P L D 1983 Karachi 453 (PLP)

This suit has been filed for the recovery of Rs. 2 lacs under the Fatal Accidents Act, 1855 by the two plaintiffs, parents of deceased Nusrat Ali Khan, who died on 28-10-1980. Plaintiffs' case is that at about 9 p.m. on 28-10-1980 the deceased came into contract with a broken electric wire lying on the ground in a street in Moosa Colony, Karachi. It has been alleged that the broken live wire was lying on the road and no precautionary measures had been taken by the K. E. S. C: Ltd. Defendant No. 2 is the National Insurance Corporation with whom K. E. S. C. had covered third party risk of accidents arising out of electrocution etc. The main written statement was filed on behalf of the insurance corporation and this written statement was adopted by K. E. S. C. The Court framed 'the following issues : (1) Whether on 28-10-1980 live electric wire had broken and was lying on the road alive? If so was Nusrat Ali Khan electrocuted by that wire? (2) Whether defendant No. 2 had taken precautionary measures and had properly maintained electric wires? (3) Whether wire had become loose due to natural wear and tear? If so its effect? (4) Whether the defendant No. 1 was negligent in performance of its duties ? (5) Whether the plaintiffs are entitled to compensation? If so to what amount and from which defendant? (6) What should the decree be?

2. On behalf of the plaintiffs, three witnesses were examined. P. W. 1 (Exh. 6) is plaintiff No. 1 Barkat Ali Khan, father of the deceased. He has produced the notice .given on behalf of the plaintiffs to the K. E. S. C. on 30-11-1980 (Exh. 6/1) and -the copy of the letter dated 24-12-1980 of K. E. S. C. addressed to National Insurance Corporation (Exh. 6/2). In this letter, K. E. S. C. had written to National Insurance Corporation to pay compensation to the dependants of the deceased as demanded by them. Exh. 7 is Akhtar Ali Khan, brother of plaintiff No. I and paternal uncle of deceased. He has given evidence about the earnings of the deceased. P. W. 3 is Akram (Exh. 8). He had stated that electric wire had broken at about 8 p.m. and he had gone with another person to Karimabad Telephone Exchange to make a report about this to the K. E. S. C. On behalf of the defendants, two witnesses have been examined. Niamat Ali Khan, foreman of K. E. S. C., was examined as P. W. 1 (Exh. 9). He has stated that he received the complaint in Pak Capital .Area at about 11-55 p.m. and he sent a K. E. S. C. vehicle with supervisor Amjad Shah to the scene of the accident. The other witness is P. W. 2 Amjad . Shah (Exh. 10) who had gone to the scene of the accident at about mid-night. '

3. On the basis of the evidence on record there appears to be no dispute on issue No.

1. It has been proved that on 28-10-1980 an electric wire had broken down and was lying on the road live and that deceased Nusrat Ali Khan was electrocuted by coming into contact with the live wire lying on the ground. Issue No. 1 is decided in the affirmative accordingly.

4. Issue Nos. 2, 3 and 4 can be taken together. On Issues No. 2 and 3, the burden was on K. E. S. C. The two witnesses on behalf of the K. E. S. C. have stated in their evidence that they did not belong to the maintenance department of K. E. S. C. and as such were not in a position to answer any question regarding the maintenance of the electric poles and wires. 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 the wire. K. E. S. C. is under an obligation and also owes a duty to the public that the electric poles and wires 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 live. 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. As observed earlier, K. E. S. C. has not brought evidence about maintenance and about protective measures on record. It has further been noted that the evidence on record shows that the wire had broken down at 8 p.m. and immediately thereafter a complaint had been made to K. E. S. C. If immediate action had been taken on behalf of the K. E. S. C. for getting the electricity disconnected to the area in question, the unfortunate accident, which took place an hour later at about 9 p.m., could have been avoided. In this case the K. E. S. C. vehicle reached the scene at about mid-night. In the circumstances, Issues Nos. 2, 3 and 4 are all decided against K. E. S. C.

5. Issue No. 5 relates to the compensation and entitlement of -the plaintiffs. The two plaintiffs are parents of the deceased and they are entitled to compensation on account of the death of their 18 years old son under Fatal Accidents Act, 1855. The evidence brought on record on behalf of the plaintiffs that deceased was earning Rs. 903 per month is vague and I find it difficult to accept the version given on behalf of the plaintiffs that deceased was earning Rs. 903 per month. Further, the deceased, if he had not died in the unfortunate accident, would have married after a few .years and would have been supporting his own family. There are other children of the plaintiffs also. I am -of the view, on making a rough estimate, that the plaintiffs, as parents of the deceased, could have reasonably expected. the deceased to support them financially to the extent of Rs. 150 per month on an average. Plaintiff No. 1, at the time of the death of the deceased, was 45 years of age and the plaintiff No. 2 was 35 years of age. The normal span of life, in the facts and the circumstances of this case, is taken as 65 years. At the rate of 150 per month, the total amount comes to Ra. 54,000 for 30 years, that is' when plaintiff No. 2, younger of the two plaintiffs, would have reached th-, age of 65 years. The plaintiffs are entitled to a decree in the sum of Rs. 54,000.

6. I pass a decree in favour of the plaintiffs as against the defendants, jointly and severally,, in the sum of Rs. 54,

000. The plaintiffs will also be entitled to proportionate costs. If the decretal amount is not deposited or paid to the plaintiffs by the defendants on or before 31-1-1983, the plaintiffs shall- also be entitled to interest @a 14 Y. per annum from the date of the decree till realization. Out of the decretal amount, Rs. 30,000 shall be the share of plaintiff No. 2 and Rs. 24,000 the share of Plaintiff No. 1. s. Q. Suit decreed.