgment decreed the suit with costs as aforesaid and 14 % mark up from the date of decree till payment.

7. On Issue No. l learned Single Judge concluded that the suit as framed was maintainable. Issues Nos. 2 and 3 were answered in affirmative. Issue No.4 was found in negative on admission of the respondent himself. Issues Nos.6 and 7 were answered in negative and on issues Nos. 5, 8 and 9 learned Trial Court recorded his finding in favour of‑the respondent leading to the present appeal.

8. At the hearing learned counsel for the appellant mainly urged that the death of the deceased was occasioned on account of contributory negligence on the part of the respondent himself who was guilty of not exercising due care and caution in regulating the movements of the minor child. Learned counsel attempted to argue that indeed there was hardly any negligence on the part of the appellant inasmuch as no complaint was lodged either by the respondent or any person from the locality with the appellant who was always diligent and alive to the discharge of its civic responsibilities. Contention raised is completely without any merit as it is neither supported by the material on record nor any evidence adduced by the appellant itself. From the evidence it appears that the fateful manhole was situated 3/4 feet away from the house of the respondent who remained on duty from 8.00 a.m. to 8.00 p.m. The witness stated that he had approached the complaint office of the appellant a number of times in addition to the complaint lodged by his father as well as Mohallah people to cover the manhole but without any response. This version remained unrebutted and unchallenged inasmuch as no endeavor was made to controvert the statement of the witness as well as his father who appeared as a corroborative witness at the trial. In fact by not controverting material facts of sufficient significance in law, appellant is deemed to have admitted the truth of the respondent's version. On the other hand appellant's own witness claimed that he came to know on the next day of the incident through Mr. Saghir Hussain Jaferi Assistant Engineer that a boy had fallen down in the manhole. According to him after the incident he had visited the site and inspected the manhole alongwith concerned staff which was found duly covered. He emphasised by stating that as Executive Engineer concerned he did not receive any complaint that the manhole was not covered. The witness hastened to say that whenever a complaint was received it was duly recorded in the register maintained by the appellant Board. After referring to the relevant entries in the Register, the witness claimed that there was no complaint recorded in the Register about the removal of the cover of the manhole. During the course of cross‑examination, it transpired that the source of information of this witness was Saghir Hussain Jaferi Assistant Engineer at the relevant time who had since retired when the evidence was recorded at the trial of the suit. To say the least, evidence of the witness appears to‑be hearsay in nature and inadmissible without corroboration of the primary witness who narrated the incident to him. In all fairness appellant who did not examine Saghir Hussain Jaferi in support of his stand and in order to rebut the averment of the respondent but no attempt was made to adduce the primary evidence of the witness with the natural presumption that had such evidence been adduced it would have been unfavourable to the appellant. Needless to reiterate, respondent categorically stated on oath that the manhole was lying uncovered for a quite sufficient time and he had approached the Authorities so many times for covering the same though not in writing. Surprisingly, appellant suggested to the respondent as to why the manhole was not covered by him to which he spontaneously reacted by stating that it was the function of the appellant Board. Scrutinizing the aforesaid evidence it may suffice to say that it may well be that the parents of a child of tender age no doubt are expected to be cautious and careful to ensure that the child does not leave the house alone. This circumstance per se would not absolve the appellant Board of its legal and moral obligation to ensure the safe and secured maintenance of sewerage lines including the maintenance of manholes. In any event, civic agencies like the appellant cannot be permitted to set up a line of defence that the unfortunate death took place on account of contributory negligence of the deceased himself.

9. Adverting to the case law I have already expressed this view in Muhammad Moosa v. Karachi Water and Sewerage Board (1997 CLC 925). In the earlier case while sitting on the Single Bench dealing with an identical case, 1 expressed the view that the plea of contributory negligence on the part of the deceased and her parents as set up by the defendants there was absolutely no evidence on record. The allegation that parents of the deceased should have taken preventive measures and steps to deter the minor from going out of the house near the manhole was hardly, a defence by civic agencies entrusted with the discharge of the public responsibilities for maintaining sewerage lines in a safe and orderly manner. I had observed that indeed it was very difficult if not altogether impossible to prevent the movement of an innocent child from going out of the house which might lead to a wrongful restraint on free movement of such child and arrest his natural brought up, healthy growth and nursing. I concluded by repelling the stand taken by the defendants by observing that such stand on the face of it was not only strange but also ridiculous in view of the uncontroverted evidence that the manholes were lying open for the last 2/3 days before the incident., The view expressed by me has not so far been upset or dissented by the higher forum. Similar expression of opinion was expressed in the cases reported as Javed lqbal v. Province of West Pakistan (1992 CLC 2369) upheld by the Supreme Court in Pakistan Railways v. Javed lqbal (1995 SCMR 446), S. lqbal Hussain Jafery v. Karachi Electric Supply Company (1994 CLC 1903), Saira v. Zonal Municipal Corporation (1995 MLD 113) and Federation of Pakistan v. Khatoon Begum (1996 SCMR 406).

10. Adverting to the legal duty cast on public functionaries like the appellant, a Division Bench of this Court consisting of Ajmal Mian, C.J. and Mukhtar Ahmed Junejo (as their lordships then were), in Pakistan Steel Mills Corporation Ltd. v. Nazir Hussain Shah (1990 CLC 515) observed as under:‑‑ "A public functionary particularly in Pakistan which is an Islamic State, is enjoined not only by our Constitution but also by the tenants of Islam that it should act in aid of advancing the cause of justice and not to frustrate or defeat it: It is indeed a deplorable act, when a public functionary in order to resist a genuine claim arising out of a fatal accident spends considerable amount on litigation instead of settling the matter with the dependants of the deceased. "

11. Almost to the similar effect was the observation rendered by a Full Bench of the Supreme Court in Punjab Road Transport Board v. Naziran Bibi (PLD 1983 SC 340). The Apex Court while deprecating the defence adopted by the Road Transport Board held that instead of speedily meeting its obligations under decree, which would have resulted in some secure to an unfortunate family of deceased, prolonging their agony by challenging civil Court's decree upto the Supreme Court and in such process spent a sum almost equal to that awarded under the decree. It was held that such an attitude was not only deplorable but against the spirit of speedy and inexpensive justice which is the declared policy of the Government.

12. For the aforesaid facts and reasons, we find no merit in this appeal which does not deserve to be admitted for regular hearing and is accordingly dismissed in limine alongwith listed application.

13. Pending the hearing of appeal on appellant's application, operation of the impugned Judgment was stayed subject to deposit of the decretal amount of Rs.8,50,000 which may be disbursed to the respondent as directed in the decree itself on a formal application. Q. M. H./K‑81/K. Appeal dismissed.