BASHIRAN Versus PAKISTAN

1. MUHAMMAD YAQUB ALI, C. J .-This appeal by special leave of the Court calls in question the judgment passed by a Division Bench of the Lahore High Court on 29-11-1971 affirming the judgment and decree passed by the Civil Judge dated 28-11-1964 whereby Civil Suit No. 65/1 instituted by the appellant against Pakistan and others for recovery of compensation for the demise of their predecessor-in-interest Muhammad Nazir, a Railway employee was dismissed.

2. The suit was filed by the appellants on 19-3-1963 claiming compensation in the sum of Rs. 69,085 as heirs of Muhammad Nazir, a Steam Engine Fitter in the Loco Shed who met an accident while engaged in fixing iron sheets on the roof of a newly constructed Battery Charging Room in the Loco Shed. He was getting down after fixing the sheets when his foot slipped from the ladder and he fell on the ground suffering a head injury which proved fatal. The claim in the suit proceed on the ground that the job of fixing iron sheets on the roof of the Battery Charging Room was outside the charter of his duties and his superior officers had failed to provide sufficient safety measures to avoid the accident. The suit was resisted by the defendants giving rise to the following issues:----

(1) Whether the work which the deceased was doing was included in his duties. If so, what is its effect. (O. P. D.) Onus objected.

(2) What precautions the defendants had taken to eliminate the chances of accident. (O. P. D.) Onus objected to.

(3) To what compensation the plaintiffs are entitled. (O1P. D.).

(4) Whether plaintiff No. 5 has no cause of action. (O. P. D.) Onus objected to.

3. Both sides led evidence oral and documentary. In its light the trial Judge found issues 1, 2 and 4 in favour of the defendants and dismissed the suit without adjudicating upon Issue No. 2.

4. A Regular First Appeal was thereupon filed by the heirs of Nazir Ahmad in the High Court which, as mentioned above, was dismissed by a Division Bench on 17-6-1970 affirming the findings recorded by the trial Judge on Issues 1, 2 and 4.

5. Leave to appeal was granted on 3-7-1972 to consider the pleas that the deceased was, on 19th November 1961, assigned the duty of fixing iron sheets on the roof of the newly constructed Battery Charging Room in the Loco Shed against the Regulations and that Courts below had omitted to notice evidence placed on the record which amply proved that the defendant was guilty of negligence in not providing sufficient safety measures to avoid the accident which resulted in the death of Muhammad Nazir.

6. We regret to say that an exhaustive examination of the record has not borne out either of the contentions raised in the appeal.

7. It is not denied that Nazir Ahmad died while engaged in performing the duty assigned to him by his superior officers. A sum of Rs. 6,000 was accordingly awarded by the Workman Compensation Court to the plaintiffs for the loss of his life though they have not chosen to accept it. On the contrary they laid claim to payment of Rs. 69,085 as compensation under section 1 of the Fatal Accidents Act, 1855 which provides--

8. "1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party, who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circums tances as amount in law to felony or other crime.

9. 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 or the person deceased; and 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 amongst the aforementioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct "

10. To attract the application of section 1 of the Fatal Accidents Act it must firstly be proved that assignment of Nazir Ahmed to fix iron sheets on the roof of the Battery Charging Room in the Loco Shed was a wrongful act. According to the appellants the deceased was a Steam Engine Fitter and his duties were confined to maintenance of engines, repairs to engines; maintenance of machinery, etc. Reference was made to Chapter 2 of N. W. R.Y Mechanical Manual (1935 Edn.) at pages 4 and 5 in which the duties of a chargeman are specified. It was admitted by a witness produced by the defendants that the duties of a Fitter are identical. The fixing of iron sheets in the roof of the Battery Charging Room in the Loco Shed is not covered by any of the items in the duties specified therein but it does not follow that Nazir Ahmad could not be asked to undertake any other job which required the skill of a Fitter. The assignment of a job to Muhammad Nazis which was not included in his routine duties was, therefore, not a wrongful act on the part of hi" superior officers.

11. The word 'wrongful' has the connotation of doing something which is in breach of a duty imposed by law. The assignment in the present case would have amounted to a wrongful act only if there was a legal bar to assigning to a railway worker a job which he is competent to undertake, but is not included in the charter of his normal duties. The learned counsel was unable to point out any such provision in the Railway Act or the ,North Western Railway Manual except clause (g) of rule 1 in Chapter II which makes locomotive shed foreman responsible for accurate posting of and regular, employment of staff on legitimate duties only.

12. It is in evidence that Nazis Ahmad was a qualified Fitter. The job of fixing nuts and bolts in the iron sheets on the roof of the Battery Charging Room was thus included in his trade. His competence to undertake the job was by no means decreased on account of his employment in the Steam Engine Section of the Loco Shed. It can reasonably presumed that the basic qualifications of a Fitter in Steam Engine Section and the Works Section in the Loco Shed are the same and not different from each other. The plaintiffs were conscious of this legal position and therefore did not claim that the assignment of Muhammad Nazir to do a job which was not included in the charter of his duties was' a wrongful act per se. In addition to it they relied on the alleged negligence on the part of the superior officers of Nazir Ahmad to provide safety measure which would have avoided the accident.

13. According to the evidence led by the appellants, Muhammad Nazir had completed the job and was climbing down the wooden ladder when his foot slipped and he fell from a height of 19 feet suffering head injury which resulted in his death. It is stated by one of the defendants evidence that it was a movable ladder. It meant that the ladder could be moved from one place to another and not that the ladder was hanging in the air. In any case there is no averment in the plaint or statement by any witness that there was any defect in the ladder. It did not move, snap or give way while Muhammad Nazis fixed the iron sheets or while he was climbing down. On the contrary the plaintiff's own witnesses have stated that as Muhammad Nazir was climbing down his foot slipped and he fell down. The slipping of the foot is not associated with any defect in the ladder or the position in which the ladder was fixed. It cannot, therefore be said that the superior officers of Nazir Ahmad were in any manner negligent within the purview of section 2 of the Fatal Accidents Act in providing safety measures which would have avoided the accident resulting in his death.

14. Nor can the unfortunate accident be attributed to the job on which Nazis Ahmad was employed outside the charter of his duties. Had he fallen down while engaged in fixing the iron sheets on the roof of the Battery Charging Room it could at least be argued that the accident was the result of his assignment on a job which was outside the charter of his normal duties. A nexus could then be established between the assignment, of the job and 'the accident. However as we know the job had been completed and Nazir Ahmad was climbing down when his foot slipped and he fell down.

15. In the circumstances we are constrained to hold that the appellants have failed to make out a case for payment of compensation under the Fatal Accidents Act. The appeal accordingly fails and is dismissed.

16. The suit in the Court of the Civil Judge; the appeal in the High Court; and the petition for Special Leave to Appeal in this Court was filed in forma pauperis. In the circumstances of the case we direct that the parties shall bear their own costs throughout and no steps shall be taken to recover from the plaintiffs the stamps duty payable on the plaint in the original Court; the memorandum of appeal in the High Court and the Petition for Special Leave to Appeal in this Court.

17. NIUHAMMAD GUL, J .-I agree.

18. MUHAMMAD AKRAM, J .-I agree.

19. S. A. H. Appeal dismissed.