2003 PLP 885 (CLC)

ABDUL SHAKOOR PARACHA, J.

This appeal impugns the judgment and decree dated 25-4-1992, passed by Civil Judge, Sheikhupura, whereby the suit filed by the appellants under the Fatal Accidents Act, 1855 (XIII of 1855) for recovery of Rs.7,20,000 as damages on account of death of Sardar Muhammad as a result of shock caused by the electric wire of WAPDA, was dismissed.

2. Sardar Muhammad, deceased was running a shop of tea. On 2-6-1989 in the evening he was going to his village after closing his shop. When he reached in the area of Hathiana, he was shocked by the electric wire which was lying broken. A suit for recovery of damages under the Fatal Accidents Act, 1855 was filed by the appellants on the ground that the defendant WAPDA was duty-bound to make repair of the broken electric wire installed and the negligence and carelessness of the officials of WAPDA caused accidental death of the deceased. It is claimed that Sardar Muhammad being head of the family was 39/40 years of age. Had he not died because of this accident he would have been alive till the age of 60 years. The said deceased was earning Rs.100 daily and in this way his expected income was Rs.36,000 per annum and this amount if calculated up to 60 years of his age then the appellants were entitled to recover Rs.7,20,000.

3. The respondent (WAPDA) contested that suit by filling written statement. It was contended that the defendant had no knowledge about the broken wire nor it is, in the knowledge of the WAPDA that death of Sardar Muhammad deceased was result of shock- by the electric wire. The defendant was never informed by the local police in respect of this accident nor any inquiry was initiated on the report by the local police. There was no post-mortem report of the deceased. There is also no record about the breaking of the electric wire and the repair of it.

4. From the divergent pleadings of the parties, following issues were framed by the trial Court:-- (1) Whether the plaintiffs are entitled for decree of Rs.7,20,000 for damages as alleged in the plaint? OPP (2) Relief.

5. On behalf of the appellant" Muhammad Sharif and Wazir Muhammad appeared as P.Ws.1 and 2 and Mst. Sabiran one of the plaintiffs/appellants as P.W.3. Copy of the report to the police was produced as Exh.P.W.1. The respondent produced Mian Abdul Slam S.D.O., WAPDA, as D.W.1, Muhammad Rafiq, Line Superintendent as D.W.2 and Muhammad Aslam, Lineman as D.W.3.

6. The learned Civil` Judge, Sheikhupura on the appraisal of evidence observed that:-- "The plaintiffs have failed to establish their case as they have not produced the death certificate, post-mortem report, copy of the complaint regarding the accident to the WAPDA Department and they also did not produce the copy of the further inquiry after entering of the report with the police D. Ws. have fully rebutted the oral assertion of the P.Ws. The plaintiffs have badly failed to prove this issue." The learned Civil Judge on the basis of the above-stated finding on issue No. 1 proceeded to dismiss the suit filed by the appellants, vide judgment and decree dated 25-4-1992.

7. Before us the learned counsel for the appellants contended that the appellants/plaintiffs produced Muhammad Sharif and Wazir Muhammad as P.Ws.1 and 2 and one of the plaintiffs/appellants Mst. Sabiran appeared as P.W.3 which was sufficient evidence to show that Sardar Muhammad was shocked by the electric wire of the WAPDA which was lying broken and the respondents had not performed their duty to make repair of the broken electric wire and for maintenance of the electric wire installed at the site. He contends that under the doctrine of res ipsa loquitur as the electric wire which inflicted the damage was under the sole management and control of WAPDA, therefore, the burden to prove that the same has been repaired and there was no negligence and carelessness of the officials of the defendant has shifted to the respondent.

8. Conversely, the learned counsel for the respondent-WAPDA argued that there is no evidence on the record that there was any wire lying broken and that Sardar Muhammad was shocked by that electric wire. Further contends that there is no proof of the fact that WAPDA officials were negligent and careless in performance of their duty due to which Sardar Muhammad sustained death and it was the act of the respondent-WAPDA officials which caused accidental death of Sardar Muhammad.

9. It is well-settled principle of law that in a suit for damages under the Fatal Accidents Act normally the rule is that it is for the plaintiff to prove negligence and in some cases this principle may cause hardship to the plaintiffs because it may be that true cause of accident lies solely within the knowledge of the defendant who caused it. This hardship is, however, avoided to considerable extent by the maxim res ipsa loquitur. This maxim means that, "the things speak for themselves". An accident may by its nature be more consistent with its being caused by negligence for which the defendants are responsible then by other causes and in such a cause the mere fact of the accident is prima facie evidence of such a negligence.

10. Before we examine the question of awarding damages to the appellants, we have read the evidence to see whether the appellants have discharged the initial issue of proving that Sardar Muhammad died due to shock of the electric wire of WAPDA which was lying broken. The negligence and carelessness of the officials of WAPDA if caused accidental death of Sardar Muhammad would be discussed in the later part of the judgment. To prove Issue No.1, the appellants produced Muhammad Sharif who deposed that Sardar Muhammad, husband of appellant No.1 and father of the rest of the appellants sustained electric shock caused by electric wire which was lying broken. Wazir Muhammad and Mst. Sabiran also made statement to the similar facts. The respondents have denied the occurrence. There is neither any death certificate nor post-mortem report of the deceased. Copy of the report dated 2-6-1989 Exh.P.A. has been examined by us, which copy has been B issued by Liaqat Ali, Moharrir/H.C. This report was lodged by Shaukat Ali, who has not been produced. The record of the police station has not been summoned. In this view of the matter, the appellants were not able to discharge initial onus of proving that the death of. Sardar Muhammad was result of electric shock caused by the electric wire which was lying broken. Had it been proved, the burden would have been shifted to WAPDA as the respondent was duty-bound to make repairs of broken electric wire and for maintenance of the electric wires installed.

11. As stated earlier, the burden was not shifted to the WAPDA respondent, therefore, it was not under a legal obligation to discharge its burden to show that the officials of WAPDA were not negligent. In case reported as Iftikhar Hussain and another v. Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550 the principle of law relating to principle of neglect and default came, up for consideration before the Sindh High Court and on the basis of paras. 956 and 957 of Volume XXIII of Halsbury's Laws of England at pages 671-74 (Edition II) it was noted that the general rule places burden on plaintiff. Defendant however, to -disprove liability whereby exercise of requisite care no risk in ordinary course would ensue. Death cause by contact with broken down live electric wire of public line provided by defendant's company. It was held that the company was liable for the damages.

12. The principle of doctrine of res ipsa loquitur and the provisions of Fatal Accidents Act, 1855 came under consideration before the Honourable Supreme Court of Pakistan in the case reported as Pakistan Steel Mills Corporation and others v. Malik Abdul Habib and another 1993 SCMR 848 and their Lordships were pleased to observe:-- "Res ipsa loquitur means that the things speak for themselves. This doctrine applies firstly, when the thing that inflicted the damage was under the sole management and control of the defendant and secondly, that occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to why or how the occurrence took place. In such circumstances defendants have to persuade the Court that accident did not occur on account of their negligence." On the basis of the evidence on the record, since the appellants have not discharged the initial burden of proof of death of Sardar Muhammad due to the shock caused by the electric wire which was lying broken at the site, therefore, the burden has not been shifted that the officials of the WAPDA were negligent. We maintain the finding of the learned Civil Judge on Issue No.

1. Since the death of Sardar Muhammad has not been proved to have been caused because of shock by broken electric wire of WAPDA, therefore, there is no question of determining the damages. There is no force in this appeal, which is dismissed. Parties to bear their own costs. H.B.T./S-621/L Appeal dismissed.