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Petitioner: KANEEZ BEGUM VS Respondent: KARACHI ELECTRIC SUPPLY CORPORATION through JUDGMENT
Court Name: Sindh High Court Judge(s): Anwar Mansoor Khan Title:KANEEZ BEGUM vs KARACHI ELECTRIC SUPPLY CORPORATION through
JUDGMENT
Reported As: 2001 CLC 875 Result: Suit decreed Judgment JUDGMENT The brief facts of the case are, that the suit was filed for recovery of Rs.15,50,000 against the defendant, under the Fatal Accidents Act, 1855 on account of death of the son of the plaintiff namely, Muhammad Rehman aged 11 years who died on 29-5-1996 on account of electric shock caused to him when he came into contact with an energized pole erected on Street No.3 Mustafa Taj Colony Korangi, Karachi. 1. It is the case of the plaintiff that the electricity is supplied by Karachi Electric Supply Corporation, a statutory body/Corporation responsible for supplying electricity to Karachi as, it is their job to look after, construct, maintain and keep the citizen safe from electrical current A from any of their installations. It is the case of the plaintiff that electric poles on which the live wires are erected are liable to be insulated in the proper manner so that the electrical current passing through the wires do not energize the poles. 2. It is the case of the plaintiff that sometimes in the last week of May, 1996 all the electricity poles maintained and erected by K.E.S.C. in Gali Nos.2 and 3, Mustafa Taj Colony Korangi, Karachi were energized due to lack of maintenance, defect/operational fault. It is stated that the people from the area complained to the complaint center on 29-5-1996 but, the K.E.S.C. failed to rectify or take precautionary measures to curb the danger involved. It is stated that K.E.S.C. neither reached nor bothered to go, to do the needful. It is on the same day, whilst the deceased Muhammad Rehman, a boy of 11 years while coming to his house passed through Gali No.3, Mustafa Taj Colony, Korangi, Karachi on bicycle, unaware of the prevailing danger, came into contact with the energized pole which was due to the negligence of K.E.S.C. the defendant. Upon coming into contact with the pole,
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the said boy fell down speechless alongwith the pole. After the incident, one Aslam and Javed of the area, managed to isolate him from the energized pole, with the help of the wooden planks. The said deceased was taken to the Sindh Government Hospital, Korangi, where he was declared dead, on account of electric shock. It is, therefore, the case of the plaintiff, that the death was caused due to the negligence, default and wrongful act of the defendant who had failed to take adequate measures to curb the danger that prevailed in the said Mohallah. 3. On account of the above, it is stated that a legal notice of 13-2-1997 was served upon the defendant. In the said legal notice the plaintiff had claimed a sum of Rs.2 million for pecuniary loss caused by the negligence of the defendant. 4. The plaintiff had stated the deceased Muhammad Rehman was of 11 years and was healthy and of simple habit and was expected to survive to the age of 70 years on account of his sound health. In view of the above, in the suit a sum of Rs.15,50,000 has been claimed stating that, the young boy had started, at that tender age selling various commodities and was expected to set up his own stall of fruit etc. whereby he would earn reasonable profits. 5. The defendants filed their written statement, in which they have taken preliminary objections as to the non-maintainability due to the non-joinder of National Insurance Corporation, and that the plaintiff has no locus standi in the present suit. However, on merits, the contents of the plaint have mostly been denied. It has been stated that there was a general complaint regarding leakage of electric current that had been lodged by Mr. Zulfi at 13-40 hours on 29-5-1996 at the complaint center of K.E.S.C., however, no specific pole number etc. had been given in Sector 43-A, Mustafa Taj Colony, Korangi, Karachi. It is their case that upon receipt of the complaint a lineman immediately went there who attended the complaint and on his going there on ground he found that there was no sign of current leakage. The defendant has stated that the entire story that had been narrated is concocted, incorrect and fabricated and that in fact, the residents in that area generally place illegal hooks/jumpers (commonly known as "Kundas") on the mainline and draw electricity from such lines directly so as to avoid payment of electricity charges. It is the case of the defendant that it is because of this unlawful and unauthorized linkage to the electricity wires that, such a position could occur and such leakage could be there, on account of entanglement on the various live wires having touched to the said main lines. It is stated in the written statement that the deceased might have touched the pole and expired due to the electrocution. However, it was not on account of the negligence on the part of the defendant as the defendant rectified the pole immediately on receipt of the complaint. The entire emphasis has been laid on the generality of knowledge of the unlawful connections (Kundas) system, which, is stated to be the cause for the electrocution. It is stated that, because of such unlawful activity and because the residents of the area do not remove the same, it is the residents who should penalize rather the defendant. It is stated that the defendants are only responsible to repair the broken wires and such other duties as that may be required to perform and K.E.S.C. is not responsible for authorized acts, and by law are not liable to compensate and make good the loss, thus, caused. The defendants have denied that they are liable to make any payment under the Fatal Accidents Act. Following consent issues were filed by the parties:-- (1)Whether the deceased Muhammad Rehman died on 29-5-1996 due to electric shock owing to negligence, default and wrongful act of the defendants, if so, its effect? (2)Whether the defendant is liable to pay compensation to the plaintiff, if so, to what extent? 6. Evidence was led by both the parties. The plaintiff examined herself and one Abdul Sattar. The said plaintiff has produced death certificate of the deceased Muhammad Rehman aged 11 years issued by the Sindh Government Hospital, Korangi wherein the cause of the death has been shown as electric shock as Exh.P.2. She has also produced the notice sent to the defendant as Exh.P.4. In her affidavit-in-evidence, the contents of the plaint have been narrated and has claimed a sum of
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Rs.15,50,000 as damages/compensation on account of the fact that the said Muhammad Rehman was expected to survive upto the age of 70 years. She has stated that her age is 38 years and she could have derived personal benefit to the extent. She has calculated the said amount in the affidavit to reach the aforesaid figure. I had asked Mr. Nasir Maqsood to draw out the detailed statement in accordance with the evidence that has been led. Such statement has also been filed today. The plaintiff was cross-examined. In her cross-examination she has stated the fact that the deceased Muhammad Rehman died of electric shock coming into the contact with the electric pole. She stated that she was in the house when the incident took place when one Abdul Sattar came and informed her of the incident. She stated that when she came out the said boy was brought in an unconscious state. On examination she stated that there were no Kundas installed in the Mohlla on the poles specifically the offending pole. 7. In the affidavit filed by Abdul Sattar, the person who had informed the plaintiff, has reiterated the entire incident, and such is in line with the statement of the plaintiff in the plaint and her evidence. It has categorically been stated that the pole was energized and that the said boy Muhammad Rehman coming into contact with the said pole got energized with heavy load current and fell down on the ground. He stated that the said boy was removed by wooden planks and ropes from the poles, where after he was evacuated to the Government Hospital, where he was declared as dead due to severe electric shock. He said that it is after 2 days that the K.E.S.C. dispatched their patrolling staff who came to the residence of the plaintiff and condoled the death of her son and departed after noting down the particulars of meter, house number and name and address of the residents. To show that there was 'proper electricity connection in the area, the said witness has also filed a bill of electricity in which amounts payable for use of electricity have been shown and paid. 8. The defendants examined two of their employees the first being one Mahfooz Khan, a service attendant and the other being Aijaz Ali, Electrical Engineer as their witnesses. In the affidavit-in- evidence filed by the said Mahfooz Khan, it is stated that mother of the deceased informed that due to the Kunda affixed on the poles current had reached the bottom of the pole and he said that, therefore, it is not the fault of the K.E.S.C. He has not denied the death of the boy due to the current by the energized pole. The death has not been denied, the cause of the death has not been denied. The only denial is that of the negligence on the part of the K.E.S.C. In the cross-examination he stated that the people in general use Kundas in Korangi and this is a practice for the last 10 years. He admitted, therefore, that he knew all these facts since long. He stated that he received 22 complaints in the month of May, 1996 in respect of faults in poles pertaining to Mustafa Taj Colony, Korangi, Karachi and on average two to four complaints are received in respect of faults of poles. He stated that maintenance is done each year and that maintenance basically includes checking and inspection of safety wire, guard wire etc. He was asked as to what guard wires were. He said that the guard wires are installed on poles to prevent the poles from being energized in case of touching of any wire/hook to the poles. By this it is suggested that each pole is required to have a guard wire and that, in case a live wire comes into contact with a pole the pole would not be energized. Therefore, it would mean that where the live electric wire comes into contact with the pole without a guard wire the same could be energized. He stated that the detail in respect of the installation of Kundas as also hooks if found on the poles are kept by the maintenance department in writing and he had no concern with the same. He stated that the complaint slip produced by him alongwith the affidavit-in-evidence is not in his handwriting nor does it bear the signature of the consumer. He stated that he is not aware of any incident which occurred in Mustafa Taj Colony, Korangi, Karachi in May, 1996, nor did he attend the plaintiff Mohallah at the time of electrocution. He is, not also aware of the Kundas/hooks installation at the Mustafa Taj Colony, Korangi, Karachi. He is also not aware of the incident of electrocution resulting in the death of Muhammad Rehman
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on 25-9-1996 in Gali No.3, Mustafa Taj Colony, Korangi, Karachi after coming into contact with the energized poles. He, however, said that K.E.S.C. is not liable and there is no negligence on the part of K.E.S.C. 9. Affidavit-in-evidence filed by Aijaz Ali basically stated the same, that, the electric poles are energized because of the unlawful Kunda system and has said that, because they could not go there, therefore, meter reading could not be taken and that, because of the direct system the people of the Mohallah. are liable to suffer. He has produced as Annexure "B" to his affidavit one bill of one Abdul Sattar of House No.223 of Sector 43-A, Mustafa Taj Colony, Korangi, Karachi in which it is written that the bill is on average due to hook connected directly. He has also produced various photographs to show that there is in general, a Kunda system in the area. He also denied that there is any liability of the K.E.S.C. and that it is the people who are liable. In the cross-examination it has been stated that he was posted in Korangi from February, 1997 and that he was not the signatory of the written statement and was personally not conversant with the facts of the case of the accident. He stated that photographs that have been filed alongwith the affidavit were taken in May, 2000. He has given details as to how the complaint is activated and acted upon and said that according to him those linemen and staff who attended the complaint are still in the employment of the defendant. In cross-examine, he stated that the K.E.S.C. has its own police station and that, immediate action is taken against the person using Kundas/hooks/jumpers in the area. He also stated that the K.E.S.C. conducts annual/periodical routine inspection/maintenance of electric installation including wires and poles and in the event inspection team finds Kundas/hooks a comprehensive report is sent to the maintenance department and action is immediately taken for removal of the same. He, however, stated that it is in the knowledge of the defendants for about 15 years that the people are using Kundas in Karachi. He also admitted the fact that despite their knowledge the K.E.S.C. has not pointed out any Kunda/hook installed in Mustafa Taj Colony, Korangi, Karachi or any instruction for its removal. He also stated that no F.I.R. or complaint has been made to the police department in this respect. He has stated that "it is incorrect to suggest that the deceased Muhammad had died due to illegal Kunda system or theft of electricity. I have only enclosed alongwith affidavit-in-evidence snaps and , bills of K.E.S.C.". The cause of the death and the factum of the death have been pleaded. The evidence of the plaintiff as also the plaintiff's witness is on record giving the fact of death and cause thereof. It is the case of the plaintiff that, the death is not denied. The cause of death is not denied. The place of death is not denied. In the circumstances, the onus of proof shifted on the defendants to show that it is not due to their negligence that the death occurred. It is the case of the plaintiff that the electricity poles were that of the defendants and it is they who knew the dangers of it being electrocuted/energized. It is the defendants who should have maintained them as such the defendants are liable to compensate the defendants. He said that as a general rule it is upon the plaintiff to prove negligence and not for the defendant to disprove it, but in those cases where the true cause of death lies solely within the knowledge of the defendant, this hardship is avoided by invoking the rule of res ipsa loquitur, which means "Things speak for themselves". He has relied on innumerable judgments in which cases the following has been held:-- In the case of Mst. Kamina v. Al-Amin Goods Agency, reported as 1992 SCMR 1715, it was held that:-- "In the cases under Fatal Accidents Act, 1855 general rule is that burden of proof with regard to negligence is on plaintiff to prove negligence and not for the defendant to disprove it but in cases where true cause of accident lies solely with the knowledge of defendants then this hardship is avoided by invoking the rule of res ipsa loquitur (the thing speaks for itself). In such circumstances where accident speaks for itself, it is sufficient for plaintiffs to prove the accident and nothing more. It is then for the defendants to persuade the Court that the accident arose not through their negligence. In support of this proposition, reference can be made to the case of Ursulina D'Lima
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and others v. Orient Airways Limited and another PLD 1960 Kar. 712 in which case-law on the subject is aptly discussed. It was held in that case that it could not be ruled out that plane met with the disaster for the aforesaid defect and the defendants should have proved that there was no inherent defect in the machinery of the aircraft." In the case Pakistan Steel Mills Corporation Ltd. v. Malik Abdul Habib reported as 1993 SCMR 848, it was held that:-- "Res Ipsa Loquitur means that the things speak for themselves. This doctrine applies firstly, when the thing that inflicted the damage was under the sole management and control of the defendant and secondly that occurrence is such that it would not have happened without negligence and thirdly, that there must be no evidence as to why or how the occurrence took place. In such circumstances defendants have to persuade the Court that accident did not occur on account of their negligence. In this context evidence is evaluated by the Division Bench of the High Court in appeal and relevant paragraph from the impugned judgment is reproduced as under-- We have further noted that Exh.5/4 is supported by the evidence of D.W.1 who stated that while painting the deceased asked the crane to be lifted upwards and all of a sudden the boom fell down. This shows that when the deceased asked to lift the crane upwards appellant No.2 must have started operation. The possibility of wrong operation causing the accident cannot be ruled out particularly as the appellants have not offered any explanation for the alleged mechanical failure of the elevator. Nor have they given any reason for this failure'. We are in agreement with finding of the Division Bench of the High Court on appraisement of evidence on the question of negligence for which defendants in the suit are liable as stated above. In connection with doctrine of res ipsa loquitur our attention has been drawn to the case of Qazi Arifuddin and another v. Government of Sindh through Secretary, Ministry of Health and others PLD 1991 Kar. 291 in which it is held by a learned single Judge of High Court of Sindh that in suit for damages in accident cases normally the rule is that it is for the plaintiff to prove negligence. In some cases this principle may cause hardship to plaintiffs because it may be that true cause of accident lies solely within the knowledge of defendants who caused it. This hardship is, however, avoided to a considerable extent by the maxim res ipsa loquitur. This maxim means that an accident may by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other cause and in such a case mere fact of the accident is prima facie evidence of such negligence. We agree and approve the explanation given by the High Court of res ipsa loquitur. In the present case we are satisfied that the maxim has been applied by two forums in the High Court correctly and appropriately." In the case of Kulsoom v. Jalil Ahmed Khan reported as PLD 1964 Kar. 72 it has been held that:-- "It thought that their liability could, therefore, be judged by applying the principle of res ipsa liquotur; that is to say, by examining whether the accident itself indicates the negligence of the driver or not. The principle has been explained by Salmond in his work on Torts at page 451 (Edn. XIII) as follows-- 'The rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases of considerable hardship to the plaintiff, because it may be that the true cause of the accident lies solely within the knowledge of the defendant who caused it'. The plaintiff can prove the accident, but he cannot prove how it happened so as to show its origin in the negligence of the defendant. This hardship is avoided to a considerable extent by the principle of res ipsa loquitur. There are many cases in which the accident speaks for itself, so that it is sufficient for the plaintiff to prove the accident and nothing more. He is then entitled to have the case submitted to the jury, and it is for the defendant, if he can persuade the jury that the accident arose through no negligence of his. The maxim res ipsa loquitur applies whenever it is so
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improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused." Clark and Lindse11 have explained the doctrine in their book on Torts Edn.XI, at p.399 as follows:-- "If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. The'doctrine applies (1) when the occurrence suggests, as a matter of reasonable inference, that it was the result of the negligence of the defendant or of someone for whose acts or omissions he is responsible, (2) the cause of the occurrence is unknown, and (3) the presumption of negligence raised by the occurrence is not rebutted by any explanation based on additional facts proved." In the case of P.I.A. v. Ursulina D.Lima reported as PLD 1966 Kar. 580, a Division Bench of High Court observed that:-- "It is as it ought to be, because the doctrine of res ipsa loquitur does not embody an entirely new and independent principle of law but is derived from the body of considerations that apply to cases of negligence. The convenient and succinct formula, said Morris, L.J. possesses no magic qualities; nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin. It is only a convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant without having to allege and prove any specific act or omission on the part of the defendant." The expression res ipsa loquitur means; the things speaks for themselves. "The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of some one for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition; (3) there must be no evidence as to why or how the occurrence took place." Page 796 by Clark and Lindsell, 12th Edn. It is not necessary for shifting back the burden of proof or rebutting the presumption that the actual manner and cause of the accident be established by him who is taken to have been negligent. That would be asking for an impossibility when the necessary information is lacking. On the contrary shifts in the burden of proof follow the line of probabilities, therefore, the presumption can be dislodged by offering any plausible explanation which attributes the accident to some other cause than negligence Woods v. Duncan (1)" In the case of Nasreen v. Quality Steel and others reported as PLD 1981 Kar. 561, it was held that:-- "In my view in cases of this nature a duty is cast on the employer to use reasonable care in keeping its machinery, the use of which might otherwise be dangerous to persons in its employment in proper condition and free from defect. The evidence adduced by the plaintiffs in this case and the admitted circumstances of accident are sufficient to show that the cause of accident was some defect of mechanical nature in the crane. The causes of accident in such circumstances will be deemed to be primarily in the knowledge of defendant 1, who was responsible for keeping the crane in good working condition free from defect. In these circumstances the burden of showing the exact nature of defect in the machine and negligence of defendant No.1 cannot be thrown entirely on the plaintiffs as maxim 'res ipsa loquitur' would apply which shifts the burden in such cases on the defendant to prove that the accident did not arise on account of any negligence on their part or defect in the machine. The fact that the cause of accident is unknown is by itself not sufficient to prevent the plaintiffs from recovering damages if the proper inference can be drawn from the circumstances which are known that it was caused by negligence of the defendant. The
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snapping of the wire rope of the crane during its operation and falling of the load from a crane are itself sufficient circumstances to show that the crane used by defendant 1 was not free from defect as ordinarily the wire rope of a crane while lifting a load will not get snapped and throw away the load. It cannot be denied that the responsibility of keeping the crane in good condition and working order was on defendant No.l. It also cannot be disputed that the accident of the kind in,which the deceased died cannot take place in ordinary course of working of a crane unless some defect of a mechanical nature is present there. These circumstances and the evidence recorded in the case afford reasonable grounds in the…
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