P L D 1981 Karachi 561 (PLP)

Engineer". (10) Describe fully nature & extent of injuries e. g. fatal, loss of finger etc. : Fatal." The above report lodged by the defendant 1 clearly indicates that the cause of accident- was a mechanical defect in the crane. The learned counsel for defendant 1 argued that the plaintiffs have not succeeded in positively establishing the precise defect in the crane or the particular negligent act of defendant 1 which was the cause of accident and therefore no liability can arise on defendant 1 for the accident in which the deceased died. It was alternatively argued that the accident in any case was the result of the negligence of the deceased who was standing close to the boom and therefore it was a case of contributory negligence. In my view in cases of this nature a duty is cast on the employer to use reasonable care in keeping its machinery, the use of which might otherwise be dangerous to persons in its employment in proper condition and free from defect. The evidence adduced by the plaintiffs in this case and the admitted circumstances of accident are sufficient to show that the cause of the accident was some defect of mechanical nature in the crane. The causes of accident in such circumstances will be deemed to be primarily in the knowledge of dafendant 1 who was responsible for keeping the crane in good working condition free from defect. In these circumstances the burden of showing the exact nature of defect in the machine and negligence of defendant 1 cannot be thrown entirely on the plaintiffs as maxim "Res ipsa loquitur" would apply which shifts the burden in such cases on the defendant to prove that the-accident did not arise on account of any negligence on their part or defect in the machine. The fact that to cause of accident is unknown is by itself not sufficient to prevent the plaintiffs from recovering damages if the proper inference can be drawn from the. circumstances which are known that ,it was caused by negligence of the; defendant. The snapping of the wire rope of the crane during its operation and falling of the load from a crane are itself sufficient circumstances to show that the crane used by defendant 1 was not free from defect as ordinarily the wire rope of a crane while lifting a load will not get snapped and throw away the load. It cannot be denied that the responsibility of keeping the crane in good condition and working order was on defendant

1. It also cannot be disputed that the accident of the kind in which the deceased died cannot take place in ordinary course of working of a crane unless some defect of a mechanical nature is present there. These circumstances and the evidence recorded in the case afford reasonable grounds in the absence of. an explanation from defendant 1, to hold that the accident arose for want of care on the part of defendant

1. In such circumstances, the maxim quoted above will apply with its full vigour. In the case of Wilsons & Clyde Coal Company Ltd. v. English 157 L T R 406 the Court held in an action brought by a minor against a colliery Company claiming damages in respect of personal injuries sustained by him while working in the mine belonging _ to the Company due to a defect in the system of working, that the fact that the defect in the system was not known to the Company's Board of Directors but was known only - to the agent appointed by them, did not absolve the owner of a mine from the liability or responsibility of keeping the system free from defect. In another case decided by House of Lords, Joseph Smith (pauper) v. Charles Baker & Sons, the plaintiff was employed by a railway contractor to drill holes in a rock cutting near a crane worked .by man in the employ of the contractors. The crane lifted stones and at times passed over the plaintiff's head. A stone fell from the crane and injured the plaintiff. He sued the employers in the County Court under the Employers Liability Act of 1880. The jury found that the machine for lifting the stone taken as a whole was not reasonably fit for the performance for which it was applied ; that the omission to supply special means of warning was a defect in the ways, works, machinery and plant ; that the employers (or some person engaged by them to look after the condition of works) were guilty of neglience in not remedying the defect ; that the plaintiff was not guilty of contributory negligence ; that he did not voluntarily undertake a risky employment with the knowledge of its risk. The decision of County Court was however reversed by the Court of Appeal on the ground that the plaintiff was aware of the risk involved in the employment ; but the judgment of the Court of Appeal was reversed by the House of Lords, and it was held that mere fact the plaintiff undertook and continued in the employment with full knowledge and understanding of the danger arising from the systematic neglect to give warning did not preclude the plaintiff from recovering damages: In yet another case decided by Court of Appeal reported as Vaughan v. Sir R. Ropner & Co. Ltd. (1), the learned Judges of Court of Appeal while dealing with the defence of common employment raised by the employer in that case at page 121 of the-Report stated that the defence of common employment has no application in a case where the injury to the workmen was due to the failure of his employer to discharge any one of three main duties which rest upon him as employer and cannot be avoided by delegation. The duties cast on an employer were held in that case as- (1) to provide proper premises in which, and proper plant and apparatus by means of which, the workman's duty is to be performed ; (2) to maintain premises, plant and apparatus in proper condition ; and (3) to establish and enforce a proper system of working. After stating the above duties of an employer as common law duty the learned Judges held that if through a defect in the performance of any one of the above duties the workman is injured, the employer himself commits a breach of common law duty and is liable for damages. In my humble view, the conditions and duties cast on an employer under common law as laid down in the above cases fully apply to the present case and if it is found that defendant 1 was guilty of breach of any of those conditions, it will be liable for damages if as a result thereof the deceased lost his life. While on this issue I may also mention here the case of Shyam Sunder aced others v. The State of Rajasthan (2) from Indian Jurisdiction decided by the Supreme Court, wherein the maxim "Res ipsa loquitur" was discussed in some detail. In this case the deceased an. employee of State of Rajasthan was travelling by a truck owned by Public Works Department in connection with famine relief work. The truck caught fire on its way and while jumping from the truck at the caution of truck driver the deceased was hit by a stone and died. In the action brought by the widow of the deceased. for recovery of compensation on account of negligence of driver, the Department took the stand that the truck was in order, and that on account of any mechanical defect, if the truck caught fire in course of journey it cannot be attributed as a negligence of the driver. The District Judge decreed the plaintiff's suit holding that the defendants used a truck which was not road worthy, as normally a road worthy truck will not catch fire, and therefore were negligent. On appeal the High Court of Rajasthan took a different view and came to the conclusion that the plaintiff failed to establish positively the negligence on the part of the driver or the defendants. The Supreme Court of India -in the appeal against the judgment of the High Court held that- in such circumstances the maxim "Res ipsa loquitur" applied and it was for the defendant in such circumstances to show that he was not negligent. A useful discussion on the above maxim, with reference to the extent of proof required by plaintiff in order to attract the application of above maxim and consequent shifting of burden of proof in such case on defendant is to be found in paras. 11, 12; 14,, 15, 16 and 19 of the Judgment at pages 892 and 893 of the report. It will be quite advantageous to reproduce here these partigraphs from the above judgment; (1) 80 Lloyd's Law Rep, 119 (2) AIR 1974 S C 890 "(11) The plaintiff merely proves a result not any, particular act or omission producing the result. If the result, in the circumstances in which he proves it makes it more . probable than not that it was caused by the negligence of the defendant, the doctrine of res ipso loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. (12) The answer needed by the defendant to meet the plaintiff's case may take alternative forms. Firstly, it may consist in a positive explanation by the defendant of how the accident did in fact occur, of such a kind as to exonerate, the defendant from any charge of negligence. (13) . (14) Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm. (15) Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice, there are many cases where res ipsa loquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid 'injury or that the particular cause of the injury was not associated with negligence ' on his part. Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite overshadowed by its practical significance. See Millner `Negligence in Modern law'. (16) .. (17) . . . . (18) It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things. There is no evidence as to how the truck caught fire. There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident. (19) In these circumstances, we think that the maxim res ipsa loquitur is attracted." I am in respectful agreement with the observations of the learned Judges of the Supreme Court of India in the above-referred case, made in paragraphs 11, 12, 14 and 15 at pages 892 and 893 of the report with regard to the applicability of maxim res ipso loquitur. Now examining the facts and circumstances of the present case in the light of the above discussion I am of the view that defendant 1 used a crane which taken as' a whole was not fit for the performance for which it was Applied and thus the defendant 1 was negligent and responsible for the accident which caused the death of deceased Muhammad Naseem. The Plaintiffs have however not led any evidence to show that defendant 2 was also liable for the accident and as such the liability for the claim in the suit if any arise on defendant 1 alone. 1 may mention here that at the re-hearing of this suit which I granted on the application of plaintiffs, the learned counsel for the plaintiffs relied upon section 33 of the Factories Act and Rules 1977 to establish the liability of defendant 1, but these provisions of law have no application to the present case as section 33 of the Factories Act relied upon by the learned counsel was introduced by Ordinance IX of 1972 on 13-4.1972 and rule 77... referred by the learned counsel was framed on 25-10-1975 while the accident in which the deceased lost his life took place on 26-5-1970. Issue No. 2.-The burden of this issue was on defendant I. The defendant 1 examined only one witness in the case namely its Deputy Manager (Exh. 9). This witness nowhere in his- statement claimed that the deceased was negligent while performing his duties when the accident took place. The, suggestion given by the learned counsel for defendant 1 to plaintiffs' witness P. W. 2, that the deceased was negligent while discharging his duties was categorically denied. I therefore 'hold that defendant 1 failed to prove this issue. Issue No. 4.-The plaintiff Mst. Naseem stated on oath that the deceased at the time of his death was about 32 years of age. She has produced Exh. 6/12, the Secondary School Leaving Certificate of the deceased in which his date of birth is shown as 1-1-1938. The defendant has not led any evidence to contradict this piece of evidence. The accident took place on 26-5-1970. The deceased was accordingly 32 years 5 months and 26 days old at the time of accident. Issue decided accordingly. Issue No. 5.-The deceased was drawing a salary of Rs. 800 per month including an allowance of Rs.25 p.m. The deceased died while he was having only 21 days of service with defendant

1. The deceased was a Diploma Holder in Mechanical Engineering. He was first appointed in Steel Corporation of Pakistan Ltd., on 7-11-1963 as a Technical Assistant in the pay scale of Rs. 300-25-600/30-900. On 16-10-1967 the deceased was sent abroad (Japan) -for training .and he qualified his course successfully. The certificates awarded to deceased on completion of his training are Exhs. 14. and 15 and 31 which show that the deceased successfully completed his training. During his training the deceased was found to be intelligent, deligent and having initiative capable of applying himself. The qualities of the deceased with regard to quick approach to the problems and assimilation to the fine points involved were also found to be extremely good while under training. The deceased had a very brilliant academic career. He stood first in the University of Karachi in Ist year Diploma Engineering examination of 1961 (Exh. 19). He also got First Class in the final Diploma Examination in Engineering (Mechanical and Electrical) held in May, 1963 (Exh. 13). The deceased had also secured First Class in Secondary School Leaving Examination of 1956 (Exh. 12). The deceased as a keel sportsman as well as is evident from Exhs. 23 to

27. According to evidence on month the deceased within 6 years of his Ist appointment was drawing a salary of Rs. 800 per month. Keeping in view the brilliant academic career and the added qualification of the foreign training in the specialized field acquired by the deceased there is no doubt that the deceased had bright chances for future prospect. The plaintiffs have claimed that had the deceased survived he would have drawn not less than Rs. 2;500 per month by the time of his retirement. Taking into consideration the present prevailing pay structure of technical bands the amount of Rs. 2,500 claimed by the plaintiffs, to be drawn by the deceased at the time of his retirement is not unreasonable. The deceased bad drawn a salary of Rs. 800 within 6 years of. his first employment thereby having an increase of Rs. 500 per month within 6 years. Within next 10 years the deceased would have drawn Rs. 1600 per month. This figure he could have reached even if 'I take an annual increment of Rs. 80 in the salary which the deceased was drawing at the time of his death. Similarly allowing an increment of Rs. 100 per year thereafter the deceased would have drawn Rs. 2,500 per month within next nine years. The deceased was about 32 years and 6 months old at the time of iris death and taking the age of 60 years as the retiring age - the deceased would have worked for about 271 years. Considering the monthly income of the deceased for the first 10 years at Rs. 800 per month (the salary which the deceased was drawing at the time of his death), for the next ten years at Rs, 1,600 per month and for the last 71 years at' Rs. 2,500 per month, the average monthly income of Rs. 1,600 per month claimed by the plaintiffs 'appears to be quite reasonable and rather based on a very . conservative estimate. I accordingly hold that expectation of Rs. 1,600 per month as the average Monthly income of the deceased is quite reasonable and justifiable: Issue No. 6.-The plaintiffs have claimed that the deceased would have worked up to, 65 years of age. Although the expectancy of life normally ranges between 60 to 65 years but the retiring age in service is normally 60 years. I accordingly hold that had the deceased survived, he would have worked at least up to 60 years. Issue No. 7.-The plaintiff 1 has produced her identity Card Exh.

35. The age of plaintiff 1 according to the date of birth given in the identity card comes to about 28 years., The date of birth of the other plaintiffs in form `B' filed with identity card re shown as follows : ,Plaintiff No. 2 ... 2-1-1967 Plaintiff No. 3 .. ,2-2-1968 Plaintiff No. 4 ... 30-3-1969 Plaintiff No. 5 ... 26-11-1970. The plaintiff I in her examination-in-chief stated on oath that the eldest child of the deceased was 4 years, the 2nd child 3 years, the 3rd 1 year, 3 months and the last child was born after about 6 months of the death of the deceased. This statement was not challenged in the cross-examination. I therefore, accept the same. My finding on this issue therefore is that plaintiff 1 is a out 28 years of age, plaintiff 2, 4 years, plaintiff 3, 3 years plaintiff 4, 1 year 2 months at the time of death of deceased while plaintiff 5 was born after 6 months of the death of the deceased. Issue No. 8.-The burden of proof of this issue was on toe plaintiffs. It is admitted by the plaintiffs that the deceased died within an hour of the accident and the cause of his death was the injury received by him in the accident. The plaintiffs have not led any' evidence on this issue and were unable to show or establish any loss to the estate of the deceased. I accordingly hold that the- plaintiffs have failed to establish and loss caused to the estate of the deceased on account of injuries suffered by him and by his subsequent death. Issue No. 9.-This issue as framed deals with the losses suffered by the plaintiffs as a beneficiary o the deceased as well as heirs to the estate of the deceased. The plaintiffs have only succeeded in establishing the loss suffered by them as beneficiaries of the deceased on account of his death. I have already held under Issues Nos. 5 and 6 that bad the deceased survived he would have retired at the age of 60 years and the average monthly income received by him during all this period which comes to 271 years approximately would have been Rs. 1,600 per month: giving an allowance of about 1/3 towards personal expenses of the deceased, he would have spent about 1,100 on the plaintiffs every month. The plaintiff 1 has claimed Rs. 300 per month for 40 years, plaintiffs 2 to 5 have claimed Rs. 200 per month each for 15, 17, 23 and 25 years respectively and a sum of Rs. 100 per month is claimed for the parents of the deceased for a period of 5 years. Taking the total available income of the deceased Rs. 1100, I apportion the income amongst the beneficiaries in the following propositions : Plaintiff No. 1 ... Rs. 250 per month Plaintiffs 2 to 5 ... Rs. 190 per month each Parents of the deceased . ... Rs. 90 per month. Plaintiff 1 would have received the maintenance for about 27J years. Plaintiffs 2 to 5 each would have received maintenance from the deceased until attainment of majority which means that plaintiff 2 would have received this amount for 14 years, while plaintiffs 3 to 5 would have received the same for 15, 17 and 18 years respectively. Issue No. 10.-The plaintiff in her evidence stated that she received only a sum of Rs. 6,000 by way of insurance after the death of the deceased which she spent on payment of court-fee in this case. The learned counsel did not dispute this amount. I accordingly hold that the plaintiffs received only a sum of Rs. 6,000 from the Insurance Company after the death of the deceased which amount it is conceded by the learned counsel for the plaintiffs will be deducted from the total amount of compensation found payable to the plaintiffs as beneficiaries. Issue No. 11.-The burden of this issue was on defendants. The defendant have failed to establish that the sum of Rs. 1,600 per month claimed by the plaintiffs as average monthly income of the deceased for the rest of his life was exaggerated. I accordingly hold that defendant 1 has failed to prove that the amount of compensation claimed by the plaintiffs as beneficiaries of the deceased is exaggerated. Issue No. 12.-1 have already held that the deceased would have received average monthly income of Rs. 1,600 for 27J years had he lived. I have also held that the deceased would have spent about Rs. 500 per month on himself and remaining Rs. 1100 would have, spent on the plaintiffs and the parents, in the following manner :- Rs. 250 on plaintiff 1 Rs. 190 on plaintiffs 2 to 5 Rs. 90 on parents. I have also held that plaintiff 1 would have received this amount of 27 years, plaintiffs 2 for 14 years, plaintiff 3 for 15 years, plaintiff 4 for 17 years and plaintiff 5 for 18 years while the parents would have received the amount of maintenance for 5 years only. I accordingly decree the suit of plaintiffs for Rs. 2,33,820 less a sum of Rs. 6,000 received by the plaintiffs as insurance amount, with proportionate cost and interest at 6 % per annum from the date of suit till the amount is aid. The amount of decree when realised will be apportioned amongst the plaintiffs and parents of the deceased in the following manner : Plaintiff No. 1 ... ... ... Rs. 81,134.00 Plaintiff No. 2 ... ... ... 30,884.00 Plaintiff No. 3 ... ... ... 33,164.00 . Plaintiff No. 4 ... ... ... 37,724.00 Plaintiff No. 5 ... ... ... 40,004.00 Parents of the deceased ... ... 4,910.00 Rs. 2,27,820.00 The cost and interest will also be distributed amongst the plaintiffs and the parents of the deceased in the proportion shown above.