P L D 1959 (W (PLP)

"Presuming that the contents of the report are correct, the reasons from the technical point of view of the breakage of wire in my opinion should be as follows :‑ (a) Uneven stress and strain on the conductor such as caused by the sudden change in the wind direction ; (b) Sudden variation in the temperature of weather ; (c) Unusual pulls on the conductors." I should note that the facts stated in Exh. 8 explain how the wires broke down and not why they broke down and that D. W. 4 has merely given general reasons for which a wire may break down. If rain and wind were sufficient to break vires of the specifications which are used by the Company, then all or most of them would have broken down. If one wire or a few of them only broke down for reasons which were common to all or most of them then there must have been something peculiar in such wires themselves.

20. Moreover, the facts stated in the report Exh. 8, are imaginary and not real. The officer who inspected the broken wire, before it was repaired, was Muhammad Ishaque, D. W.

2. He has stated that‑ "Three wires had broken down, two of them were neutural. The ends of the neutural wires were lying on the ground. The third wire was of public light. It became dead when it broke down and came into contact with the neutural wires. After wards, it had come into contact with blue phase wire and had become live again." Asghar Ali, Executive Engineer, D. W. 4, has given a different version; "I think that the breakage of wire which took place on Mohan Road was the result of the contact of two wires of the same phase which gave a greater amount of current flow to the neutural wires and the guards, resulting in higher burning effect . . . . The piece which was dangling remained live after breaking the neutural wires and the guard, because when the public light wire came into contact with blue phase and became doubly charged its contact with the neutural wires resulted in the blowing off of the minor fuse only. By the time the neutural wires and the guard broke down, the main fuse remained intact and therefore the end continued to remain alive. Then it came into contact with the human body which resulted in the blowing off of the main fuse." Abdul Ali, Distribution Engineer, D. W. 9, has stated on the contrary: "The fuse of a main must blow off when it comes into 'contact with a guard irrespective of voltage and current." Conflict of views on simple technical matters displayed by the Engineers of the defendant Company is alarming. D. W. 9 has stated: " In Exh. 8 the expression `shorted the blue phase wire' means that the public light wire came into contact with the blue phase wire and caused the blowing off of the fuse thus making the public light wire dead." D. W. 4 has stated: "The meaning of the expression 'a wire was shorted by another wire' is that the wire came into contact with another wire. It is not implied in this expression that as a result of the contact the fuse was blown off."

21. Mr. Parmanand tried to get round the cause of the accident by contending that the life of a copper wire of the thickness which is used by the Company is unlimited and that, therefore, the Company could not expect the wires to break down or to take measures to prevent them from breaking down. He has referred to the remark of Mr. N. N. Iyanger, an Electrical Engineer, who was invited by the Company in 1939 to give a report on the valuation of the physical assets of the Company. His report is Exh.

45. At page 15 of it he has said: "Bare copper conductors should last indefinitely." From this Mr. Parmanand inferred that (i) a bare copper wire would not break due to age, rust or corrosion and that if it did break down, (ii) the reason must be excessive external stress on it. Excessive external stress on the wire which broke down has not been proved. Moreover, the first part of the inference too cannot be accepted as correct. The reasons are : firstly that Mr. Iyanger's report was primarily concerned with the valuation of assets and the considerations of providing adequate depreciation fund. May be that he thought that for the purpose of providing a depreciation fund the copper conductors could, for some financial reason, be taken to be of indefinitely long life. Secondly, Mr. Iyanger himself recommended, at page 16 of his report, that a depreciation fund be provided for overhead wires at the rate of two percent. On this basis the life of an overhead line or a bare copper con ductor would be fifty years. Thirdly, the rate of depreciation recommended by Mr. Iyanger is itself questionable. His recom mendation was a departure from the depreciation rates which had formerly been five percent. six per cent, and seven and a half percent. according to the decisions of the Board of Directors made from year to year. The life of a wire at those rates would be 20 years, 16 years and 13 years respectively. Fourthly, the recommendation of Mr. Iyanger was rejected by the Company due to an objection of the Auditors in 1948, and the depreciation rate was raised to three percent., in 1949. In 1955, the Company applied for a loan to the World Bank, and the depreciation rate was raised to five percent.

22. In this connection, the climate of Karachi is not to be disregarded. Corrosion of wires in Karachi is much faster than in those regions where there is salt in the atmosphere but where rains are heavier. Mr. Iyanger has pointed out at page 16 of his report as follows: "Heavy showers do not cause such troubles as the salt deposit is washed away." Mr. Abdul Ali, Distribution Engineer of the defendant Company, D. W. 9, has stated: "The duties of the Officer‑in‑Charge of this Department were to chalk out a programme of work for each day. A programme was necessary because Karachi climate is such that if the High Tension Mains are not cleaned regularly then faults begin to occur after a month or so. The Low Tension Lines need inspection after every three months or so." Mr. Asghar Ali, Executive Engineer of the defendant Company, D. W. 4, has stated:- "The breaking of wires is not an unusual incident. Ordinarily three or four wires break in a month. On a rainy day, however, there can be 12 or more breakages in a day." Mr. Khurshid Baig, Foreman of the defendant Company, D. W. 1, has stated "Sometimes in a day, when it rained, I used to receive 600 to 700 complaints."

23. Mr. Parmanand next contended that the defendant Company had been more cautious than was necessary and had, in exercise of abundant caution, made arrangements to carry out repairs regularly. A bunch of monthly reports, collectively exhibited as Exh. 24, has been produced. They relate to the period from February 1944 to January 1949. These reports show that the repairing staff of the Company visited Mohan Road several times during this period but no report shows that wires had been inspected to discover corrosion or to test their strength or their expected lives. There is no record of what defects of this nature were discovered and needed attention. The reports record the work done and disregard all those defects of any nature whatsoever which might have been found but were not removed. The wires could not be maintained in proper repair unless there was a record of the date of installation of each line and the state in which it was from time to time keeping all along in view its expected life. Exh. 49 is said to be such a record relating to the wire which broke down. It is a folder which contains papers relating to the proposal of providing, additional light at Mohan Road. Exh. 48 is an endorsement in pencil on one of the letters contained in Exh. 49 and shows that the work of providing additional light on Mohan Road was completed on 12‑10‑1927. It is a worthless record for the purpose for which it has been pressed and could be of no value for repairing and replacing in time the wire which broke down. According to the date given in it the age of the wire at the time of the accident was more than twenty years. In other words it had outlived its normal life, if the latest depreciation rate of 5 percent., is taken to represent its normal age. If deprecia tion rates do not represent the normal age of such wires then the company does not know, or pretends not to know, the average normal life of an overhead electric light wire.

24. There is no doubt that the business operations of the defendant Company had an obvious element of peril in them to the life and safety of the public. As such it was the duty of the Company to exercise care for protecting the members of the public against that danger. The degree of care had to be of high order because wires have frequently broken down on rainy days. In the language of American Jurisprudence, at page 678 of Volume 38: "No less a degree of care than that commensurate with apparent danger, or in proportion to the danger reasonably to be anticipated is reasonable . . . . Clearly, when human life is at stake, "the rule of due care and diligence requires everything that gives reasonable promise of its preservation to be done, regardless of difficulties or expense."

25. On the above facts and law the inference as to negligence' must be against the Company. The burden of proving that it was not negligent was, therefore, on the Company. The evidence produced by it is not sufficient to counteract the inference. On the contrary it leads to the inference. Mr. Parmanand relied on Dumphy v. Montreal Light Heat & Power Co., (1907 A C 454) and contended that the Company could not be expected to experiment with remedies of unproved efficacy. For instance, he contended, it could not send its staff on too frequent rounds of inspection to discover which of the thousands of the wires which stretched in the big City of Karachi had salt deposits on it and what chances there were of its developing defects due to slow corrosion. Such a course was not feasible, according to counsel, because of the uncertainties of the result, manpower needed for it and prohibitive expense involved in it. It, therefore, had to rely on the information that the consumers of electricity and members of the public used to give to it whenever inconvenience was caused to them by the faults which appeared in the system of electric supply. Mr. Muhammad Nasim met the argument of Mr. Parmanand by citing Lord Mayor, Alderman and Citizens of Manchaster v. Markland (1936 A C 360), and relying on the view expressed in it that to depend on the chance that "some policeman or road officer or other servant of another authority or some householder or other person may give" information of bursts in pipes was to adopt "precarious, unreliable and un‑coordinated methods of receiving information" and did not exonerate the Corporation whose business was to supply water from liability for the death that was caused owing to a burst in the service pipe. I must say that with the Company's self satisfac tion that the life of a bare copper wire was indefinitely long, its counsel's argument that frequent inspections were impracticable and of doubtful efficacy sounded like disparagement of practical sense. Mr. Parmanand's plea in effect was that better and efficacious care was not possible. This plea must be rejected as imaginary and the safety of human life must be placed above the significance of mere words.

26. I am compelled by the surrounding circumstances of the accident to the conclusion that the defendant Company was negligent in the maintenance of the wire which broke down due to some physical defect in it.

27. Now turning to the second plea of the plaintiffs that the defendant Company did not attend to the broken wire without undue delay, I may state at once that the Company has not produced trustworthy evidence to prove at what time the wire broke down and at what time information reached it for the first time that it had broken down. Muhammad Ishaque, D. W. 2 who visited the scene of occurrence has stated: "Usually public is not found in the streets at such occasions. I could not therefore get information about the time at which the wire had broken." At such occasions people do collect and watch the happenings. Moreover it was a populated area and the inhabitants of the locality knew of the accident. The plaintiffs have produced three witnesses who lived in the vicinity to prove the time at which the wire had broken down. They are Dr. Inshaur Rahman, P. W. 2, Sardar Khan, a retired Superintendent of Police, P. W. 3 and Muhammad Shafi, P. W. 4. who ran a dispensary. All of them have stated that they had seen the broken wire before the death. The police officer saw it at 5 or 6 p.m. and instructed a constable to inform the Company of it. The Doctor saw it afterwards but before 8 p.m. and himself rang up the Company to give the information. Muhammad Shafi who also saw the broken wire in front of his house at about 5 or 6 p.m. and felt worried for his children. The Company has produced Khurshid Beg, D. W. 1, who was the Company's Telephone Clerk in 1948 and used to receive complaints from the consumers and members of the public and to keep their record. He has stated that information of the death was received by him at 10. 30 p.m. and that no report had been received earlier that the wire had broken down. He has given this evidence from memory though according to him he sometimes received 600 to 700 complaints in a single day if it had rained. The complaints were recorded but the record or the book of complaints has not been produced. This omission raises a presumption against the Company and therefore the Company has produced three witnesses to prove that the wire had not broken at 5 or 6 p.m. and has offered an explanation for not producing the record. The witnesses Hamid Mirza, D. W. 5 an "electrical contractor" who was a small businessman and apparently under the influence of the Company, Muhammad Ishaque, D. W. 6, a petty tea stall keeper who bad his stall in a lane which branched off from Mohan Road, Habib Ahmed, D. W. 7 a carpenter who is supposed to have gone to a tea shop which was situated in another bye‑lane close to Mohan Road and is supposed to have seen the wire intact between 9 and 9. 30 p.m. on the evening on which the accident took place. They have not impressed me as genuine witnesses, nor do I believe from their vocation in life that they were capable of noting time with any accuracy and stating their impressions reliably after ten years of the occurrence. Two of them happened to be present near about the scene of occurrence for drinking tea at two tea stalls and have come forward to give evidence. I would not attach weight to their impressions regarding time if they did really receive any. The explanation of the Company for not producing the book of complaints is that its record room had been flooded with rain water in 1953 and that a good part of the record was spoiled. The‑ spoiled part of the record was destroyed by the Company. May be that some of the record was spoiled by water but the Company has produced all that record which could be helpful to it. Its documentary evidence covers the period from 1913 to 1954 and no document produced by the Company has on it marks of water. The presumption which arises against the Company is not rebutted. I hold that the wire broke down between 5 and 6 p.m. and that in spite of two complaints made to the Company soon after it by P. W. 2 and P. W. 3 the Company failed to take steps until 11 p.m. to remove it from the road and repair it.

28. The death of Akhlaque Hussain was, therefore, not caused by inevitable accident but by neglect anti default of the defendant Company.

29. Issue No. 6.‑The inference from the above decision must be that Akhlaque Hussain would have been entitled to maintain an action and recover damages in respect of the injury received by him had he not succumbed to it and that the defend ant Company is liable to pay damages to the plaintiffs under sections 1 and 2 of the Fatal Accidents Act, 1855.

30. The quantum of damages is to be determined in terms of the third paragraph of section 1 of the Act. It runs as under :‑ "In every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided among the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct." The flexibility of the language, "as it may think proportioned", has introduced a considerable element of judicial discretion and has resulted in the recognition that the amount of damages would differ from Judge to Judge.

31. Before proceeding to assess damages I should state the principles applicable to assessment of damages under the Act. The words "the amount so recovered, . . . shall be divided amongst " the beneficiaries denote and have led to the general practice that the Court should first assess the beneficiaries' loss as a whole and then apportion the damages amongst them. The words "proportioned‑ to the loss" mean that damages can be awarded to those beneficiaries only who sustained loss. Pecuniary loss must be proved to have been sustained by those who get damages but how the damages are apportioned amongst the beneficiaries is of little importance to the defendant who is called upon to pay The payer's interest is so little in apportionment that the beneficiaries can be asked if they can agree on how the money should be apportioned. In this connection, see Lord Goddard's judgment at page 81 of the Quantum of Damages, Vol. 2, by Kemp & Kemp.

32. The words "loss resulting from such death" are of special importance. They do not convey the sense that the deceased was under a liability to pay that which is lost to the beneficiaries. Moreover, the assessment or loss is not to be confined to the provision of necessities of life. Connotation of the word "loss" is much wider than that. In the language of "Mayne on Damages" at page 516 of the tenth edition: "The rule which has been laid down and adopted is that `legal liability alone is not the test of injury, in respect of which damages may be recovered under this statute; but the reasonable expectation of pecuniary advantage by the relative's remaining alive may be taken into account by a jury, and damages given in respect of that expectation, if it be disappointed, and the probable pecuniary loss thereby occasioned. Thus . . . . children may recover for the loss of the education, comforts, and position in society, which they would have enjoyed if their father had lived and retained the income which died with him ; and they had continued to reside with him; and even the probability that the deceased if he had lived would have made provision for his children may be considered ". I may mention that chances of increase in the income of the deceased are an important part of the beneficiaries' expectations.

33. In this respect the plaint has not been artistically drafted and the criticism of the claim by Mr. Parmanand was mostly in forgetfulness of the relevant loss. His defence did not rest on the provisions of the Fatal Accidents Act, 1855, except in a small degree as to the form of pleadings and expected life of the deceased.

34. He questioned the correctness of the amount of the claim on three grounds. Firstly, that the income of Rs. 500 per month of the deceased could not be accepted as correct because it represented an unnecessarily high rate of profit on the capital that was invested by him. Secondly, that the two minor sons of the deceased should be expected to become self‑supporting at the age of majority, that is, after 18 years, and that thereafter the father would not have to support them. Thirdly, that the period of time for which their father could be expected to live has not been proved.

35. The first criticism is not sound because small investors earn incredibly high profits on their capital. A hawker earns so much per day on his capital of Rs. 20 that a millowner can never dream to earn anything like it proportionately. Moreover there is a difference between the price of a shop and the amount of money invested in it. Mr. Muhammad Nasim has drawn the distinction when he stated that the deceased bought the shop for Rs. 2,000 or Rs. 3,000 and invested Rs. 4,000 in it. His statement is based on information conveyed to him by the deceased. I have no reason to disbelieve either of them. Moreover, the deceased bought the shop in January 1948 and was killed in March 1948. There was no reason for his business not to flourish. He was an experienced businessman, as has been brought out in the cross‑examination of Mr. Muhammad Nasim, and used to earn as an employee of a firm Rs. 450 per month.

36. The second criticism is misconceived. In Muirhead v. Railway Executive, (1951 C A No, 178) the Appellate Court consisting of three Judges disagreed with Devlin, J., who had declined to allow damages to the elder daughter of the deceased and allowed damages to her. She was 24 years of age at the time of her father's death, was married and had been working and earning about 300 a year at one time. She was granted damages because she expected financial help from her father. The trial Court had granted damages to her younger sister who was 12 years old at her father's death to support her to the age of twenty years, but Singleton L. J. held as follows and Morris L. J. and Lloyd‑Jacob, J. agreed with him:‑ " I do not think that it was right to assume that all depen dency would cease at the age of

20. The girl, apparently, has some idea of taking up elocution. If a girl reaches 20 she does not cease to be dependent on her father because she can earn money. The fact that she has a father with large earnings is a tremendous benefit to her in case of need, be it sickness or any other cause arising . . . . . . . . " I do not accept the view that the father was likely to be eating into capital later. I think that he would have made arrangements of some sort or another; if he was fit the probability is that he would not have retired at the age of 70."

37. In my view the plaintiffs could expect substantial support from their father upto the age of 25 years each and the widow could expect full support until her death unless she predeceased her husband. On an average the deceased could be expected to spend Rs. 225 per month on the three persons. The deceased was 45 years of age at the time of his death, kept good health and was a man of simple habits. He could be easily expected to live and carry on the trade of running a shop upto the age of 65 years. In other words, they could expect to derive benefit from him for 20 years. But the expected life of the widow according to the plaint is 55 years, which means 16 years after the husband's death, and the minor sons have claimed benefit upto the ages of 15 years each, which means for 18 years and 14 years respectively. The mean of the duration of expected support thus comes to 16 years only. I would, therefore, allow, the purchase value of 16 years' annuity at the rate of Rs. 225 per month or Rs. 2700 per year. The total amount of the purchase value comes to Rs. 43,

200. Out of this amount I would deduct a round sum of Rs. 3,000 as the proceeds of the shop received by the beneficiaries in the, form of the sale price of and withdrawals from the shop, and make a discount of Rs. 6,000 on account of the advantage which the beneficiaries stand to gain by getting the benefits in a lump sum. The beneficiaries are thus entitled to a decree for Rs. 34,200 against the defendant‑Company, which is hereby granted.

38. This amount is to be apportioned amongst the three beneficiaries as follows :‑‑ Widow Rs. 15,100 (Fifteen thousand one hundred) Younger Son Rs. 11,400 (Eleven thousand four hundred) Elder Son Rs. 7,700 (Seven thousand seven hundred) Total Rs. 34,200 (Thirty-four thousand two hundred)

39. I order accordingly. The plaintiffs shall get the costs of the suit from the defendant‑Company. A. H. Order accordingly.