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Suit No. 308 of 1955, decided on 16th June 1959.
S. 1 (2)‑Interests of some children neglected in suit‑Not by itself enough to defeat suit.
There is nothing in provision in paragraph 2 of section 1 of the Fatal Accidents Act which defeats the suit merely on the ground that the interests of three children of the deceased have been neglected or omitted.
Where the plaint shows that damages have been claimed for the benefit of the two plaintiffs and of their mother and that the others are either not entitled to get damages or not desirous of claiming them, the suit is in order.
S. 1 (2)‑Does not contemplate separate suits by deceased's representatives‑Limitation Act (IX of 1908), S. 7, First Schedule, Art. 21‑Inapplicable to suit under S. 1 (2), Fatal Accidents Act‑"Persons jointly entitled to institute a suit"‑Expression does not refer to a joint substantative right or joint cause of action but to jointness referable to procedural necessity.
The cause of action for a suit under section 1 (2), Fatal Accidents Act (XIII of 1855) arose on 10th March 1948 and the suit was instituted on 27th July 1954. The plaintiffs in the suit were two minor sons of the deceased and the suit was brought for the benefit of themselves and their insane mother, the beginning of whose insanity was traceable to a time six months after her husband's death on 10th March 1948.
It was contended by defendant's counsel that the suit not having been brought within one year of 10th March 1948, under Article 21 of the Limitation Act, was time barred, inasmuch as the deceased's widow being of sound mind at the time of the inception of the cause of action, time had already begun to run, and so, even the minors, by reason of section 7, Limitation Act, could not claim any extension of time.
Held, that the suit was not barred by time.
The three claimants could not, by reason of section 2 of the Fatal Accidents Act, 1855, bring separate suits to recover damages sustained by them separately and as such they were entitled to bring the suit jointly in the sense of section 7 of the Limitation Act, 1908. They, therefore, come within the scope of the words "persons jointly entitled to institute a suit".
The words "persons jointly entitled to institute a suit" means persons who have a right to bring a suit jointly the language excludes the possibility of separate actions on the principle that "the express mention of one thing implies the exclusion of another", but there is nothing in it to import the sense that the reason for such joint action must be a joint substantive right or a joint cause of action and not merely a procedural necessity. Such a joint action may be legally necessary due to procedural requirements only.
The substantial question, therefore, was: Could the mother of the plaintiffs give a discharge as contemplated by the section, without the concurrence of the minor plaintiffs The answer to the question must depend on whether the discharge contemplated by the section is a discharge of the claim of that claimant only who would choose to give its discharge or a discharge for more than his own claim. The language of the section is vague in this respect. If the object of the section was to save limitation in those cases only in which a claimant would be unable to give a discharge to the extent of his own claim then it would contem plate a situation which is apparently or at least ordinarily not feasible in law. Everybody who is a tenant‑in‑common with others in respect of a claim is generally entitled to give a discharge to the extent of his interest in such a claim. A discharge "without the concurrence of such person" means a discharge of a claim in which the person under disability is also interested. Such a discharge the mother could not give. Time, therefore, did not run against any of the three claimants.
Johnson and another v. Porto Novo Cundasamy I L R 28 Mad. 479 inapplicable.
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--‑Negligence‑Burden of proof‑Guiding principle- General rule places burden on plaintiff ‑Defendant, however, to disprove liability where by exercise of requisite care no risk in ordinary course would ensue‑Death caused by contact with broker: down live electric wire of public light provided by defendant company‑Company held liable.
In a suit under the Fatal Accidents Act, 1855, for damages by the representatives of a person whose death was caused by the negligent conduct of the defendant company in regard to their overhead electric wires provided for public lights, which wires had broken down and to repair of which the Company had not attended without undue delay, the general rule as to the burden of proving negligence is on the plaintiff in the first instance, but where there is (as in the present case) a duty on the defendant to exercise care and the circumstances in which injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendant's control, the inference is that the defendant is liable, and this inference is strengthened if the injurious agency is inanimate."
The defendant is liable if he does not produce sufficient evidence to counteract the inference ; in the other case, the Court is left to decide, on such facts as are available, whether negligence on the part of the defendant is the more reasonable inference or not.
If there is an obligation on the defendant to use reasonable and proper care and the injury is traced directly to some defect in the tackle or machinery, it is not necessary for the plaintiff to show the precise nature of the defect, since the inference from the fact of the defect is sufficient to throw on the defendant the burden of showing that the defect was one for which he was not to blame.
The plea that better and efficacious care was not possible must be rejected as imaginary.
Held, that the burden of proving that it was not negligent was, therefore, on the defendant Company.
Held, on evidence that the defendant Company was negligent in the maintenance of the wire which broke down due to some physical defect in it.
Halsbury's Laws of England Paras. 956 & 957 (Vol. XXIII) at pp. 671‑74 (Ed. II); Sir Fredrick and Winfield: Text‑Book of The Law of Torts‑; American Jurisprudence at p. 678 Vol. 38 ; Dumphy v. Montreal Light, Heat and Power Co. 1907 A C 454 and Lord Mayor, Aldermen and Citizens of Manchaster v. Markland 1936 A C 360 ref.
S. I para. 3-- Damages‑Assessment‑Damages differ from Judge to Judge‑Can be awarded only to those beneficiaries who suffer loss‑Loss not confined to deprivation of necessities of life‑Chances of increase in income of deceased to be taken into account‑Married daughter expecting help from father entitled to benefit‑Apportionment among beneficiaries to follow assessment of damages as a whole.
Waheed Farooqui and Muhammad Nasim for Plaintiffs.
Parmanand for Defendant.
Dates of hearing : 20th February 1958, 4th, 5th and 21st November 1958 ; 25th and 26th February, 1959 4th, 12th, 13th, 25th and 26th March 1959 and 9th April 1959.
This is a suit under the Fatal Accidents Act, 1855. Such suits are not common, but their number has increased recently. This is a useful branch of law and deserves more attention than has been ordinarily paid to it at Karachi.
2. The plaintiffs are two minor sons of one Akhlaq Hussain who died in the evening of the 10th of March 1948, on a public road due to an electric shock which he received by coming into contact with a broken public light wire. The Plaintiffs have brought this suit for damages against the Karachi Electric Supply Corporation Limited for their own benefit and for the benefit of their widowed mother. Their step‑brother, Mr. Muhammad Naseem Advocate, is their next friend.
3. The plaintiffs' case is that the network of the over‑head electric wires which has been constructed by the defendant company was highly dangerous to life, and that the accident took place because of the neglect and default of the company. The neglect and default of the company are alleged to have consisted of its inattention to defects of the wires and its failure to repair in time a broken wire. After rainfall, on the day of the incident, an electric light wire that was stretched over‑head in a lane of Karachi, known as Mohan Road, broke down, as it was not in a fit state to withstand rain, and lay dangerously on the road, loosely hanging from the electric pole. Information that it had broken down was given early to the company but the company neglected to pay attention to it and the deceased while returning from his shop and walking on his way to his house through the dark lane came into contact with the wire at about 11 O'clock, fell down speechless and died on the spot. He left two minor sons, who are the present plaintiffs, one daughter, Razia Begum, a widow and one step‑son and two grown up sons Iqbal Hussain and Irshad Hussain from his previous wife. The step‑son and the grown up sons are said to have been independent of him at the time of his death and therefore the suit is not for their benefit. The daughter was married soon after his death and lived in India and did not wish to claim damages and as such this suit is not instituted for her benefit either.
4. The plaintiffs have alleged that their father had an income of about Rs. 450 per month in India. He migrated to Pakistan in November 1947, bought a shop in Karachi in January 1948, and was earning about Rs. 500 per month. He was about 45 years of age, in good health and free from all habits which could be injurious to his health and could be expected to live for long. His widow was about 39 years of age at the time of his death, and was expected to live upto the age of 55 years. The ages of the plaintiffs at the time of the accident were about 11 years and 7 years. The deceased spent his entire income during his lifetime on himself, his wife and the plaintiffs. They have, on this basis and certain other considerations to which reference will be made later, calculated damages in paragraph 20 of the plaint. The total amount of the claim of the two plaintiffs and their mother is Rs. 57,600.
5. The defendant Company has denied the liability to pay damages and almost all allegations made in the plaint, except that Akhlaq Hussain died of electric shock received by him from a broken live wire at Mohan Road on the 10th of March 1958. It has denied that the network of electric wires installed by it in the City was "highly dangerous" or could "cause instantaneous death" if one of the wires broke and fell down. It has also denied that Iqbal Husain and Irshad Husain were independent of the deceased and that Razia Begum did net wish to claim damages. Its main defence is that the broken‑down was unprecedented and that it took place due to "inevitable accident which could not have been controlled" by it. According to it the lane was not dark and that the deceased kicked at the broken live wire which caused his death. For his death he was therefore himself responsible. The information that a wire had broken down was received according to the company by its clerk at 10‑30 p.m. and that at 11 p.m. a repairing squad was sent in a lorry to set it right. There was as such no delay in attending to the repairs. The company has also pleaded that the suit is barred by time.
6. On the pleadings of the parties the following issues were framed :‑
(1) Who were the dependents or beneficiaries of the deceased
(2) Have the plaintiffs any right of action (Covers paragraphs 13 and 16 of written statement).
(3) Is the claim made by the plaintiffs for the benefit of their mother maintainable or not
(4) Was the death of the plaintiffs' father caused by the negligence of the defendant and its servants, or was his death caused by inevitable accident, or by his own negligence
(5) Is the suit barred by the Limitation Act
(6) Is the defendant liable to damages If so, what amount be recovered from the defendant on account of damages
7. Issue No. I‑Three persons are stated in the plaint to be the beneficiaries of the deceased, but an application was made in order to include in the suit the claim of Razia Begum for damages on the ground that her circumstances had changed since the institution of the suit and that therefore she also wanted to claim damages. That application was dismissed by Inamullah, J. by his order dated the 16th of April 1956. There is no vakalatnama or power‑of‑attorney on the record from Razia Begum or Iqbal Husain or Irshad Husain and therefore Mr. Parmanand has contended that their claim for damages has gone by default in violation of paragraph 2 of section I of the Fatal Accidents Act, 1855. That provision is as follows:‑
"Every such action or suit shall be for the benefit of the wife, husband parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased."
There is nothing in this provision to defeat the suit merely on the ground that the interests of three children of the deceased have, been neglected or omitted. What remedy may be available in view of section 2 of the Act to those whose rights might be found to have been neglected in proceedings like these, is a separate question and need not be decided in this case. As to the question of fact whether the rights of any children have been neglected, I think that Mr. Muhammad Nasim, Advocate who is in charge of the case as the next friend of the plaintiffs would not have omitted to sue for the benefit of his other step‑brothers and sister if they were interested, at the time of the institution of the suit, in claiming damages. Counsel has stated at the bar that they were not so interested, and I accept his statement.
8. Issue No. 2. Mr. Parmanand has not discussed the pleas which are contained in paragraphs 1 3 and 16 of the written statement under this issue and conceded that they mere covered by issues No. 4 and 6. He contended that in terms of paragraph 2 of section 1 of the Fatal Accidents Act, 1855, the plaintiffs were bound to state in the plaint that the suit was for their benefit, for the benefit of their mother and of all those who could claim damages. Counsel contended that since Razia Begum and Iqbal Hussain and Irshad Hussain have been left out from the category of the claimants and as this omission forms a serious defect in the pleadings, the plaintiffs case cannot succeed. The plaint, however, shows clearly that damages have been claimed for the benefit of the two plaintiffs and of their mother and that the others are either not entitled to get damages or not desirous of claiming them. There is no substance in the objection and the issue is decided against the defendants.
9. Issues Nos. 3 and 5.‑Under these issues Mr. Parmanand pressed the plea that the suit was barred by time in spite of the insanity of the mother and minority of the sons. He pointed out that the cause of action arose on the 10th of March 1948, and that the suit was instituted on the 27th of July 1954, more than six years after the accrual of the cause of action. The period of limitation admittedly being one year under Article 21 of the Limitation Act it was barred by time unless the limitation was saved by some provision of law. The plaintiffs have disclosed in paragraph 19 of their plaint that their mother "became mentally deranged" after having suffered from sleeplessness and mental anguish for about six months after the death of her husband. The limitation, therefore, began to run against her from the date of the accident and could not stop under section 9 of the Limi tation Act by reason of her subsequent insanity, even if she is assumed to have become insane. The suit is thus said to be not maintainable for her benefit. The plaintiffs were minors when the suit was instituted but their mother could enforce their claim and could give a discharge for her own claim. Mr. Parmanand, therefore, contended that their right to sue did not survive the period of limitation. There was no provision, according to counsel, in the Limitation Act under which the period of limi tation could be prolonged by reason of subsequent disability of one of the plaintiffs, or under which their joint right of action could be preserved.
10. Mr. Muhammad Nasim, on the other hand, relied on section 7 of the Limitation Act and contended that time did not run against the plaintiffs and their mother due to their minority. Section 7 of the Limitation Act, 1908 (Act IX of 1908) is as follows :‑
"Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all: but where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased."
The phrase "persons jointly entitled to institute a suit" and the phrase "a discharge can be given without the concurrence of such person" are important.
11. There is apparently only one reported judgment in which the question of limitation under section 8 of the Limitation Act, 1877 (Act XV of 1877) which was the equivalent of section 7 of the present Limitation Act, 1908, has been considered with reference to the Fatal Accidents Act, 1855. It is a judgment of a Division Bench of the Madras High Court in Johnson and another v. Porto Novo Cundasamy (I L R 28 Mad. 479). The language of section 8 was essentially different from the language of the present section 7, as pointed out by Chitaley and Rao in the third paragraph of their Note No. 4 of their commentary on section 7 of the Indian Limitation Act, 1908 (3rd Edition). That judgment is therefore no authority on the interpretation of the present section 7.
12. The words, "persons jointly entitled to institute a suit" means persons who have a right to bring a suit jointly. Mr. Parmanand contended that though the language did not require that they should be necessarily arrayed as plaintiff's in a suit, it conveyed the sense that they should have a joint cause of action. I think that the language excludes the possibility of separate actions on the principle that "the express mention of one thing implies the exclusion of another", but there is nothing in it to import the sense that the reason for such joint action must be a joint substantative right or a joint cause of action and not merely a procedural necessity. Such a joint action may be legally necessary due to procedural requirements only. In this connection I should mention Note No. 4 of Chitaley and Rao's Commentary on section 7 of the Indian Limitation Act, 1908 Third Edition, to which reference was made by Mr. Muhammad Nasim. In the present case the three claimants could not, by reason of section 2 of the Fatal Accidents Act, 1855, bring separate suits to recover damages sustained by them separately and as such they were entitled to bring this suit jointly in the sense of section 7 of the Limitation Act, 1908. They, therefore, come within the scope of the words "persons jointly entitled to institute a suit".
13. Could the mother of the plaintiffs give a discharge as contemplated by the section, without the concurrence of the minor plaintiffs The answer to the question must depend on whether the discharge contemplated by the section is a discharge of the claim of that claimant only who would choose to give its discharge or a discharge for more than his own claim. The language of the section is vague in this respect. If the object of the section was to save limitation in those cases only in which a claimant would be unable to give a discharge to the extent of his own claim then it would contemplate a situation which is apparently or at least ordinarily not feasible in law. Everybody who is a tenant‑in‑common with others in respect of a claim is generally entitled to give a discharge to the extent of his interest in such a claim. I must, therefore; hold that a discharge "without the concurrence of such person" means a discharge of a claim in which the person under disability is also interested. Such a discharge the mother could not give. Time, therefore, did not run against any of the three claimants and the suit is not barred by time.
14. Issue No. 4.‑The Company's neglect and default are alleged, as stated above, to consist (a) of its failure to remove or replace the electric wire which was unfit to withstand rain, and (b) of its failure to attend diligently to the repair of the broken wire.
15. Mr. Parmanand tried to defend the Company firstly by contending that it had observed all the requirements of the Indian Electricity Act, 1910, the rules made under the Act as well as the directions given to it by the Government. He has produced documents and oral evidence to substantiate the contention that no deviation had been made from the provisions of law and the directions of the Government. I need not refer to the documents and oral evidence because the argument is not relevant. Conse quences of the violation of any statutory provisions or of the directions of Government are not the ground of the plaintiffs' claim. Their case is founded on the provisions of the Fatal Accidents Act, 1855. There is a statutory action and could be founded under section 1 of the Act on any such wrongful act, neglect or default of the company as could be made the foundation of an action by the deceased. They have based their claim on the allegation that the company has neglected to perform or defaulted in performing its duty which arose from its engagement in a trade in which danger to the public life was involved.
16. Mr. Parmanand did not touch the defence which was raised in the written statement that Akhlaque Husain w is respon sible for his own death On the other hand, Mr. Muhammad Nasim for the plaintiff, without giving up the allegation that the wire which broke down was defective, relied only on the plea that the defendant company had failed to attend to the repair of the broken wire without undue delay. . Mr. Parmanand had originally produced some evidence to prove that the Company had taken all the care that could be taken for keeping the wires free from defects but on my criticism of the evidence during his address, has produced more witnesses and documents to substantiate that defence. I have thus to examine both grounds of the plaintiffs' case.
17. Before considering the arguments advanced by learned counsel, I should state some of the guiding principles of law relating to proof of neglect and default. The principles are conveniently and concisely stated in paragraphs 956 and 957 in Vol. XXIII of Halsbury's Laws of England at pages 671‑ 74 (Edn. 11). The general rule is that the burden of proving negligence is on the plaintiff in the first instance, but where there is a duty on the defendant to exercise care and‑
"the circumstances in which injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendant's control, the inference is that the defendant is liable, and this inference is strengthened if the injurious agency is inanimate."
The defendant Company was apparently aware of this principle of law, because the main defence of the Company is that the breakdown was "unprecedented and due to inevitable accident". The expression "inevitable accident" has been defined by Sir Fredrick Pollock, and his definition has been adopted by Winfield in his book called "Text‑Book of The Law of Torts". It is as follows :‑
"An accident not avoidable by any such precautions as a reasonable man, doing such an act then and there, could be expected to take".
If this is the meaning of "inevitable accident", then I have to see whether the defendant‑company could prevent the wire from breaking down by taking reasonable precautions. In order to determine this I have to try to discover the cause of the accident. In every case the cause of an accident is not discoverable. If it can be discovered and "tells its own story" of negligence on the part of the defendant, then "further evidence is not required from the plaintiff, because the inference is already clear ; in the other case (in which the cause is unknown) it is not required because it would be impossible (for the plaintiffs) to give it. The effect of the distinction is that, in the above case, the defendant is liable if he does not produce sufficient evidence to counteract the inference; in the other case, the Court is left to decide, on such facts as are available, whether negligence on the part of the defendant is the more reasonable inference or not".
18. Mr. Parmanand, who has conducted the defence with diligence and thoroughness expressed a grievance against the vagueness of the allegation made in the plaint that the wire which broke down was not fit to withstand the rain. He complained that the allegation supplied no information as to the nature of the defect in the wire and that the company was called upon to meet an allegation which could possibly include a large variety of defects and as such a large variety of acts of negligence and default. This criticism of learned counsel has force in it and the pleadings of the plaintiffs must be held to be defective unless the conclusion is that the death of Akhlaque Hussain is traceable directly to some defect in the wire and that there was an obligation on the defendant Company to use reasonable and proper care against it. In the words of Halsbury's Laws of England:
"if there is an obligation on the defendant to use reasonable and proper tare and the injury is traced directly to some defect in the tackle or machinery, it is not necessary for tie plaintiff to show the precise nature of the defect, since the inference from the fact of the defect is sufficient to throw on the defen dant the burden of showing that the defect was one for which he was not to blame."
19. With the above background of law I should take up the plea of the plaintiffs that the wire which broke down was not fit to withstand rain. The cause for which the wire broke down is given in Exh. 8, which purports to be a report on the accident by the Distribution Engineer of the defendant Company and is alleged to have been sent to the Government Inspector. It is as follows :‑
"Public light wire between poles 4 and 5 on Mohan Road broke down and shorted the blue phase wire and the neutral wire causing the latter (neutral) wire also to break down. The end of the public light wire which remained in contact with the blue phase wire was live. On inspection it was found that the blue phase fuse on Frere Road, pole No. 27, which feeds Mohan Road; Distributor had blown off."
Mr. Asghar Ali, Executive Engineer of the defendant Company, D. W. 4, who joined the service of the Company after the accident, has referred to the report and stated as follows:‑
"Presuming that the contents of the report are correct, the reasons from the technical point of view of the breakage of wire in my opinion should be as follows :‑
(a) Uneven stress and strain on the conductor such as caused by the sudden change in the wind direction ;
(b) Sudden variation in the temperature of weather ;
(c) Unusual pulls on the conductors."
I should note that the facts stated in Exh. 8 explain how the wires broke down and not why they broke down and that D. W. 4 has merely given general reasons for which a wire may break down. If rain and wind were sufficient to break vires of the specifications which are used by the Company, then all or most of them would have broken down. If one wire or a few of them only broke down for reasons which were common to all or most of them then there must have been something peculiar in such wires themselves.
20. Moreover, the facts stated in the report Exh. 8, are imaginary and not real. The officer who inspected the broken wire, before it was repaired, was Muhammad Ishaque, D. W. 2. He has stated that‑
"Three wires had broken down, two of them were neutural. The ends of the neutural wires were lying on the ground. The third wire was of public light. It became dead when it broke down and came into contact with the neutural wires. After wards, it had come into contact with blue phase wire and had become live again."
Asghar Ali, Executive Engineer, D. W. 4, has given a different version;
"I think that the breakage of wire which took place on Mohan Road was the result of the contact of two wires of the same phase which gave a greater amount of current flow to the neutural wires and the guards, resulting in higher burning effect . . . .
The piece which was dangling remained live after breaking the neutural wires and the guard, because when the public light wire came into contact with blue phase and became doubly charged its contact with the neutural wires resulted in the blowing off of the minor fuse only. By the time the neutural wires and the guard broke down, the main fuse remained intact and therefore the end continued to remain alive. Then it came into contact with the human body which resulted in the blowing off of the main fuse."
Abdul Ali, Distribution Engineer, D. W. 9, has stated on the contrary:
"The fuse of a main must blow off when it comes into 'contact with a guard irrespective of voltage and current."
Conflict of views on simple technical matters displayed by the Engineers of the defendant Company is alarming. D. W. 9 has stated:
" In Exh. 8 the expression shorted the blue phase wire' means that the public light wire came into contact with the blue phase wire and caused the blowing off of the fuse thus making the public light wire dead."
D. W. 4 has stated:
"The meaning of the expression 'a wire was shorted by another wire' is that the wire came into contact with another wire. It is not implied in this expression that as a result of the contact the fuse was blown off."
21. Mr. Parmanand tried to get round the cause of the accident by contending that the life of a copper wire of the thickness which is used by the Company is unlimited and that, therefore, the Company could not expect the wires to break down or to take measures to prevent them from breaking down. He has referred to the remark of Mr. N. N. Iyanger, an Electrical Engineer, who was invited by the Company in 1939 to give a report on the valuation of the physical assets of the Company. His report is Exh. 45. At page 15 of it he has said:
"Bare copper conductors should last indefinitely."
From this Mr. Parmanand inferred that (i) a bare copper wire would not break due to age, rust or corrosion and that if it did break down, (ii) the reason must be excessive external stress on it. Excessive external stress on the wire which broke down has not been proved. Moreover, the first part of the inference too cannot be accepted as correct. The reasons are : firstly that Mr. Iyanger's report was primarily concerned with the valuation of assets and the considerations of providing adequate depreciation fund. May be that he thought that for the purpose of providing a depreciation fund the copper conductors could, for some financial reason, be taken to be of indefinitely long life. Secondly, Mr. Iyanger himself recommended, at page 16 of his report, that a depreciation fund be provided for overhead wires at the rate of two percent. On this basis the life of an overhead line or a bare copper con ductor would be fifty years. Thirdly, the rate of depreciation recommended by Mr. Iyanger is itself questionable. His recom mendation was a departure from the depreciation rates which had formerly been five percent. six per cent, and seven and a half percent. according to the decisions of the Board of Directors made from year to year. The life of a wire at those rates would be 20 years, 16 years and 13 years respectively. Fourthly, the recommendation of Mr. Iyanger was rejected by the Company due to an objection of the Auditors in 1948, and the depreciation rate was raised to three percent., in 1949. In 1955, the Company applied for a loan to the World Bank, and the depreciation rate was raised to five percent.
22. In this connection, the climate of Karachi is not to be disregarded. Corrosion of wires in Karachi is much faster than in those regions where there is salt in the atmosphere but where rains are heavier. Mr. Iyanger has pointed out at page 16 of his report as follows:
"Heavy showers do not cause such troubles as the salt deposit is washed away."
Mr. Abdul Ali, Distribution Engineer of the defendant Company, D. W. 9, has stated:
"The duties of the Officer‑in‑Charge of this Department were to chalk out a programme of work for each day. A programme was necessary because Karachi climate is such that if the High Tension Mains are not cleaned regularly then faults begin to occur after a month or so. The Low Tension Lines need inspection after every three months or so."
Mr. Asghar Ali, Executive Engineer of the defendant Company, D. W. 4, has stated:-
"The breaking of wires is not an unusual incident. Ordinarily three or four wires break in a month. On a rainy day, however, there can be 12 or more breakages in a day."
Mr. Khurshid Baig, Foreman of the defendant Company, D. W. 1, has stated
"Sometimes in a day, when it rained, I used to receive 600 to 700 complaints."
23. Mr. Parmanand next contended that the defendant Company had been more cautious than was necessary and had, in exercise of abundant caution, made arrangements to carry out repairs regularly. A bunch of monthly reports, collectively exhibited as Exh. 24, has been produced. They relate to the period from February 1944 to January 1949. These reports show that the repairing staff of the Company visited Mohan Road several times during this period but no report shows that wires had been inspected to discover corrosion or to test their strength or their expected lives. There is no record of what defects of this nature were discovered and needed attention. The reports record the work done and disregard all those defects of any nature whatsoever which might have been found but were not removed. The wires could not be maintained in proper repair unless there was a record of the date of installation of each line and the state in which it was from time to time keeping all along in view its expected life. Exh. 49 is said to be such a record relating to the wire which broke down. It is a folder which contains papers relating to the proposal of providing, additional light at Mohan Road. Exh. 48 is an endorsement in pencil on one of the letters contained in Exh. 49 and shows that the work of providing additional light on Mohan Road was completed on 12‑10‑1927. It is a worthless record for the purpose for which it has been pressed and could be of no value for repairing and replacing in time the wire which broke down. According to the date given in it the age of the wire at the time of the accident was more than twenty years. In other words it had outlived its normal life, if the latest depreciation rate of 5 percent., is taken to represent its normal age. If deprecia tion rates do not represent the normal age of such wires then the company does not know, or pretends not to know, the average normal life of an overhead electric light wire.
24. There is no doubt that the business operations of the defendant Company had an obvious element of peril in them to the life and safety of the public. As such it was the duty of the Company to exercise care for protecting the members of the public against that danger. The degree of care had to be of high order because wires have frequently broken down on rainy days. In the language of American Jurisprudence, at page 678 of Volume 38:
"No less a degree of care than that commensurate with apparent danger, or in proportion to the danger reasonably to be anticipated is reasonable . . . . Clearly, when human life is at stake, "the rule of due care and diligence requires everything that gives reasonable promise of its preservation to be done, regardless of difficulties or expense."
25. On the above facts and law the inference as to negligence' must be against the Company. The burden of proving that it was not negligent was, therefore, on the Company. The evidence produced by it is not sufficient to counteract the inference. On the contrary it leads to the inference. Mr. Parmanand relied on Dumphy v. Montreal Light Heat & Power Co., (1907 A C 454) and contended that the Company could not be expected to experiment with remedies of unproved efficacy. For instance, he contended, it could not send its staff on too frequent rounds of inspection to discover which of the thousands of the wires which stretched in the big City of Karachi had salt deposits on it and what chances there were of its developing defects due to slow corrosion. Such a course was not feasible, according to counsel, because of the uncertainties of the result, manpower needed for it and prohibitive expense involved in it. It, therefore, had to rely on the information that the consumers of electricity and members of the public used to give to it whenever inconvenience was caused to them by the faults which appeared in the system of electric supply. Mr. Muhammad Nasim met the argument of Mr. Parmanand by citing Lord Mayor, Alderman and Citizens of Manchaster v. Markland (1936 A C 360), and relying on the view expressed in it that to depend on the chance that "some policeman or road officer or other servant of another authority or some householder or other person may give" information of bursts in pipes was to adopt "precarious, unreliable and un‑coordinated methods of receiving information" and did not exonerate the Corporation whose business was to supply water from liability for the death that was caused owing to a burst in the service pipe. I must say that with the Company's self satisfac tion that the life of a bare copper wire was indefinitely long, its counsel's argument that frequent inspections were impracticable and of doubtful efficacy sounded like disparagement of practical sense. Mr. Parmanand's plea in effect was that better and efficacious care was not possible. This plea must be rejected as imaginary and the safety of human life must be placed above the significance of mere words.
26. I am compelled by the surrounding circumstances of the accident to the conclusion that the defendant Company was negligent in the maintenance of the wire which broke down due to some physical defect in it.
27. Now turning to the second plea of the plaintiffs that the defendant Company did not attend to the broken wire without undue delay, I may state at once that the Company has not produced trustworthy evidence to prove at what time the wire broke down and at what time information reached it for the first time that it had broken down. Muhammad Ishaque, D. W. 2 who visited the scene of occurrence has stated:
"Usually public is not found in the streets at such occasions. I could not therefore get information about the time at which the wire had broken."
At such occasions people do collect and watch the happenings. Moreover it was a populated area and the inhabitants of the locality knew of the accident. The plaintiffs have produced three witnesses who lived in the vicinity to prove the time at which the wire had broken down. They are Dr. Inshaur Rahman, P. W. 2, Sardar Khan, a retired Superintendent of Police, P. W. 3 and Muhammad Shafi, P. W. 4. who ran a dispensary. All of them have stated that they had seen the broken wire before the death. The police officer saw it at 5 or 6 p.m. and instructed a constable to inform the Company of it. The Doctor saw it afterwards but before 8 p.m. and himself rang up the Company to give the information. Muhammad Shafi who also saw the broken wire in front of his house at about 5 or 6 p.m. and felt worried for his children. The Company has produced Khurshid Beg, D. W. 1, who was the Company's Telephone Clerk in 1948 and used to receive complaints from the consumers and members of the public and to keep their record. He has stated that information of the death was received by him at 10. 30 p.m. and that no report had been received earlier that the wire had broken down. He has given this evidence from memory though according to him he sometimes received 600 to 700 complaints in a single day if it had rained. The complaints were recorded but the record or the book of complaints has not been produced. This omission raises a presumption against the Company and therefore the Company has produced three witnesses to prove that the wire had not broken at 5 or 6 p.m. and has offered an explanation for not producing the record. The witnesses Hamid Mirza, D. W. 5 an "electrical contractor" who was a small businessman and apparently under the influence of the Company, Muhammad Ishaque, D. W. 6, a petty tea stall keeper who bad his stall in a lane which branched off from Mohan Road, Habib Ahmed, D. W. 7 a carpenter who is supposed to have gone to a tea shop which was situated in another bye‑lane close to Mohan Road and is supposed to have seen the wire intact between 9 and 9. 30 p.m. on the evening on which the accident took place. They have not impressed me as genuine witnesses, nor do I believe from their vocation in life that they were capable of noting time with any accuracy and stating their impressions reliably after ten years of the occurrence. Two of them happened to be present near about the scene of occurrence for drinking tea at two tea stalls and have come forward to give evidence. I would not attach weight to their impressions regarding time if they did really receive any. The explanation of the Company for not producing the book of complaints is that its record room had been flooded with rain water in 1953 and that a good part of the record was spoiled. The‑ spoiled part of the record was destroyed by the Company. May be that some of the record was spoiled by water but the Company has produced all that record which could be helpful to it. Its documentary evidence covers the period from 1913 to 1954 and no document produced by the Company has on it marks of water. The presumption which arises against the Company is not rebutted. I hold that the wire broke down between 5 and 6 p.m. and that in spite of two complaints made to the Company soon after it by P. W. 2 and P. W. 3 the Company failed to take steps until 11 p.m. to remove it from the road and repair it.
28. The death of Akhlaque Hussain was, therefore, not caused by inevitable accident but by neglect anti default of the defendant Company.
29. Issue No. 6.‑The inference from the above decision must be that Akhlaque Hussain would have been entitled to maintain an action and recover damages in respect of the injury received by him had he not succumbed to it and that the defend ant Company is liable to pay damages to the plaintiffs under sections 1 and 2 of the Fatal Accidents Act, 1855.
30. The quantum of damages is to be determined in terms of the third paragraph of section 1 of the Act. It runs 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 the costs not recovered from the defendant, shall be divided among the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct."
The flexibility of the language, "as it may think proportioned", has introduced a considerable element of judicial discretion and has resulted in the recognition that the amount of damages would differ from Judge to Judge.
31. Before proceeding to assess damages I should state the principles applicable to assessment of damages under the Act. The words "the amount so recovered, . . . shall be divided amongst " the beneficiaries denote and have led to the general practice that the Court should first assess the beneficiaries' loss as a whole and then apportion the damages amongst them. The words "proportioned‑ to the loss" mean that damages can be awarded to those beneficiaries only who sustained loss. Pecuniary loss must be proved to have been sustained by those who get damages but how the damages are apportioned amongst the beneficiaries is of little importance to the defendant who is called upon to pay The payer's interest is so little in apportionment that the beneficiaries can be asked if they can agree on how the money should be apportioned. In this connection, see Lord Goddard's judgment at page 81 of the Quantum of Damages, Vol. 2, by Kemp & Kemp.
32. The words "loss resulting from such death" are of special importance. They do not convey the sense that the deceased was under a liability to pay that which is lost to the beneficiaries. Moreover, the assessment or loss is not to be confined to the provision of necessities of life. Connotation of the word "loss" is much wider than that. In the language of "Mayne on Damages" at page 516 of the tenth edition:
"The rule which has been laid down and adopted is that legal liability alone is not the test of injury, in respect of which damages may be recovered under this statute; but the reasonable expectation of pecuniary advantage by the relative's remaining alive may be taken into account by a jury, and damages given in respect of that expectation, if it be disappointed, and the probable pecuniary loss thereby occasioned. Thus . . . . children may recover for the loss of the education, comforts, and position in society, which they would have enjoyed if their father had lived and retained the income which died with him ; and they had continued to reside with him; and even the probability that the deceased if he had lived would have made provision for his children may be considered ".
I may mention that chances of increase in the income of the deceased are an important part of the beneficiaries' expectations.
33. In this respect the plaint has not been artistically drafted and the criticism of the claim by Mr. Parmanand was mostly in forgetfulness of the relevant loss. His defence did not rest on the provisions of the Fatal Accidents Act, 1855, except in a small degree as to the form of pleadings and expected life of the deceased.
34. He questioned the correctness of the amount of the claim on three grounds. Firstly, that the income of Rs. 500 per month of the deceased could not be accepted as correct because it represented an unnecessarily high rate of profit on the capital that was invested by him. Secondly, that the two minor sons of the deceased should be expected to become self‑supporting at the age of majority, that is, after 18 years, and that thereafter the father would not have to support them. Thirdly, that the period of time for which their father could be expected to live has not been proved.
35. The first criticism is not sound because small investors earn incredibly high profits on their capital. A hawker earns so much per day on his capital of Rs. 20 that a millowner can never dream to earn anything like it proportionately. Moreover there is a difference between the price of a shop and the amount of money invested in it. Mr. Muhammad Nasim has drawn the distinction when he stated that the deceased bought the shop for Rs. 2,000 or Rs. 3,000 and invested Rs. 4,000 in it. His statement is based on information conveyed to him by the deceased. I have no reason to disbelieve either of them. Moreover, the deceased bought the shop in January 1948 and was killed in March 1948. There was no reason for his business not to flourish. He was an experienced businessman, as has been brought out in the cross‑examination of Mr. Muhammad Nasim, and used to earn as an employee of a firm Rs. 450 per month.
36. The second criticism is misconceived. In Muirhead v. Railway Executive, (1951 C A No, 178) the Appellate Court consisting of three Judges disagreed with Devlin, J., who had declined to allow damages to the elder daughter of the deceased and allowed damages to her. She was 24 years of age at the time of her father's death, was married and had been working and earning about 300 a year at one time. She was granted damages because she expected financial help from her father. The trial Court had granted damages to her younger sister who was 12 years old at her father's death to support her to the age of twenty years, but Singleton L. J. held as follows and Morris L. J. and Lloyd‑Jacob, J. agreed with him:‑
" I do not think that it was right to assume that all depen dency would cease at the age of 20. The girl, apparently, has some idea of taking up elocution. If a girl reaches 20 she does not cease to be dependent on her father because she can earn money. The fact that she has a father with large earnings is a tremendous benefit to her in case of need, be it sickness or any other cause arising . . . . . . . .
" I do not accept the view that the father was likely to be eating into capital later. I think that he would have made arrangements of some sort or another; if he was fit the probability is that he would not have retired at the age of 70."
37. In my view the plaintiffs could expect substantial support from their father upto the age of 25 years each and the widow could expect full support until her death unless she predeceased her husband. On an average the deceased could be expected to spend Rs. 225 per month on the three persons. The deceased was 45 years of age at the time of his death, kept good health and was a man of simple habits. He could be easily expected to live and carry on the trade of running a shop upto the age of 65 years. In other words, they could expect to derive benefit from him for 20 years. But the expected life of the widow according to the plaint is 55 years, which means 16 years after the husband's death, and the minor sons have claimed benefit upto the ages of 15 years each, which means for 18 years and 14 years respectively. The mean of the duration of expected support thus comes to 16 years only. I would, therefore, allow, the purchase value of 16 years' annuity at the rate of Rs. 225 per month or Rs. 2700 per year. The total amount of the purchase value comes to Rs. 43,200. Out of this amount I would deduct a round sum of Rs. 3,000 as the proceeds of the shop received by the beneficiaries in the, form of the sale price of and withdrawals from the shop, and make a discount of Rs. 6,000 on account of the advantage which the beneficiaries stand to gain by getting the benefits in a lump sum. The beneficiaries are thus entitled to a decree for Rs. 34,200 against the defendant‑Company, which is hereby granted.
38. This amount is to be apportioned amongst the three beneficiaries as follows :‑‑
| Widow | Rs. 15,100 | (Fifteen thousand one hundred) |
| Younger Son | Rs. 11,400 | (Eleven thousand four hundred) |
| Elder Son | Rs. 7,700 | (Seven thousand seven hundred) |
| Total | Rs. 34,200 | (Thirty-four thousand two hundred) |
39. I order accordingly. The plaintiffs shall get the costs of the suit from the defendant‑Company.
A. H. Order accordingly.
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