2006 PLP 697 (MLD)

By consent of the Advocate of the parties this appeal has been heard at Katcha Peshi Stage for its final disposal. The appeal has been filed by the appellant, K.E.S.C. challenging the judgment and decree dated 20-5-2005 passed by the learned Single Judge of this Court in Suit No.71 of 2002 by which the suit was decreed against the appellant for a sum of Rs.1,32,6,100 to be paid to the plaintiff, the widow Mst. Chand Bibi and the mother of the deceased Mst. Latifa Bibi with further relief of payment of profit at the rate of 10% from the date of the decree till payment. The facts forming the back ground of the suit are that an overhead electric distribution wire of the appellant in the area of Masoom Shah Colony Road, Chanessar Goth near Football Ground had snapped and was lying on the iron railings/fences of the said football ground energizing and electrifying it also. The area office of the appellant was informed of such snapping of wire but no immediate steps were taken by the appellant for obviating danger of electrocution to an unwary person. One Fayyaz Ahmed was going towards his house through the said Masoom Shah Colony Road and when he reached near the said football ground, he accidentally touched its iron railings/fences and was electrocuted and died on that account. His body was removed to J.P.M.C. where his death was confirmed to have occurred on account of electrocution. It is alleged that the death of Fayyaz Ahmed took place on account of gross negligence of the appellant as it failed to take measures to save the people from being electrocuted and also in not complying with its statutory duty of installing guard wire. It is alleged that Fayyaz Ahmed at the time of his death was aged 35 years and was employed as a police constable in Sindh Police and drawing a salary of Rs.4500 per month. The respondents who are son and daughters of the deceased in representative capacity filed the suit for recovery of Rs.69,20,000 under the Fatal Accident Act, 1855. The suit was contested by the appellant who filed its written statement denying the claim of the respondents. On the pleadings of the parties following issues were framed: -- (1) Whether the suit is maintainable under the Fatal Accident Act 1855? (2) Whether the death of deceased Fayyaz Ahmed caused on 5th September, 2000 on account of electrocution owing to negligence of defendant No.1, if so, its effect? (3) Whether the defendants are liable jointly and severally to pay compensation to the plaintiffs, if so to, what extent? (4) Whether the defendants No.2 being the insurer of defendant No.1 has limited liability in such case subject to the Insurance Policy for the period from 1-7-2000 to 30-6-2001? (5) What should the decree be? (6) Whether the plaintiffs have any cause of action to file the suit? (Additional issue) (7) Whether the suit is barred by time? (Additional issue). From the side of the respondents Mst. Chand Bibi widow of the deceased and Syed Amjad Shah were examined. The appellant examined three witnesses namely Muhammad Rafiq, Shamim A. Hashmi and Abdul Majeed, all being its Assistant Executive Engineers. After hearing the arguments of the learned counsel for the parties, the learned Single Judge passed the impugned judgment and decree. On service of notice of this appeal, the respondents have filed cross objections in which they have prayed for enhancement of the amount of compensation granted by the impugned judgment and decree. Mr. Raghib Baqi, learned counsel for the appellant has attacked the impugned judgment and decree with the following submission:-- (1) That the suit was time-barred. (2) That there was no negligence on the part of the appellant. (3) That Mst. Chand Bibi and Mst. Latifa Bibi were not the plaintiffs in the suit and the trial Court was not justified in extending the benefit of decree to them. On the other hand Mr. Nasir Maqsood, learned counsel for the respondents has contended that: (i) the suit was within time; (ii) that Chand Bibi and Latifa Bibi being the legal heirs of the deceased were entitled to the grant of compensation and it was extended to them under section 1 of the Fatal Accidents Act, 1855; (iii) that the negligence on the part of the appellant stood proved; (iv) that the compensation allowed by the impugned judgment and decree was not in consonance with the quantum of compensation allowed by law. In support of his submissions he has relied upon the case of Farazuddin v. Pakistan Navy, (1991 CLC 1886), Bakhtawar Shah v. Karachi Transport Corporation, (2004 MLD 528) and Karachi Water and Sewerage Board v. Muhammad Moosa (2001 CLC 221). We have considered the arguments of the learned counsel and have gone through the record. With regard to the first submission of the learned counsel for the appellant it may be noted that the incident causing death of Fayyaz Ahmed took place on 5-9-2000 and the suit was filed on 12-1-2002. It is an admitted position that the respondents were minors at the time when the suit was filed by them. Section 6 of the Limitation Act provides for filing of suit by a minor within the same period of limitation as would otherwise have been allowed from the time prescribed therefore, in the first schedule of the Act on attaining the age of majority In the case of Bakhtawar Shah (supra) his Lordship Saleem Akhtar, J (as he then was) has relied upon the case of Iftikhar Hussain v. K.E.S.C. (PLD 1957 Kar. 552) and found the suit filed by the minors even after expiry of one year to be within time by extending benefit of section 6 of the Limitation Act. Similar view is also expressed in the case of Ms. Shamsunnisan v. Karachi Road Transport Corporation (PLD 1975 Kar. 914). We are therefore, of the considered view that the suit filed by the respondents was within time. As regards the second submission, the learned counsel for the appellant has not been able to show to us any piece of evidence from the record to support his argument that there was no negligence on the part of the appellant. The fact of snapping of wire is admitted and the fact that Fayyaz Ahmad has died on account of electrocution from the said snapped wire is also not in dispute. At the same time counsel for the appellant admit that no guard wire was provided by the appellant as is required by rule 76 of Electricity Rules. Therefore, we find no force in this argument of the appellant counsel. As regards the third submission of the learned counsel for the appellant, reference is made to section 1 of the Fatal Accident Act, 1855 which provides that the suit under the Act shall be for the benefit of wife, husband, parents and child if any of the person whose death has taken place whereas section 2 provides that not more than one suit shall be brought for and in respect of the subject-matter of complaint. Consequently, we find that the extension of benefit of the decree given by learned Single Judge to the widow namely Mst. Chand Bibi and mother Mst. Latifa Bibi of the deceased is without exception and the objection of the appellant counsel in this respect is altogether fallacious. Mr. Nasir Maqsood has contended that the learned Single Judge has awarded compensation of income of the deceased for a period of 25 years on the premise that he would remain in service for 25 years more. He has contended that the date of retirement from service has no nexus with the expectancy of life which is taken to be as 70 years and in support has relied upon the case of K.E.S.C. v. Syed Iqbal Hussain Jafry (2004 MLD 1696) where a Division Bench of this Court relying upon other large number of judgments has concluded that the normal life expectancy has consistently been treated to be 70 years. Learned counsel for the respondent has submitted that the respondent be allowed further compensation of income of 10 years i.e. from the date of retirement at the age of 60 years up to the expectancy life of 70 years: Learned counsel submitted that the same amount of income as was being drawn by the deceased while in employment be allowed for this additional 10 years period. We are afraid that the income of employment cannot form basis for granting of compensation from the date of retirement up to the age of expectancy of life for an obvious reason that in almost majority of the cases the retired personnel is unable to draw the same income as drawn by him during his employment but is able to make much lesser income if he gets employment. We therefore, find that a minimum wage of Rs.3,000 per month will be an appropriate amount as compensation for the remaining 10 years i.e. from the date of retirement upto the normal expectancy of life of 70 years. Consequently an amount of Rs.3,60,000 is added towards the income of a deceased out of which 1/6th is deducted towards his personal expenses which comes to Rs.60,000 leaving a balance of Rs.3,00,000 which the respondents are entitled to as an additional compensation of income from what has been allowed by the learned Single Judge. Mr. Nasir Maqsood relying upon the case of Zuljan v. Tariq Ahmed (2005 MLD 210) a judgment of the Division Bench of this Court has claimed an amount of Rs.1,00,000 each for the widow and the children of the deceased for loss of affection and association of the deceased for the remaining period of their lives. The learned Single Judge has allowed compensation of Rs.1,00,000 only on this account to the widow and the four children of the deceased. In view of the rule laid down in the cited case we are of the view that the compensation in the sum of Rs.1,00,000 should have been allowed to the widow and each of the child on this account: The compensation amount for loss of company the love and affection of the children and widow is therefore, increased from Rs.1,00,000 to Rs.5,00,

000. With the above modification in the impugned judgment and decree, the appeal is dismissed. The listed application is also disposed of. S.A.K./K-10/K??????????????????????????????????????????????????????????????????????????????????? Order accordingly.