Suit for compensation

2023 PLD 154 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 1Suit for compensationCustodial deathAcquittal in criminal caseEffect

Respondent filed a suit for compensation under S. 1 of the Fatal Accidents Act, 1855 claiming therein that his son was tortured to death at CIA Centre while in police custody

Single Bench of High Court decreed the suit

Contention of appellants was that since they had been acquitted in the criminal case registered against them pursuant to a direct complaint filed by the plaintiff on similar allegations, therefore, the present suit was not maintainable

Validity

Deceased, who was a young man of 24 years of age having no medical condition had suddenly died while in police custody

Circumstances reflected that the police was supporting the appellants as no FIR of the incident was registered

Charge of murder was not established beyond reasonable doubt due to faulty investigation of the police

Scope of civil proceedings was different and distinct from the scope of criminal proceedings pursuant to direct complaint filed by the plaintiff against appellants

Contention of the appellants being misconceived in fact and law was rejected

Appeal was dismissed.

2023 PLD 154 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 1Suit for compensationCustodial deathScope

Respondent filed a suit for compensation under S. 1 of the Fatal Accidents Act, 1855, claiming therein that his son was tortured to death at CIA Centre while in police custody

Single Bench of High Court decreed the suit

Contention of appellants was that the custodial death of an accused was not covered under the definition of "actionable wrong"

Validity

Each and every case of custodial death where the cause of death of a person in police custody was natural and not on account of torture, assault, beating, wrongful acts, negligence or default on the part of police officials, would not attract the provision of the Fatal Accidents Act, 1855, unless it was established that loss occasioned by death was on account of actionable wrong

Respondent, in the instant case, had successfully established that the death of his son was not natural death

Appeal was dismissed.

2023 PLD 154 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 1Suit for compensationCustodial deathScope

Respondent filed a suit for compensation under S. 1 of the Fatal Accidents Act, 1855, claiming therein that his son was tortured to death at CIA Centre while in police custody

Single Bench of the High Court decreed the suit

Contention of appellants was that deceased had died because of natural death, whereas, the injuries found on the body of deceased, as per post-mortem report, were not so fatal as to cause death

Validity

Respondent stated on oath that the police officials caught hold of the deceased without any lawful reason and legal justification; that he was taken to CIA Centre where he was mercilessly tortured and assaulted violently for more than five hours constantly; that the deceased got fatal injuries and died on account of wrongful acts of the police officials; that the police officials instead of taking his son to the hospital lodged an FIR under S. 13-D of the Arms Ordinance, 1965 in order to justify the illegal arrest; that his son was ultimately taken to hospital where he was finally pronounced dead; that the inquest report was manipulated wherein injury column was silent about any injury upon the deceased; that the inquest report was again prepared under the supervision of Magistrate, which proved that the death was caused by torture and harsh beating; that the reports of Chemical Examiner and Pathologist corroborated the factum of death on account of injuries by torture and beating and that a judicial inquiry was ordered by the Secretary, Home Department, report of which supported the claim of respondent

In spite of service of notice upon the appellants, none had appeared to cross-examine the respondent

Appellants had not produced any witness or evidence in support of their defence

Respondent had successfully discharged the burden of proof for the purpose of claiming compensation/damages and also estimating the quantum of damages as claimed

Appeal was dismissed.

2018 MLD 1054 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 1Electricity Act (IX of 1910), S.33Fatal accidentSuit for compensation

Deceased 36 years of age, a Head Constable in Traffic Police, died on account of electrocution by coming into contact with energized pole erected by Electric Supply Company

Plaintiffs being legal heirs of the deceased filed suit for recovery of compensation against the Company

Issues in question were whether the suit was not maintainable; whether no cause of action had accrued to the plaintiffs to file the suit and whether the plaintiffs had alternate remedy under S.33 of the Electricity Act, 1910 to get redressal of their grievances

Burden of proof of said issues, was on the defendant Company

Defendant, having not advanced any arguments on the issues, same were answered against the Company

Burden of proof that deceased died due to electric shock owing to negligence and wrongful act of the defendant company and about deceased's earning was on the plaintiffs

Evidence on record had proved that deceased had died due to electrocution, and there was also a clear evidence that monthly salary of deceased was Rs.9945 as he was Head Constable in Police Department

Documents produced on record had confirmed that the cause of death of the deceased was due to electricity current in the electric Pole

Plaintiffs, in circumstances, were entitled for the relief they had claimed as compensation for the death of the deceased

Plaintiffs being immediate family of the deceased, directly affected by accidental death of the deceased had given well calculated figures to claim quantum of damages amounting to Rs.10,802,220

Defendant company, in cross-examination, had not even disputed the calculation given in the plaint as well as in the affidavit-in-evidence on oath and conceded that the figures of quantum of damage given in the affidavit, were proper calculation

Quantum of compensation had been determined keeping in view life span of the deceased, future benefit with the charge in salary etc.

Plaintiffs, were widow of the deceased, his mother, one son and four daughters

Preamble of the Fatal Accidents Act, 1855 had explained that purpose of the said Act, was to provide compensation to the families for loss occasioned by the death of a person caused by actionable wrong

Suit was decreed with cost and the defendant was directed to deposit, decretal amount with Nazir of the court within 30 days.

2017 MLD 1707 PESHAWAR-HIGH-COURT Judicial Precedent

Art.115Breach of contractSuit for compensationLimitation

Suit for compensation for breach of contract could be filed within three years to be reckoned when contract was breached.

2015 SCMR 1406 SUPREME-COURT Judicial Precedent

S. 1Suit for compensationComposite negligence of the defendantsJoint and several liabilityVicarious liability of an organization for rash and negligent driving by a driver of its vehicleScope

Deceased and three other persons were killed in a road accident caused by the rash and negligent driving of the defendant, who was driving a trailer owned by a Government organization

At the time of the accident repairing work on one side of road was being carried out by the City District Government Authority, therefore it was closed for traffic, and the traffic was diverted to the other side of the road, which was being used by the traffic from both ways

Legal heirs of deceased/plaintiffs filed suit for compensation under the Fatal Accidents Act, 1855, against the driver, the Government organization, and the City District Government Authority (collectively "the defendants")

Suit was decided in favour of plaintiffs and (High) Court found that death of the deceased was caused by the composite negligence and wrongful act of all the defendants; that City District Government Authority was required to make proper arrangements for the smooth flow of the traffic and to make adequate arrangements to caution the traffic flow by affixing barricades, flicker lights and diversion signboards for smooth flow of the traffic and should have also deployed traffic constables on the road

(High) Court held that the defendants were jointly and severally liable to the plaintiffs in the sum of Rs.27,097,43.62, including compensation of Rs.300,000 for each of deceased's minor children, with profit/mark-up at the rate of 15% per annum from the date of judgment till recovery of the amount with costs

Division Bench of High Court/Appellate Court maintained the judgment and decree, but reduced the compensation to minor children from Rs.300,000 to Rs.100,000 each

Contention of Government organization was that the City District Government authority was solely responsible for the accident, therefore, suit should have been decreed against it alone

Validity

Present case was one of composite negligence

Accident that took life of the deceased and three other persons was caused due to the negligence of the driver of the Government organization coupled with negligence of the City District Government Authority for its failure to take precautionary and preventive measures to avert any untoward happening

Government organization on one hand failed to cross examine any of the plaintiff's' witness on material aspect of the case and secondly failed to lead any evidence to rebut the claim in the suit

Widow of deceased/plaintiff herself and through her witnesses established that City District Government Authority had failed to perform its duty of care as there was no light and or cautionary signs forewarning or putting commuters on lookout of any potential hazard nor any divider or fence was placed to make road travel safe for the commuters, and such evidence had gone unchallenged

Widow of deceased/plaintiff also led evidence to establish that the accident was caused by the wrongful act of the driver of the Government organization, thus it was vicariously liable

Plaintiffs did not have to assess and seek inter se proportionality of wrong and or liability of each of the tortfeasor, nor does the Court ordinarily enter into such controversy, in absence of any issue, necessitating such determination between the joint tortfeasors inter se

In case of composite negligence by two or more persons each of the tortfeasor was jointly and severally liable to make good the loss to the persons who had suffered loss of beloved one or suffered injury or damage to his person or property

One of the joint tortfeasor in a case could not turn around and shun his liability and pass on the entire liability on the other joint tortfeasor/wrong doer

Contention of Government organization regarding sole responsibility of City District Government Authority for the accident was dismissed in circumstances

Appeal was dismissed accordingly.

2015 MLD 111 PESHAWAR-HIGH-COURT Judicial Precedent

S. 19Limitation Act (IX of 1908), S.18, Arts.22 & 36Qanun-e-Shahadat (10 of 1984), Art.119Suit for compensationNegligence

Plaintiff was injured and lost his hand while working in the factory of defendant company when another employee switched on the machine

Plaintiff's service was terminated for one year and two months after the incident

Trial Court dismissed the suit holding that suit was time-barred and that said other employee, and not company/defendant, was personally responsible

Plaintiff contended that limitation would run from the date of termination of service instead of date of injury

Validity

Limitation for seeking compensation for injury caused to the person of an individual was one year under Art.22 of the Limitation Act, 1908 whereas limitation for compensation for malfeasance, non-feasance or misfeasance independent of contract and not specifically provided for, was two years under Art.36 of Limitation Act, 1908

Defendant was under legal obligation to install foolproof system to guard against accidents

Negligence of defendant fell under Art.36 of Limitation Act, 1908, for purpose of limitation

Fraud on the part of defendant could not be ruled out in terms of S.18 of the Limitation Act, 1908 in view of defendant's admission as to employment of plaintiff till date of termination

Limitation would run from the time when fraud became known to the plaintiff for the first time

No one could be given premium for an act or omission meant to defraud or deprive a person from obtaining legal rights

Defendant having admitted the accident, onus to prove had shifted to him

Onus to prove shifted to the party who raised a plea different from the one alleged in the pleadings of the first party

Principle/rule of onus probandi postulate that where no evidence was adduced by one who asserted a proposition, (such person/party) must fail

Defendant having failed to prove that the accident resulted due to negligence of plaintiff, assertion put forward by plaintiff would stand admitted

Defendant company was responsible for all acts and omissions of its duly appointed employees committed during the course of duty

Defendant company could not be absolved of its contractual and legal obligation on the ground that defendant could not bring on record the precaution taken to avoid such incidents.

2014 PLD 45 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 14 & 5Suit for compensationExclusion of time of proceedings in court without jurisdictionScope"Due delegence" and "good faith"Period provided for appeal was 90 days

Present appeal had been filed beyond the period of limitation after more than six months and twenty day which was prima facie time barred

Defendant had not disclosed in his application for condonation of delay nor relied on any ground that the delay caused in proceedings before wrong forum was with due diligence and with good faith

Expression "due diligence" and "good faith" did not figure in S.5 of Limitation Act, 1908

Condition prescribed in S.5 of the Act for its applicability was "sufficient cause"

Negligence of defendant was apparent and law did not favour those who went in slumber

Vested rights had accrued to the adverse party in circumstances and which could not be taken away on simple pretext

Defendant had failed to establish that time spent in proceedings before wrong forum was result of misconception of law or facts but he proceeded thereunder due diligence and with good faith

Appeal was dismissed in limine.

2014 MLD 1651 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.1Fatal accidentSuit for compensationDetermination of amount of compensation

Plaintiff/legal heirs of the deceased, claimed that accident wherein deceased died occurred due to rash and negligent driving of defendant (driver), during deceased's employment with defendants

Defendants had not denied the ownership of vehicle in question as well as employment of defendant as their driver

Defendants had neither denied the accident nor death of deceased due to such accident

Plaintiff claimed damages of Rs.5,74,45000

Validity

Quantum of the compensation in fatal accident, was to be determined on the basis of the earning of the deceased, his average age, his legal heirs, their expected expenses as well as other attending circumstances

Trial Court assessed the compensation, keeping in view the average income of the deceased for his remaining excepted life as well as other things and calculated the amount to the tune of Rs.69,50298

Said determination of the compensation by the Trial Court was based on sound reason in as much as the basic aspects were considered while assessing the same

Trial Court had properly thrashed out the evidence of the parties and came to a right conclusion with regard to the responsibility of the defendants, as well as determination of the compensation in respect of the deceased, who was a young person having wife and children

Said findings of the Trial Court had rightly been upheld by the Appellate Court below

Findings of courts below on the issue of quantum of compensation, not suffering from any illegality or irregularity, arrived at after proper appreciation of evidence, could not be interfered with.

2014 MLD 149 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 1Suit for compensation

Death of plaintiff's wife alleged to be caused due to negligence of Administration of Hospital and their two doctors during her treatment

Compromise between plaintiff and two doctors during trial

Decree against Administration of Hospital passed by Trial Court set aside by First Appellate Court

Validity

Plaintiff had sent legal notice and made complaints against Administration of Hospital and its two doctors

Main grievance of plaintiff was against said doctors, but he had also alleged Administration of Hospital to be responsible for negligence causing death of his wife

Administration of Hospital in various inquiry reports had been found responsible for such negligence for lacking enough staff to look after pre and post-operation care of deceased

Record showed that deceased after operation had been shifted to Ward instead of ICU and Hospital had not provided pre and post-operation care to deceased and had failed to maintain normal standards of a reasonable skilled and a well-equipped Hospital

Administration of Hospital and their doctors were equally responsible for such negligence, and Administration of Hospital could not be exonerated from what had happened in Hospital

Administration of Hospital could be exonerated from payment of decreed compensation only by plaintiff, but not court

High Court accepted second appeal, set aside impugned judgment/decree and restored that passed by Trial Court.

2014 MLD 149 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.1Suit for compensationDeath of deceased alleged to be caused due to negligence of doctors in hospitalEffect

Court could grant compensation to plaintiff after coming to conclusion that alleged negligence had taken place.