KARACHI WATER AND SWERAGE BOARD through Managing Director vs MAIRAJUDDIN and 2 others
This petition for leave to appeal arose from a suit for damages filed under the Fatal Accidents Act, 1855, following the death of a three-year-old child who fell into an uncovered manhole maintained by the petitioner, the Karachi Water and Sewerage Board. The trial court decreed the suit, finding the petitioner liable for negligence and rejecting the defense of contributory negligence. The Sindh High Court dismissed the subsequent High Court Appeal, upholding the concurrent findings of fact regarding liability. Before the Supreme Court, the petitioner challenged the maintainability of the suit, arguing that the plaint incorrectly included grandparents as legal heirs, which conflicted with the Muslim Law of Inheritance and the Fatal Accidents Act, 1855. The Supreme Court held that the suit was filed by the father, who was a rightful legal heir and a beneficiary under the Act. The Court affirmed that the inclusion of additional, non-entitled persons in the plaint did not invalidate the suit's maintainability or competence, as the action was brought in a representative capacity for the benefit of the rightful heirs.
- Can a suit filed under the Fatal Accidents Act 1855 be dismissed solely because the plaint incorrectly lists persons who are not legal heirs as beneficiaries?
- Does the inclusion of non-entitled persons in a plaint as legal heirs affect the maintainability of a suit filed in a representative capacity?
- Is a water and sewerage board liable for damages if a child dies due to an uncovered manhole under its maintenance?
- Section 1, Fatal Accidents Act 1855
ORDER
' NASIR ASLAM ZAHID, J.---This petition has been filed by petitioner Karachi Water and Sewerage Board through its Managing Director seeking leave against the judgment, dated 14-4-1999 of the Sindh High Court dismissing its High Court Appeal. We have heard the arguments of Syed Ansar Hussain, learned Advocate Supreme Court for the petitioner, and have referred to the relevant record.
2. Respondent No,1 Mirajuddin filed a suit in 1989 on the original side of the Sindh High Court claiming damages in the sum of Rs,8,50,000 under the Fatal Accidents Act, 1855, against the petitioner alleging that on 10-9-1988 his three year's old son Naeemuddin died on 'account of falling into the manhole in the area where he resided. The suit was contested by the petitioner pleading that the manhole was covered by them and then it might have been removed. It was also pleaded that respondent was also responsible for the accident as he had not cared to discipline the deceased boy as the manhole was near the footsteps of respondent's house and if the same was uncovered respondent apprehending the accident should have been more vigilant.
Contributory negligence was, therefore, also pleaded. Evidence was recorded during the trial where respondent No,1 appeared himself in the witness-box and also examined his father Qiyamuddin whereas petitioner examined one Khaliqur Rehman, Executive Engineer of the petitioner organization. The suit was decreed by the learned Single Judge by judgment, dated 6-3-1998 in the sum of Rs,8,50,000 with 14% mark up and costs. It was held by the learned Single Judge that in view of section 1 of the Fatal Accidents Act, 1855, every, suit brought under the Act in the name of representative of the deceased person shall be for the benefit of his wife, husband, parents and child and, therefore, the suit was maintainable. It was held that death of the child had taken place on account of negligence of the petitioner organization. The plea of contributory negligence was rejected. Being aggrieved the petitioner-organization filed a High Court Appeal which has been dismissed by the impugned judgment dated 14-5-1999.
3. We have gone through the record and we are of the view that the concurrent findings of the learned Single Judge and the Division Bench in High Court Appeal on the question a liability of the petitioner organization are maintainable on the evidence on record and are not liable to interference. The view taken in the original and appellate judgment about the contributory negligence also does not call for interference.
4. Syed Ansar Hussain, learned counsel for the petitioner organization, had laid great stress on the submission that in the plaint it was mentioned that deceased's heirs included his grandparents also and this was against the Muslim Law of Inheritance and also section 1 of the Fatal Accidents Act, 1855. The submission of learned counsel is correct but. As observed, the suit had been filed by the father of the deceased boy who was admittedly a legal heir of the deceased boy and also one of the persons mentioned in section 1 of the Fatal Accidents Act.
1855. In the original judgment it was specifically held that the suit can be filed in a representative capacity for the benefit of the persons mentioned in section 1 of the Fatal Accidents Act, 1855.
Maintainability or competence of the suit could not be challenged on the ground that in the plaint it had wrongly mentioned that grandparents of the deceased boy were also legal heirs. No ground was also taken in the memo of H.C.A. For the maintainability of the suit on this account.
' We find no merit in this petition which is dismissed and leave is refused.