2007 Y L R 1927 6/7/20, 2:43 AM

2007 Y L R 1927

[Karachi]

Before Sajjad Ali Shah, J

ALI RAZA---Plaintiff

Versus

KESC---Defendant

Suit No.638 of 1998, decided in January, 2007,

(a) Maxim---

----Res Ipsa Loquitor means that the things speak for themselves---Applicability--Scope.

Mrs. Gul Bano and 4 others v. Muhammad Ramzan and another 1982 CLC 112C; Mst. Zaib-un-Nisa and
others v. SRTC and another 1982 CLC 1228; Mrs. Nimmy Frances and 5 others v. Muhammad Saeed
Qureshi and others 1982 CLC 1703; Abdul Haq and another v. Pakistan Railway Telecommunication
Department and others 1987 MLD 898; Spin Gul and 2 others v. Ikramul Haq and another 1987 MLD
2402; Hayat Services Pakistan Limited v. Kondan 1989 CLC 2153; Qazi Arifuddin and another v.
Government of Sindh through Secretary Ministry of Health PLD 1991 Kar. 2910; Pakistan Steel Mills
Corporation Limited v. Malik Abdul Habib and others 1993 SCMR 848; Mst. Sakina and 3 others v. M/s.
National Logistic Cell 1995 MLD 633; Anis-ur-Rehman v. Government of Sindh 1997 CLC 615; Bibi
Khalida v. Government of Sindh 2000 CLC 381; Roshan Bi v. Pakistan Steel Mills Corporation Ltd.
2000 CLC 111; Ashiq Masih and others v. Abbott Laboratories Pakistan Ltd. 2001 CLC 913; Mst. Ishrat
Irfana v. Federal Government of Pakistan 2001 CLC 928; Shaukat Ali v. KESC 2001 MLD 1845;
Shamim Akhtar v. Muhammad Arif Balouch 2001 YLR 821; Mst. Sabira Khatoon and 2 others v.
Muhammad Akram Siddiqui 2003 MLD 39; Aijaz and 6 others v. Karachi Transport Corporation 2004
MLD 491; Ehtishamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd. 2004 MLD 361 and Pakistan
Steel Mills Corporation Ltd. v. Abdul Hameed 1993 SCMR 848 quoted.

(b) Damages---

----Suit for---Negligence---Burden of proof---Principles---Held, in an action for damages on account of

negligence the burden of proof primarily lay on the plaintiff to establish that he had suffered injuries on
account of negligence or omission on the part of the defendant, and for which act or omission the
defendant at law was responsible---If however, the plaintiff proved that the injury suffered by him could
not have resulted except by attributing breach of duty to the defendant then the burden would shift upon
the defendant to show that all reasonable precautions to avoid injuries complained of were adopted---
Defendant corporation, in the present case, was duty bound under R.49, Electricity Rules, 1937 to
construct, install, protect and maintain all its apparatus as far as practicable to prevent danger, and the
defendant in its evidence had accepted such obligation/duty---Defendant, in circumstances, was under a
statutory obligation to properly maintain its electric apparatus and by leaving its live parts exposed and

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capable of being touched by persons not intended to have access to them as the plaintiff had suffered
injuries, same could have been avoided in case the defendant corporation was not negligent to maintain
their electrical apparatus in accordance with its obligation---Plaintiff thus was entitled to the damages,
but of course subject to determination of its quantum.

(c) Damages--

----Suit for---Injury to plaintiff on account of negligence of defendant---Claim of pecuniary, non

pecuniary, general and special damages by plaintiff---Entitlement---Considerations for calculation of
such losses---Principles.

In case of injury on account of negligence of defendant the plaintiff is not only entitled to the pecuniary
losses i.e., what he has actually spent or lost but also to non-pecuniary losses which can not be calculated
exactly in terms of money but are granted to mitigate the sufferings and agonies. In the present case, the
plaintiff has claimed a sum of Rs.8.5 million on account of non-pecuniary losses and a sum of Rs.4.215
millions as past and prospective pecuniary losses. Though the claim of the plaintiff in respect of losses
as claimed has not been denied by the defendants but it is for the Court to determine the quantum of
compensation on the basis of evidence placed before it and to see that the claim is neither exaggerated
nor fanciful and/or unreasonable. Since there exists no yard-stick or formula by which such losses can
be measured or translated in terms of money therefore such losses by their very nature are
discretionary, however, while exercising such discretion the Court has to see the effect which such
injury may have caused on the quality of life of the person so affected, his sufferings, duration of such
pain and its over all impact on his life. In fact the amount of compensation so determined should as
nearly as possible put to the party who has suffered in the same position as he would have been if he
had not sustained such injury.

Azizullah v. Jawed A Bajwa 2005 SCMR 1950; Abdul Qadir v. S.K. Abbas Hussain and others PLD
1997 Kar. 566; Mrs. Rahat Ali v. Dr. Saeed Rehman 2002 CLC 1996 and Nazar Ali Siddiqui v.
Pakistan through Secretary, Government of Pakistan, Ministry of Finance and 2 others 1986 CLC 1370
ref.

(d) Qanun-e-Shahadat (10 of 1984)---

----Art. 78---Documentary evidence---Documents which were not copies of judicial record, not to be,
received in evidence without proof of signatures and handwriting of persons alleged to have signed or
written them. Khan Muhammad Yousuf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160 and
M/s Bengal Friends and Co. v. Gour Benade Saha and Co. PLD 1969 SC 477 ref.

Nasir Maqsood for Plaintiff.

Raghib Baqi for Defendant.

Date of hearing: 18th December, 2006.

JUDGMENT

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2007 Y L R 1927 6/7/20, 2:43 AM

SAJJAD ALI SHAH, J.---Through this suit the plaintiff seeks recovery of Rs.127,15,000 as
compensation/damages on account of various injuries suffered by him by allegedly coming into contact
with electricity energized pillar box installed on a road side by the defendant KESC.

The facts leading to the filing of the present suit as pleaded are that on 4-6-1997 at about 2-00 p.m. the
plaintiff incidentally and unwarily came into contact with a part of the pillar box situated at the edge of
the main road and suffered heavy electric shock as the said pillar was throughout energized due to
some electrical defect and or lack of maintenance/negligence on the part of the defendants. The
plaintiff consequently due to the high voltage/current sticked to the pillar box and suffered severe burn
on his right hand and his male organ. It is asserted that the nearest complaint centre of the defendant
KESC was immediately informed by passerby but no one came forward to accord any help, the
plaintiff ultimately was separated by a social worker by placing wooden planks and thereafter was
immediately taken to the Abbasi Shaheed Hospital where he was provided first aid and necessary
dressings. The plaintiff thereafter was referred to the National Institute of Child Health (JPMC) and was
admitted on the same day and the following injuries were observed owing to electrocution.

(i) Injuries sustained on right palm.

(ii) Injuries sustained on right forearm.

(iii) Injuries sustained on right perennial region.

(iv) Condition of the right hand was found to be very bad as all tendons were torn and skin was black and
vessel coagulated.

(v) The area of penis and pelvis was sloughed.

(vi) Base of urethra was burnt and so the penis was contracted.

It is further claimed that looking at the condition of the plaintiff and to restrict the gangrene which was
progressing due to the injuries suffered on the right forearm, the doctors on 12-6-1997 amputated the right
arm of the plaintiff from below elbow stump. The plaintiff thereafter was discharge from the hospital on 27-
6-1997 with the instructions to follow up the direction and to report back for operation of the penis
contracture and refashioning of the stumps. The plaintiff again was admitted to N.I.C.H. on 24-11-1997
whereon refashioning of the stump was completed by major surgery on the amputed right forearm, but could
not be operated for penile contracture on account of his weakness. The plaintiff again was admitted in NICH
on 18-2-1998 and was operated on 19-2-1998 for penile contracture and thereafter was discharged on 25-2-
1998 with the instructions of follow up further surgery.

It was asserted that the injuries leading to amputation of the right arm and the pelvic region including his mail
organ owing to electrocution were absolutely on account of negligence, lack of care, mal feasance, mis-
feasance, non-feasance and an actionable wrong as the defendant No.5 had failed to maintain and keep their
electric installation located on the main road in proper manner and to ensure that no live parts capable of
being touched are exposed. It was lastly asserted that the said injuries have considerably affected the plaintiff
mentally, physically and monetarily, therefore the plaintiff is entitled to be compensated in terms of money to
the extent of Rs.127,15,000 the breakup
whereof is reproduced in extenso:-

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i. Damages for permanent disabilities and consequent hardships and Rs.20,00,000

disadvantages that the plaintiff suffered and will suffer for the rest of
his life the plaintiff was of 7 years of age at the time of incident.
ii. Damages for loss of amenities by the plaintiff on account of Rs.20,00,000
traumatic fractures.
iii Damages for shortening expectancy of life. Rs.5,00,000
iv. Damages for having ugly appearance and deshapping of the body Rs.5,00,000
affecting personality and arousing aversion in the eyes of on-
lookers and resultant feeling of depression and inferiority in the
plaintiff.
v. Damages injuries, shock physical mental suffered plaintiff for Rs.10,00,000.00
nervous extreme pain and agony by the (past and prospective).
vi. Damages on account of restricted movement by the plaintiff. Rs.5,00,000.00
vii. Damages on account of being dependent upon other on account Rs.10,00,000.00
of infirmity and need for permanent Attendant/Nurse for
looking-after the plaintiff.
viii Damages on account of loss of prospect of marriage in future Rs.10,00,000.00
and thereby for loss Of prospects of having child
ix. Prospective loss earning on account of permanent disabilities Rs.35,00,000.00
caused to the plaintiff.

SPECIAL DAMAGES

i. Past and prospective medical expenses as

ii. Past and prospective expenses on transportation. Rs.5,30,000.00

Rs.1,27,15,000

The defendants filed their written statement where in they denied the incident for want of knowledge. It
was maintained by the defendant that all of its transmission lines and equipments are maintained properly
and in accordance with the standard of care and no live part of it installation is ever exposed or installed
al accessible place. It was submitted that the defendants have not even received any complaint on 4-6-
1997, as after receiving the copy of plaint the record of at complaint centres, feeders, grid stations to find
out any tripping of the system on tilt time, date and place mentioned in the plain but did not discover any
such incident of consequent power failure in its books. The defendant vehemently denied the non
maintenance of any pillar box. It was submitted that the alleged pillar box in fact is a Ring Main Unit
(RMU) which earlier was installed on a street in a shopping are (but for the purposes of security was
shifter to Nazimabad Crossing away from the residential/commercial area. It was maintained that the said
RMU is manufactured by a German Firm and comprises of a steel cabinet with steel door duly secured
by locks, the operative unit whereof carries high voltage of energy and is designed in a manner that no
sooner any object or living person comes into contact with its live parts the whole system tripe from its
feeder or the grid station. The unit is placed at a height of 2.6; on a RCC structure at a safe place the
steel doors whereof cannot be opened or broken into by normal force. It was asserted that the record

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does not reveal the tripping of the unit, feeders or the grid stations in Nazimabad Circle/Zone on 4-6-
1997, nor the defendant received any complaint for such tripping or break down in the area. The unit is
still working in the steel cabinet and door with no record to reflect that the cabinet of the said RMU
having been damaged or broken. It was therefore, asserted that the allegations of negligence and failure
to take safety measures are not true nor the defendant is aware of the incident or the injuries as
allegedly suffered by the plaintiff, therefore the question of payment of damages as claimed does not
arise.

On the basis of the pleadings of the respective parties the following issues were framed:--

(a) Whether the plaintiff received any electric shock and burn injuries on 4-6-1997 from pillar box
situated in Chota, Maidan, Nazimabad maintained by the defendant?

(b) Whether the defendant had installed such Ring Main Unit (RMU) (Pillar Box) and it was, safe,
secured and maintained by the defendant in good order and condition?

(c) Whether the defendant is liable to compensate the plaintiff? .If so, to what extent?

(d) What should the decree be?

On behalf of the plaintiff the father of the plaintiff stepped into the witness box is next friend and two
witnesses namely Muhammad Naeem and K.S. Mujahid Balouch who asserted their presence at the
time of occurrence whereas the defendant examined Zahid Rahim, Executive Engineer, Sub-station
(MNC) and Hashmat Ali, Officiating Executive Engineer KESC Operation Div-III.

I have heard at length the arguments of Mr. Nasir Maqsood, learned counsel for the plaintiff and Mr.
Raghib Abdul Baqi, learned counsel for defendant and have considered the oral as well as documentary
evidence adduced by the respective parties the case law relied upon and now intend to give my findings
issue wise.

Taking up the Issue No.1, a perusal of pleading would reflect that the defendants have not denied the
incident dated 4-6-1997 on factual plane but have denied it for want of knowledge, by setting up a
defence that since the said RMU comprises of Steel cabinet with string Steel door which could not be
opened without a key and even if it is opened and any living object comes into its contact, the entire
system trips from the feeder and since no complaint of such tripping is on record therefore, no such
incident has taken place. On the other hand, the father of the plaintiff who was examined as a next
friend categorically deposed that the plaintiff was badly burnt on 4-6-1997, while coming into contact
with electrically energized pillar box/RMU installed on the main road at Nazimabad No.2 he also
produced a photograph of the offending pillar box as Exh.P/9 such version was duly supported by two
eye-witnesses examined as P.W.2 and P.W.3 who asserted their presence at the time of incident their
deposition was not challenged during cross-examination, there was no suggestion either to the plaintiff
or his witnesses to the effect that the plaintiff did not suffer the stated injuries by coming into contact
with the said Pillar Box/RMU. The defendants on the other hand examined two witnesses Zahid Rahim
D.W.1 who denied the incident by stating that "It is incorrect that the plaintiff has suffered from
electrical shock from this RMU, however, the denial is an improvement to the case of defendants as set
up in the written statement and further this witness has admitted in the cross-examination that he came
to know about this incident in the year 2003, through his counsel therefore his denial of the incident is

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immaterial whereas the second witness namely Hashmat Ali who was examined as D.W.3 during cross-
examination admitted that the accident took place because the doors of the RMU were broken and it
was energized at the time of incident.

In the circumstances where the defendants have not denied the case of the plaintiff to the extent of
suffering injuries on account of electrocution by coming into contact with the said "RMU" in their
written statement on factual plane nor any suggestion of like nature was made to the plaintiff or his
witnesses during the cross-examination, moreover one of the witnesses has admitted the fact of such
electrocution whereas the other witness has admitted that he came to know about the incident in the
year 2003 through his counsel therefore, I have no option but to give my finding on this issue in
affirmative.

As to the issue number 2, the case of .the defendants as set up in the written statement appears to be
that the RMU in question comprises of steel cabinet with steel doors, secured by lock and there is no
record to show that the doors were ever broken or repaired. It is further asserted that the defendant
maintains its transmission lines and equipments properly and no live parts are exposed in any electrical
equipment. On the other hand the plaintiff as well as P.W. Muhammad Naeem have deposed that the
offending RMU was installed on a road side and at the relevant time was bearing heavy current
throughout due to some electrical defect and lack of maintenance and negligence on the part of
defendant, the plaintiff has further produced a photograph of the RMU as exhibit P/9 which reflects
that the said RMU is without doors and its cables and the bush bar are quite visible. Learned counsel
for the defendant during cross-examination, asked several questions regarding exhibit P/9 but there
was no suggestion that the photograph is not of the offending RMU. The photograph exhibit P/9 was
also confronted to D.W. Zahid Raheem who admitted that the offending RMU is installed on a service
road which otherwise is a thoroughfare and he does not know how the doors of the offending RMU
were broken. He also upon seeing exhibit D/9 admitted that the picture reflects that the cables and the
bush bar are visible as the cabinets of the RMU are without doors. The other witness namely Hashmat
Ali examined as D.W.2 admitted a suggestion that the accident took place because the doors of the
RMU in question were broken and it was energized at the time of the accident.
Since the plaintiff has produced documentary as well as oral evidence .to establish that the offending
RMU was neither safe, nor properly maintained therefore, the burden had shifted upon the defendant to
prove that they had properly maintained their electrical equipments as asserted in their written
statement but the defendants have miserably failed to discharge this burden as no one appeared from
the maintenance department to dislodge the claim of the plaintiff and to prove otherwise. The
defendant has produced two witnesses, first witness, was from Planning Division whereas the second
witness was from Operations. The first witness admitted that maintenance department is a separate
department and at the relevant time he was posted at Division whereas the accident pertains to Division
III. This witness further admitted that he has come to know about the incident in April 2003 i.e.,
almost six years after the incident. Likewise the second witness during his cross-examination has very
frankly admitted that his department had nothing to do with the maintenance, he has further admitted
that he has neither visited the offending RMU before or after the date of incident as such the evidence
of both these witnesses is of no use so far as the issue under determination is concerned.

Upon evaluating the evidence on record and the admission on the part of the defendant's witness as to
the condition of the RMU as reflected in the photograph Exh.P./9 leads me to conclude by giving my
findings on this issue in negative.

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Coming to issue No.3 regarding entitlement of the plaintiff for compensation and its quantum. It
would, indeed be essential to determine first as to whether the defendants were under a statutory
obligation to maintain the offending RMU and it was on account of their negligence or breach of duty
to maintain such RMU the plaintiff has suffered such injuries and or the incident would not have
happened but on account of such negligence/breach of duty. Mr. Nasir Maqsood has argued that from
the defence as set up by the defendants in their written statement it established that the offending RMU
contained high voltage current and it was obligatory on the part of the defendants to take necessary
measures to save the public from its perils and since it is proved that the defendants have failed to
perform its statutory obligation to maintain its electrical equipments which caused injuries to the
plaintiff, therefore, the plaintiff is entitled to compensation as claimed. Mr. Nasir Maqsood has further
laid much stress upon the well accepted doctrine of res ipsa loquitor and contended that in the given
circumstances the burden was upon the defendant to prove that the incident did not occur on account of
their negligence and the defendants had adopted all reasonable precautions to avoid such incident
which they have miserably failed to establish.

In support of his contention learned counsel has placed reliance on the cases of Mrs. Gul Bano and 4
others v. Muhammad Ramzan and another (1982 CLC 1120), Mst. Zaib-un-Nisa and others v. SRTC
and another (1982 CLC 1228), Mrs. Nimmy Frances and 5 others v. Muhammad Saeed Qureshi and
others (1982 CLC 1703), Abdul Haq and another v. Pakistan Railway Telecommunication Department
and others (1987 MLD 898), Spin Gul and 2 others v. Ikramul Haq and another (1987 MLD 2402),
Hayat Services Pakistan Limited v. Kondan (1989 CLC 2153), Qazi Arifuddin and another v.
Government of Sindh through Secretary Ministry of Health (PLD 1991 Kar. 2910), Pakistan Steel Mills
Corporation Limited v. Malik Abdul Habib and other (1993 SCMR 848), Mst. Sakina and 3 others v.
M/s. National Logistic Cell (1995 MLD 633), Anis-ur-Rehman v. Government of Sindh (1997 CLC
615), Bibi Khalida v. Government of Sindh (2000 CLC 381), Roshan Bi v. Pakistan Steel Mills
Corporation Ltd. (2000 CLC 111), Ashiq Masih and others v. Abbott Laboratories Pakistan Ltd. (2001 CLC
913), Mst. Ishrat Irfana v. Federal Government of Pakistan (2001 CLC 928), Shaukat Ali v.' KESC (2001
MLD 1845), Shamim Akhtar v. Muhammad Arif Balouch (2001 YLR 821), Mst. Sabira Khatoon and 2
others v. Muhammad Akram Siddiqui (2003 MLD 39), Aijaz and 6 others v. Karachi Transport Corporation
(2004 MLD 491), Ehtishamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd. (2004 MLD 361).

The phrase "res ipsa loquitor" means that the things speak for themselves this doctrine has been
acknowledged and is defined in various judicial pronouncements. In the case of Pakistan Steel Mills
Corporation Ltd. v. Abdul Hameed (1993 SCMR 848) it was held that:-

"Res ipsa loquitor means that the things speak for themselves. This doctrine is applied firstly, when
the things that inflicted the damage was under the sole management and control of the defendant and
secondly, that occurrence is such' that it would not have happened without negligence and thirdly, that
there must be no evidence as to why or how the' occurrence took place. In such circumstances
defendants have to persuade the Court that accident did not occur on account of their negligence."

In another case titled as M/s. Hayat Services (Pvt.) Ltd. v. Kondan (1989 CLC 2153) a Division Bench of this
Court had observed:-

"This maxim means that in all the (circumstances of a given case the res speaks and is eloquent
because the facts stand unexplained with the result that the natural and reasonable inference from the
facts has to be drawn. But it must be made clear that such inference should not be based on

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conjunctures and surmises. The burden is on the plaintiff to prove the actual cause of accident but in
case where it is not possible for him, as such facts are within the exclusive knowledge of the
defendant, then in those circumstances, if the incident is proved the 'defendant is called upon to
explain its conduct to bring about the correct and true facts. Due to non-accessibility to vital part of
the evidence the plaintiff is put to great disadvantages, therefore, this maxim is applied to avoid the
rigors created by procedural difficulties."

It is by now well established principle of law that in an action for damages on account of negligence the
burden of proof primarily lies on the plaintiff to establish that he has suffered injuries on account of
negligence or omission on the part of the defendant and for which act or omission the defendant at a law was
responsible and if the plaintiff proves that the injury suffered by him could not have resulted except by
attributing breach of duty to the defendant then the burden shifts upon the defendant to show that all
reasonable pre-cautions to avoid such injury complained of were adopted: In the instant case Rule 49 of the
Electricity Rules, 1937 imposes a duty upon the defendant to construct, install, protect and maintain all its
apparatus as far as practicable to prevent danger whereas sub-rule 3 of Rule 49 provides that "no live
parts shall be exposed as to be capable of being touched by person not intended to have access to them.
Even the defendant, as evident from para 2 of their written statement, have accepted such obligations/
duty by adopting a defence to the following effect:--

"The defendants have maintained its transmission lines and equipments etc., properly and in
accordance with the standard of care, the defendants equipments, transmission lines and supply
lines etc., are properly insulated and installed at safe distance away from normal reach of a
person. The defendant is performing its function in accordance with law and Rules prescribed
for safety precautions to avoid any mishap, injury or accident. No live part is exposed or
installed at accessible place in any electrical equipment."

In view of what has been discussed above it leaves no doubt in my mind that the defendants were under
a statutory obligation to properly maintain the offending RMU and on account of their negligence and
breach of duty to maintain it and by. leaving its live parts 'exposed and capable of being touched by
persons not intended to have access to them as evident from Exh.P/9, the plaintiff has suffered injuries
as complained of which, of course, could have been avoided in case the defendants were not negligent
to maintain their electrical apparatus in accordance with their obligation. Consequently, the plaintiff is
found entitled to the damages but of course subject to determination of its quantum.

Coming to the second portion of the issue, the plaintiff has claimed general as well as special damages
and the learned counsel for the plaintiff in order to assert the entitlement of the plaintiff to such
damages has placed reliance on the cases of Azizullah v. Jawed A Bajwa (2005 SCMR 1950), Abdul
Qadir v. S.K. Abbas Hussain and others (PLD 1997 Kar. 566), Mrs. Rahat Ali v. Dr. Saeed Rehman
(2002 CLC 1996) and Nazar Ali Siddiqui v. Pakistan through Secretary, Government of Pakistan,
Ministry of Finance and 2 others (1986 CLC 1370).

The entitlement of the plaintiff to claim pecuniary as well as non-pecuniary losses has not been
challenged and even otherwise it is well settled by now that in cases of like nature the plaintiff is not
only entitled to the pecuniary losses i.e., what he has actually spent or lost but also to non-pecuniary
losses which can not be calculated exactly in terms of money but are granted to mitigate the sufferings
and agonies. In the instant case, the plaintiff has claimed a sum of Rs.8.5 millions on account of non-
pecuniary losses and a sum of Rs.4.215 Millions as past and prospective pecuniary losses. Though the

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claim of the plaintiff in respect of losses as claimed has not been denied by the defendants but it is for
the Court to determine the quantum of compensation on the basis of evidence placed before it and to
see that the claim is neither exaggerated nor fanciful and/or unreasonable. Since there exists no yard-
stick or formula by which such losses could be measured or translated in terms of money therefore
such losses by their very nature are discretionary, however, while exercising such discretion the Court
has to see the effect which such injury may have caused on the quality of life of the person so affected,
his sufferings, duration of such pain and its over all impact on his life. In fact the amount of
compensation so determined should as nearly as possible put to the party who has suffered in the same
position as he would have been if he had not sustained such injury.

The plaintiff has claimed compensation on account of two injuries suffered by him first on account of
amputation of his right arm from mid-arm level and the second on account of having been deprived of his
man-hood due to severe electric burn on the base of urethra which resulted in penile contraction. It is
claimed by the plaintiff that on account of such injuries he had to undergo various surgeries, he was first
admitted to hospital on 12-6-1997 and was subjected to operation regarding amputation of his mid-arm
and was discharged on 27-6-1997, he was again admitted on 24-11-1997 for refreshoning of stump on the
amputated fore-arm and was discharged on 26-11-1997, he was again admitted on 18-2-1998 and was
operated for penile contracture and was discharged on 25-2-1998. He was again admitted on 28-9-1998
for a surgery to release the penile contracture and was discharged on 8-10-1998, on 11-11-2000 he was
again admitted for an operation in order to handle the penile deformity and was, released on 21-11-2000.
It is claimed that such frequent medical and surgical treatment caused the plaintiff to suffer extreme pain,
mental anguish, shock, agony and intolerable inconvenience for more than three years. It is asserted that
the plaintiff has become absolute crippled and permanently disabled and would not be able to enjoy the
life without a hand and the character of man-hood. It is claimed that the plaintiff being young boy of
seven years was very fond of games like cricket, cycling, but due to such restriction in his movement on
account of amputated hand he will not be able to participate in such activities. It is asserted that the
plaintiff's expectation of life has also been diminished and he would not only remain dependant upon
others for the rest of his life, but such injuries have given the plaintiff an ugly appearance and consequent
inferiority complex. It is further asserted that the plaintiff has further become impotent for all practical
purposes and will not be able to live a normal marital life. It is also claimed that at the time of the
incident the plaintiff under the compelling circumstances was working with a nearby Auto Mechanic and
was being paid stipend of Rs.15 to Rs.20 per day, and he would have learnt the work at the age of 15
years and would have started earning Rs.5,000 to Rs.6,000 per month at the age of 18 years and
thereafter he might have gone to some Middle East countries and would have earned Rs. 15,000 per
month with a further increase of 40% per annum. The plaintiff consequently has claimed a sum of
Rs.85,00,000 (Rupees eight million five hundred thousands only) for his sufferings on account of such
injuries and Rs.35,00,000 (Rupees three million five hundred thousands only) on account of prospective
loss of income. In addition, the plaintiff has claimed special damages of Rs.35,000 spent on medical as
well as surgical treatment and Rs.1,15,000 expected to be spent on further treatment. The plaintiff has
also claimed under this head a sum of Rs.30,000 spent on transportation and a further 'sum of Rs.500,000
on account of prospective transportation expenses as per plaintiff he is not in a position to use public
transport after loosing one hand.

Taking up the claim of general damages, the plaintiff has not examined any doctor in support of his claim
and has himself produced certain prescription, patient discharge card and two photographs. The
production of these documents though was not challenged on the ground of admissibility, however, an
objection was raised for the non production of originals at the time of cross examination which as

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evident from the record stands complied with. However, Mr. Raghib Baqi while challenging the
production of such documents on the ground of admissibility t contended that even if such documents are
brought on record and exhibited without objection yet they cannot be treated as part of evidence, learned
counsel in support of his contention has placed reliance on the case Khan Muhammad Yousuf Khan
Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160), wherein the Honourable Supreme Court
reiterated the principle laid down in the case of M/s. Bengal Friends and Co. v. Gour Benade Saha and
Co., (PLD 1969 SC 477) to the following effect:-

"Documents which are not copies of judicial record, should not be received in evidence without
proof, of signatures and handwriting of persons alleged to have signed or written them."

However, Mr. Raghib was not able to satisfy as to how the principle laid down by the Honourable
Supreme Court in the case of Mts. Bengal Friends and Co., (supra) would help the defendants in the
circumstances of the present case for the simple reason that even if the documentary evidence is
discarded still the plaintiff in para.7 of his affidavit-in-evidence has given the detail of the surgeries
undergone which were never disputed. Besides the plaintiff has produced two photographs i.e., Exh.P/9
of offending RMU and Exh. P/10 of the plaintiff with an amputated hand, these two exhibits were not
challenged by the defendant nor the dicta laid down by the Honourable Supreme Court in the case of
M/s. Bengal Friends and Co., (supra) is attracted to these two exhibits. Even the defendants have not
disputed the amputation of the plaintiff's hand in consequence to such electrocution which facts stand
proved and of course the, consequent sufferings resulting there from.

As to the second injury, neither the documentary evidence produced reflect that the injury suffered by the
-plaintiff on the base of urethra has caused impotency to the plaintiff nor the plaintiff has produced any
expect on the point that on account of such injury the plaintiff has lost his manhood the bald statement of
the plaintiff's father to the effect that the plaintiff has lost his manhood cannot be accepted. Keeping in
view the age of the plaintiffs i.e., only seven years. I am, therefore of the view that without the evidence
of any expert on record, it would be too early to adjudge the ' plaintiff impotent, therefore, I do not find
plaintiff entitled to non pecuniary losses claimed on account of impotency, though he is found entitled to
the compensation for the suffering caused by the injury on the base of urethra. Further there is no
documentary or oral evidence of the expert on the plaint that such injuries have shorten the life span of
the plaintiff, consequently the losses claimed on such count are also rejected.

In my opinion the general damages as claimed by the plaintiff are the natural consequences of loosing
right hand from mid arm level and it goes without saying that the plaintiff would never be able to enjoy
life as he would have without the loss of his hand for which he is to be compensated, in order to mitigate
his suffering and pain. The plaintiff is further entitled to compensation on account of his suffering due to
the injury on the base of his urethra. However I am of the view that the non-pecuniary compensation
claimed by the plaintiff to the extent of Rs.8500000 for such suffering is not only exaggerated non-
realistic but fanciful. Taking into account the age, nature of injuries resulting pain its duration and its
over all effect on plaintiff's life, I am of the view that compensation in the sum of Rs.5,00,000 (Rupees
five hundred thousands only) would be fair.

Coming to the claim of pecuniary losses on account of loss of prospective income there is no evidence on
record except the bald statement of the plaintiff's father that he was taking training of auto mechanic or
was getting Rs.15 to Rs.20 per day. This portion of evidence further does not inspire confidence for the
reason that the plaintiff has stated in his affidavit-in -evidence that on 4-6-1997 i.e., Wednesday a

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2007 Y L R 1927 6/7/20, 2:43 AM

working day the plaintiff at about 2 p.m. was going to purchase vegetable instead of working with the
said auto mechanic. The plaintiff has in fact exaggerated his claim on account of a formula which is far
from reality and based on wishful thinking oblivious of the fact that the plaintiff is to be adjudged in
accordance with the status of his father and in the similar circumstances his father as deposed was not
able to meet the needs of the day. In my view for this reason the Court while granting pecuniary
compensation has to take into account the quality of life to which the plaintiff is accustomed, standard of
living, and over all effect of such injuries on his life etc. it is also to be kept in mind that the loss of one
hand of course would affect the earning capacity of the plaintiff but would not totally deprive him from
earning. Taking into account all such factors I am of the .view that 'a sum of Rs.1,000,000 (Rupees One
Million only) shall be sufficient on such count.

Coming to the special damages, the plaintiff has claimed a sum of Rs.35,000 as amount spent on
treatment and further sum of Rs.1,50,000 as prospective medical expenses, however such claim of the
plaintiff is not supported by any documentary evidence to show that any amount was actually spent on
his treatment. Even otherwise, the documentary evidence produced reflects that the plaintiff was treated
in National Institute of Child. Health which normally extends free medical treatment, the very fact that
the plaintiff has not produced any bill of treatment or receipts for medicine etc. supports such view,
notwithstanding it also cannot be expected that no amount whatsoever would have been spent by the
plaintiff on his treatment. Mr. Nasir Maqsood has contended that though no documentary proof has been
produced in support of special damages still the same can be awarded by this Court upon a fair estimate
of expenses which might have been incurred by the plaintiff on purchasing medicine etc., conveyance
and travelling expenses, and to support such plea learned counsel has placed reliance on a judgment of
Rajasthan High Court in the case of Rajasthan State Road Transport Corporation v. Gyan Parkash
Bhargava (11) (1985 ACC 230) where a Division Bench of the Rajasthan High Court had under similar
circumstances upheld the finding of the learned Single Judge who had allowed special damages without
documentary evidence upon a fair estimate of medical, conveyance and travelling expenses.

Keeping in view the financial back ground of the plaintiff and the fact that he was treated in a hospital
which extend free medical treatment upon a fair estimate of the medicines which the plaintiff would have
purchased during his treatment allow a sum of Rs.20,000 on account of medical expenses, however the
future medical expenses as claimed cannot be allowed as there is no evidence on record that the plaintiff
needs further treatment.

The plaintiff has further claimed a sum of Rs.30,000 as past and Rs.500,000 as prospective transportation
charges, there is nothing on record to support such claim except the bald statement of plaintiff's father
which also appears to be hypothetical and on the basis of a theory that a person who is deprived of one
hand cannot undertake any journey by public transport. Despite all my sympathies for the plaintiff I am
not able to persuade myself to agree to such a theory. However the amount already spend by the plaintiff
on the transport in the sum of Rs.30,000 is allowed for the reason that the period when the plaintiff was
admitted in the hospital for the purposes of surgeries etc. the plaintiff must have incurred expenses on
hiring of private transport etc.

In the circumstances, I decree the suit in the sum of Rs.1550,000 and direct the defendant to deposit the
said amount with the Nazir of this Court within 30 days hereof which amount shall be invested in some
profit bearing Government scheme and the plaintiff would be entitled to its profit till he attains majority.
In case the defendant failed to deposit the said amount within 30 days hereof the plaintiff shall further be
entitled to an equalizer at the rate of 10% from the date of decree till the said amount is deposited.

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2007 Y L R 1927 6/7/20, 2:43 AM

M.B.T./A-55/K Suit decreed.

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