KARACHI, Oct 17: A division bench of the Sindh High Court has dismissed an appeal filed by the Karachi Port Trust against the judgment and decree of a single bench passed in a suit for damages filed under the provisions of the Fatal Accidents Act of 1855.

The division bench comprised Justice Sabihuddin Ahmed and Justice Amir Muslim Hani.

The suit on the original side was filed by Muhammad Athar Hussain and Mrs Munawar Jehan, through their counsel, Nasir Maqsood, advocate, for the recovery Rs3.2 million compensation under the Act of 1855 for the death of their son Mazhar M. Hani on May 25, 1989 when he was squeezed between the shock buffers of wagons on the East Wharf.

It was contended on behalf of the plaintiffs that their son was employed as 5th Engineer on MV Hunza of the PNSC. On May 25, 1989 he had gone to the PNSC office from where he went to the port area at East Wharf occupied by the defendant.

It was alleged that while the deceased was crossing the railway line near the berth of MV Islamabad, he came to the other side via the railway line, and all of a sudden the shunting of wagon was started by KPT staff without warning and his chest was pressed between the shock buffers of the railway wagons.

It was, inter alia, also alleged that since there was no arrangement of first aid or any other emergency medical services available in the port area, Mazhar succumbed to the fatal injuries.

On the above premises, Nasir Maqsood attributed the death of Mazhar to negligence on the part of the defendant in taking adequate pre-cautions and their total failure to ensure safety measures at the time of shunting of wagons.

The quantum of damages was built up with the contention that Mazhar was a very skilled and enterprising marine engineer and had a very bright chance of promotion in the near future, so on the basis of present and expected earning capacity the parents were deemed to have been deprived of a sum of Rs3.258m and a decree was accordingly prayed for the above sum along with 14 per cent interest from the date of the suit till satisfaction of the decree.

Jawed Farooqi, counsel for the defendant, contended that Mazhar died due to contributory negligence as the defendants had taken enough precautions for prevention of accident. He also argued that the KPT was not responsible for such compensation as claimed as it was not at fault.

The suit was finally argued before Justice Zafar Hadi Shah, who had rejected the defence as set up by the KPT and observed that:

“In the fatal accident case if the factum of accident is admitted, the presumption of negligence arises and the burden shifts on the defendants to disprove negligence and to further prove that they had taken complete care and precautionary measures to avoid any mishap. When the defendants put their own version of accident, the defendants take upon themselves the burden to prove their version and if they fail to persuade the court about their version, the version of the plaintiff will be believed, and in this situation the defendants will have to show that they had taken enough precaution and it was only the negligence of deceased which had given rise to the injuries complained of.” And further concluded that:

“The plaintiffs have proved the accident and the manner in which the accident took place has been proved by PW 2 Musalli Khan, who had not been cross-examined on the point of negligence on the part of the defendants in taking sufficient/necessary precautionary measures at the time of shunting the wagon. The burden of proof was shifted upon the defendant to show from their evidence that they had taken all the precautionary measures to avoid the accident. Which they have miserably failed to prove.”

Adverting to the quantum of damages, the judge followed the dictum laid down by Supreme Court verdict reported in 1993 SCMR 848 and decreed the suit of the plaintiffs for a sum of Rs909,995 against the defendant with costs and interests of 14pc per annum from the date of the suit till payment of the entire amount and decretal amount was apportioned between father and mother for Rs515,661 and Rs394,329, respectively.

The KPT, aggrieved by the decision, had filed an appeal which was earlier admitted and the operation of the judgment was suspended subject to deposit of Rs1.5m with the Nazir of the court and the matter was ordered to be posted for regular hearing.

Accordingly, the appeal of the KPT came up for regular hearing before the division bench, comprising Justice Ahmed and Justice Hani, which upheld and affirmed the findings of the trial court on the issue of negligence against the KPT as propounded by the single judge and dismissed the appeal along with the pending interlocutory application with cost.

The division bench, upholding the judgment and decree passed by the single judge, held that:

“The trial court was not justified in awarding the decretal amount as there was no negligence on the part of the appellant and that the unfortunate incident can be substantially attributed to contributory negligence on the part of the deceased. Having gone through the record, we have noticed that it was admitted in evidence that while a number of persons are required to cross the railway lines, no protective measures even by way of construction of an overhead bridge being undertaken by the appellant. It was also stated in evidence that there was no one from the KPT to control the pedestrian traffic in order to avoid such incident, nor was any warning of any sort administered. In the circumstances, when no measures to prevent such incidents seem to have been taken by the appellant we fail to see how the deceased could be held having acted negligently.”