2005 PLP 134 (MLD)

(5) Add 20% per annum of Increment for over all years (36,70,444.80/5) Rs.7,34,08g.96 (6) Gross Loss of pecuniary Benefits. [36,70,444.80 + 7,34,088.96] Rs.44,04,533.76 (7) 1/6 on amount of personal expenses. Net loss of pecuniary benefits (8) [44,04,533.76 - 7,34,088.96] Rs.36,70,444.80 Further Deductions Amount paid by defendants Rs.4,02,266 Rs.32,68,178.8

13. As against this learned counsel for the defendant has argued that the suit is not maintainable, in law, inter alia, on the ground that all the three ingredients on the basis of which the suit under the Fatal Accidents Act has to be filed were missing in these proceedings. It was further argued that the quantum of compensation has to be assessed and or evaluated on the basis of Islamic common law of Diyet and not under the Fatal Accidents Act. He submitted that the defendant was not negligent and, therefore, they were not liable to pay compensation as claimed in these proceedings. Learned counsel has relied upon the judgment reported in PLD 1976 SC 748 (Bashiran v. Pakistan) in support of his argument. The citation relied upon by the learned counsel is distinguishable on fact as in the present case the deceased has not transgressed the authority in regard to discharge of his duties, whereas in the case relied upon by he learned counsel the issue was whether a person in discharge of his duties can change his position by joining duties other than those which he was not obliged to discharge.

14. It was further submitted by the learned counsel for the defendant that the evidence/material produced by the plaintiff No. 1 was not sufficient to justify order of compensation as the plaintiff No. 1 was neither eye-witness nor was an expert in the engineering field to depose on the issue of lime calcinations (formation of lime ring).

15. I have heard the arguments of the learned counsel and have perused the record. The parties do not dispute the factum of accident which took place in Kiln No.II (lime shop) within the premises of Pakistan Steel which resulted in the loss of life of the deceased. It is also not disputed that the deceased was wearing all precautionary gears at the time of accident.

16. On 26-9-2002 a notice under Order XII, rule 8, C.P.C. was served by the plaintiff's counsel upon the defendant which notice has been produced as Exh.22 in which the defendant was called upon to produce different documents/record relating to the accident owing to which the deceased lost his life. The documents, which were produced by the defendant in response to the said notice, are reproduced hereunder:-- (a) Appointment letter of deceased Exh..23, (b) Attested photocopy of pay slip Exh.24, (c) Promotion rules of Pakistan Steel Exh.25, (d.) Inquiry report Exh.26, (e) Log book of lime shop Exh.27, (f) Daily attendance Exh.28, (g) Payment of insurance amount to widow of deceased Exhs.29 and 30, (h) Group Insurance Policy Exh.31, (i) Injury Report Exh.32, (j) Log book of ambulance Exh.33. (k) Shop requisition Exh.34, and (l) Incentive for modifications at lime shop Exh.35.

17. On the question of negligence the learned counsel for the plaintiffs has relied upon the judgment of Pakistan Steel Mills Corporation v. Abdul Hameed reported in 1993 SCMR

848. In addition to a judgment of the Division Bench authored by me in the case of Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd., reported in 2004 MLD

361. It has been held in these judgments that once the factum of accident is established by the plaintiffs, the burden shifts upon the defendant to show that they were not negligent, which they have failed to disprove.

18. The doctrine of 'res ipsa loquitur' would be attracted in the present case as well. Their Lorships of the Honorable Supreme Court has held in the case of Pakistan Steel Mills Corporation Limited v. Abdul Hameed reported in1993 SCMR 848 that:-- 'Res ipsa loquitur means that the things speak for themselves. This doctrine applied firstly, when the things that inflicted the damage was under the sole management and control of the defendant and secondly, the occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to why or how the occurrence took place. In such circumstances defendants have to persuade the Court that accident did not occur on account of their negligence.'

19. The doctrine of 'res ipsa loquitor' in case of negligence would apply and the present case is also covered inasmuch as the plaintiff No. 1 appearing in the witness-box has established that the accident has taken place, which fact was not in dispute. The plaintiff has produced sufficient material through different Exhibits to show that the deceased had taken all the precautions before entering the Kiln No.II and still the deceased lost his life by the said accident which occurred due to formation of lime ring which resulted in spreading of hot lime dust. The question of maintainability of the suit is also covered in the judgments referred to hereinabove. Issue No. 1 for the aforesaid reasons is answered in affirmative.

20. What was required to show was that the defendant was not negligent in attending the deceased not only when this accident took place but even subsequent thereto by producing evidence of the Hospital to which the deceased was removed to for treatment. It has been alleged by the plaintiffs that leaving all good or better hospitals of the town which were on the way from Pak Steel the deceased was taken to Baqai Hospital which is almost 40 miles away from the Pakistan Steel. There is no justifiable explanation either provided by the witness who deposed on behalf of the defendant or by the counsel appearing for the defendant as to why the deceased was removed to Baqai Hospital which is not only far from Pak Steel but where no facility of burns ward was available. The second leg of argument of learned counsel for the defendant was that the quantum of compensation was required to be assessed under the Islamic common law of Diyet. This submission of the learned counsel cannot be considered at all as neither it has been pleaded nor any evidence to the effect has been led to show that provisions of the Fatal Accidents Act are repugnant to the Islamic Law. Even otherwise, the issue of the nature can only be adjudicated upon by the Federal Shariat Court under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973.

21. The arguments of the learned counsel that the plaintiff who appeared in the witness-box was not an expert witness and, therefore; her evidence has to be discarded on the issue of lime calcination. Even this cannot be done as the plaintiff who appeared in the witness-box was an educated lady and was Doctor of Medicine. She claims to have acquired the knowledge by her (late) husband the deceased as well as from staff of the defendant besides the fact that she has also produced Exh.3 which is a letter dated 12-4-1988 on the subject: "Incentive for modifications at lime production shop". All these questions have been posed to her and she replied them on the basis of the letter referred to hereinabove.

22. In regard to Issue No.2, the defendant has led evidence and have showed that a sum of Rs.4,02,266 was paid to the plaintiff towards group insurance and, therefore, the claim of compensation of the plaintiffs in these proceedings was misconceived. With profound respect to the learned counsel for the defendant, plaintiffs in these proceedings are entitled to the compensation in the manner claimed in the statement of claim. As the case of the plaintiffs is covered by the doctrine of 'res ipsa loquitur', payments by way of group insurance would not deny the claim of compensation of the plaintiff. However, the defendant, is entitled to deduction of the amount, which plaintiffs have paid towards the group insurance against the amount they have claimed through statement of account. The Issue No.2 is answered in negative.

23. The defendant in spite of service of notice under Order XII, rule 8, C.P.C. has not produced any evidence nor has examined any doctor of the Baqai Hospital to establish that the Baqai Hospital was the nearest or the best Hospital to provide medical aid to the deceased. Even there is nothing in record which could reflect the reasons of the deceased leaving Baqai Hospital. Since the defendant has withheld such evidence available with them, therefore, Issue No.3 is answered in negative.

24. The plaintiff has quantified the compensation in line based on the principle propounded by the Honourable Supreme Court in the case of Karachi Water and Sewerage Board v. Mirajuddin reported in 2000 SCMR 725 and therefore, the plaintiffs are entitled to the compensation of Rs.35,00,000 to the exclusion of the amount Rs.4,022,66 already paid by the defendant to the plaintiff No. 1 on the death of the deceased. For the reasons given by me on the Issue No. 1, the Issue No.4 is also answered in affirmative.

25. Mr. Nasir Maqsood has also relied upon the judgment of the Supreme Court of India in the case of Parmanand Katara v. Union of India (AIR 1989 SC 2039) wherein their Lordship dilated upon the preservation of human life in the following words:-- "Preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of society, it is the obligation of those who are incharge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment. A doctor at the Government hospital positioned to meet the State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. Every doctor should be reminded of his total obligation and be assured of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others. Zonal regulations and classifications cannot also operate as fetters .in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted, the guideline indicated in the 1985 decision of the Committee on Forensic Medicine (set up by the Ministry of Home Affairs of the Government of India) is to become operative.

26. For the foregoing reasons, I decree the suit of the plaintiffs to the tune of Rs.35,00,000 minus Rs.4,022,66 which the plaintiffs have received from the defendant. The plaintiffs would also be entitled to mark up at the bank rate from the date of decree till realization of the amount.

27. Before parting with this judgment. I may, observe that the conduct of the defendant in regard to providing medical aid was inconceivable. It has come in the evidence that the accident took place at 1645 hours and from 1645 hours till 1945 hours the deceased who was in agony could not be taken to the Hospital and even the ambulance's engine failed at Quaidabad. What is most unfortunate was the no reason whatsoever was given by the defendant either in their written statement or in the evidence or in the arguments as to why the deceased was removed to Baqai Hospital which was more than 40 miles from Pakistan Steel when it did not have 'Burn Ward' whereas the Karachi City has a number of better hospitals which were near and better equipped than the Baqai Hospital and were nearer to the Pakistan Steel. It has also come in the evidence that the Baqai Hospital does not have any burns ward. The deceased and other staff officers were admittedly had burns injuries. In spite of the all this knowledge the Medical Officer of the defendant, who attended the deceased and other injured employees, has referred the deceased and others to Baqai Hospital. This is most inhumane. This is not civil negligence but is in fact a criminal negligence on the part of the officers of the defendant who for extraneous consideration refer the patients to such Hospitals which do not have appropriate special medical facilities for such patients. Life of a human being is precious and nobody should be allowed to play foul muchless than the Doctor of Pakistan Steel whose utmost obligation was to provide best treatment and to refer the patient to one of the best hospital and in emergency to one of the better equipped hospital which was nearer to Pakistan Steel. In these proceedings this aspect was completely over looked and unexplained. Even the learned counsel or the defendant, during his arguments when confronted was unable to give any answer to such query. The non- production of the record of the Baqai Hospital reflects adversely on the part of the defendant and it is most unfortunate that these officers of the defendant go escort free in spite of such criminal negligence on their part.

28. The life of human being is priceless and no one under the law can be allowed either to cause harm or take it away by negligent act. The employees/staff/officers of the defendant have to be provided same medical treatment which is provided to the high-ups -and if an ordinary engineer receives burn injury he is referred to Baqai Hospital whereas if an officer of high grade has some medical problem he would never be referred to such Hospital. This approach should come to an end as all these persons including Doctors of Pakistan Steel are public servant and are accountable in law. Even the ambulances of such a big organization are not properly maintained. Medical Centre of the Pakistan Steel also appears to be less equipped to provide immediate treatment to employees receiving burns injuries. The most of the incidents, which take place in the Pakistan Steel, result in burn injuries and it is expected that such an organization shall have immediate medical treatment in their Medical Centre by way of First Aid. It is high time for the management' of the Pakistan Steel to rise to the occasion. I, therefore, direct the Chairman, Pakistan Steel to look personally into all these shortcomings and take immediate appropriate steps to remedy these defects to avoid such unfortunate incidents by ensuring properly maintained ambulances available at their Medical Centre and better/special facilities for burn injuries. The copy of this judgment be communicated to the Chairman of the defendant for compliance and necessary action. H. B. T./R-28/K Suit decreed.