2001 PLP 788 (YLR)

(2) Whether the defendants are liable to pay the compensation/damages to the plaintiff and other legal heirs, if so, to what extent? (3) Whether the plaintiff is entitled to cost and interest as claimed? (4) What should the decree be? The plaintiffs filed affidavit-in-evidence of Mst. Aisha Exh. 8/3, Kumesh Ahmad Exh.8/1 and affidavit-in-evidence of Saghir Ahmad Exh.8/5 who has produced a photocopy of Out Patient Department Slip, dated 10-12-1991 mentioning that Akhtar Sultana was brought dead and death was stated to have been caused by electrocution, newspaper clipping of daily Aghaz, Urdu, marriage card in respect of marriage of Abdul Waseem mentioning invitation to Ansari Saheb for 9th May 1991. The defendant No. 1 tiled affidavit-in-evidence of Ali Akbar Baloch, XEN Landhi Division. The deponents who filed affidavits-in-evidence were cross examined by respective adversary counsel for parties. I have heard the counsel for parties and perused the record and proceedings of the case. ISSUE NO.

1. So far the death of deceased Akhtar Sultana on 9-5-1991 caused due to electrocution is not denied even by the defendants. The defendant No.2 has denied about the improper maintenance of overhead wires and also negligence on .their part in allowing the physical defective wires to remain on pole posing dangers. P.W. Qumesh Ahmad in his affidavit-in-evidence has stated that he was eye-witness of the incident of falling of electric live wire from the pole on 5-9-1991 upon the lawn of White House near Masjid Hanfia Alamgir, Landhi No.2 Karachi as he was participating in the marriage ceremony. He has stated that the death of deceased Akhtar Sultana was caused on account of negligence and default in the maintenance of net work including the wire as such they were also negligent in not timely disconnecting the electric supply in order to render the said wire dead in time to avoid ugly consequences though they were immediately informed after the incident as such this running of current in the broken wire .from the pole was prima facie proof of gross negligence on the part of KESC Authority. The veracity of this witness has not been challenged in the cross-examination by the learned counsel for defendants. P.W, Saghir Ahmad the husband of deceased has stated that the defendant No. 1 is responsible for supplying electricity throughout Karachi and is also responsible for construction, maintenance, proper looking after the net work of overhead wire constructed by defendant No.1. He has further stated that the death of deceased Akhtar Sultana was caused by negligence and improper maintenance of its wire by the defendant No. 1 which broke down due to some physical defects and caused tragic death of deceased and also injuries to others and further that the said defendant has failed to provide safety measures for protecting the members of public including deceased against the danger and-peril inherent in their business operation and the said defendant failed to maintain the system of periodical check up of rusty wires to remove, and identify the rusty wires or wires having some physical defects likely to fell down and the said wire fell down due to negligence on the part of the said defendant which resulted the fatal causality of deceased. He has stated that the said defendant was bound to ensure and provide protective measures so that in case of wire breaking, the electricity in the 'wire was automatically disconnected and the broken wire did not remain live but the defendant failed to discharge their duty and the said act amounted to gross negligence and wrongful act, misfeasance and actionable wrong for which defendant No. 1 would be liable. The testimony of the above said witness could not be challenged by the learned counsel for I defendants in the cross-examination. The defendant's witness Ali Akbar Baloch in the affidavit-in-evidence stated that wires were broken because electricity being used in the marriage ceremony was stolen from nearby house un-authorisedly due to overloading and prior notice to defendant No. 1 and the said wire was not broken due to carelessness on the part of the answering defendant but due to illegal connection taken at the place of incident. P.W. Ali Akbar in the cross has stated that the written-statement did not bear his signature and he was not having personal knowledge of the facts mentioned in ~ the written statement as at the time of incident, he was posted at maintenance and complaint office at Korangi. He admitted that the wire tell down because it was defective and it could not withstand the tension. However, he denied that the wire fell down due to lack of maintenance though he was not working in the maintenance department. He denied that death of Akhtar Sultana occurred due to negligence of KESC but stated that it occurred due to accident as it happened all of sudden. This witness also admitted that there is a department of maintenance whose responsibility is to check the wires at the relevant poles. He also stated that the life of copper wire in the surrounding of Karachi is about fifteen years and whenever is installed on the pole such entry is made in the record. He showed his ignorance as to when the wire which fell was installed nor could he know as to when periodical check up was made in respect of the said wire. The above statement made in the cross-examination would show that there was a specific department with the defendants whose function was to periodically check up of the wires but the defendants have failed to show from the record that the wire which fell was properly maintained and looked after so as to exclude that it was not their negligence when the wire fell down. The testimony of P.Ws. Qumesh Ahmad and Saghir Ahmad is corroborated by defendants' witness Ali Akbai who stated that it was correct that wire fell down due to lack of maintenance. It is true that the general rule as to the burden of proving the negligence is on the plaintiff in the first instance, but when a duty is. cast upon the defendants to exercise care and circumstances in which injury complained happened are such, that with the exercise of requisite care, no risk would in the ordinary course of events, occurred, the burden in such cases in the first instance would be on the defendants to disprove their liability. In the instant case, the plaintiffs through their witnesses Qumesh Ahmad and Saghir Ahmad have in their testimony stated that the electric live wire fell down on the deceased due to improper maintenance on the part of the defendants which amounted to negligence on their part when the duty of defendants was to maintain periodically the live wires so as to avoid any such risk of wire from falling down causing the causalities or, injuries to the passers-by. The defendants witness himself has admitted that it was their liability and responsibility to maintain and carry out periodically check-up of electric wires and for that a specific department was in the office of defendant No. 1 and the said witness also admitted that the said wire fell down because it was defective and it could not withstand the tension load. In the circumstances, it stood proved that there was negligence on the part of defendants because they failed to carry out proper periodical maintenance of the relevant electric live wires which resulted the death of the deceased Akhtar Sultana. The defendants have not brought any evidence to show that they were not negligent in maintaining the live wire which broke down due to some physical defect in it. The plaintiff's testimony has gone unchallenged and proved that death of deceased Akhtar Sultana was caused due to improper maintenance of the overhead wires and negligence by the defendant No. 1 in allowing the physically defective wire on the pole posing dangers. The issue is answered in the affirmative. ISSUE N0.2. The quantum of compensation, damages- is to be assessed and determined in terms of para. 2 of section 1 of the Fatal Accidents Act, 1855 which reads as under:-- " .. In every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought and the ' amount so recovered after deducting all costs and expenses, including costs not recovered from the defendants, shall be divided amongst the before mentioned parties or any of them in such shares as the Court by its judgment or decree shall direct." In order to determine the compensation, damages, the reasonable expectation of pecuniary advantage by the persons entitled to have from the deceased under the law is to be taken into account and the probably pecuniary loss thereby occasioned would include compensation for loss of education, comfort and position in society which the legal heirs would have enjoyed if the deceased mother would have lived with them. In the instant case in the written arguments, the plaintiff's learned counsel has claimed loss of pecuniary benefits for 21 years fixing average life span of deceased in Pakistan to be 70 years in the following manner:-- (i) earning of deceased in respect of her stitching sewing, designing at the average rate of Rs.3,500. (ii) income from the training centre Rs.2,225 per month. Total gross income per month Rs.3,500 plus Rs.2,225 is equal to Rs.5,725 per month for 21 years would come to 8.14,42,700 adding 20 % chances of increment amounting to Rs.2,88,540 gross loss to pecuniary benefits for 21 years would come to Rs.17,31,240 minus 1 /6th of personal expenses of the total income would come to Rs.2,88,540 and net loss of pecuniary benefits for 21 years would come to Rs.17,31,240 minus Rs.2,28,540 would come to Rs.14,42,700 whereas in the plaint the claim has been made for the sum of Rs.12,50,000 at the rate of. l4% per annum. As per finding on Issue No. 1, the defendants would be liable to compensation, damages, now the question for my determination would be, what would be the extent of compensation damages to which the plaintiff and other legal heirs would, 'be entitled to. Mst. Aisha has stated in the affidavit that deceased was skilled and competent in stitching, sewing, knitting, designing and cutting of ladies cloths and used to charge Rs.60 for simple Kameez and Shalwar and Rs.100 for ladies suit with design and that she used to teach work of Embroidery, knitting and cutting of ladies cloths to the girls of locality whereby deceased used to earn Rs.2,000 to Rs.2,500 as fees in the shape of training charges per month and the deceased further could have started earning Rs.10,000 to Rs.15,000 per month after few months if deceased would not have died in the tragic incident. In the cross examination, she stated that the deceased was able to earn Rs.200 to Rs.400 per day. P.W. Saghir Ahmad the husband of the deceased in his affidavit has stated that deceased used to earn Rs.3,000 to Rs.4,000 per month from stitching, cutting and designing and Rs.2,000 to Rs.2,500 per month in the shape of training charges from the training centre and further she could have earned Rs.10,000 to Rs.15,000 per month after five years when she would have computerized the training centre. In the cross-examination he stated that he has not produced any proof to show that his wife used to earn Rs.3,000 per month. He further stated that deceased used to sew cloths of neighbours. In view of the provisions of section 1, the damages could be awarded proportioned to the loss resulting from such death to the parties who would have been benefited if the deceased would not have met with unnatural death. Admittedly, it has been stated that the deceased was carrying on tailoring and designing business in her house, where she used to charge Rs.60 for simple Shalwar Kameez and Rs.100 for Shalwar Kameez with design for women. No documentary evidence has been produces that deceased was holding any diploma in tailoring, embroidery, designing from any recognized institution. Nothing has been brought on record to show as to how many Shalwar Kameez and ladies suit, she could have made per day. It could also be said that for whole month i.e. for thirty days she could not have stitched/made the ordinary Shalwar and Kameez or ladies' suit so as to entitle herself at least Rs.100 per month. The plaintiffs have claimed speculative and imaginary claims against the defendants to .which they claimed to have been benefited in case the deceased would not have met with untimely death. At the most a normal person at the age of about 49 years cannot stitch or design more than one suit and for that in a house she could not have earned more than Rs.60 per day considering that she being woman head in the family was to look after other domestic affairs. According to the plaintiff's evidence, she was earning Rs.3,000 to Rs.4,000 per month in stitching, tailoring which amount is imaginary and speculative and does not appeal to reason and common sense. Besides above, her claim that she had a training centre where she used to earn Rs.2,000 to Rs.2,500 per month in the shape of training charges is also not proved as none of the girls who used to learn has come in the witness-box to depose that she had been learning such tailoring or stitching or embroidery work from the deceased nor any diploma from the recognized institution has been produced to entitle her to teach or open such centre. Mere fact that P. Ws. have stated so, would not entitle them to such claim. The plaintiffs have to prove by reliable and satisfactory evidence the claim that the deceased was earning the said amount per day. I am of the considered view that the said claim in respect of teaching the girls has not been proved that the deceased used to earn Rs.2,000 to Rs.2,500 per month from training charges. So much so that the receipts have also not been produced towards fees received by the deceased. The third claim is in respect of the claim that deceased would, have earned Rs.10,000 to Rs.15,000 per month after she would have computerized her training centre. No reliable and satisfactory evidence has been produced to prove the said claim of the plaintiffs. No documents have been produce that she ever wrote to any company for the purpose of buying any computer for the training purpose to stitch, design and embroidery. No one from computer shop has been produced that she had been looking for such computer for the said centre. There is nothing on record to show that she had obtained training in respect of operating computers. The inflated claim has been made by the plaintiffs to which they could not be said to be entitled. In the circumstances, she could be said to be earning Rs.60 a day from stitching and designing total Rs.1,800 per month, Rs.21,600 per years, multiplied by 21 years would come to Rs.4,53,600 less 1/6th personal expenses Rs.75,600 that would come to Rs.3,78,

600. It may be pointed out as she would have grown old the income of stitching would have decreased because of her old age so also she would have needed more medicines to keep herself fit to run and carry out the business of stitching. However, the plaintiff would be entitled 14 % mark-up per annum on the amount of Rs.3,78,

600. ISSUE NO.3. The plaintiffs have proved the negligence on the part of defendants and plaintiffs are entitled to the damages/ compensation of Rs.3,78,600, therefore, the plaintiffs would be entitled to cost because the defendants contested the claim of the plaintiffs and did not settle the claim with the plaintiffs, so also plaintiffs are entitled to interest/mark-up as said hereinafter. ISSUE NO.

4. Suit of the plaintiffs is decreed against the defendants for the sum of Rs.3,78,600 alongwith 14% interest per annum mark-up from the date of institution of suit till its realization. H.B.T./S/129-K Suit decreed accordingly.