2000 PLP 1288 (YLR)

(1) Whether the deceased Badaruzzaman died due to the negligence of defendant No. 1? (2) Whether the death of deceased was the result of an accident? (3) Whether the defendant No.2 is also liable to pay any compensation to the plaintiffs jointly and severally as allegedly claimed? (4) Whether the plaintiffs are entitled to cost and interest/mark‑up/profits? (5) What should the decree be? The plaintiff examined Khan Zaman as Exh. 5 who produced Special Power of Attorney as Exh. 5/1, photocopy of National Identity Card of deceased as Exh. 5/2, photocopy of death certificate of deceased as Exh. 5/3. The defendant No.1 filed affidavit in evidence of Muhammad Anwar who was cross‑examined by the plaintiffs' learned counsel. Issues Nos. 1 and 2: Death of deceased Badaruzzaman is not denied. The plaintiff's witness Khan Zaman, the attorney of the plaintiffs, has deposed that deceased died unnatural death by coming into contact with live stretched wire in front of police out post when one Taj Muhammad also died on account of the same incident as he happened to be in company of the deceased. He has produced death certificate of deceased Exh. 5/3. This witness was cross‑examined and stated that he was present at the time of incident and that electric live wires were broken and deceased walked over without knowing their presence. He further stated that he went to the place of incident from his house on coming to know about the death of deceased. He denied that K.E.S.C. was not responsible for unnatural death of deceased or that deceased himself acted carelessly and negligently. D.W. Muhammad Anwar in his affidavit‑in‑evidence has stated that a complaint of wire broken was received on phone through Deputy Commissioner at 8‑30 a.m. Accordingly, a gang was dispatched who isolated the wire and reported back. He sated that the wire broken stretched overhead on the main road at Sector 4‑F Orangi Town near Mominabad Police Station broke down on account of lack of care and pre‑caution on the part of the defendant No.

1. It is further stated that report was lodged at Police Station Mominabad and as per police report the incident was declared as accident and he denied that there was delay on the part of defendant No.1's complaint centre in attending the complaint. It is further stated by the defendant's witness that the death of deceased Badaruzzaman was purely accidental and it was not due to any negligence on the part of defendants or their officials and the defendants were not liable to any compensation. This witness was cross-examined at length by the learned counsel for plaintiffs wherein he sated that on the date of incident he was posted in Spencer Building in planning department and had no connection with the complaint centre in Mominabad, Organgi Town. He stated that the place of incident from the complaint center would take about fifteen minutes. He stated that the maintenance department looked after the poles and wires. He stated that he was not aware whether any survey was carried out of the pole from which wire fell. He stated that he has not surveyed the poles before coming to this Court. There were six wires which fell from the pole and they were neutral wires and of copper and he was not knowing the life of copper wire. He admitted that the testing department was responsible for regularly checking of the wires to see whether they were in fit condition and there was a guard wires system on each pole and the function of the guard wires was that when any wire fell then it is rendered dead. He admitted that wires normally fall due to overloading, theft or interference by the consumers. He was not aware whether any such record was kept in respect of these wires. He denied that the death of two individuals occurred due to negligence of KESC and due to lack of maintenance of wires and due to not taking the necessary security measures to prevent the accidents. He denied that the wires fell because they had been rusted or that they had become physically defective. The above evidence adduced by parties would show and prove that deceased met with unnatural death because of falling of live electric wire upon him. Admittedly, there is nothing on record to show that the wire fell down because of any act or omission on the part of the deceased. Nothing has been produced by the defendant to show that there. has been some misuse or interference of the subscribers of the adjacent persons of locality. It has been admitted by the defendants that it was their responsibility to instal and maintain the poles and wires periodically for which necessary record is to be maintained by the concerned department of defendant No.

1. No record has been produced certifying that the wires so fell/broken were properly installed and were found fit periodically. In failure thereof to produce reliable, satisfactory evidence, the version/testimony of the plaintiffs' witness would be believed considering that unnatural death of deceased has not been denied which happened because of his contact with live wire. Had there been an automatic system with the poles from where the wires were to extend on their being broken, the same would have become dead but as the same remained alive after being broken down would show that there was a fault and negligence on the part of defendants. In the circumstances, it is held that deceased Badaruzzaman died due to negligence on the part of defendant No.

1. As the death was occurred because of the negligence, mis‑feasance and non‑feasance of the defendant, therefore, it could not be said that the death of deceased was the result of accident. The death occurred because there was negligence on the part of the defendant to maintain the wire system and keep automatic system in proper condition and operation but the same was not maintained by the defendant, therefore, the incident of death took place. In the circumstances issue No. 1 is answered in the affirmative while issue No.2 in answered in negative. ISSUE N0.3. As there has been negligence on the part of the defendant in maintaining the proper condition of the poles and wires, therefore, defendant No.2 would also be liable to compensation to the plaintiffs jointly and severally with the defendant No.

1. Issue No.3 is answered accordingly. ISSUE NO.

4. As the defendants did not settle the claim of plaintiffs with them and contested their claim even in the Court after filing of the suit, therefore, plaintiffs would be entitled to cost so also the profits on the decretal amount. ISSUE N0.5. P.W.1 Khan Zaman has stated that deceased was aged 19 years at the time of his death and in support of the same, he has produced photocopy of his National Identity Card which mentioned the date of birth as 1971 of the deceased. The average life span in Pakistan is considered to be 70 years. Reference may be made to (i) S. Iqbal Hussain Jaffery v. Karachi Electric Supply Company (1994 CLC 1903 at 1910) and (ii) Mst. Bibi Surat Jan v. Mir Azam Khan and two others (PLD 1993 Kar. 168). Learned counsel for plaintiffs has submitted that the age of surviving beneficiaries viz. the plaintiff No.2, mother, was of 40 years whereas plaintiff No.1, father of deceased expired during the pendency of suit, therefore, there would be loss of pecuniary benefits for 70 ‑ 40 = 30 years and the deceased according to learned counsel was earning average Rs. 125 per day, therefore, for a month it would come to Rs. 3,750 and for thirty years loss 3750 x 12 x 30 would come to Rs. 13,50,000 adding, 20% increment chances on overall expenses would come to Rs.13,50,000 divided by 5 = Rs.2,70,000, therefore, gross loss of pecuniary benefits for thirty years would come to Rs.13,50,000 plus Rs.2,70,000 = Rs.16,20,000 less 1/3rd personal expenses, Rs.16,20,000 divided by three would come to Rs.5,40,000, therefore, net loss of pecuniary benefits would come to Rs.16,20,000 minus Rs.5,40,000 would come to Rs.10,80,000 whereas the amount claimed by the plaintiffs in the plaint is Rs.15,50,

000. The plaintiffs have not filed any reliable or satisfactory documentary evidence showing that the deceased was a mason by profession. Even a contractor/builder with whom he worked, has not been examined to support the case of plaintiffs that deceased used to earn averagely Rs. 125 per day. There is no material evidence to show that the deceased could have earned more after some time so as to give him benefit of increment of 20 % overall aggregate income. The plaintiffs have not cared to come in the witness‑box to depose what has been stated in the plaint. The attorney Khan Zaman has been examined but he has not stated as to how he was connected with the deceased or with the plaintiffs. The attorney of the plaintiffs in the cross has stated that he was present at the time of accident and deceased walked over the live wires which were broken without knowing their presence but thereafter he has stated that he went to the place of accident from his house on coming to know about the death of deceased. This would show that the attorney was not even present at the place of incident and he had no knowledge about the facts of the case. However, the admitted position as said above is that the deceased died because of electrocution due to negligence on the part of the defendant No.1 and at least the young deceased could have fetched Rs. 2,000 per month out of which he could have spent Rs.500 per month at least on his person consequently there would be a loss of Rs.1,500 for the beneficiaries/plaintiffs. In the circumstances, Rs. 1,500 x 30 x 12 = Rs. 5,40,

000. However, in view of the evidence whatever has been placed, suit of the plaintiffs is decreed for the sum of Rs. 5,40,000 with costs and mark‑up at the rate of 14 % from the date of suit till its realization jointly and severally against the defendants. H.B.T./M‑21/K Suit decreed,