2001 CLC221 (PLP)

SABIHUDDIN AHMED, J.‑‑‑ This appeal arises from the judgment and decree of a learned Single Judge, dated 20‑11‑1996 and 26‑11‑1996 respectively, decreeing the respondent's suit in the amount of Rs.5,00,000 together with interest at the rate of 14 % per annum from the date of the suit till payment was made. After hearing learned counsel for the parties we had dismissed this appeal in limine by a short order dated 21‑4‑2000 and the reasons therefor are being recorded below.

2. Briefly the established facts appear to be that on 5‑1‑1989 Baby Sumaira, a 3 years old daughter of the respondent died by falling into an uncovered manhole in public street. The respondent filed a suit under the Fatal Accidents Act, 1855, of his own benefit and for that of his wife i.e. the mother of the deceased child for an amount of Rs.l million. After recording evidence and examining all questions of facts and law raised, the learned Single Judge decreed the suit as above, against which the appellants have come in appeal.

3. Mr. Abdul Karim Khan, learned counsel for the appellants has basically urged the following grounds in support of the appeal:‑‑ (i) That the learned Single Judge failed to appreciate that the unfortunate demise of the child was a result of contributory negligence on the part of her parents i.e. the respondent and his wife, and therefore, the appellants were not liable to pay compensation: (ii) That in any event the suit has been filed by the respondent alone, no amount could be granted by the learned single Judge to compensate the other beneficiaries i.e. the child's mother. (iii) That in any event the award of compensation to the extent of Rs.5,00,000 was unconscionable and had been determined without reference to settled legal principle.

4. Mr. Nasir Maqsood, learned counsel for the respondent, on the other hand, apart from defending the impugned judgment, also raised a preliminary objection as to the maintainability of this appeal on the ground of limitation.

5. Taking up the preliminary objection first, the admitted position seems to be that though the judgment was delivered by the learned single Judge on 20‑11‑1996, a decree was prepared on 27‑11‑1996 which was delivered on 5‑12‑1996. An application for a decree was, however, made on 23‑12‑1996 when the period of limitation for filing an appeal against the decree had already expired. Mr. Abdul Karim Khan, however, contended that the original application was made on 27‑11‑1996, seeking delivery of copies of both judgment and decree, but for some odd reason only a copy of the judgment was made available. Thereafter, pursuant to the directions of the office fresh application for copy of the decree was made on 23‑12‑1996 and upon receipt of the same the appeal was presented on 29‑12‑1996. A copy of the application dated 27‑11‑1996 is not available on the record. Nevertheless applying the principle that case should normally be decided on their merits rather than technicalities, we are inclined to believe that some confusions might have been caused and would exercise the power to condone the delay under section 5 of the Limitation Act. The preliminary objection is, therefore, repelled.

6. On the question of contributory negligence there is no dispute as to the fact that the unfortunate death of the child occurred through falling into an uncovered manhole in a street close to her parent's house. The only defence raised by the appellant was that it was the respondent's own duty to take care of the child. It is well‑settled that the burden to prove contributory negligence is on the party alleging the same and no evidence was led by the appellant to show that the respondent or his wife were particularly negligent. It was brought out in evidence that she was not seen in the house only for about 20 minutes when her parents started looking for her and eventually her dead body was recovered from the manhole. The plea of contributory negligence in respect of civic duties of public bodies like the appellants has been consistently rejected by our superior Courts and some of the leading judgments have been cited and duly considered in the impugned judgment. In addition Mr. Nasir Maqsood, referred to the case of Karachi Water and Sewerage Board v. Merajuddin and others 2000 MLD 112 where their Lordships upheld the view taker, by a Division Bench of this Court reported in 2000 MLD 112 to the effect that even lack of caution and care on the part of the parents of a child would n6t absolve the appellant's Board of its legal and moral legal obligations to ensure that manholes were duly covered and, that the defence of contributory negligence on the part of civic agencies could not be allowed to be set up in such cases.

7. 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. One may refer to Malik Raza Khan v. Pakistan PLD 1965 Kar. 244, where the concept has been illusively explained by late A.S. Farooqui, J.

8. As to the quantum of compensation the learned Single Judge has awarded the amount of Rs.5,00,000 for deprivation of the lave 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. These are the reasons for our short order, dated 21‑4‑2000 announced in Court. H.B.T./K‑19/K Order accordingly.