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1980 S C M R 485

 

Present: Muhammad Akram, Dorab Patel, G. Safdar Shah and

Nasim Hasan Shah, JJ

 

NATHEY KHAN‑Appellant

 

Versus

 

GOVERNMENT OF ‑WEST PAKISTAN (Now PUNJAB)‑Respondent

 

Civil Appeal No. 45 of 1977, decided on 10th October, 1979.

 

(On appeal from the judgment and order of the Lahore High Court, Lahore dated 16‑8‑1974 in R.F.A. 51 of 1968).

 

Appellant in person.

 

Ria: Ahmad, Assistant Advocate‑General (Punjab) and Ijaz Ali, Advocate‑on‑Record for Respondent.

 

Dates of hearing : 27th and 28th May, 1979.

 

JUDGMENT

 

DORAB PATEL, J.‑The appellant was employed by the Pakistan Western Railway and on the 16th of August, 1963, whilst he was on duty at Mamoon Kanjan railway station, he was run over by a train with the result that he lost his left leg and right foot. He was therefore, retired in due course because the Pakistan Western Railway reached the conclusion on the basis of expert opinion that he had become unfit for service. But, presumably because the appellant had suffered his disability whilst discharging his duties, the railways paid him a sum of Rs. 3,528 as compensation under the Workmen’s Compensation Act, 1923 (hereinafter called the said Act). And it would appear that this sum had been deposited by the railways and drawn out by the appellant under protest. This was because the appel lant was of the view that the accident had been caused by the neg ligence of the railways, therefore, before drawing out the said amount of Rs. 3528 from the Court of the Commissioner for Workmen’s Compen sation, he had filed a suit in forma pauperis in the Court of the Senior Civil Judge, Lahore against the respondent for compensation. The appellant’s averment in his plaint was that but for the disability incurred by him on account of the accident caused by the respon dent’s negligence, he would have continued working for another twenty‑one years and thus earned a sum of Rs. 21,000. Therefore, he claimed this amount as special damages together with another sum of Rs. 9,000 as damages for physical pain, mental worry and loss of happiness.

 

The respondent contested the suit and denied that it had been negligent as alleged or at all. It also submitted that the appellant’s claim was time‑barred and that in any event the appellant was barred and estopped from claiming general damages in tort for negligence because he had accepted the sum of Rs. 3,528 from the respondent in full satisfaction of his claim. As the appellant had meanwhile engaged a counsel to prosecute his suit, he filed a replication to the respon dent’s written statement and presumably at the request of the parties the trial Court decided to try as preliminary issues the two legal objections raised by the respondent in its written statement. Therefore, it framed two issues. Those were

 

(1) Is the suit within time?

 

(2) Is the suit barred by estoppel or Law?

 

Although the learned Senior Civil Judge framed an issue about Limitation, he refrained from deciding the issue and only decided the issue of estoppel. And as by his order dated 25‑5‑1968, he held that the appellant was not estopped or barred from prosecuting his suit, he fixed it for evidence. But, although both parties were represented by counsel I regret to say that they appear to have competed with each other in not producing evidence on the question of how the appellant had been run over by a train, and as it was for the appellant to prove the respondent’s negligence, his learned counsel fell back on the principle of res ipsa loquitur. But as the appellant had not even attempted to describe how he had been run over by a train, the learned Civil Judge, held, by his judgment dated 21‑10‑1968 that the appellant had failed to prove the respondent’s negligence, and lie dismissed the appellant’s suit without deciding the question of limitation.

 

The appellant challenged the dismissal of his suit in an appeal in the Lahore Seat of the West Pakistan High Court and in the events that happened, this appeal was heard by a learned Judge of the Lahore High Court in 1975. The learned Judge examined the pro visions of the said Act and as he was of the view that the appellant had elected to avail himself all the remedies under the said Act, he observed :‑

 

“In the light of the above discussion I do not agree with the learned Trial Judge that the suit was not barred by any law. Sections 3 and 19 read with section 28 of the Workmen’s Compensation Act, in the circumstances of this case, as dis cussed above are complete bar to such a suit.

 

As the appeal has been decided on the question of maintainabi lity of the suit I do not consider it necessary to decide the other two issues on limitation and merits.”

 

Accordingly, as the learned Judge dismissed the appeal the petitioner filed a petition for leave and as we were disturbed by the construction placed by the High Court on sections 3(5), 19 and 28, of the said Act, we granted leave “as prayed”. And, we have now heard the appeal with the assistance of the learned Assistant Advocate General, who appeared on behalf of the respondent.

 

In view of the finding of the learned Judge that subsection (5) of section 3 of the said Act was fatal to the appellant’s suit. it is neces sary to examine this subsection. It reads:‑

 

“3(5) Nothing herein, contained shall be deemed to confer any right to compensation on a Workman in respect of any injury if he has instituted in a civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintainable by a workman in any Court of law in respect of any injury

 

(a) if he has instituted a claim to compensation in respect of the injury before a Commissioner ; or

 

(b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this Act.”

 

I see no ambiguity in this subsection, and taking first clause (a) of the subsection, the appellant’s suit would have been hit by this provision only if he had himself “instituted a. claim to compensation”. But he had not, and this was admitted before us on 21‑12‑1976 by Mr. Tanveer Ahmad Khan, who had appeared before us on behalf of the caveator. However, because the appellant had drawn out, albeit under protest, the compensation deposited for his benefit by the respondent, the learned Judge was of the view that the appellant’s conduct had brought him within the mischief of clause (a). With respect, the view of the learned Judge is based on a misreading of the clause. It bars a suit by a workman only in those cases in which the workman himself filed a claim before the Commissioner for Workmen’s Com pensation. It is true that the appellant had, in the instant case, drawn out the sum deposited for his benefit, but that is a very differ ent thing from instituting a claim before the Commissioner for Work men’s Compensation. And the Legislature must be presumed to be aware of the difference between a workman prosecuting a claim be fore the Commissioner for Workmen’s Compensation and a workman drawing out the sum deposited by his employer with the Commissioner for Workmen’s Compensation, therefore, if the Legislature had in tended to deprive a workman of his remedy in tort against his employer merely because he had received compensation from his employer under the said Act, it would have enacted accordingly. As it has not, we cannot widen the ambit of clause (a) to bring the appellant within its mischief, the moreso, as provisions for the ouster of the jurisdiction of the civil Courts have to be construed strictly.

 

I now turn to clause (b) of the sub section. . It refers only to agreements between a workman and his employer which are “in accordance with the provisions of this Act.” This qualification is very important. It is not every agreement which falls under this sub clause. But perhaps because his attention was not drawn to the words “in accordance with the provisions of this Act.”, the learned Judge observed in paragraph 7 of his judgment.

 

“It appears from the original agreement dated 13‑11‑1964 avail able on the file of the Commissioner that it was duly execut ed by both the parties, and that the appellant, accepted the compensation of Rs. ‑3,518, “in full ‘settlement of all and every claim under the Workmen’s Compensation Act, 1923.”

 

Now because the appellant had on 13‑11‑1964 agreed to accept the respondent’s offer in full satisfaction of his claims, the learned Judge appears to have been of the view that the agreement of 13‑11‑1964 fell within the mischief of sub‑clause (b) of subsection (5) of section 3 read with sections 19 and 28 of the said Act. 1. will presently examine section 19, but as it is only section 28 of the said Act which deals with agreements between employer and their workmen, I would first examine this section.

 

Section 28 reads :‑

 

“28. Registration of agreements.‑(1) Where the amount of any lump sum payable as compensation has been settled by agree ment whether by way of redemption of a half‑monthly payment or otherwise, or where any compensation has been so settled as being payable to woman or a person under a legal disability memorandum thereof shall be sent by the employer to the Commissioner, who shall on being satisfied as to its genuineness, record the memorandum in a register in the prescribed manner

 

Provided that‑

 

(a) no such memorandum shall be recorded before seven days after communication by the Commissioner of notice to the parties concerned;

 

(b) The Commissioner may at any time rectify the register ;

 

(c) Where it appears to the Commissioner that an agreement as to the payment of a lump sum whether by way of redemp tion of a half‑monthly payment or otherwise, or an agreement as to the amount of compensation payable to a woman or a person under a legal disability . . . . .ought not to be registered by reason of the inadequacy of the sum or amount, or by reason of the agreement having been obtained by fraud or undue influence or other improper means, he may refuse to record the memorandum of agreement and may make such order including an order as to any sum already paid under the agreement, as he thinks just in the circumstances.

 

(2) An agreement for the payment of compensation which has been registered under subsection (1) shall be enforceable under this Act notwithstanding any thing contained in the Contract Act, 1872 (IX of 1872), or in any other law for the time being in force.”

 

There is no ambiguity about this section either. The section makes it clear that it is not enough for an employer to persuade an injured workman to accept his offer of compensation for the injury. After obtaining the workmen’s consent to such an agreement, the’ employer has to send “a memorandum thereof to the Commis sioner”. No action can be taken by the Commissioner on this agreement for a week, because the Commissioner is under an obligation to send a notice about the receipt of the agreement to the workman. The object of this provision is to give an opportunity to the workman to make his representation, if any, against the agreement in case he B has changed his mind. Then, after hearing the workman, the Com missioner has to register it provided he is satisfied that the compen sation offered by the employer to the workman is adequate and that the employer has not obtained the workman’s consent to the agreement by taking the advantage of his superior bargaining power. And, it is only after the agreement has been registered that it becomes a bar to any claim by the workman in‑ the civil Courts, and becomes San agreement “in accordance with the provisions of this Act” within the meaning of sub‑clause (b) of subsection (5) of section 3.

 

NOW; in the instant case, apart from his reliance on section 19, which I will presently consider, the learned Judge was of the view that the appellant’s suit was barred because he had agreed on 13‑11‑1964 to accept the respondent’s offer in full satisfaction of his claim. But, as I explained, the Legislature has in clause (a) of the section ex pressly given the workman an opportunity to change his mind if he has second thoughts about any agreement executed by him with his employer. And, although the appellant, had entered into an agree ment with the respondent on 13‑11‑1964, he had second thoughts there after, and because he changed his mind, the Commissioner, in the words of the learned Judge, “on the statement made by the appellant” refused to register the agreement. As the agreement was not regis tered, on the plain language of the section, it could not be a bar to any suit by the appellant in the civil Courts and, with respect. I am not able to agree with the view of the learned Judge.

 

I now turn to section 19, but in order to understand the scope and object of the section, it is necessary to bear in mind that a workman’s cause of action for a claim under the said Act is different from his cause of action for a claim in tort, because the employer’s liability under the said Act is much more stringent than under the law of tort. The employer is liable to compensate his workman under section 3 of the said Act for any injury “caused to a workman by accident arising out of and in the course of his employment” unless the accident is directly attributable to the workman having been under the influence of drinks or drugs at the time Of the accident, or unless the accident is due to the wilful disobedience of the workman to orders expressly given or rules expressly framed in securing the safety of workmen or unless the accident is caused by the wilful removal or disregard by the workman of any safety guard or other device provided for the purpose of ensuring the safety of work man. Thus an employer’s liability under the said Act is almost of an absolute nature. And, as a corollary to this principle the em ployer’s liability to pay compensation under the said Act is limited by the ceilings’ fixed in the first schedule to the said Act. On the other hand, a workman can succeed in a claim for tort against his employer only if he can prove that he was injured on account of the negligence of his employer. And, if he can prove that he was injured on account of his employers negligence the compensation to be awarded to him is fixed by, the Court and is not subject to any limit. And it would be almost a platitude to state that the damages which can be award ed in an action in tort would generally be much higher than the compensation fixed in the first schedule to the said Act. Therefore, the questions which arise for examination in claim under the said Act are different from those which arise for examination in a suit for damages in tort. With these observations I turn to section 19.

 

The section reads :‑

 

’19. Reference to Commissioners.‑(1) If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount or duration of compensation (including any question as to the nature or extent of disablement), the question shall, in de fault of agreement, be settled by a Commissioner.

 

(2) No civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.”

 

Subsection (1) refers only to a question which “arises in any proceed ings under this Act…” and not to a question which arises to other proceedings such as a suit for damages in tort, therefore, as the section has to be read as a whole and as a provision for the ouster of the n jurisdictions of the civil Courts must always be construed strictly, the bar of subsection (2) of the section extends only to claim under the said Act. And, as the appellant’s claim in the suit under appeal is not a claim under the said Act The suit is not barred by this section,

 

It is not clear whether the attention of the learned Judge was drawn to the limited scope of this section, because after reproducing sub section (1), the learned Judge went on to express the view that the read ing of the section “would show that the Commissioner had the jurisdiction to consider the plea of the appellant with regard to the inadequacy of the compensation paid to him by the respondent under the agreement as also to determine the correct amount of compensation; and thus, he (the Commissioner) was competent to give the relief to the appellant with regard to the additional claim.” And because of this conclusion that the Commissioner was competent to examine the appellant’s claim, the learned Judge held that this section too was fatal to the appellant’s suit. With respect, the Com missioner was only competent to give the relief prescribed under the said Act. But, for example, as I indicated earlier, the appellant has` claimed Rs. 9,000 in the suit under appeal as compensation for the pain and Suffering caused by the accident. The Commissioner had no jurisdiction to examine this claim, nor was he required to examine the question of the respondent’s negligence, but that is the cause of’: action of the appellant in his suit under appeal. And, as the Commissioner’s jurisdiction was confined to the grant of relief under the said’ Act, with due respect to the learned Judge, he erred in law in holding’ that a reading of section 19 “would show that the Commissioner had the jurisdiction to consider the plea of the appellant with regard to the) inadequacy of the compensation paid to him by the respondent under the agreement as also to determine the correct amount of compen sation; and thus he (the Commissioner) was competent to give the re lief to the appellant with regard to the additional claim. ‘ In my humble opinion, these observations are based on a total misappre hension of the appellant’s claim. It was not the appellant, who had filed a claim under the said Act. It was the respondent which had done so, because it was trying to limit its liability to the compensation pres cribed in the first schedule of the said Act. The appellant was under no obligation to accept this amount or to abandon his claim in tort and as he refused to limit his claim to the amount prescribed in the said Act, the Commissioner had no jurisdiction whatever to decide or dispose of his claim, and so this section too was no bar to the appellant’s suit. I am, therefore, unable to agree with the construction placed by the learned Judge on the said Act and as I am satisfied that the appellant’s. suit is not barred, it is necessary to examine the merits of his claim.

 

The appellant’s claim is for physical injuries and a person who is physically injured may recover both for his pecuniary and his non‑pecuni ary losses. The former would comprise the loss of expected earnings and the medical and other expenses incurred on account of the injury. The latter would comprise the pain and suffering caused by the injury and loss of amenities and loss of expectation of life, if any, and the appellant has claimed Rs. 9,000 under this head. On the very meagre evidence produced by him and bearing in mind the fact that his cause of action arose in 193, this claim for Rs. 9,000 is on the high side and in my opinion, a sum of Rs. 5,000 would be sufficient compensation under the head of non‑pecuniary losses.

 

Next, as to the compensation for pecuniary losses, the appellant claims that he was 34 years of age at the time of the accident. He has also proved that he was earning Rs. 77 per month, which is a little over Rs. 900 per year. Therefore, on the footing that he would have continued to work for another 21 years on an average wage of Rs. 1,000 per year, he has claimed Rs 21,000 as compensation for his pecuniary losses. The claim is patently exaggerated. Even on the footing that the respondent is liable to compensate the appellant for 21 years at Rs. 1,000 per year,; the respondent is entitled to set off against its liability in tort the amounts it has already paid to the appellant. It has paid the appellant) wages for about one near after the accident. It has also paid Rs. 770 as gratuity, and Rs. 3,528 as compensation under the said Act. There fore, even on the assumption that the appellant is entitled to compensations for 11 years at Rs. 1,000 per year, he can only claim the balance which is about Rs 16,000.

 

Now, whilst the appellant’s claim that he would have earned, on an average, a wage of Rs. 1,000 per year is correct, the question is whether he is entitled to claim the equivalent of 21 years wages as compensation for the loss of his earning capacity. McGregor in his Treatise on Damages observes in paragraph 1100 of his commentary:‑

 

“The Courts have evolved a particular method for assessing loss of earning capacity, for arriving at the amount which the plaintiff has been prevented, by the injury from earning in the future. This amount is calculated by taking the figure of the plaintiff’s annual earnings‑at the time of the injury less the amount, if any, which he can now earn annually, and multiplying this by a figure which, while based upon the number of years during which the loss of earning power will last, is discounted so as to allow for the fact that a lump sum is being given now instead of periodical payments over the years. This latter figure has long been called the multiplier ; the former figure is now coming to be referred to as the multiplicand. Further adjustments, however, may have to be made to multiplicand or multiplier on account of a variety of factors, viz. the probability of future increase or decrease in the annual earnings, the so‑called contin gencies of life, and the incidence of inflation and taxation.”

 

I agree with this passage and I would first examine the multiplier for the appellant’s claim. As his disability, thong’ partial, is permanent, the multiplier is the expectation of his working life. And, until the shift in the law on account of ;a series of judgments of the Karachi Seat of the West Pakistan High Court, plaintiffs used to prove the multiplier by producing proper evidence such as tables of average life expectancies. No such attempt has been made by the appellant to the instant case. perhaps because of what I would describe as the Karachi view. so as a starting point for calculating the multiplier, I would refer to the date about the expectation of life of males at birth. According to the census data of Kingsley Davi,. the expectation of life of an Indian male in the decade 1931 to 1941 was only 21 year No doubt the average expectation of life in the sub‑continent was so low because of the high mortality rates in the densely populated regions of Eastern and Southern India, and, it is not surprising that according to Abridged life tables for males and females in the former Province of the Punjab (Pakistan Journal of Medical Research, Vol. I, No. 1, 1958) compiled by M. K H. Khan, the average expectation of life of a Punjabi male at birth was 33 years in the years 1950 to 1952. However, the result of the slow improvement in the health services after 1947 was reflected in the figures of the next decade Thus according to Mohammad Aslam, Sultan S Hashmi and William Seltzer’s Abridged life tables of population 1969 Table VI (The Pakistan Development Review, VOI.VII, Spring 1967, No. 1, PIDE). The average expectation of life at birth of a Punjabi male in 1962 was 50.8 years, whilst, according to Nasim Iqbal Farooqi and Sultan S. Hashmi it was 49.9 years.

 

However, as the expectation of life at birth is affected by the high rate of infantile mortality, a person’s expectation of life will necessarily improve once he survives the‑‑hazards of childhood. Secondly, as it is not the respondent’s case that the appellant’s employment exposed him to any special hazards, the rule laid down by Waheeduddin Ahmad, J , in Ursulina v. Orient Airways (P L D 1960 Kar. 712) with which I. respect fully agree is not attracted. Thirdly, the Railways have always looked after health and welfare of their employee. In these circumstances, the appellant’s claim that he would have continued working up to the age of 55 appears, prima facie, t D be reasonable.

 

I now turn to the case law. In Mi. Koshalia and another v. Riaz‑ud‑Din and others (A I R 1,36 Lab. 362) the question was of the expectation of life of one Jagat Ram, who had been killed by a car belonging to Mr. Moinuddin, I C S. The trial Court had awarded compensation to Jagat Ram’s heirs on the assumption that the deceased would have lived and worked upto the age of 50 years. In setting aside the trial Court’s judgment the learned judges referred to the actuarial tables prepared by an in surance company and held that the expectation of life “of Jagat Ram at the age of 23 would have been 34.6”. And, as the plaintiffs did no; produce any evidence to show that Jagat Ram was likely to have lived beyond the age of 34.6. the learned Judges awarded compensation to the heirs of the deceased on the basis that Jagat Ram would have lived, but for the accident, only upto the age of 34.6. It is judgment was followed by another Division Bench of the Lahore High Court in Mrs. Constance Zena Wells v. Governor‑General of India‑in Council (A I R 1946 Lab, 50) and Abdul Rashid, J., after referring to Mt Khoshalia’s‑cash observed :‑

 

“The deceased in the present case was 26 years of age and was in robust health. I am, therefore, of the opinion that his dependents should receive compensation amounting approximately to his earnings for a period of 20 years after certain deductions have been made.”

 

Thus the learned Judges took the view that the expectation of life of the deceased was 46 years. And, I may point out that as the deceased was a fireman, employed in the North Western Railways, he was financially in a better position to look after his health than Jagat Ram in the earlier case.

 

The authority of the judgment in Wells’s case has never been ques tioned and I respectfully agree with the view taken in it and the manner in which compensation was calculated. However, whilst following this judgment, a learned Judge of the Karachi Seat of the West Pakistan High Court held in Iftekhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. (P L D 1959 Kar. 550)

 

“The deceased was 45 years of age at the time of his death, kept good health and was a man of simple habits. He could be easily expected to live and carry on the trade of running a shop upto the age of 65 years.”

 

Now, it was with this judgment that the High Court in Karachi began taking the view that the expectation of life in the country was 60 or 65 years.

 

The question is far too important and complicated to be disposed of by an ipse dixit, therefore, I would emphasise here that the judgment in Iftikhar Hussain’s case turned on the evidence about the health of the deceased and his status in life. Not merely did the plaintiffs prove that the deceased was in good health, but they also proved that the deceased had an income of Rs. 500 per month in 1948 tit the date of his death, and that he had been earning about the same in India before his migration to the country. Obviously then the deceased was in a far better position to look after his health than Jagat Ram or Wells in the Lahore cases or for the matter of that the appellant in the instant case. But, because the expectation of life of a middle class man of sober habits is 65 years, we would riot be justified in holding that the expectation of life of the ordinary man in the country whose life is a struggle against poverty and ill health is also 65 years.

 

However, in Kulsoom v. Jalil Ahmad Khan and another (P L D 1964 Kar. 72) the ques tion was of calculating the expectation of life of a street hawker, who was killed at the age of 45. And, by a coincidence, the case came up before the same learned Judge who had decided iftikhar Hussain’s case. The learned Judge approved of his own judgment and observed that there was a divergence between the Courts in Karachi and in Lahore about the expectation of life of a male in the country and that whilst the expectation of life, according to the Lahore view, was 46 years, the expectation of life according to the Karachi view was between 53 and 65 years. Then, after referring to the somewhat flimsy evidence which had been produced by the plaintiffs in support of their claim that the deceased would have lived to the age of 65, the learned Judge upheld that claim with the observation:‑

 

I have held in a case before and am inclined to think now also that the ordinary expectancy of life can be taken to be 65 years in our country now. I am supported in this view by the fact that the age of Government servants to remain in service has recently been increased from 55 years to 60 years, which limit does not normally indicate the end of life but carries with the expectancy of eraning pension after it.” With respect, we can only speculate about the motives which led to the alteration in the age for the retirement of government servants. And, further the term Government servant embraces a very wide variety of employments. Thus, for example, the expectation of life of the officers of the Federal Services was always high, whilst that of the persons em ployed in the lowest range of the hierarchy was much lower. And the question in Kulsoom’s case was whether the expectation of life of a work man was the same as that of a man belonging to the middle class. So in extending the proposition‑ laid down by him in Iftikhar Hussain’s case to Kulsoom’s case, the learned Judge has assumed that there was no difference between the expectation of life of a reasonably prosperous shopkeeper and the expectation of life of a worker. With respect, I cannot agree with this assumption, because a person with means is necessarily in a better position to look after his health than a worker. In any event, the observations in Kulsoom’s case were not followed by the very next year in Malik Raza Khan v. Pakistan (P L D 1965 Kar. 244) by an other learned Judge of the Karachi Seat of the West Pakistan High Court. The learned Judge, who decided this case held that the expectation of life of a man of 26 was 60 years. The plaintiffs in this case, who were the heirs of the deceased, had attempted to prove that they were very prosperous, but as the learned Judge rejected this claim as false, the Court had no means of knowing the antecedents of the deceased, except that he was, like the deceased in Wells’s case a young man of 26. But, in Wells’s case, Abdul Rashid, J., had held that the deceased would have lived another 20 years, whilst the learned Judge held in Malik Raza Khan’s case that the deceased would have lived another 34 years. Was the learned Judge in the Karachi case justified in making a departure from the view taken by Abdul Rashid. J. 7 I referred earlier to the rise in the expectancy of life after 1947, but this rise was noticeable in the decade of the sixties and as I showed earlier, the rise was almost imperceptible in the fifties. Now, as the deceased in the Karachi case had died in 1957, in my humble opinion, the learned Judge was not justified in snaking so sweeping a departure from the well‑considered view of Abdul Rashid, J. Be this as it may, another learned Judge sitting in the High Court at Karachi held in Mst. Qudsia Begum v. Younus Khan and 4 others (P L D 1973 Kar. 636) that the expectancy of life of a man, who was killed at the age of 43 was 60 years. Now, the deceased in this case died in 1967 and as I indicated earlier, by this time, the improvement in the expectation of life in the country had become perceptible. But, I have referred to this case, because the learned Judge did not follow the view taken in Kulsoom’s case so it is not surprising that yet another learned Judge of the same High Court held in Mst. Ayeshabi v. Abdul Ghafoor and others (P L D 1977 Kar. 542)that the expectation of life of a male in the country had arisen to 65 years, while yet another Judge of the same High Court had held a few months earlier in Mst. Momin Bai and 3 others v. Ghulam Muhammad and 2 others ((1) P I. O 1977 Kar. 685) that the expectation of life in the country was only 60 years.

 

This cleavage of opinion amongst the learned Judges of the same High Court is the result of the negligent manner in which plaintiffs conduct their suits nowadays and I can only express my regret that plaintiffs, who file suits in the original side of a High Court, do not give, the Court the type of assistance which was given 40 years ago to a mofussil Court in Mt. Koshatia’s case. This is all the more unfortunate because after the notionalisation of life insurance, there should be no difficulty at least to Karachi in supplying the Court with tables of life expectancies of people in different strata of society and for different age groups, because such evidence is generally necessary to supplement the evidence given about the health of the victim of the accident. And; if as an England Govern ment were to make such information readily available, it would be a very great boon to the litigant public. However, as the respondent does not deny the appellant’s claim that he would have continued to work for another 21 years, it is clear that the multiplier in the instant case is 21.

 

I now turn to the question of the multiplicand. As explained by McGregor, the multiplicand is calculated by deducting from the figure of the plaintiff’s earnings at the time of the injury the amount which he can earn after the injury. No doubt, there might be exceptional cases of total disability, in which the plaintiff can establish, without any evidence, that his earning capacity has been totally destroyed. Thus, for example, if a man looses both his eyes in an accident, no evidence beyond his word be required to establish that he had lost his earning capacity completely. But, as that is not so in the instant case, the appellant should have given evidence about the loss of his earning capacity in consequences of the accident to him. And, if the matter had. rested here, I would have remanded the case in order to enable the appellant to give evidence about the loss of his earning capacity. However, the remand of the case would be an exercise in futility unless the appellant has proved his cause of action and further proved that his suit was within time, therefore, I would now examine these two questions.

 

I pointed out earlier that there is absolutely no evidence about how` the accident had occurred. Presumably the appellant was on the railway line when a train ran him over. But, he had to explain why he was on the railway line and to justify his presence on the railway track or at least to show that the carriage which ran over him had been driven or shunted negligently. As he had produced no such evidence whatsoever, his learned counsel invoked the principle of res ipsa loquititure. This principle might have been attracted if the appellant had been injured, because he was hit by a railway carriage which had gone off the rails. This is because a railway carriage has no business, to go off the rails, but as that was not so in the instant case, it was for the appellant to show how the accident had occurred and to prove that it had been caused by the respondent’s negligence.

 

The learned Assistant Advocate‑General, however, drew out attention to the evidence given by a railway guard by the name of Mohammad Hanif.

 

It reads :

 

“The day on which the plaintiff met with an accident, I was on duty as a Guard in the train, from Shorekot (Riy. Stn.) to Tendlianwala. This accident had taken place while the plaintiff was on duty. It was not due to negligence of the plaintiff.”

 

I am astonished at the cursory manner in which evidence has been recorded in this case. Mohammad Hanif has not even cared to state that he was the guard on the train which was responsible for the accident to the appellant. But, even if we assume that he was the guard of this train, he has merely stated that the accident was not due to the negligence of the appellant Unfortunately, this statement does not help the appellant’s case, because, as I explained, in order to succeed in a claim in tort, the plaintiff has to prove the defendant’s negligence and it is not enough for him to show that he was himself not negligent. Secondly, and this is much more important, the Court alone could decide the question of the respondent’s negligence on the basis of the evidence recorded by it, and as Mohammad Hanif was not giving evidence as an expert, his opinion was hit by section 45 of the Evidence Act. Therefore, his deposition does not help the appellant’s. case and as there is no other evidence to prove the respondent negligence the appellant has failed to prove that he had any cause of action against the respondent.

 

I am also of the opinion that the case should not be remanded on this question, because the question is one of fact only and as the accident took place sixteen years ago, an order of remand now might put a premium on perjury. Therefore, the appeal must fail on the short ground that the appellant has failed to prove his claim.

 

However, in deference to the industry of the learned Assistant Advo cate‑Generel, I would now examine his submissions on the question of limitation. The position taken by the respondent in the trial Court was that the appellant’s suit was time‑barred, because it was admittedly beyond the statutory period of one year prescribed under article 22 of the Limitation Act. This article reads :‑

 

________________________________________________________________________

Description of suit. | Period of | lime from which limitation. | Period begins to

run.

________________________________________________________________________

 

22.‑For compensation (One year) When the injury

for ony other is committed.

injury to the

person.

________________________________________________________________________

 

This article has to be read with the preceding article, which deals with claims under the Fatal Accidents Act, 1855. Therefore, in view of the words “any other” which, precede the words “injury to the person” in the first column of the article, the view generally taken by the Courts was that a suit in which the plaintiff’s cause of action was based on negligence fell under article 22. The learned Assistant Advocate‑General, however, submitted that a claim for compensation for negligence could fall only under article 36 which provided a period of limitation of two years. Now, if a plaintiff’s cause of action can fairly fall under different articles of the First Schedule of the Limitation Act, I would, as held by this Court in.

 

Mst. Bibi Khatoon and 7 others v. Abdul Jalil P L D 1978 S C 213 construe any ambiguity in these articles in favour of the plaintiff, so it is necessary to examine Article 36. This article reads:

 

 

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