2000 PLP 1073 (MLD)

This suit was filed by the plaintiff under Fatal Accident Act, 1855 for recovery of. Rs.5,12,000 from the defendants on account of death of his son Muhammad Ramzan Anjum who died at Karachi on 6‑2‑1988.

2. On 6‑2‑1988 at 3‑45 p.m. the deceased aged 22 years, resident of B‑35, Block "A", North Nazimabad, Karachi, while taking a stroll in the park his hand touched the lamp post which electrocuted him and caused his instantaneous death. The incident was seen by his friend Jawed lqbal who with the help of Babar Ali Khan and Muhammad Naeem Khan took him to Baqai Hospital where he was pronounced dead. The park where the incident took place was maintained by defendants No.l, 2 and 4 and power to the lamp posts of the park was supplied by the defendant No.3.

3. The defendant No.l (K.M.C.), defendant No.2 (Z.M.C. Central) and defendant No.3 (K.E.S:C.) filed their written statement whereby they denied the contentions made in the plaint. On 11‑4‑1989 following issues were framed :‑‑ (1) Whether death of Muhammad Ramzan Anjum on 6‑2‑1988 at a park near Ibrahimi Mosque, Block ' A' North Nazimabad Karachi, was caused by wrongful omission neglect or default committed by the person maintaining said park and its electric lamps, by leaving one of the electric lamps in dangerous condition liable to pass electric current to a person touching it by inadvertence or by accident? (2) Whether the park mentioned under issue No.l maintained by the defendant No. l Karachi Metropolitan Corporation? (3) Whether the park mentioned under issue No. l maintained by the defendant No.2 Zonal Municipal Committee (Central) Karachi.? (4) Whether electric fittings in the park mentioned under issue NoL, are maintained by the defendant No.3, Karachi Electric Supply Corporation Ltd. ? (5) What was the earning capacity of the deceased? (6) Whether all the defendants are liable to pay the damages for death of deceased Muhammad Ramzan Anjum jointly and severally? (7) What should the decree be? .

4. On 26‑9‑1990 Justice (Recd.) K.A. Ghani was appointed as a Commissioner to record evidence. The Commissioner after recording the evidence submitted his report alongwith the evidence recorded by him.

5. While the matter was pending for arguments and application under Order 1 Rule 10, C. P. C. (C. M. A. No. 344 of 1997) was filed by the plaintiff . and on 11‑8‑1998 the Court ordered for joining the District Muncicipal Corporation (Central) as defendant No.4 and the plaintiff filed an amended plaint accordingly. The defendant No.4 were served but they did not file the written statement and so on 29‑4‑1998 were debarred from filing written statement.

6. The plaintiff examined

1. Javed lqbal

2. Babar Ali Khan

3. Allah Bux

4. Hafizullah and

5. Dr. Iqbal Hasan. The defendant N0.1 examined Misbah Jamali. The defendant No.2 examined

1. Abdul Ghafoor and

2. Qamarul Islam. The defendant No.3, examined Aleemuddin despite service, the defendant No.4 did not defend the case. Heard the counsel for the parties, perused the evidence and case law produced by them. The counsel for the plaintiff relied upon the cases, Pakistan Steel Mills Corporation Ltd., v. Nazir Hussain Shah 1990 CLC Karachi 515, Barkat Ali Khan and another v. K.E.S.C. PLD 1983 Karachi 453, Iftikhar Hussain and another v. K.E.S.C. PLD 1959 Karachi 550, Kulsoom v. Jalil Ahmed Khan and others PLD 1964 Karachi 712, M.E. Patel v. Tajamul Hussain 1982 CLC 2238, Shahabuddin and others v. Liaqat Ali and others 1988 MLD 928, Farook Hamid Rizvi v. The Managing Director Pakistan Refinery Ltd. and others 1989 MLD 3533, Farook Hameed Rizvi v. The M.D. Pakistan Refinery Ltd., 1989 MLD 1228. The counsel for the defendant No.2 referred the cases, Mariam Bai and others v. M.M. Isphani Ltd., and others PLD 1965 W.P. Karachi 59, Manmatha Nath Kuri v. Muhammad Mokhtesur Rahman PLD 1963 Dacca 290, Khan Sahib Muhammad Ibrahim Khan v. Latif and others PLD 1957 W.P. Karachi 352, Sakina and others v. Hussain and others 1986 CLC Karachi 288, and Pakistan v. Abdul Ghani PLD 1964 SC 68 Issue‑wise findings are as follows:

7. Issue No.

1. This is an important issue which will decide more than one issue in the suit. To determine this issue the evidence of Jawaid lqbal, Babar Ali Khan, Dr. Iqbal Hasan and Aleemuddin are relevant. P.W. Jawaid Iqbal in his affidavit‑in‑evidence stated that on 6‑2‑1988 at 3‑45 p.m., while he was walking in the park Muhammad Ramzan Anjum was tossing the tennis ball in the air and catching it, his hand touched the lamp post of the park and got a electric shock. This P.W. attempted to help him by pulling him away from the lamp post but he also got electric shock. Muhammad Ramzan after getting electric shock fell down and died. He and Babar Khan attempted to revive him but failed and deceased was taken to Baqai Hospital where he was declared dead. He was cross‑examined by the defence. He produced provisional death certificate of Muhammad Ramzan Anjum an EXh.P.W.l/B. P.W. Babar Khan filed his affidavit‑in‑evidence wherein he stated that on the day of incident at about 3‑45 p.m. P.W. Jawaid Iqbal came to his house and informed him that Muhammad Ramzan has been electrocuted. He vent to the place of incident and found Muhammad Ramzan lying on the ground. Colour of his skin had turned blue. He tried to pump his heart but of no result. He had taken Muhammad Ramzan to the Baqa: Hospital where he was declared dead. He obtained Death Certificate EXh.P.I. He was cross‑examined. by the defendant. P.W. Dr. Iqbal Hasan stated that on 6‑2‑1988 he was on duty and he issued the death certificate Exh.P.W.I/B. He examined the dead body and gave the cause of death as electric shock. He stated in cross that he placed question marks against the "brought dead" not against the cause of death. D.W. Aleemuddin who appeared for K.E.S.C. had stated that the underground PVC wire of K.M.C. street light Lamp post inside the, park was short and so the K.M.C. Lamp Post got alive which resulted in the accident in question. In the absence of any evidence to the contrary, from the perusal and examination of the evidence of the aforesaid witnesses the only irresistible conclusion can be drawn that Muhammad Ramzan Anjum died of the electric shock received through the Lamp post of the park. The absence of post mortem of the deceased hardly makes any material damage to the case of the plaintiff. It may not be out of place to mention that there is no mandatory provision for conducting a post mortem to ascertain the cause of death. It is the Court which has to examine each case and draw conclusion as to the cause of death relying upon the evidence led in respect surrounding circumstances of the incident that took place at the relevant time. Post mortem reports are brought m evidence to assist the Court to reach a possible conclusion as to causes of death. The procedure of the post mortem is based on certain scientific procedures which are not always definite and are also under process of development. The defence had not produced any evidence to show that Muhammad Ramzan died of and‑ cause, other than the electric shock from the live lamp post of the park. The evidence of the witnesses further established that the park was maintained by the defendant No.4 and the power was supplied therein by the K.E.S.C. i.e. defendant No.3. The defendant No.3 had attempted to show that they were not responsible for the incident as the lamp posts in the park were maintained by the defendant No.4 K.E.S.C., failed to prove that it had taken all care and caution to see that the power supplied by it was not misused and that it was properly maintained by their consumers. Therefore , the answer to the Issue No. l is in affirmative. Issue No. 2 and

3. In view of the above findings the answer to these issues is that the park where the incident took place was maintained by defendant No.4. Issue No.4. In view of the above findings of the first three issues the answer to this issue is that though the park and inside lamp post were maintained by the defendant No.4 the K.E.S.C., the defendant No.3 was equally responsible to take proper care and caution for proper maintenance of the power supplied to its consumers. Issues No.5. The two witnesses namely Allah Bux and Hafizullah, the father and brother of the deceased in their evidence have sufficiently proved as to the earning capacity of the deceased. The factum of earning capacity of deceased has not/could not be rebutted by the defence and it is proved that after completing his studies he could earn Rs.7,000 to 8,000 per month. It is also proved that the deceased would have contributed towards the maintenance of the plaintiff a sum of Rs.5,000 per month for the first 4 years, before marriage and Rs.3,000 for the next 7 years. It,has come in evidence of the elder brother of the deceased was contributing towards his studies and, therefore, no amount can be deducted on that account from the benefits of the plaintiff. Issue No.6. The result of discussion of issues No. 1, 2 and 3 is that the defendants No.3 and 4 are jointly and severally liable for damages. Issue No.7. In the circumstances, the defendants No.3 and 4 are liable to pay the plaintiff a sum of Rs.4,92,000 as damages for causing unnatural death of the deceased. The plaintiff is not entitled for the expenses of Rs:25000 which he incurred for taking dead body from Karachi to his home town as the deceased could have been buried at Karachi and in that case expenses would have not been more than Rs.5,

000. The plaintiff is entitled to receive a sum of Rs.5,000 on account of funeral expenses. The suit is therefore, decreed against defendants No.3 and 4 jointly and severally in the total sum of Rs.4,97,000 with mark up at the rate of 10% from the date of filing of this suit till realization and also the cost of this suit. Suit decreed.