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Before Syed Abdur Rehman, J
IJLAL HUSSAIN and 4 others--Plaintiffs
versus
FEDERATION OF PAKISTAN and 5 others--Defendants
Suit No. 567 of 1981, decided on 31st March, 1987.
(a) Fatal Accidents Act (XIII of 1855)--
---Ss. 1 & 2--Compensation--Death of child aged 2 years occurring due to his falling in an open manhole--Liability for compensation- Defendants found to have failed in their duty to exercise proper care to cover the manholes of underground drains and to keep them safely closed and committed negligence for which they were jointly and severally liable.
Muhammad Nawaz v. Altaf Rasul P L D 1985 Kar. 353; Manmatha Nath Kuri v. Muhammad Mokhlesur Rehman P L D 1963 Dacca 290; Kuppammal v. M & S.M. Ry. Co. Ltd. A I R 1938 Mad. 117; Municipal Corporation Delhi v. Subhagwanti A I R 1966 Pb. 1750; Jai Singh v. Mansha Ram A I R 1963 Himachal Pradesh 37; Brook v. Bool (1928) 2 K B 578 and Broom v. Morgan (1953) 1 Q B 597 Singleton L J p. 609 ref .
(b) Fatal Accidents Act (XIII of 1855)-
---Ss. 1 & 2--Compensation--Quantum--Death of boy aged 2 years caused by his falling in uncovered manhole due to negligence of defendants--Net support that the deceased would have given to his family after having attained majority would have been Rs.500 per month--Appropriate compensation that should be awarded in the case would be a sum of Rs.1,00,000--Suit of plaintiff decreed for a sum of Rs.1,00,000 against defendants--Plaintiffs being father and mother of deceased and living together separate specification of their respective sharers, held, was not necessary--Interest of 6% also allowed.
(c) Fatal Accidents Act (XIII of 1855)--
---Ss. 1 & 2--Compensation--Death of a child due to accident--Child not earning anything--Whether compensation could be granted in respect of such accident--Held, it was not necessary that victim should be earning, something but it was necessary that claimants should have reasonable expectation of same.
Muhammad Nawaz v. Altaf Rasul P L D 1985 Kar. 353 and Manmatha Nath Kuri v. Muhammad Mokhlesur Rehman P L D 1963 Dacca 290 rel.
Mushtaq Memon for Plaintiffs.. Defendants (absent). Date of hearing: 31st March, 198 .
This is a suit for compensation claimed under the Fatal Accidents Act 1855 on account of death of a boy by name Fawad IjIal aged 2 years and 8 months. The death had occurred on 18-1-1981 due to the falling of the child in an open manhole in the Jehangir quarters area. It is alleged that the manholes in the area were lying open and the defendant No.l and their officials i.e. defendants No. 2 to 6, who were responsible for keeping these manholes closed, were negligent in their duty in that they did not care to see that the same were kept closed, resulting in this unfortunate accident. A prayer for decree of Rs.2,00,000 as well as interest and costs is made.
2. The suit was contested by the defendants No.l to 5 by means of a joint written statement, in which they admitted the death of the child due to falling in the manhole but alleged that the manhole was covered. They, however, attempted to shift the responsibility of the accident on Assistant Engineer and sweeper as their primary duty was to keep the manholes closed.
The plaintiff thereafter amended the plaint and joined the Assistant Engineer as defendant No.6. Defendant No.6 has, however, chosen to remain absent in spite of service and has not filed any written statement. On the pleadings of the parties the following issues have been framed:
(1) Whether the defendants are directly responsible for the maintenance and supply of civic amenities to the Jehangir Quarters Area
(2) Whether on account of the defendants' negligence the manhole in question had remained un-covered at the relevant time
(3) Whether the defendant No.5 lodged F.I.R. on 21-1-1981 as alleged
(4) Whether the plaintiff No.l lodged F.I.R. on 18-1-1981 with Jamshed Quarters Police
(5) Who discovered the dead body of the deceased
(6) Whether the deceased lost his life on account of defendants' negligence
(7) Whether the plaintiffs are entitled to recover damages as claimed
(8) What should the decree be
3. The case was fixed for recording of the evidence on 25-3-198 . The plaintiff and his advocate were present while there was no appearance on behalf of the defendants. Hence the plaintiff was called upon to file affidavit-of-evidence, which he has done.
4. The evidence of the plaintiff has gone un-challenged and un-rebutted. All the issues, as would appear, are issues of fact.
5. The first question is whether compensation can be awarded in respect of a fatal accident in which a child who is not earning anything dies. The most illustrative and elaborate judgment on this A point is the one given by Naimuddin, J. (presently Chief Justice of Sind High Court) in the case of Muhammad Nawaz v. Altaf Rasul reported in PLD 1985 Karachi. 353. A boy aged about 8 years sustained serious injuries when he was knocked down by a taxi car which proved fatal and he died. Naimuddin J, (the present Chief Justice) after giving resume of the entire case law on the point held as follows:------
"Further, it is common experience that in Muslim Society poor parents and other members of the family are normally maintained by their children and parents also maintain their children irrespective of their ages till they (children) start earning. In my opinion, what may be termed in Continental Society under certain conditions a purely speculative possibility may not be so in our society at a given time. Accordingly, where economic conditions in a country and at a given time are such that to obtain an employment is not at all difficult or percentage of unemployed is very low, there again it could not be said that likelihood of child earning in due course was a speculative nature. In my view, in such condition, a child on coming of age working, getting employment and earning would be reasonable probability. Lastly, assessment of compensation has to be made on normal and usual expectation of course of events and not oh exceptional events or happenings. However, exception may be made in the case where the child is invalid and because of physical or mental condition it cannot at all work and earn."
Certain other rulings have also been cited by the learned counsel for the plaintiff, one of which is a D.B. case of Manmatha Nath Kuri v. Muhammad Mokhlesur Rehman reported in PLD 1963 Dacca 290. This also relates to the death of a minor girl aged about' 6 years at the time of the accident. The Court confirmed the decree of the Sub-Judge awarding compensation and held as follows:-
"It is not necessary that the victim must be shown to have been earning something. What is necessary is the reasonable expectation of the claimant. If that is not so, an impossible' situation will arise in that in case of fatal accident of an earning person there will be a liability under the Act and in the case of non-earning person there will be none and the person guilty under the Act will be immune in that case. This is far from the attention of the framer of the Act."
The next question is about the liability of the defendants. Learned counsel for the plaintiff, Mr. Mushtaq Memon has relied upon the case of Kuppammal v. M & S.M.Ry. Co. Ltd. reported in AIR 1938 Mad. 117, wherein Gentle J. held that the Railway Company will be liable for damages where the Railway had not kept its wall in proper repairs and consequently it fell and killed two persons who were using Municipal Latrine erected by the corporation against the said compound wall.
He has also placed reliance on an Indian Supreme Court ruling in the case of Municipal Corporation Delhi v. Subhagwanti reported in A I R 1966 punjab 1750. The Supreme Court held that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which causes the damage are at the material time exclusively under the control of management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendants' part.
In this ruling it was found that the Clock Tower which collapsed causing loss of fife was exclusively under the ownership and control of the Municipal Corporation or its servants and the fall occurred due to their negligence in not keeping it under proper repairs.
In another Indian case reported in AIR 1963 Himachal Pradesh 37 (Jai Singh v. Mansha Ram) where a suspension bridge on a river was being widened, one end of the new wire rope was fastened to the Kutcha old rope and was left unguarded. Plaintiff's son was crossing the bridge, when the bridge tilted and the son fell down in the river below which was in spate and died. The cause of the tilting of the bridge was the loosening of the wire rope.. In a suit for compensation against the contractor it was held by Capoor J. that it was an act of negligence on the part of the labourers to fasten one end of the new rope with kutcha wire and to leave it unguarded. It was further held that the contractor was liable for the negligence committed by his servants in the course of employment.
The liability of joint tortfeasors was considered in the English case of Brook v . Bool reported in (1928) 2 K . B . 578 where two men searching for a gas leak each applied a naked light to a gas pipe in turn and one of them caused an explosion, they were held to be joint tortfeasors.
-In Broom v. Morgan reported in (1953) 1 Q.B. 597 Singleton L.J at page 609 observed that the master's liability for the negligence of his servant is not a vicarious liability but a liability of the master himself owing to his failure to have seen that his work was properly and carefully done.
It would therefore appear that the defendants having failed in their duty to exercise proper care to cover the manholes of the underground drains and to keep them safely closed committed negligence for which they are jointly and severally liable in this suit.
6. In the circumstances of the case, it would appear quite obvious and clear that the defendants are guilty of negligence which resulted B in this fatal accident and are, therefore, jointly and severally liable to pay compensation to the plaintiffs.
7. The last question that would arise for determination is as to what would be the quantum of damages to which the plaintiffs would be entitled. Mr. Mushtaq Memon Advocate who appeared for the plaintiff has submitted that the deceased was expected to have contributed a net income of Rs.1,000 per month to the family and would have been supporting it for a span of at least 15 years and has therefore claimed Rs.2,00,000 as compensation. In my view, the net support that the deceased would have given to the family after having attained majority would have been Rs.500 per month. Keeping in view the C expected income and the span, for which he would have supported the family, I feel that the appropriate compensation that should be awarded in this case would be a sum of Rs.1,00,000.
8. Consequently, I decree the plaintiff's suit for a sum of Rs.1,00,000 against the defendants No.l to 6, who will be jointly and severally liable for the said amount.
9. Plaintiffs No.l and 2,are father and mother of the deceased. They are living jointly. I do not therefore consider it necessary to specify separately their respective shares. Interest of 6% is also
allowed from the date of institution of this suit till realization of the amount. The costs of the suit shall be borne by the defendants.
S.S.G./I-16/K Suit decreed.
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