1995 PLP 113 (MLD)

SUIT NO. 601 OF 1988: (1) Whether the death of the deceased Muhammad Imran on 14‑6‑1988 was caused by the negligence and default of the defendants who absolutely failed to take adequate safety and precautionary measures to prevent the easy excess of the deceased and other children towards the dangerous deep water tank in Government Baldia Primary School G‑Area, Korangi No.5‑1/2 carelessly left unfenced, uncovered, unmanned an uncontrolled by the defendants? (2) Whether the defendants are liable jointly and severally to pay the compensation/damages to the plaintiff and other legal heirs, if yes, to what extent? (3) Whether the plaintiff and other legal heirs are entitled to cost and interest as claimed? (4) What other relief or reliefs this Hon'ble Court may fit and proper." The plaintiff examined Mst. Saira, the mother of the deceased Aslam Pervaiz in Suit No. 690 of 1988 while the defendants examined Abdul Hanif, the Headmaster of the school. Similarly, in Suit No. 691 of 1988 the plaintiff examined Qamaruddin, father of the deceased Muhammad Imran and P.W. Kaleem Ahmed, the vendor who used to do his vending business in the school while the defendants examined Abdul Hanif, the Headmaster in this suit also. I have heard the learned counsel for the parties and examined the evidence on record. My findings issue wise in the two suits are as under as virtually the issues in the two suits are identical: ISSUE NO. 1: There is no denying that the water tank did exist in the school compound; and that the two children had drowned in the said water tank. The Headmaster of the school himself has admitted in his affidavit‑in‑evidence that such report was also lodged with the Police Station Korangi, hence this fact stands proved. However, the point for consideration is whether the defendants had been negligent in not providing any protection and could be held to be liable for the same. The plaintiff has, through their evidence specially the P.W. Muhammad Kaleem, vendor proved that the school was in existence during that period where this witness used to sell sweets and confectionaries to the school children; and that in summer vacations also he used to be at the gate of the school for selling his goods as children used to collect there. This witness has very specifically stated that the water tank did exist there which was in dangerous condition as the top of the tank was broken and there was an opening of about 4 x 4 feet which .was slippery around with the mud. He has also stated that the compound wall was broken at places; and that children used to come there to play. He has further stated that in the month of June, 1988 the school was closed for summer vacations. He has also stated that there was no watchman at the gate of the school, which used to remain open all the time i.e. day and night. These facts have not been rebutted by the defendants. The only witness examined by the defendants is the Headmaster of the school who in his affidavit‑in‑evidence stated that he was posted as the Headmaster of the school in the month of August, 1988; and that he was not aware about the incident which happened earlier. However, he has not said a single word about the occupation of the school building or compound by the three trespassers who used to keep the doors of the school building open. This is a deviation from the defence as pleaded in the written statement. This witness in his affidavit‑in‑evidence has stated that the school was not in existence in the, building in question as it was under the control of the contractor for the purposes of construction at the relevant time but in his cross‑examination he states that he does not know in whose control the building was but it was under construction. This witness has also stated in his affidavit‑in‑evidence that an enquiry was held by the higher official Syed Saqleen Naqvi and a report was prepared by him which was signed by this witness also. From these facts it is very clear that this witness himself is not aware of the fact and even the report was signed by him on the basis of heresy. This report is also not produced in evidence nor the defendants have produced any documentary evidence to show as to when the said school started functioning in the said building or when the possession of said building was taken over from the contractor. The suppression of this material evidence on the part of the defendants gives rise to the inference against the defendants. Even otherwise the evidence of this witness Abdul Hanif examined by the defendants is of no material use as according to him he was not posted as Headmaster at the relev4ant time as he states that school was closed for summer vacations. Accordingly, I am of the view that the defendants have failed to prove their plea taken in the written statement that it was the three trespassers, who were in occupation of the school compound; and that they used to keep the gates of the school open but the evidence of P.W. Kaleem Ahmed clearly establishes that there was no watchman posted at the school; and that school gates remained open all the time and also that there was a water tank which was in such dangerous condition that any person coming to the edge of that tank could have slipped in. In these circumstances, in ordinary course it was for the defendants to have provided for safety and security such as by raising a fence around the tank or having the same guarded through watchman or keep the school compound closed so that the children of the locality have no access to it. It is also in the evidence of this witness Kaleem Ahmed who is an independent witness that the children of the locality used to come to the school compound to play. The learned counsel for the defendants has taken the plea that it was the voluntary act of the two deceased children as it was they who had come to the water tank and suffered the ultimate death. Be that as it may, it is established principle of law that even in such cases it is the duty cast upon the occupier to provide for such safeguards. In the case of Ali Ahsan v. Federation of Pakistan PLD 1959 (W.P.) Lah. 458 a Division Bench of Lahore High Court has held as under:‑‑‑ "Keeping in mind the principles laid down above, the question which requires decision is. whether, in the circumstance of this particular case, and bearing in mind the fact that the accident did not take place at the level‑crossing, but took place at distance of about 60 feet from the place, when either the appellant was trying to cross the railway line, or he was sitting at the place for some purpose, the respondent can be held liable for the negligence of its employees, which, without any doubt, was the direct cause of the injuries inflicted on the appellant. If the appellant had been injured while trying to cross the railway line at a place other than the level‑crossing, when shunting operations were in progress, or some lawful act was being done by the respondent's employees, even though they have not taken due pre cautions for the safety for the persons who might be present on, or near the railway line, the appellant, in our opinion, would have had no case against the respondent fin the ground that the respondent's employee could not be aware of his existence and were, therefore, not expected to take any precautions for his safety. The accident, however, took place on account of gross negligence on the part of the respondents employees which negligence, in our opinion, amounted to wilful default, in the sense that they deliberately failed to take the necessary precautions which if taken would have prevented such an accident taken place. If the Wagon had been chained, or if the scotch‑block had been placed across the line or if the gates at the level‑crossing had been closed the Wagon in question could not have moved on the line and even if it had moved, it could not have struck and injured the appellant. The failure on the part of the respondents' employees to take any of these three precautions did, in our opinion, amount to wilful default on their part and hence the respondent should be held liable for the ensuing result. The mere fact that the accident did not take place at the level‑crossing, but at some distance from it should not, in our opinion, make any difference, so far as the respondent's liability is concerned, because the appellant would have been hit even if he had been crossing the line at the level‑crossing. On this view of the case, therefore, disagreeing with the trial Court, we decide issue No.2‑A in the appellant's favour." Also in the case of Javed Iqbal v. Province of West Pakistan 1992 CLC 2369 it has been held as under:‑‑‑ "There was no statutory or general duty for the occupier to erect or maintain fences sufficient to exclude adults or children. It is also true that there was, in this case, no question of any body intending to do harm to the trespasser. However, as there was no fence between the railway line and the residential place of the plaintiff, and the fact that the children were playing with a ball near the railway line was, or must have been, known to the railway employee, there was a real possibility that a child might step over the railway line and be struck by a passing train or a railway engine. So, the question arose whether the defendants had any obligation to take thought and having taken thought to take some actions. The answer would be yes. Did it take, as a conscientious humane person, the necessary steps to avoid or lessen danger to the life and limb for trespasser, child trespassers in particular? The answer in the facts of the case must be in the negative. The occupier could not be heard to say that the moment the plaintiff stepped over the railway line he was a trespasser and to a trespasser the occupier owed no duty to take reasonable care for his protection. In the facts of the case, inference would be that through the eyes and airs of one or other of their servants, the occupier did know the physical facts that made it likely that the children playing near the railway line would trespass on their line and if they did so, would run a serious risk of grave if not mortal injury from being struck by a railway engine." Also in Suit No.726 of 1988, decided on 26‑8‑1993 a learned Single Judge of this Court has held as under:‑‑‑ "Duty to take care is, thus, an essential ingredient of the tort of negligence and unless such a duty is established, no case of actionable negligence can arise. `Duty' connotes the relationship between one person and another, imposing on the one an obligation, for the benefit of that other, to take reasonable care in all circumstances; and it is a question of law whether or not a duty to take care exists in the circumstances of a given case. The principle for determining whether, in given circumstances, there was a duty to take care was formulated by Lord Atkin in the celebrated case of Donoghue v. Stevenson thus: `The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.' The principle, thus, enunciated by Lord Atkin is now firmly established as a statement of general principle the application of which may be excluded only if there is a valid explanation for exclusion. In Dorest Yacht Co. v. Home Office, Lord Reid said that when a new point arises, the law of negligence depends on the principle that one should not ask whether it is covered by authority but whether recognized principles apply to it; and went on to add‑‑‑ `Donoghue v. Stevenson may be regarded as mailstone, and the well -known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion'." In view of above discussion, it can safely be held that the defendant No.l has been negligent and had they taken proper care and precaution in the matter, the tragedy would not have taken place. However, as regards the liability of the present defendant No.2 is concerned, he cannot be held to be liable for the damages claimed as according to his own evidence he was posted as Headmaster of the school in August, 1988 and was not there at the relevant time. There is nothing in evidence brought by the plaintiffs to show if this witness was working as Headmaster of the school on 14‑6‑1988 nor any such question has been put to him in cross -examination. The outcome of the above discussion is that Issue No.1 is answered in affirmative while in respect of Issue No.2 it is held that only the defendant No.1 is liable and not the defendant No.2. ISSUE N0.3: The age of the deceased in Suit. No.690 of 1988 is 10 years while the age of deceased in Suit No.691 of 1988 is 11‑1/2 years. Id both the suits the deceased is survived by father and mother. The ages of the father in both the suits are 40 years while the age of mother in Suit No.690 of 1988 is 36 years and Suit No.691 of 1988 is 35 years. The minor deceased would be able to earn his likelihood on attaining the age of majority i.e. 18 years and it is established law that the normal expected life of a citizen in Pakistan is 70 years. As there is no source available at this stage to estimate what would be the earning of deceased minor on his attaining the maturity I would estimate‑his earning to be equivalent to the lowest wages of a workman i.e. Rs.1,500 per month. In both the suits the mothers of the deceased are of the age younger than the father and, therefore, in Suit No.690 of 1988 the mother would be 44 years of age when the deceased would attain adulthood and start earning his livelihood. He would thus be able to contribute to the parents for the ‑period of 26 years. Similarly, in Suit No.691 of 1988 the age of the mother would be 41‑1/2 years when the deceased would have attaining the age of adulthood and thus the deceased minor would have contributed for 28‑1/2 years to the parents. Out of the said expect earning of Rs.1,500 per month the minor could have spent about 1/3rd , on his personal requirement. Thus the result is that, in the two suits the deceased minor would have contributed Rs.1,000 to their parents for the remainder of their life for 26 and 28‑1/2 years respectively at the rate of Rs.1,000 per month. Thus the amount calculated on the basis of above figures comes to Rs.3,12,000 in Suit No.690 of 1988 and Rs.3,42,000 in Suit No.691 of 1988. Accordingly. I hold that the plaintiffs are entitled to the above said compensation in the two suits. ISSUE NO 4: The suit of the plaintiff in Suit No.690 of 1988 is decreed for a sum of Rs.3,12,000 with 14% mark‑up from the date of decree till payment while Suit No.691 of 1988 is decreed for a sum of Rs.3,42,000 with mark‑up at 14% from the date of decree till payment. The costs of the suit will be borne by defendant No.1. The two suits against defendant No.2 are dismissed with no order as to costs. AA./S‑1085/K Order accordingly.