KANDAN Versus HAYAT SERVICES (PAKISTAN) LTD.

1. This suit for the recovery of Rs.6,00,000 under Fatal Accident Act, 1855, is filed by the plaintiff, who is father of deceased Subra Manium who was employee of the defendant in Hotel Mehran and died on 18‑2‑1985 due to the accident caused by the burns in the kitchen of the defendant due to negligence of the defendant. It is alleged that on 15‑2‑1985, while the deceased was on duty in the hotel, he was forced by the Cook to put out the burning flame of the gas stove, which was getting momentum in spite of his refusal and during the process he was caught by the gas flame and his body caught fire but none came to his rescue. He was taken to Jinnah Hospital where he died or 18‑2‑1985. It is further averred that the deceased was a young man aged 18 years at the time of his death and was getting Rs.550 per month from the defendant. He further used to earn Rs.600 per month by doing other private work. It is further contended that the deceased had intended to go to Middle East within 2‑3 months and would have earned Rs.6,000 per month in the Middle East. The deceased was unmarried. He used to spend Rs.100 per month on his person and give the rest for the maintenance of his father and mother.

2. The plaintiff has claimed Rs.6,00,000 on account of damages and compensation and further claims interest at the rate of 15 per cent per annum from the date of the filing of the suit.

3. The suit was decreed ex parte against the defendant for Rs.3,00,000 by this Court on 10‑2‑1987, but by consent the ex parte decree was set aside and the defendant was allowed to file written statement.

4. In the written statement the defendant admits that the deceased was employed in Hotel Mehran and that he died of burn on 18‑2‑1985. However, it is denied that the accident was caused by any default or neglect of the defendant or any of its employees. The age of the deceased is also denied to be 18 years. It is contended that the duties of the deceased did not require him to be in Kitchen especially at about 1‑00 p.m. and that the deceased of his own free will was loitering around the Kitchen. When the Cook Hyder Zaman was in the process of burning charcoal in the sigree to prepare 'Tikka' the deceased volunteered to burn the charcoal. It is further contended that the deceased without taking any precautionary measure and without consulting anybody negligently continued to pour kerosene oil on the already ignited Charcoal by holding the tin of kerosene in his hand which caught fire engulfing the deceased, who died subsequently of the burns. It is further contended that the Defendant's Management gave prompt medical care to the deceased and immediately rushed him to the Jinnah Hospital. It is denied that the deceased was asked or forced to put out any burning flame of gas stove or that the burn was caused by gas flame. It is also contended that the salary of the deceased was Rs.380 per month and not Rs.550 per month. It is also averred that the Plaintiff was not co‑operating with the Defendant to obtain the compensation of group insurance and social security by refusing to fill the necessary form. It is further contended that the Plaintiff has no cause of action and the defendant is not liable to pay any compensation.

5. On the pleading of parties the Court framed the following issues:‑

(1) Whether the death of the deceased Subra Maniam was caused by the negligence and default of the defendants 'the employees of the said deceased or the deceased himself

(2) Whether the defendants are liable to pay compensation /damages to the Plaintiff ?

(3) What should be quantum of damages ?

(4) Whether the plaintiffs are liable to cost and interest ?

(5) What other relief the plaintiff are entitled to ?

(6) Whether the deceased had the last opportunity of avoiding the accident and if so, whether the deceased was guilty of contributory negligence ?

(7) Whether the dependents of the deceased can be adequately compensated under the Defendant's Group Insurance Scheme and Government's Social Security Scheme? If so, what would be the effect ?

2. Issue No.l.

3. The fact that the death of the deceased was caused due to burns as a result of his having caught fire in the Kitchen of Hotel Mehran is not disputed. According to the Plaintiff Kandan, the deceased caught fire as he had been sent to extinguish the fire on 8th Floor.

4. It may be pointed that the father of the deceased was not present at the time of the accident which took place in the hotel of the Defendant. The only persons who did or could have witnessed the incident were the employees of the Defendant. As pointed above in the written statement the Defendant has given description as to how the deceased caught fire. It is also further alleged by the Defendant in the written statement, that the deceased caught fire due to negligence on the part of the deceased. Ordinarily the burden of proof is upon the Plaintiff to show that the deceased had died due to any act of negligence on the part of the Defendant. In the instant case, in view of the particular circumstances of the case and in view of the averments made by the Defendant, the burden shifts to the Defendant.

5. The plaintiff has also examined P.W. No.2 Abdul Zubair (Ex.6), who at the relevant time was Steward in the Hotel Mehran. He has stated that he did not see how the deceased got injuries, but he learnt from other workers that the deceased got injuries from the Sui‑gas burner. He has further stated that he saw the deceased in the Kitchen on 8th Floor of the hotel and from there he took him to the. Hospital and that there were Sui‑Gas burners in the Kitchen. He has further stated that the incident happened in the Kitchen and not on the Ground Floor where Kabab is prepared and that Hyder Zaman does not prepare Kabab, but cooks the food. He further states that the deceased was completely burnt.

6. These averments made by the witness in his examination‑in‑chief are not specifically challenged in his cross‑examination. However, he has denied the suggestion that the deceased was not on duty at the relevant time of incident or that he had voluntarily gone up to put Kerosene oil on the burner, when he was burnt. It may be noted that he has not been asked as to whether the deceased put kerosene oil on the charcoal, but has been suggested that the deceased put Kerosine oil on the burner. This witness has denied the suggestion that there was any space adjacent to the restaurant assigned for preparing Tikka and Kabab with charcoal. He has, however, admitted that he was charge‑sheeted by the defendant and was dismissed. His evidence as to what he heard immediately at the time of the incident would be admissible even if it is hearsay under the principle of 'res gestae'. In this context illustration (a) of section 6 of the Evidence Act, 1872 would be relevant which reads as under:‑

7. "(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."

8. The evidence of this witness that he learnt from other workers that the deceased had received burn injuries from the Sui‑Gas burner is not challenged in his cross‑examination.

9. As against this evidence of the plaintiff as to the cause of the accident, the defendants have examined D.W.No.l Syed Altaf Sajjad (Ex.8), who was Assistant Manager in the hotel: He is also not eye‑witness to the incident, but states that people had informed him that the deceased was burnt and then he took him to the Hospital. He states that after he came back he made enquiries and according to the enquiry and information Haider Zaman was preparing Tikka and that he went inside when he heard cries and came out and saw that the deceased was holding tin of kerosene oil and there was flame.

10. The evidence of this witness would show that he did not immediately came to know as to how this incident took place, but he received this information much later when he made enquiries. He is not clear as to from whom he made enquiries or that he even made enquiries from Haider Zaman. He admits that he did not make enquiries in writing or submitted any report in writing. He has also admitted that at the relevant time Haider Zaman was working in the main‑kitchen.

11. The other witness examined by the defendant is D.W. Haider Zaman (Ex.9). He has made conflicting statement. He states that at time Tikka was prepared on 8th Floor outside the kitchen and at the time of incident he was not present there, but was inside the kitchen. He further states that at that time he was preparing Tikka, but had gone there to put Tikka in the washing machine and when he was going to wash Tikka, in the meantime he saw the deceased pouring kerosene oil on the Sigree and he asked him not to do it, but he did not desist and he caught fire. In his cross‑examination he again says that he did not see the incident himself. He has admitted in his cross‑examination that in the Kitchen food is prepared on the Gas‑stove. He has denied the suggestion that the deceased was asked to extinguish the gas burners and therefore he caught fire.

12. The evidence of this witnesss does not inspire confidence and appears to be contradictory. He states to have seen the deceased pouring kerosene oil on the digree and catching fire but again says that he did not see the incident. In fact from his evidence it cannot definitely be said as to how the deceased caught fire.

13. The third witness examined by the defendants is Ashraf Essai, Personnel Manager of the Defendant. He also does not throw any light as to how the incident took place. He only states that according to his information, the deceased died due to his negligence.

14. As already pointed out, the facts and circumstances of the case show that the defendant was in a better position to know as to how the incident took place, and that the plaintiffs witness could not be expected to be present there. In such situation the principle of res ipsa loquitur is applicable which has been explained by Salmond in his work on Torts at page 451 (Edn. XIII) as follows:‑

15. "The rule that it is for the plaintiff to prove negligence, and not for the defendant to disprove it, is in some cases one 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.

16. 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. The 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 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."

17. Clerk and Lindsel have explained the doctrine in their book on Torts (Edn.XI), at page 399 as follows:‑

18. "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‑ oquitur 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 ommissions 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."

19. In the circumstances of the case, as already pointed the accident viz. the death of the deceased due to burns in the hotel is admitted. This hotel Mehran is a residential hotel where number of people come to stay and in which there are number of employees. Food appears to be cooked in this hotel, for the indoor guests as well as for the customers coming to the hotel, on gas as well as on charcoal. In the circumstances the duty is cast upon the management of hotel to adopt such measures so as to protect persons staying in the hotel, customers coming to the hotel and the employees of the hotel from the effects of the fire. The defendant categorically contends that the death was caused due to negligence of the deceased as he was pouring kerosene oil on the charcoal. Under the circumstances, as already pointed the burden shifts upon him to prove such negligence on the part of the deceased and prove as to how the incident took place.

20. I have already discussed the evidence produced by the parties. The only eye‑witness to the incident examined by the defendant viz. Haider Zaman, does not appear to be coming out with the true facts. The evidence of D.W. Abdul Zubair that he learnt from workers that the deceased received burns injuries from Sui‑Gas burners, is admissible under the principle of res gestae, whereas the evidence of D.W. Syed Altaf Sajjad, as to what he was told in subsequent enquiry and information, would not be admissible under the same principle. Thus, the only conclusion that can be drawn is that the deceased received burns from the Sui‑Gas bruners. The fact that the defendant is trying to suppress this fact and the fact that no evidence has been produced to show that there was no defect in the Sui‑Gas burners raises presumption that the defendants had neglected to keep the Sui‑Gas burners in proper order which consequently caused the death of the deceased.

21. Learned counsel for the defendant Mr. Iqbal Bawany has relied upon P L D 1965 (W.P) Kar. 59 wherein it is held that "in the suit for damages on the allegations of negligence on the part of Defendant it is for the plaintiff to show whether there was any negligence on the part of defendant on account of which the plaintiff would be entitled to any damages."

22. The facts of the reported case are, however, distinguishable from the facts of this case, as in that case the plaintiff was not even sure as to whether it was negligence of the defendant No.l or defendant No.2 which caused the death. It may also be pointed that in the reported case none of the defendants was employee of each other.

23. Mr. Iqbal Bawany has contended that if at all the deceased had died because of negligence of any person, it will be Cook Haider Zaman and not the defendant and that this Cook Haider Zaman was not acting in the discharge of his duties when he asked the deceased to pour kerosene oil on the charcoal.

24. The plaintiff has neither in the plaint nor in the evidence of their witnesses alleged that Haider Zaman had asked the deceased to pour kerosene oil on the charcoal. This fact is not even proved from evidence produced by the defendant. As already pointed the defendant's witnesses do not state to have seen the incident and Haider Zaman does not admit to have asked the deceased to pour kerosene oil on the charcoal. I have already held that from the evidence on record, the death of deceased does not appear to have been caused by the charcoal fire but appears to have been caused' by burns caused by gas‑flame.

25. In my opinion, in view of the above discussion, the death of the deceased was caused due to negligence and default of the defendants and their employees.

26. Issue No.6.

27. The burden of proof of this issue was upon the defendants and there is no satisfactory evidence to show that the deceased had lost opportunity of avoiding accident or that he was guilty of contributory negligence.

28. In view of my finding on Issue No.l my finding is in negative on this issue.

29. Issues Nos. 2,_3 and 7.

30. In view of my finding on Issues No.l and 6, the defendants) are liable to pay the damages to the plaintiff.

31. According to the plaintiff's witnesses Kandan and M.A. Ratan, the deceased was getting Rs.550 per month from the defendant and he used to do private work and earned about Rs.550 or 600 per month more. This evidence does not appear to have been rebutted by the defendants. The defendants do not claim that the deceased was their full time employee. Rather they claim that at the time of the incident, he was not on duty. As such the evidence of the plaintiff and his witness that the deceased was doing other work also privately, does not appear to be improbable.

32. According to the defendant's witnesses D.W. Altaf Sajjad and Ashraf Essai, the deceased was getting Rs.380 per month from the Hotel. D.W. Ashraf Essai has also produced the letter of appointment (Ex.10/2) to show that his pay was Rs.380 per month. D.W. Haider Zaman is silent as to the pay of the deceased whereas P.W. Abdul Zubair, who was also employee of the defendant states that the deceased was earning Rs.550 per month and that minimum wages in the hotel were Rs.500 per month. As already pointed this evidence of the witness is not challenged in the cross‑examination. Keeping all this evidence produced by the parties in view, in my opinion, the monthly income of the deceased can safely be assessed at Rs.1,000 per month.

33. According to the plaintiff the deceased used to keep RS‑100 with himself and gave rest to the plaintiff. It may be pointed that the deceased was unmarried and had both the parents, father and mother living. This suit has been filed by the plaintiff, who is father of the deceased for his benefit as well as for the benefit of his wife. It can also be safely assumed that under the circumstances, the deceased would be giving to his parents at least 50 per cent of his monthly income. In other words by his death the parents of deceased suffered a loss of income to the extent of Rs.500 per month.

34. The plaintiff states that the .age of the deceased was 18 years. He has given his age as 50 years when he was examined in the Court on 2‑3‑1987. Thus his age would be 48 years at the time of his death. He has stated that his wife's age is about 45 years. Thus his wife would also be of about 43 years at the time of incident. There is no evidence to the contrary. Therefore, we have to accept the ages of the deceased to be 18 years, that of his father to be 48 years and that of his mother to be 43 years at the time of incident. There cannot be hard and fast rules to assess as to upto what age any person would survive, but normally this age is fixed in various cases from 55 to 65 years.

35. The next question would be whether for the purpose of assessing damages the period for which the deceased would have lived is to be taken into consideration or the period which his parents are likely to survive is to be considered. There are conflicting opinions on the question as to whose age would be material for the purpose of assessing the compensation. The claim is being made by the parents of the deceased for the damages which they have suffered due to the death of their son. They could have enjoyed the income that they received from their son only till their lifetime. I am in respectful agreement with the views of learned Single Judge of this Court in the case of Muhammad Siddique and another v. Gul Majeed and 2 others P L D 1980 Kar.

78. The learned Judge has observed "in my view no hard and fast rules can be laid for the purpose of determining a reasonable period or reasonable amount for the purpose of computing compensation to be paid to the parents of deceased son involved in the accident. It will vary from case to case according to the facts of each case."

36. In the instant case, looking to the age of the parents of the deceased in the ordinary course they cannot be expected to live for more than 20 years, from the date of accident. Further more admittedly the plaintiff is employed and so his other son. Under the circumstances in my opinion, compensation at the rate of Rs.500 per month for 20 years would be a reasonable and fair compensation in the case.

37. It was submitted by Mr. Iqbal Bawany learned counsel for the defendant that the plaintiff could have got Rs.20,000 under Group Insurance Scheme from the State Life Insurance Corporation and also further amount from the Social Security Organization, but he did not fill the form. It is admitted by the plaintiff that he did not fill the requisite form because he was told that he will get only Rs.10,000 to 12,000. Mr. Iqbal Bawany was not able to state as to what exact amount was to be paid by the Social Security Organization, nor was he able to say whether the plaintiff could still realise these dues from the said Organizations, but he contended that if the plaintiff fills the form the defendant would try to get the compensation from the State Life Insurance Corporation, as well as from the Social Security Organization. He further contended that the amount so received may be deducted from the compensation assessed by the Court.

38. Keeping all these facts in view the suit of the plaintiff is decreed in the sum of Rs.1,20,000 with proportionate most and interest at the rate of 6 per cent per annum subject to the condition that he fills the forms for the aforesaid claims, that may be given to him by the defendant and if the defendants are able to get the compensation awarded to the plaintiff within six months from the said Organizations the amount of such compensation may be deducted from the compensation awarded by 'the Court. The amount of compensation awarded by this Court is to be shared equally by the plaintiff and his wife.

39. The suit was decreed in the above terms by a short order dated 8‑12‑1987 and above are the reasons in support of the above orders. ,

40. A.A./K‑54/K Suit decreed.