2001 PLP 957 (CLC)

ZAHID KURBAN ALAVI, J.‑‑‑ This appeal arises from the judgment and decree of a learned Single Judge, dated 24‑2‑1998 decreeing the respondent's suit in the amount of Rs.5,85,000 together with interest at the rate of 14% from the date of decree till payment is made. After hearing learned counsel for the parties we had dismissed this appeal in limine by a short order, dated 10‑11‑2000 and the reasons therefore are being recorded below: Briefly the established fact appears to be that five years` son of respondent died falling into an uncovered manhole within the area of Malir Extension on 9‑1‑1989. The respondent filed a suit under Fatal Accidents Act, 1855 of his own benefit and for that of other legal heirs. After recording evidence and examining all questions of facts and law raised the learned Single Judge decreed the suit as above against the appellant who have come in this appeal. We have heard the learned counsel for appellant and respondent at length and have perused the record and proceedings of the case. Counsel for the appellant has basically urged that the, learned Single Judge failed to appreciate that the unfortunate demise of tile child was a result of contributory negligence on the part of his parents, therefore; the appellants were not liable to pay compensation. He has further contended that the suit has been filed by the respondent alone, no amount could be granted by the learned Single Judge to compensate the other beneficiaries. He has further urged that in any event the award of compensation to the extent of Rs.5,85,000 was unconscionable and had been determined without reference to settle legal principles. Mr. Nasir Maqsood, counsel for respondent on the other hand has supported the impugned judgment and placed reliance on the following cases:‑‑ Karachi Water and Sewerage Board v. Mairajuddin 2000 MLD 112; Karachi Water and Sewerage Board v. Muhammad Moosa 1997 CLC 925 and AIR 1999 Punj. and Har.

32. In the first‑cited case it has been held by this Court as follows:‑‑ "Contributory negligence, question of‑‑‑Child of tender age died due to falling into .an open manhole‑‑‑Single Judge of the High Court decreed the suit of the parents of the deceased‑‑‑Appellant/Sewerage Board raised the plea that it was a case of contributory, negligence on the part of the respondents/parents of the deceased‑‑‑Validity‑‑‑Lack of caution and care on the part of the respondents/parents would not absolve the appellant/Board of its legal and moral obligation to ensure the safe and secured maintenance of sewerage lines including the maintenance of manholes‑‑Held, defence of contributory negligence could not be permitted to be set up by the civic agencies, in such cases. " In the second case it was held as under:‑‑ "Three years' old girl falling into uncovered manhole and dying‑‑ Defendants were admittedly responsible for superqision, management and maintenance of sewerage system and to ensure that manholes were safely closed, fenced and covered‑‑‑Liability to pay compensation to parents of child‑‑‑Evidence on record clearly spelt out that defendants for purpose of cleaning desilting sewerage line, uncovered manhole in question and took no steps to avoid or prevent occurrence of untoward incident that deceased died on account of falling into manhole which was completely uncovered and unattended‑‑‑Defendants did not rebut plaintiff's case set up in pleadings and made out in evidence‑‑‑Material facts were not controverted during course of cross‑examination which by implication of law were deemed to be admitted‑‑‑In absence of any evidence demonstrating due care, caution and sense of duty‑‑‑In absence of any evidence on negligence, default and wrongful act of defendants that death of deceased took place for which they were liable for damages." With respect to the second contention it appears clearly from the reading of section 1 of the Fatal Accidents Act that suit under the Act ensures for the benefits of all the persons entitled to compensation thereunder and it is not necessary that all of them should be arrayed as plaintiffs but the person filing the suit is deemed to be the representative of all beneficiaries. See Malik Raza Khan v. Pakistan PLD 1965 Kar. 441, where the concept has been illusively explained by late A.S. Farooqui, J. As to the quantum of compensation the learned Single Judge has awarded the amount of Rs.5,85,000 for deprivation of the love and affection that the parents of the child suffered on account of the tragedy. It has been observed that loss of human life cannot be measured in terms of coins. Moreover, when deprivation of life is caused by a public functionary on account of breach of a public duty perhaps exemplary or penal damage can also be awarded. In the circumstances we are not inclined to interfere with the findings of the learned Single Judge on this score. Above are the detailed reasons for the short order, dated 10‑11‑2000. H.B.T./K‑24/K Appeal dismissed.