2001 PLP 719 (CLC)

The plaintiffs have examined the attorney of plaintiff Mairaj Bibi who produced special power of attorney, copy of police report, dated 15‑1‑1990, three snaps showing the place of incident, N.I.C. of plaintiff and N.I.C. of the attorney and Muhammad Siddique who produced Exh.5/8, The defendants did not cross‑examine the plaintiffs witnesses and nor they produced any witness. My issue wise findings are as follows; Issue No.2 The onus to prove this issue lies upon the defendants. The plaintiffs have pleaded that defendant No.2 under the control and management of defendant No.1 was obliged to construct, erect and maintain the public latrines to be used by public in general. The defendants were stated to be owing the duties, of maintenance of public, latrines and was responsible to take reasonable care to provide safety to general public from any danger or injury by keeping the wall and roof in a safe, serviceable and harmless condition and it was their duty to ensure that its use will not cause any harm or injury to the users who were entitled to use the same. The defendant No.2 did not deny this fact specifically that they construct, erect and maintain the public latrines for the public use but they have come out with this defence that the said public latrines were auctioned alongwith others to the contractors yearly. The defendants have failed to produce any document or witness to support their version. They have even did not disclose the name of the contractor to whom the said latrine was auctioned. Thus, in the circumstances the defendant No.2 hah not been able to discharge their burden. It is settled law that when anybody denies liability on the ground that . the worker was engaged by contractor, the burden to prove existence of contract and terms thereon lay on the shoulder of owner and m case owner led no evidence to prove such contract such burden not being discharged and the owner held liable to pay compensation. The counsel for plaintiffs in this relied upon 1974' SCMR

269. I, therefore, answer this issue in affirmative. . Issue No.1 The Fatal Accidents Act, 1855 stipulates the award of compensation in favour of specified beneficiaries envisaged therein to compensate the pecuniary loss suffered by them on account of death their bread earner due to negligence, default and wrongful act of the wrong doers. In this case the plaintiffs have alleged that their son had died on account of negligence and default in performance of duties on the part of defendants as they failed to take reasonable care in construction and maintenance of public latrine which collapsed and consequently the roof and walls fell down on the deceased while he was using the same. Therefore, the suit is fully maintainable and is covered under the provisions of Fatal Accidents Act, 1855. The counsel for plaintiff has placed reliance on the case of Municipal Corporation of Delhi v. I. Subhawanti AIR 1966 SC 1750 wherein it was held as under:‑‑ "Fatal Accidents Act, 1855. Collapse of Clock Tower abutting highway‑‑‑Clock Tower owned by Municipal Corporation‑‑ Municipal Corporation is responsible for damages for loss of life caused whether by patent or latent defects." He has also placed reliance on the case of Kuppammal v. M.&.S.Ry. Co, Ltd. AIR 1938 Mad. 117 wherein it has been held as under!‑‑ "Tort. Negligence‑‑‑Public latrine erected by Corporation against compound wall of Railway Company‑‑‑Knowledge to company that if wall not kept in proper repairs it would cause danger to those using latrine‑‑‑Duty of company to repair wall‑‑ Wall falling and killing two persons using latrine‑‑‑Latrine wall in reasonable good condition‑‑‑Company and not Corporation held liable for damages." In view of above I answer the issue in affirmative. Issue No.3 The burden to prove this issue heavily lies on the defendants. The defendants have failed to produce any witness and even a single document in this regard. They even failed to disclose the name of the contractor to whom they' awarded the same, as such the defendants without all such material on record cannot shift the responsibility of keeping the latrine in safe conditions upon the contractor and as such they cannot be absolved from their responsibility, I answer this issue in affirmative. This issue deals with negligence of the defendants. In view of findings on above issue whereby I hold that it the duty of defendants that they are responsible for proper maintenance of the latrine in question but the falling down of the roof and walls at once are prima facie proof of negligence unless the same is disproved by cogent and reliable evidence which the defendants have failed to adduce the same. Hence, I answer this issue in affirmative. Issue No.5 This issue is related to issue No.4 as it deals with the negligence of the defendants relating to collapse of structure of the said public latrine. Since defendants did not produce any evidence on record I answer this issue in affirmative. Issue No.6 The preponderance of the judicial pronouncements holding 70 years to be average life span in Pakistan for the purpose of determination of quantum of damages in fatal accidents cases as such in view of settled law 70 years can safely be taken to be the life expectancy, in Pakistan. Since in this case the deceased was unmarried the life expectancy of deceased would not be considered for the purpose of assessment of damages as it is settled law that whenever an unmarried person dies leaving behind the father and mother who are the specified beneficiaries under the scheme of Fatal Accidents Act, 1855 the beneficiary having the lesser of the ages among them will be considered for the purpose of quantum of damages as such in this case the age of mother which is lesser than the age of father i.e. 40 years will be primarily used for finding the years for which the pecuniary loss was sustained on account of death of deceased and will be calculated, thus, 70‑40-30 years will be ages for which the compensation will be~ granted to the parents. Issues Nos. 7 and 8 . Both these issues are inter‑related and pertain to assessment of damages caused on account of wrongful death of deceased Baber Hussain to be granted in favour of parents. It is undisputed and unrebuttal that deceased F used to earn Rs.175 to Rs.200 per day on account of supply of water through water bags in various residential as well as commercial units in the area of Lee Market. Thus, holding an average a sum of Rs.200 per day will give Rs.6,b00 to be earning per month and an annual loss of earning comes to a Rs.7,22,

000. According the following calculation will give the net loss of earning:‑‑ (a) Loss of earning for 30 years Rs.21,60,000 (7,22,000 x 30) (b) Add 20% as chances of Rs.4,32,000 increment on the aggregate for over911 years (c) Gross loss of pecuniary benefits Rs.25,92,000 (21,60,000 + 4,32,000) . (d) Less 1/3rd on account of Rs.17,28,000 personal expenses Rs.8.64,000 Total Rs.17,28,000 Accordingly I decree the suit of the plaintiffs in the sum of Rs.17,28,000 to be paid jointly and severally alongwith 14% mark‑up from the date of filing of suit till realization. . H.B.T./N‑44/K Suit decreed.