Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SHAH BASHIR ALAM And 2 Others VS Respondent: Messrs AROKEY CHEMICAL INDUSTRIES JUDGMENT
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid Title:SHAH BASHIR ALAM And 2 Others vs Messrs AROKEY CHEMICAL INDUSTRIES
JUDGMENT
Reported As: 1997 MLD 2308 Result: Suit decreed Judgment JUDGMENT This is a suit for the recovery of Rs.1,95,708 under the Fatal Accidents Act of 1855, for damages on account of the death of Shah Jafar Alam on 9-9-1970, due to electrocution at about 2-30 p.m in the electricity panel room of defendants' factory at Gharo, District Thatta. The suit has been filed on behalf of 3 heirs of the deceased. Plaintiff No. l is the father, plaintiff No.2 is the mother and plaintiff No.3 is the widow of the deceased. 2. The deceased had joined service with the defendants in 1966. On 22-8-1970 the deceased was married to the plaintiff No.3 and on account of his marriage, the deceased took leave. After the expiry of leave, he joined duty on 8-9-1970, at the defendants' factory at Gharo. At about 2-30 p.m. On 9-9-1970, the deceased died on account of electrocution in the electricity panel room of the factory. On 10-9-1970, the post-mortem of the body of the deceased was done and then the body was brought to Karachi for burial. 3. According to the plaint; plaintiffs Nos. l and 2 migrated to Pakistan in 1968 at the request of the deceased, who had also assured them that he would maintain and support them. After coming over to Pakistan, plaintiffs Nos. l and 2 became Pakistan Nationals. It is also claimed that the deceased was contributing to the maintenance and support of his parents. Extensive arguments were addressed by the learned counsel for the parties with reference to the contents of paras. 6 and 13 of the plaint and, therefore, I consider to reproduce these 2 nara2ranhs:--- "6. After hearing of this accident, Mr.S.H. Sulaiman and Mr. A.A. Hussain, relations of the deceased and of the plaintiffs, went to the factory of the defendants at Gharo. They saw the panel room where the deceased had died of electrocution. The roof of this room was badly leaking due to rains,
---
## Page 2
its floor was Completely wet with water, and the walls were so damp that the dampness was apparent to the naked eye. 13. The plaintiffs are not aware of the actual circumstances under which the deceased met his death, but things speak for themselves that he died of electrocution caused due to negligence and/or default on the part of the defendant in wrongful not properly maintaining the electric installations at their factory which presumably carried very high voltage of electricity." 4. At the time of his death, the deceased was about 30 years of age. He was then drawing a salary of Rs.613 per month, as admitted by the defendants in para. 9 of their written statement. According to the plaint, the deceased was in excellent health at the time of his death and considering the family background, the normal expectation of his active life was estimated as 70 years. However, for -the purposes of the suit, the normal expectation of his -life was taken by the plaintiffs as 65 years. The case of the plaintiffs is that the deceased died in the course of his employment with the defendants while on duty, and the death was caused by the wrongful act, neglect and/or default on the part of the defendants. The plaintiffs, as representatives of the deceased, claimed the amount in the suit under the Fatal Accidents Act, 1855, as calculated in Schedule ' A' to the plaint which is reproduced here:--- SCHEDULE ' A' Full normal expectation of life------------------.65 years. Age of deceased at the time of death---------..28 years, Remainder expected life of deceased .---------37 years. Salary at time of death ------.... Rs.610 Less 1/3 for personal needs .....Rs.203 Balance ...------Rs.407.00 Annual income------.12 x Rs.407=Rs.4884 37 x Rs.4,884=Rs.1,80,708 Less Insurance money received---.10.000 Balance---------------------Rs. 1,70,708 Plus Consortium for Plaintiff No.3---------.Rs. 25,000 Total Claim------------Rs. 1,95,708." 5. Perusal of Schedule ' A' to the plaint shows that out of the monthly salary of the plaintiff 1/3rd has been deducted on account of personal expenses of the deceased and the balance has been claimed for a period of 37 years as loss on account of the death of the deceased. From the amount so calculated a sum of Rs.10,000 has been deducted on account of insurance money received by the plaintiffs from the defendants as beneficiaries under the Group Insurance Scheme for the factory staff of the defendants. A further sum of Rs.25,000 has been claimed on account of loss of consortium on behalf of the widow, plaintiff No.3 in the suit. 6. In the written statement filed by the defendants, the cause of death is admitted to be result of electric shock. It was, however, denied that the defendants maintained the electric installations wrongly or improperly in their factory. It was not denied that the electrocution of the deceased was caused due to negligence or default on the part of the defendants. The allegation in the plaint that the deceased died in the course of his employment with the defendants while on duty was also denied. It was averred in para. 13 of the written statement that the plaintiffs were fully aware of the true and actual circumstances of the death of the deceased. Para. 16 of the written statement is reproduced here:--- Para. 16.---That with regard to para. 15 of the plaint it is denied that the deceased died in the course of his employment with the defendants Company while on duty. It is submitted that the deceased was on the production side of the defendant and had nothing to do with the electricity
---
## Page 3
or electrical wiring of the factory for which qualified staff was appointed. The said staff was present at the factory on the day death took place. The deceased did not have any business to go to the electricity panel room, which is separate. His death was on account of his own negligence and on account of deceased's acts of omission and commission for which defendant is not liable. It is denied that the defendant is liable for Rs.1,95,908 or any other amount. Without prejudice, it is denied that the plaintiffs 1 and 2 are entitled to any amount. " 7. Following consent issues proposed by the learned counsel for the parties were adopted by this Court on 7-2-1972:--- (1) Whether the deceased was in excellent health and man of simple and other sober habits and was expected to live up to 65 years? (2) Whether the plaintiffs are the only legal heirs of the deceased? (3) Whether the plaintiffs Nos.1 and 2 were the dependants of the deceased? (4) Whether the deceased died in the course of his employment? (5) Under what circumstances the death had been caused and what is the effect? Recast by order dated 22-12-1972. (6) Are the plaintiffs or anyone of them entitled to any decree? 8. On behalf of the plaintiffs, only plaintiff No. l examined himself as Exh.57. After the evidence of plaintiff No. 1, the side of the plaintiffs was closed. 9. I have heard at great length arguments of Mr. Mansoor Ahmed Khan, learned counsel for the plaintiffs and Mr. Mansoorul Arfin; learned counsel for the defendants. I now propose to deal with the issues framed in this case. 10. Issue No. l "Whether the deceased was in excellent health and man of simple and sober habits and was expected to live up to 65 years?" . 11. The other question which requires determination while dealing with Issue No. l is the age up to which the deceased was expected to live his life had not been cut short by the accident. In para. 12 of the plaint it is claimed that, considering the family background, the normal expectation of the active life of the deceased be taken as 70 years, but for the purposes of the case the damages were claimed on the basis that he would have lived up to the age of 65 years. In the evidence apart from the fact that when the plaintiff No. 1, father of the deceased, gave evidence on 14-5-1978, he gave his age as 76 years, no other evidence has been led relating to the "family background" in respect whereof reliance was placed in para. 12 of the plaint. Learned counsel for the parties have referred to various decisions of the superior Courts of our country had also of the Indian jurisdiction in connection with the expected age of a person up to which he was expected to live in case his life was not brought to an end by an accident. I would, however, here refer only to the judgments of our High Courts and the Supreme Court of Pakistan in this behalf. Reference was made by learned counsel to the following reported judgments:-- (i) PLD 1959 Karachi 550. (ii) PLD 1960 Karachi 785.. (iii) PLD 1963 Karachi 841. (iv) PLD 1963 Dacca 290. (v) PLD 1969 SC 565. (vi) PLD 1970 Lahore 442. (vii) PLD 1973 Karachi 636. (viii) PLD 1976 Karachi 131. (ix) PLD 1977 Karachi 685. I may also refer to the following other recently reported judgments on the question of average expectancy of life:---
---
## Page 4
(x) PLD 1975 Karachi 914. (xi) PLD 1-977 Karachi 542. (xii) PLD 1980 Karachi 78. (xiii) PLD 1980 Karachi 146. (xiv) PLD 1980 Karachi 271. 12. (i) In the case of Iftikhar Hussain v. Karachi Electric Supply Corporation Ltd. PLD 1959 Kar. 550 the age of the deceased at the time of his death was 45 years. On the question relating to the expected age of the deceased Qadeeruddin, J. Held as follows:- "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 up to the age of 65 years." (ii) In the case of Bashir Begum v. Muhammad A.I Premji PLD 1960 Kar.785 the age of the deceased at the time of fatal accident was 35 years and Wahiduddin, J. Was of the view that the normal expectation of the life of the deceased was about 20 years, that is, he would have lived up to the age of 55 years. (iii) In Nusrat A.I V. U.K. Construction Co. PLD 1963 Kar.841 the age of the deceased at the time of his death was 30 years. A.R. Khaural, J. Held that the deceased could be easily expected to live and carry on his employment up to the age of 55 years at least. (iv) PLD 1963 Dacca 290 is a Division Bench decision of the Dacca High Court in the case of Mammatha Nath v. Muhammad Mokhlesur Rehman, The deceased in that case was a girl of 6 years and the suit was brought by her parents for damages. The ages of the father and mother of the deceased were 47 and 32 years respectively at the date of death. Of the deceased. On the question of the expected age the Dacca High Court was of the following view:--- "It can be expected that the parents and the girl would live up to the age of sixty years each considering the normal age of living in this country." (v) PLD 1959 SC (Pak.) 565 (Mammatha Nath v. Muhammad Mokhlesur Rehman) is the judgment of the Supreme Court of Pakistan in: appeal against the judgment of Dacca High Court reported in PLD 1963 Dacca 290. Judgment of the Dacca High Court was affirmed by the Supreme Court but in the judgment in appeal there is no discussion or decision on the point of expected age. (vi) PLD 1970 Lahore 442 is the report of the judgment of a Division Bench of the Lahore High Court in the case of Din Muhammad v. Faqir. Muhammad. The deceased had died at the age of 29 years and the Lahore High Court took 60 years as the expected age. (vii) In the case of Qudsia Begum v. Younus Khan PLD 1973 Kar. 636 Fakhruddin G. Ebrahim, J. Held as follows:--- "As regards the normal expectation of life, Mr. Mushtaq Hussain, the learned counsel for the plaintiff was good enough to invite my attention to several decisions of this Court, where 60 years has been held to be life expectancy in Pakistan. The learned counsel contended that in view of the improved conditions of living it may now be reasonable to hold the life expectancy at 65 years. I am, however, not inclined to depart from the more conservative view of this Court that 60 years is the normal life expectancy in Pakistan." (viii) In the case of Rukayabai v. Secretary of Defence PLD 1976 Kar.131 Mushtaq A.I Kazi, J. On the question of average expectation of life observed as follows:--- "The deceased was 40 years of age and the average expectation of life being about 65 years he may have lived for 25 years more. " (ix) In PLD 1977 Kar. 685 (Momin Bai v. Ghulam Muhammad) Naimuddin, J. Accepted 60 years as the normal expectancy of life.
---
## Page 5
(x) PLD 1975 Kar. 914 (Shamsun Nissa v. Karachi Road Transport Corporation) is the other reported judgment of Fakhruddin G. Ibrahim, J. In this judgment also the learned Single Judge followed his earlier view in PLD 1973 Kar.636 and held as follows: "The deceased was at the time of his demise about 45 years old. It is in the evidence that he was possessed of good health. The question that next arises for consideration is the normal expectancy of life of the deceased. Mr. Sharaf Faridi, the learned counsel for the defendant No. l contended that it must be 60 years and not 65 years as contended on behalf of the plaintiffs. In majority of cases decided by this Court 60 years has been held to be life expectancy in Pakistan. I have also adhered to this conservative view in a case reported in Mst. Qudsia Begum v. Younus Khan and 4 others PLD 1973 Kar.636 and I see no reason to make any departure." (xi) In his judgment in the case of Ayeshabi v. Abdul Ghafoor PLD 1977 Kar.542 Zaffar Hussain Mirza, J. Was of the following view:--- "The deceased is established to have been a person of sober habits and sound physique and was the only earning member of the family. Taking the ordinary life expectancy of the deceased at least up to the age of 65 years, the deceased would have provided maintenance to his family for the next 21 years if he had not been out off by the accident." (xii) In the case of Muhammad Siddique v. Gul Majeed PLD 1980 Kar.78 Ajmal, J. Held 60 years to be the expected age of the deceased. Para. 8(a) of the judgment of Ajmal, J. Is reproduced here:--- "The plaintiffs have claimed an amount of Rs.56,600 calculated for the period of 41 years at the rate of Rs.200 per month minus 1/3rd being the amount of personal expenses of the deceased. While computing the period of 41 years the plaintiffs have assumed 65 years as the expected age of the deceased. On the other hand Mr. Umrani, the learned counsel. For the defendants Nos.1 and 2 has referred to the case of Qudsia Begum v. Younus Khan and 4 others PLD 1973 Kar. 636 and the case of Mst. Momin Bai and 3 others v. Ghulam Muhammad and 2 others PLD 1977 Kar. 685. In both the above cases, it was held that the expected age was 60 years. In a few cases decided by me recently, I had also accepted 60 years as the expected age. I accordingly hold that the amount of the compensation is to be computed on the basis of 60 years as the expected age of the deceased. " (xiii) In the case of Nusrat Jehan Begum v. Karachi Municipal Corporation PLD 1980 Kar. 146 Ajmal, J. Again assumed the normal span of life as 60 years. The deceased in that case had died at the age of 38 years. (xiv) Expected average age in fatal accident case was again taken as 60 years by Ajmal, J. In the case of Dianat Fatima v. Abbas Khan PLD 1980 Kar. 271 where the deceased had died at the age of 50 years. 13. Case-law briefly discussed in the previous paragraph shows that the expected age in fatal accident cases has been taken from 55 years to 65 years. During the last decade, however, the Courts have been taking 60 to 65 years as the expected age, but the recent trend in the judgments is to accept the conservative figure of 60 years. In my view also the normal span of life in Pakistan should be taken as 60 years in fatal accident cases if there is no evidence on record that the deceased was suffering from any malady, illness or disease which, on medical authority, was likely to curtail the life span of the deceased. In case, however, cogent and accurate evidence comes on record that in the family of the deceased the normal age was more than 60 years, the Court may not restrict itself to 60 years as the expected age of the deceased or the concerned beneficiaries but may accept 65 years or even more depending on the assessment made on the basis of the evidence on record. 14. ISSUE No.2: "Whether the plaintiffs are the only legal heirs of the deceased?"
---
## Page 6
Section 1 of the Fatal Accidents Act, 1855, provides that an action for compensation under the Act shall be for the benefit of the wife, husband, parent and child of the deceased. Evidence of plaintiff No. l shows that the deceased was married a few days before his death and that plaintiffs Nos. l and 2 were the parents and the plaintiff No.3 the widow of the deceased. This evidence has not been controverted. In the circumstances, I hold that plaintiffs are the only legal representatives of the deceased under section 1 of the Fatal Accidents Act, 1855, entitled to bring a suit under that Act. Issue No.2 is decided accordingly. 15. ISSUE No.3: "Whether the plaintiffs Nos. 1 and 2 were the dependants of the deceased?" As observed earlier, the suit has been filed by the parents and the widow of the deceased. Under section 1 of the Fatal Accidents Act, 1.855,' the suit can be filed for the benefit of the wife, husband, parents and child of the deceased and in every such suit the Court can pass a decree for damages as it may think proportioned to the loss resulting from such death to the parties from whom and for whose benefit such suit is brought. In para. 9 of the written statement of the defendants it has been denied that the parents of the deceased, plaintiffs 1 and 2 in the suit were dependent of the deceased. Evidence of plaintiff No. l shows that plaintiffs 1 and 2 migrated to Pakistan on 16-4-1968 at the request of the deceased, who was employed at that time with the defendants, and thereafter the parents also started living with the deceased. The deceased was married to the plaintiff No.3 on 22-8-1970, and it follows that she also started living with the deceased, alongwith plaintiffs 1 and 2. At the time of death of the deceased, plaintiff No. 1, who is an Advocate, was practising at Karachi. The total salary which, the deceased was getting at the time of his death from the defendants was only Rs.613 per month, and out of this amount, according to the evidence of plaintiff No. 1, the deceased was giving about Rs.400 to the plaintiffs. At that time the house, in which the plaintiffs and the deceased were residing, was rented at Rs.300 per month. In his cross-examination, plaintiff No. l has stated that his other son is a doctor and at the time of accident he was in Bahama Island, and that the earnings of this other son were muchless that the earnings of the deceased, and after the death of the deceased this other son had started supporting the parents but at the time of the accident he was not supporting them. Plaintiff No. l had also admitted that he was using his own savings towards their maintenance. He has further stated that after arrival in Pakistan he got some work and had not completely retired. The evidence on the question of maintenance of the plaintiffs by the deceased in brief is that the salary of the deceased was not very much and out of this salary he had to support and maintain himself and the plaintiffs; plaintiff No-1 himself was earning and had savings of his own which were also being utilized for maintenance; and that the other son of plaintiffs Nos.1 and 2 was earning much more than the deceased, and after the deceased's 'death started supporting his parents. From this evidence it is difficult to draw the conclusion that the deceased was or could support the plaintiffs Nos.1 and 2. On the contrary I have reached the conclusion that out of his small salary plaintiff No. l was supporting himself and after his marriage he supported his wife also for a few days before he died. I am, therefore, of the view that the deceased was not maintaining plaintiffs l and % and at the time of his death from his salary he was maintaining only himself and plaintiff No.3. In para. 9 of the written statement it is the case of the defendants that plaintiffs Nos.1 and 2 were not dependent on the deceased. It is not the case of the defendants in their written statement that plaintiff No.3 was also not dependant on the deceased. Wordings of Issue No.3 also confirm this. In the circumstances, I decide this issue in favour of the defendants and hold that plaintiffs 1 and 2 were not dependent on the deceased and financially no loss was caused to them on account of the death of the deceased. Loss could only be caused to the widow, plaintiff No.3, who was dependent on the deceased. 16. ISSUE NO.4:
---
## Page 7
"Whether the deceased died in the course of his employment?" It is an admitted position that on the date of his death, the deceased died in the factory of the defendants at Gharo at about 2-30 p.m. There is a denial in the written statement of the defendants that the death of the deceased took place during the course of his employment, but no plea was taken that at the time the death occurred, the factory was closed. In fact, it is an admitted position that on 9-9-1970 the deceased was on duty. Further, Eith.11 is a report of the Chief of the Caustic Soda Plant of the defendants at Gharo dated 9-9-1970, which document was filed by the defendants, in which he says that he was sitting in the technical office when one Muhammad Anwar, an operator of soda plant informed him that the deceased, the engineer on duty, had got an electric shock. Before the writer of the report reached the place of accident a doctor had already reached there and was examining the deceased. After examination, the doctor informed that the deceased had died at 14-40 hours. From this document (Exh.11) it is abundantly clear that the deceased had died on account of electric shock while on duty. Apart from this in para. 14 of the written statement it is mentioned that the deceased became "entitled" to sum of Rs.9,000 under Workmen's Compensation Act, 1923 and this amount had been deposited by the defendants with the Commissioner for Workmen's Commissioner, Hyderabad, in favour of the deceased. Under the Workmen's Compensation Act, the compensation is payable only if an employee dies during the course of his employment. The fact that the defendants have admitted that the deceased was entitled to the amount of Rs.9,000 under the Workmen's Compensation Act is an additional but independent reason for coming to the conclusion that the deceased died during the course of his employment. In the circumstances, I decide this issue in favour of the plaintiffs and hold that the deceased died in the course of this employment with the defendants. 17. ISSUE No.5: "Under what circumstances the death had been caused and what is the effect"? On this issue Mr. Mansoor Ahmed Khan had first argued that the principle laid down in the English case of Rylands v. Flectcher reported in (1866) L.R. 1 Ex.265 would be applicable. In that case the defendants got made a reservoir on their land through an independent contractor. When the reservoir was filled, the water escaped through an old disused mine under the plaintiff's land into the plaintiff's mine and flooded it. The plaintiff took action against the defendants claiming damages. On appeal in the Court of Exchequer Chamber, the defendants were held liable on the basis of the rule of absolute liability. This rule enunciated in the judgment of Blackburn, J., which is now universally known as the rule of absolute liability laid down in Rylands v. Fletcher was subsequently approved by the House of Lords. The famous passage from the judgment of Blackburn, J. Is quoted here:--- "We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damages which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs' default; or perhaps that the escape was the consequence of vis majure, or the act of God." For this rule of absolute liability laid down in Rylands v. Fletcher to apply it is required that the escape of the dangerous thing must be not only from the control of the person who keeps it but must also be an escape to some other place not subject to his control. Mr. Mansoorul Arfin, counsel for the defendants, had contended that in the instant case there had been no escape of electricity from the defendant's factory as the accident had taken place inside the factory. I agree with learned counsel for the defendants that, as there was no escape of electricity from the defendants' factory and the electrocution of the deceased took place inside the factory, the rule of absolute liability laid…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.