SHAMIM AKHTAR Versus JAVEDAN CEMENT LIMITED

This is a suit for recovery of Rs.20,00,000 under the provisions of the Fatal Accidents Act, 1855 filed by widow of deceased Ghulam Hussain aged about 37 years, employed as welder in defendant Javedan Cement Factory.

2. It is the case of the plaintiff that during the course of his employment as welder on 23‑6‑1988 deceased was called upon for welding a pipe in the pre heater plant of the factory which resulted in bursting of the pipe engulfing the deceased with hot material causing 100% burns on his body entailing his unforeseen and untimely death in the hospital. According to the plaintiff death of the deceased took place due to actionable wrong, negligence, default and lack of reasonable foresight on the part of the defendants, therefore, she as his widow, six minor daughters and five minor sons are entitled to compensation. It is further the case of the plaintiff that deceased had the income of Rs.3,006 per month by way of his salary; Rs.500 to Rs.1,000 per month on account of overtime and he earned Rs.200 to 250 day by making iron gates on holidays and Fridays. As the deceased was a skilled hand having specialised in the field of welding he was likely to get an attractive job abroad for a consideration of Rs.10,000 p.m. Plaintiff has claimed a sum of Rs.25,000 on account of loss of association and consortium besides a sum of Rs.5,000 on account of funeral expenses.

3. Defendant who are a public limited company resisted the suit and filed a written statement admitting the employment of the deceased as welder with them with the averment that he was 49 years old, with the last drawn salary of Rs.1,081 per month. Default and negligence on the part of the defendants is denied. While disputing lack of care and diligence on the part of defendant it is said that the deceased went into the restricted area near the plant, of his own accord, knowing fully well that he had no business or concern with that part of the plant and, therefore, he sustained injuries due to his own negligence. All other allegations with regard to income and future prospects of the deceased are denied.

4. On the pleadings of the parties following issues were settled by consent:‑‑

ISSUES.

(1) What was the age of the deceased at the time of incident?

(2) Whether the death of the husband of the plaintiff was caused due to the fault or negligence of the defendant?

(3) What was the actual earning capacity of the plaintiff at the time of death?

(4) Whether the plaintiff is entitled to compensation for damages as claimed in the suit?

(5) Whether the plaintiff is entitled to costs and interest, as claimed?

5. In support of her case, plaintiff examined herself and her brother Muhammad Rafiq employed as co‑welder in the defendant's factory. On the other hand defendants examined Jamal Ahmed, Manager (Estates) and Raza Bin Ahmed working as Manager (Mechanical) in the defendants' factory.

6. I have heard learned counsel for the parties and with their assistance gone through the evidence on record. My findings are as under:‑‑

REASONS

Issue No. l

7. Mr. Nasir Maqsood, learned counsel for plaintiff concedes that age of the deceased at the time of the accident was 48 years as borne out by record and admitted by defendant's witness Raza Bin Ahmed. The issue is answered accordingly.

Issue No. 2

8. It is admitted that the deceased was employed as a welder in Javedan Cement Factory and he was on duty on the day when this unfortunate episode occurred. While the case of the plaintiff‑widow of the deceased is that on the material day he was called upon to weld a small middle portion of the round pipe used for passing extremely hot raw material for manufacturing cement and while he was engaged in welding a portion of the pipe, the defendant management did not stop the process of passing hot material with the consequence that such hot material passing through defective round pipe resulted in 100 % burns of the deceased. The plea taken by the defendants is that he had no business to enter the restricted area of the factory and that he went into the said portion of the plant of his own and died owing to his negligence.

9. On a careful assessment and analysis of evidence on record only irresistible and inevitable conclusion that can be gathered from the circumstances is that indeed the deceased was on duty; that he was required to enter pre heater area for welding the damaged pipe and while he was on duty and engaged in the process of repairing the damaged portion of the pipe management acted in a reckless manner by not taking appropriate measures for withholding pouring of hot material in the pipe which resulted in engulfing the deceased and caused him burn wounds to the extent of 100%. Since negligence is attributed to the deceased by the defendant management it was incumbent upon them to produce relevant attendance record and the schedule of duty in relation to welders on the plant for the relevant period to reflect that the deceased was not on duty or that he entered the restricted zone of his own accord. Even otherwise this fact was exclusively within the knowledge of the defendants, therefore, a heavy burden rests on them to establish the alleged negligence on the part of the deceased culminating his unnatural and unfortunate homicide which has not been produced. Needless to say belated and afterthought version by the defendants' witness Jamal Ahmed who was working in the purchase department during the relevant period that the bus carrying the workmen including the deceased reached the factory after 11‑00 a.m. or that the shift had already started does not deserve any credit. The best course available to the defendants to substantiate this plea was to adduce the relevant record in support of their version but the same was not produced for the reasons best known to them. In law if evidence a that could be produced and is withheld by a party without sufficient explanation, natural presumption would be that had the evidence been produced it would have been unfavourable to such party. I am fortified in this view by a decision of the Supreme Court in Zakaullah Khan v. Muhammad Aslam (1991 SCMR 2126). Para. 11 from the report may be reproduced for the sake of advantage and guidance:

"11. As regards the third question i.e., the rule of best evidence attracted and applied to the civil proceedings, M. Monir's commentary on section 91 of the Evidence Act contains an elucidation of it in the following words:‑‑‑

'This section is an illustration of what in English law is known as the best evidence rule', which requires that the best evidence of which the case in its nature is susceptible should always be presented. This rule does not demand that the greatest amount of evidence which can possibly be given of any fact should be offered; it is designed to prevent the introduction of such evidence as, from the nature of the case, allows room for supposing that better evidence is in the possession of the party, and to prevent fraud. For, when better evidence than that which is offered is withheld, it is only fair to presume that the party has some sinister motive for not producing it, which would be frustrated if it were offered. It is a cardinal rule of evidence, not one of technicality but of substance, which it is dangerous to depart from that where written documents exist, they shall be produced as being the best evidence of their own contents. "

10. This view was reiterated by the Supreme Court in Pakistan Steel Mills Limited. v. Abdul Habib (1993 SCMR 848) holding that if defendant in the suit for damages took the plea that accident had occurred on account of negligence of deceased himself it was his duty to produce evidence to show that machine was in perfect order and there was no defect in the same and deceased died on account of his negligence.

11. Even otherwise case of the plaintiff is covered by the doctrine of "res ipsa loquitor" i.e., things speak for themselves. As the death of the deceased took place inside the defendants' factory as a result of fatal burn wounds while working on the plant, it is for them to account for the episode. Even Article 122 of Qanoon‑e‑Shahadat, postulates that when any fact is especially within the knowledge of any person, the burden of proof of that fact is upon him. The only inference that can be drawn in the circumstances is that the death of the deceased took place owing to the negligence, in action, default and carelessness on the part of the defendants. In my view in the circumstances of the case defendants have utterly failed to pursuade this Court to show that accident did not occur on account of their negligence. Even the evidence of defendants' witness Raza Bin Ahmed is not by itself sufficient to improve the case of the defendants because apparently his evidence is neither supported nor corroborated by the material on record or documentary evidence in possession and power of the defendants. As to the application of the doctrine of "Res ipsa loquitor", a reference may be had to Pakistan Steel Mills Corporation. v. Abdul Habib (1993 SCMR 848) and Kamina v. Al Amin Goods Transport Agency (1992 SCMR 1715). This Court also took the same view while deciding Suit No.725 of 1988 on 22‑10‑1996.

Issue No.3.

12. While the plaintiff stated on oath that the deceased being employed with the defendant‑company for the last 10 years used to earn Rs.3,000 per month; that by doing overtime he earned Rs.500 to Rs.1,000 per month and had income of Rs.200 to Rs.250 per day by making 3 to 4 iron gates on each Friday, the version of‑the defendants is that the basic salary of the deceased was Rs.792.73 per month. Salary of the deceased vide salary sheet Exh.19 relating to the month of June, 1988, however, indicates that besides basic salary of Rs.1,081 he was receiving attendance allowance, dearness allowance, house rent, K.C.A., ad hoc relief, overtime, etc., and his gross salary came to Rs.3,228.12, whereas last pay certificate of the deceased Exh.20 issued by the defendants, however, reflects his emoluments to the tune of Rs.2,739.25 in addition to attendance allowance subject to attendance and meals subsidy subject to attendance at Rs.7.25 per lunch/dinner. Salary sheet for the month of September, 1987 in respect of the deceased Exh.l‑C produced by the plaintiff, however, indicates that inclusive of all allowances his gross salary was Rs.4,563.90. It may be observed that the salary sheet Exh.19 relates to the period from 1st June to 22nd June whereas last pay certificate Exh.20 does not include attendance allowance and overtime payment to the deceased. Since the salary sheet Exh.l‑C produced by the plaintiff has not been disputed at all and it includes overtime earned by the deceased, I am inclined to hold that his average salary at the time of his death was Rs.4,563.90. As regards earned income of the deceased on account of skilled labour on Fridays the same may be approximately calculated at Rs.1,000 per month. Computing his monthly income at the rate of Rs.4,563.90 plus Rs.1,000 his monthly income was Rs.5,563.90.

Issues Nos.4 and 5.

13. As a consequence of my finding on issues Nos.2 and 3 there is no escape from the conclusion that the plaintiff and other legal representatives of deceased are certainly entitled to compensation for loss of his life and untimely separation from the family. It is well‑settled by now that on account of latest medical care and development and research in the field of medicine and surgery normal expectancy of life in Pakistan is 70 years. As the deceased was 48 years of age at the time of his death he would have lived and supported his family for a period of at least 22 years. His monthly income at the time of his death having been calculated at Rs.5,563.90 inclusive of increments, overtime and other allowances it can be safely said that in all probability till attaining the age of 60 years which is the expected age of superannuation in Government managed industries, he would have had an average income of Rs.6,000 per month and Rs.72,000 per annum. His earning for 12 years thus would have been Rs.8,64,000 As the deceased was supposedly maintaining as many as eleven minor children and wife and maintaining a joint family in all probability he would have spent at least 1/6th of his income on his person which amount comes to Rs.1,44,000. Deducting this amount from his total earning for 12 years the net amount comes to Rs.7,20,000. With regard to his income after the age of superannuation on attaining the age of 60 years he being skilled welder in all probability and having regard to skilled nature of his profession and demand in market of the services of a welder the deceased would have earned at least a sum of Rs.10,000 per month and computing his income from remaining 10 years this amount would come td Rs.12,00,000. Allowing a sum of Rs.2,00,000 at 1/6 th of his earning for his personal expenses, the balance amount would come to Rs.10,00,000. This amount added to the net earning from his salary and private labour would come to Rs.17,20,000.

14. As to the entitlement for loss of consortium, a reference may be made to "Assessment of Compensation in Accidents under the Motor Vehicles Act, 1988" by Dr.G.S. Karkara published by Law Publishers (India) (Pvt.) Ltd., Allahabad, Edition 1990. On page 282 of the treatise, learned author writes as under:‑‑‑

"Loss of consortium.‑‑‑The way of family life to which Indian families are accustomed, the loss of father, mother, spouse, brother or sister cannot be overlooked in awarding compensation. Thus, within the scope or ambit of section 168 of the Motor Vehicles Act, 1988 (section 110‑B, old) in awarding 'just compensation', the factor of loss p of consortium and loss of company of a near and dear one in the family can be taken note of and a reasonable compensation can be awarded. Such amount of compensation is, however, not linked up with the status of the victim in the society or his capability of earning and the sum should not vary from person to person according to his status in the society. After all loss on account of consortium or loss of love and affection and companion cannot be objectively assessed, as it can be done in the case of loss of income, some amount should be awarded to the parents, spouse, sons and daughters. In quantifying such amount the Court should take note of the age of the victim and also the age of the members of family losing the company of the victim. Loss of consortium basically means loss of company or association of spouse, partner, an intimate or an associate. The word 'consortium' means wife or husband and in wider perspective, it may include child or the paretlts but no compensation has been awarded to a married daughter for the 'loss of consortium' caused to her."

15. This view was reaffirmed by High Court of Bombay in Abdulkadar Ebrahim Sura and another v. Kashinath Moreshwar Chandani and others (AIR 1968 Bombay 267). In this view of the legal position, the plaintiff and the legal heirs are also entitled to the loss of association to the consortium to the tune of Rs.25,000 as claimed by them which is neither unreasonable nor too fantastic.

As regards funeral expenses for the deceased it may be observed that the widow had already received funeral expenses from the defendants on the eve of death of the deceased. .

16. In view of what is, stated above, the plaintiff and other legal ' representatives are, therefore, entitled ,to a total compensation of Rs.17,45,000. With regard to apportionment amongst the legal representatives subject to realisation, a sum of Rs.3,00,000 shall be paid to the widow, a sum of Rs.1,50,000 shall be invested in long term finances in the names of six minor daughters of the deceased and the balance amount in equal shares invested in long term profit scheme in the names of five minor sons of the deceased. Suit is accordingly decreed in above terms with interest at 14 % from the date of suit till payment.

A.A./S‑67/K Suit decreed.