1999 PLP 1225 (CLC)

6. D.W.1, Muhammad Anwar, who filed his affidavit in evidence claiming to be fully conversant with the facts of the case .did not disclose his designation and nature of job, with K.E.S.C. It was not denied by him that deceased Taj Muhammad died as a result of accident due to electrocution. This witness has admitted that there is a test and inspection department in K.E.S.C. whose functions are to regularly check the wires and to ensure their safety and worthiness. He has also admitted that for such purpose, records are being maintained at the M.N.L. Department of the K.E.S.C. but no such record was produced to show that the. wire which broke down on the relevant day was earlier checked by the department responsible for maintaining these wires. The entire evidence of D.W.1 is silent on this point. Mr. Abdul Saeed Khan Ghori, attempted to argue that there were rainy season and it might have broken due to such reason. With regrets, I would like to observe that nowhere in the evidence it was even faintly suggested that there were rains in those days in that part of city. I have gone through the pleadings of both the parties as well as the evidence recorded. Nowhere, it was stated that there were rains.

7. For the first time, in the case of Iftikhar Hussain (supra), monetary 'compensation was granted under the Fatal Accidents Act, 1855 (hereinafter referred to as the Act, 1855) against the K.E.S.C. due to death of one Ikhlaque Hussain on the evening of 10th March, 1948 as a result of electrocution. It was held by a learned Singe Judge of this Court, Qadeeruddin Ahmed, J. (as he then was) in his exhaustive judgment while referring to paras. 956 and 957 Volume XXIII, Halsbury's Law of England (pages 671‑674), that in order to determine whether the defendant could prevent the wire from breaking down by taking reasonable precautions, the cause of accident has to be discovered and if it can be discovered and "tells its own story" of negligence on the part of defendant, further evidence is not required from the plaintiff because the inference is already clear. It was further observed that in such cases, the defendant is liable if he .does not produce sufficient evidence to counteract the inference. In that case K.E.S.C. had taken the plea that the wire which broke down was due to heavy rain in the city of Karachi. Despite that, the suit was decreed and monetary compensation was awarded to Ute plaintiffs. The cases of Mst. Sharifan and Barkat Ali Khan (supra) are the decisions of another learned Single Judge of this Court, Nasir Aslam Zahid, J. (as his Lordship then was). In both these cases, death was caused by electrocution as live wires had broken down from the pole and were lying on the road: In the case of Barket Ali Khan (supra), it was held by this Court, "When an electric wire of K.E.S.C. breaks, it is only K.E.S.C. which can give evidence about the exact reason for the breaking of wire. K.E.S.C. is under an obligation and also owes a duty to the public that electric poles are properly maintained and that requisite protective measures are taken so that in the case of a wire breaking, the electricity in the wire is automatically disconnected and the broken wire does not remain alive". It was further observed as follows:‑‑ "In the absence of any evidence on record that K.E.S.C. had discharged their duty which they owed to the public in this regard, the presumption would be that proper maintenance and care had not been taken . . . . "

8. The case of S. Iqbal Hussain (supra) was also decided by this Court wherein reference was made to the cases Lochgelly Iron and Coal Co. v. M.' Mullen 1933 AC 1, Donoghue v. Stevenson 1932 AC 562, Buckland and Guildford Gas Light and Coke Co. (1949) 1 KB, 410 .and Halsbury's Laws of England. K.E.S.C. was held to be responsible for death of Syed Aley Hussain caused by electrocution. It was held by G.H. Malik, J. (as he then was) that where the wires which cause death were under the sole management and control of the defendant and where it is an admitted position that the wire had broken and was lying on the road when the deceased came into contact with it and was electrocuted and where the cause of such accident is not known, it is to be held that such accident would have not occurred in ordinary course of things if the defendant has used a reasonable care. It was further held that it is for the defendants to show, by evidence, that the accident may have occurred without negligence of their part. The above view was followed by another learned Single Judge of this Court Rana Bhagwan Das, J. in the case of Karim Bukhsh (supra) where following observations were made which are also relevant for determination of these two issues:‑‑ ... Be that as it may, it is evident from analysis of the statutory rules that it requires every electricity company to provide guard‑wires, for disconnecting electric current from the live wire for safety reason, the result emanating from the accident, suggests that no such wires were provided. It may, therefore, on preponderance of evidence be concluded that the death of the deceased did not take place in the natural course or on account of her negligence but because of neglect, carelessness and improper maintenance of overhead lines and lack of safety measures for protecting the members of public from the perils of snapping of wires."

9. Recently, another learned Single Judge of this Court, Abul Inam, J: in the case of Rafiqan v. K. E.S.C. (Suit No. 1224 of 1989), decreed the suit of the plaintiff under the Act, 1855, since the plaintiff lost her husband due to electrocution in the vicinity of New Karachi. It was held, "It is settled law that in such cases, all that the plaintiff is required to prove is that the deceased died as a result of electrocution by a live electric wire which was broken and was lying unguarded and unattended, death of deceased in such circumstances is a prima facie proof of failure on the part of defendant to take proper care because overhead wires if properly maintained, are not, ordinarily, expected to break down. The burden of proof of lack of negligence, in such circumstances, shifts on the defendant to show that it had taken all the precautionary measures to avoid any fatal injury to anyone".

10. In the instant case, the plaintiffs have discharged their burden successfully by proving that deceased Taj Muhammad died due to electrocution on 25‑4‑1991. No tangible or convincing evidence was led in rebuttal by K.E.S.C. to disprove such accident and to prove that they had taken all reasonable care and caution to avoid such accident. It is settled that where it is proved that the death was a direct cause of electrocution, the burden shifts upon K.E.S.C. to prove that all care, caution and precautionary measures were taken to possibly avoid happening of any breaking of overhead wires. In the abovementioned circumstances of the case, I am inclined to hold that deceased Taj Muhammad died due to negligence and wrongful acts of defendant No. l and that it was not, an act of God for which any concession could be extended to K. E. S. C.

10. Since I have held that the deceased died unnatural death due to negligence and wrongful acts of defendant No. l/K.E.S.C., it leads me to hold that defendant No. l is liable to pay damages/monetary compensation to the plaintiffs. The plaintiffs have successfully proved that deceased Taj Muhammad was survived by these two plaintiffs and two minor sons and daughter as mentioned in para. 1 of the plaint being legal representatives entitled for monetary compensation as provided in section 1 of the Act, 1855. There is no rebuttal to the case of plaintiff on both these points. Now, the question which requires determination is that as to what amount of compensation the legal representatives of deceased Taj Muhammad are entitled to receive from defendants for their wrongful and negligent acts.

11. It has not been denied by the defendants that the deceased was getting a salary of Rs.1,700 per month from the factory and that in addition was earning a further sum of Rs.1,500 to Rs.1,800 per month as part‑time/overtime. In her affidavit in evidence, Mst. Sultana Bibi has claimed the said amount which is same as of her plaint. In such circumstances, it can be safely held that the deceased was earning Rs.3,000 per month (Rs.36,000 per annum). Again, it was not denied by the defendant that deceased Taj Muhammad was aged about 30 years and was having good health and simple habits. Therefore, it is expected in such circumstances that he may have lived for next 40 years (total age of 70 8 years). Reference is made to the case of Afzal Hussain v. K.T.C. PLD 1997 Kar.

253. Therefore, the plaintiff and other legal heirs have been deprived of the income of the deceased for forty years. To sum up the above discussion, I am inclined to make the following calculations: (i) Gross income, on the basis of earnings at the time of death, at Rs.3,000 per month i.e. Rs.36,000 per annum for 40 years: Rs.14,40,000 (ii) Plus 20% expected aggregate and increment in overall income for 40 years: Rs. 2,88,000 (iii) Total Rs.17,28,000 (iv) Minus 1/6th on the basis of personal expenses of the deceased. Rs. 2,88.000 (v) Balance Rs.14,40,000 12 As a result of the above calculations, suit of the plaintiffs is decreed in the sum of Rs.14,40,000 (Rupees fourteen lacs and forty thousand only) with 14 % interest from the date of suit till realisation and cost. Q.M.H./M.A.K./S‑280/K Suit decreed.