1997 PLP 925 (CLC)

6. Upon hearing learned counsel for the parties and analysis of the evidence on record I answer the issues as under: Issue No. l

7. As the factum of death of tile deceased by falling in an open and uncovered manhole ig not disputed the sole question for determination in this suit is whether the death occurred on account of negligence, default and wrongful act on the part of defendants. In his evidence plaintiff Muhammad Moosa, father of the deceased stated that the manholes of the locality were lying open for the last 2/3 days before the said tragedy. He categorically stated that manholes were lying open and unattended by any person from the defendant Board. During the course of cross‑examination it transpires that the deceased was away only for 20 minutes when the parents started looking for her and took out her dead body from the manhole. It further appears that about 5‑7 persons including two brothers of the plaintiff, mother and his wife were present when the dead body was taken out from the manhole.

8. On the other hand, defendants' version as disclosed by their Executive Engineer is that on the material day he was present in his office alongwith Masroor Ali Khan, Assistant Engineer Sewerage when he learnt about the incident. Accompanied by the said Assistant Engineer and Muhammad Aslam, Overseer he visited the unfortunate manhole which was duly covered at that moment. On enquiry he was informed by the Assistant Engineer and others that Kundimen had run away on hearing about the incident but on his direction four Kundimen appeared before him and on questioning informed him that they were busy in cleaning and desilting the sewerage line from the mainline. They admitted that the child had died by falling in the manhole and that they had run away on account of agitation among the people of the locality including the parents of the child. This witness stated that on uncovering the manhole he found a white sponge chappal belonging to the deceased lying inside. The witness attempted to justify uncovering of the manholes by saying that since the Kundimen are required to go inside the manhole these are uncovered at least 1/2 hour before so that the gases are exhausted. According to the witness the man hole was about 3/1‑2 feet deep and as stated by Kundimen it was covered to the extent of half at the time of the incident which is contrary to reality. During the cross‑examination the witness disclosed that Mr. M.M. Mehdi, Chief Engineer (Sewerage) had also enquired into this incident and that Muhammad Aslam Sub -Engineer was suspended but on completion of enquiry he was re‑instated in service. The witness was not in a position to say as to at that time this particular manhole was uncovered and covered after desilting. He denied the possibility of posting a Kundiman after uncovering the manhole for the purpose of cleaning and desilting in order to guard against any untoward incident. While he claimed that a Supervisor normally supervises 400 to 500 manholes he could not give the number of Kundimen working under a supervisor.

9. On a close scrutiny and careful analysis of the evidence adduced by the parties following facts are spelt out from the evidence: (i) That it is incumbent upon the defendants to maintain, manage, and supervise the sewerage system in the city. (ii) That for the purpose of cleaning and desilting the sewerage line man holes are uncovered and no remedial steps are taken to prevent the commission of untoward incidents. (iii) That the deceased died on account of falling into a manhole which was completely uncovered and unattended.

10. From the evidence it further appears that the defendants did not think it necessary to take preventive measures for safety of the pedestrians and particularly innocent children passing by the lane/street in order to avert a possible mishap. The explanation that the manholes were covered to the extent of half at the time of incident as the sewerage staff was busy in cleaning the sewerage lines on the face of it appears to be falsely set up and afterthought defence. There is overwhelmingly unimpeachable evidence that the deceased died an unnatural and untimely death owing to negligence, default, want of care and caution on the part of the defendants. Indeed the defendants did not care to rebut the case set up in the pleadings and made out in the evidence as material facts were not controverted during the course of cross‑examination which by implication of law are deemed to be admitted.

11. Adverting to the plea of contributory negligence on the part of the deceased and her parents as set up by the defendants there is absolutely no evidence on record. The allegation that parents of the deceased should have taken preventive measures and steps to deter the minor from going out of the house or near the manhole is hardly a defence by civic agencies entrusted with the discharge of public responsibilities of maintaining sewerage line to a safe and orderly manner. Indeed it is highly difficult if not altogether possible to prevent the movement of minor and innocent children from going out of the house which may lead to a wrongful restraint on free movement of such child and arrest his natural brought‑up, healthy growth and nursing. The stand taken by the defendants on the face of it is not only strange but also ridiculous in view of the uncontroverted evidence that the manholes were lying open for the last 2‑3 days before the incident. Be that as it may, it is evident that the defendants utterly failed to prove the alleged act of contributory negligence on the part of the minor child and her parents.

12. Plea of contributory negligence was examined by the Honourable Supreme Court of Pakistan in Federation of Pakistan v. Khatoon Begum (1996 SCMR 406) where the Court observed as under:‑‑ "Plea of contributory negligence would raise question of fact which should be proved by party alleging same. Defendant should establish that plaintiff had failed to take reasonable care for his safety. Defence of contributory negligence would arise where damage was caused partly by negligence of person who had suffered and partly by fault of alleged wrongdoer. Where contributory negligence was proved, claim for damages would not be defeated but damages would be reduced to such extent as Court might think just and equitable considering plaintiff's share in the negligence and his responsibility in the occurrence of accident. Defendants had failed to establish facts necessary to prove contributory negligence. Compensation had been granted to plaintiffs on well‑recognised principles and was thus, not excessive. No case was made out for grant of leave to appeal against such order".

13. In the case of Javed Iqbal v. Province of West Pakistan (1992 CLC 2369), learned Single Judge of Lahore High Court dealing with the issue of death of a child of six years whose leg was amputated as a result of railway engine running over it took the view that apart from any statutory provisions it is a matter of ordinary common knowledge that child would roam and explore. If a fencing marked a boundary, an adult who climbed over it would appreciate what he was doing. A small boy who finds a part of fence so dilapidated that there is no real obstacle to his progress would not or may not know that he was at once a "trespasser" if he went on. At the same time, the rights and interests of the occupier must have full consideration. With regard to damages of which he has knowledge but which he did not create he could not be required to incur expenses. If the occupier created the danger when he had a knowledge that there was a chance that trespassers would come that way and would not see or realise danger he may have to do more. The more serious the danger the greater would be the obligation to avoid it. And if the dangerous thing or something near it was a allurement to children that may greatly increase the chance that children would come there. Such consideration should be all embracing. On the one hand the occupier is entitled to put in the scales every kind of disadvantage to him if he takes or refrains from action for the benefit of the trespassers. On the other hand, he must consider the degree of likelihood of trespasser coming and the degree of hidden or unexpected danger to which they would be exposed if they come. He would have to give more weight to these factors for the potential trespassers were children because generally mere warning was of little value to protect children.

14. Aforesaid judgment was impugned in Civil Petition for leave to appeal before the Supreme Court of Pakistan where the plea raised was that the question of duty and care of Railways with regard to a child trespasser is involved and further that the interest ought not to have been granted, but the Supreme Court refused to grant leave to appeal in view of the findings by the trial Court as well as High Court that the incident occurred due to the negligence of the Railway's employees. This order is reported as Pakistan Railways v. Javed Iqbal (1995 SCMR 446).

15. In Saira v. Zonal Municipal Corporation (1995 MLD 113) a learned judge of this Court dealing with a case where two children while playing in the school of defendants whose walls were broken at different places, gates remained open and no watchman was at duty at the gates of the school compound, fell into the water tank and drowned, defendants' plea that school in question had not started functioning when fatal accident happened and that contractors were in control of the building, took the view that the defendants in the ordinary course were required to have provided for safety and security such as raising fence around the tank or having the same guarded through watchman or kept the school compound closed so that children had no access to it. Learned Judge held that even if act of children by coming to water tank and suffering death was treated to be their voluntary act, still duty was cast upon occupier to provide for such safeguards.

16. In Syed Iqbal Hussain Jafferi v. K.E.S.C: (1994 CLC 1903) G.H. Malik‑J. (as he then was) 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 whtn 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 milestone, 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'."

17. For the foregoing reasons and in the absence of any evidence to contrary to demonstrate the conscious care, caution and sense of duty on the part of defendants I am inclined to the view that it was solely due to the negligence, default and wrongful act of the defendants that the death of the deceased took place. Issue No.2.

18. As the necessary corollary and findings on issue No.1, defendant No.1 is certainly responsible for payment of damages/compensation to the parents of the minor deceased whereas defendant No.2 being an agent and employee of the Board is not individually liable for damages:

19. Having held above, the next question arises as to the amount of compensation which may be lawfully awarded to the plaintiff father and mother of the deceased. It is in the evidence of the plaintiff that the deceased who was 3 years of age at the time of her death after doing her Matriculation would have joined as a teacher and after doing her Intermediate examination she would have imparted tuitions to the students in addition to her service. In my view at best the deceased could have been gainfully employed somewhere after attaining the age of 18 years and in a position to earn and support her parents. Apparently normal expectancy of life in Pakistan is 70 years whereas mortality rate amongst children is equally high. The plaintiff on his own showing is aged about 38 years and his wife Mst. Hajra aged about 31 years. Added to it a period of 15 years they would have been entitled to support after attaining the age of 53 years and 46 years respectively but again the minor girl in the ordinary course after attaining adulthood would be due for her marriage and perhaps not in a position to support her parents for a long period. In the aforesaid circumstances the question relating to her approximate income is not free from difficulty. However as the loss of human life cannot be weighed in golden scales and deprivation of love and affection of a minor child on the part of her parents cannot be measured in terms of coins, ends of justice would be sufficiently served by awarding a lump sum amount of compensation to the extent of Rs.500,000 to both of them, for the shock sustained by them and deprivation of love, affection, association and company of the minor baby. Issues Nos. 3 and 4.

20. For the aforesaid facts and reasons and findings on foregoing issues suit is decreed with costs against defendant No. l in the sum of Rs.500,000 with interest at the rate of 14 % per annum from the date of the suit till payment. Both the parents shall apportion the amount of compensation in equal shares. A.A./M‑146/K Suit decreed.