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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:

 

 

Description of suit.

Period of limitation.

Time from which period begins to run

 

X‑For compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not herein specially provided for.

(Two years)

When the malfeasance, misfeasance or nonfeasance taken place.

 

 

 

 

 

The distinction between a claim for negligence and claim for Mal feasance, misfeasance or nonfeasance is obvious, and the first difficulty in the appellant s way is that as he has not produced any evidence to show how he was run overt he is unable to bring his case within the ambit of this article. It is true that he has alleged negligence in his plaint and in his replication (which was drafted by advocate), but neither the plaint nor the replication give any particulars whatever of the respondent’s negligence. This is unfortunate, Be that as it may, because the appellant has based his cause of action in his plaint on negligence, the learned Assistant Advocate General submitted that the injury to the appellant was not an injury which could be described as an injury that had been committed within the mean ing of article 22, because the injury had not been caused by any overt act on the part of the respondent’s servants and agents. If the third column in article 22 had read “when the injury is committed” by the defendant, the argument would have been attractive. But, as the words in the Article are only “when the injury is committed,” nothing would turn on the question whether the injury had been committed by an overt act or whether it had been committed on account of the defendant’s failure to take reasonable care to protect the rights of his neighbour.

 

Learned counsel then submitted that his submission was based on the observations of the Lahore High Court in Abdul Majid Butt v. United Chemicals Ltd. P L D 1970 Lah.298. So, I would explain here that the appli cant in the case cited was employed in the defendant’s factory and he sued the defendant for damages, because his face had been burnt and disfigured beyond recognition‑ in an explosion in the factory which had been caused by the defendant’s failure to maintain its plant and machinery properly, However, as the applicant had filed his suit in forma pauper is he had to show, prima facie, that his suit was not time‑barred, and he relied on article 36 of the Limitation Act, and alternatively on section 18 of the Limitation Act. As the trial Court rejected these contentions and held that the suit was time barred under article 22, it dismissed the appli cant’s application to sue in forma pauperis. Therefore, the applicant filed a revision in the High Court and the question in the High Court was not whether the applicant’s suit fall under article 36, but whether he had a triable case for contending ‘hat his cause of action might fall under this article. In allowing the revision the learned Judge observed: ‑

 

“In any case the question of limitation was tied up with the merits of the suit and it is established law that the application to sue in forma pauperis is not to be rejected if the question of limitation is a complicated one.”

 

The ratio of this case, therefore, does not lend any support whatever to the distinction sought to be drawn by the learned Assistant Advocate General between articles 22 and 36. However the learned Judge also observed: ‑

 

“In the context the word ‘committed’ implies the commission of an overt act and would not cover a case of injury that has resulted on account of misfeasance i. e. the improper performance of a duty cast on a person by law. Thus if the serious injuries suffered by the petitioner are the consequence of culpable negli gence and the failure of the respondent to perform its legal obligations to maintain their plants and equipment in a proper condition, the injury suffered by a person as a result of such negligence would fall in the category of cases visualised by the provisions of Art. 36 of the Limitation Act.”

 

As the learned Assistant Advocate‑General relied on these observa tions, I have to point out that in the first place they are obiter dicta. Secondly, with the utmost respect I am unable to agree with the view that a claim for negligence can never fall under article 22, because an injury caused by negligence is not an injury, which has been committed within the meaning of that article. However, in my humble opinion, although the observations quoted are wide, they had reference only to the claim of the applicant that the explosion which had injured him so grievously had been caused by the defendant’s failure to maintain its plant and machin ery in a safe condition Therefore, these observations should not be extended to a totally different situation and they would have helped then appellant’s case only if he had proved that he had been run over on account of some defect in the system of the respondent for operating its railways. I think I am entitled to take judicial notice of the fact that our trains are not run by computers, therefore, as the appellant has merely alleged that he was run over by the train specified in his plaint, the only possible inference from this bald allegation in the plaint is that the engine driver of the train had run him over negligently and broken his leg. But this act of negligence in running him over and breaking his leg was an overt act, which cannot be equated with the failure of the respondent in the Lahore case “to maintain their plants and equipment to a proper condition.” Therefore, the appellant has failed to bring his case within the ambit of the observations in Abdul Majid’s case and so it is not neces sary to examine the validity of these observations.

 

Finally, the learned Assistant Advocate‑General drew our attention to the fact that the appellant’s services had been terminated almost one year after he had lost his leg and if the appellant’s cause of action against the respondent did not arise until his services were terminated, his case would fall under section 24 of the Limitation Act and his suit would be within time. This section reads:

 

“24. In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be com puted from the time when the injury results.”

 

Chitaley and Bakliale in their commentary on the section (The Limita tion Act, 5th Edition, page 753) states

 

“This section applies only where the act of the defendant does not, of itself, constitute a legal injury, but an injury subsequently results therefrom. In such cases, time will run only from the time when the injury results. Where the act of the defendant itself constitutes a legal injury, this section has no application and the mere fact that the plaintiff suffers damage subsequently will not enable him to compute the period of limitation for a suit for compensation in respect of such act, from the date of the damage.”

 

Similarly, Rustomji in his commentary on the Law of Limitation (Pakistan Edition, page 515) observes :‑

 

“Where an act is actionable per se, as being a wrong, limitation will run from the act itself and not from the injury which may result from the act subsequently. To such cases, S. 24 has no application. But where resuling injury alone gives the cause of action and not the act from which such injury results, time runs from the actual injury and.‑r this section.”

 

I agree with these observations of the learned authors, which are supported by the view taken in Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi A I R 1924 Bom. 290 and in Allan Mathewson v. District Board of Manbhum and another AIR 1920 Pat, 324 and as the facts of Allan’s case are similar to those in this appeal, I would examine this judgment in some detail.

 

The appellant Mathewson met with an accident and fractured one of his legs on account of the negligence of the defendant’s servants. At first the injury was not considered to be very serious, but later on complications supervened and the appellant’s leg was amput ated on 7th October, 1963 about two months after the accident. His suit for damages against the respondent for negligence was dismissed .on the ground of limitation, therefore, he challenged the trial Court’s judgment in an appeal in the Patna High Court. And the question before the High Court was whether, in the events that had happened, the appellant’s cause of action had accrued on the date of the accident or on the date when his leg was amputated. The appellant contended that his suit was within time, because his cause of action arose when his leg was ampu tated, and the appellant’s suit would have been in time if this plea had been correct. But, in repelling it, Dawson‑Miller, C. J. observed: ‑

 

“The second question is, whether a fresh cause of action arose when the plaintiff’s leg was amputated. I am unable to assent to the proposition that, where personal injuries are occasioned by a negligent act of the defendant a fresh cause of action arises when ever the damage suffered becomes aggravated. It is well settled that the plaintiff in such a case is entitled to compensation not only for damage actually visible at the time when the suit is instituted, or the time of the trial but even for such consequ ential damage as may reasonably be expected to arise in the future from the wrongful act complained of. Had the plaintiff instituted the present suit and brought it to trial before the 7th October he would have been entitled to claim both for present and prospec tive damages arising from the injury and if, subsequently, it became necessary to amputate his leg a fresh suit for damages would not have been maintainable.”

 

I respectfully agree with these observations, because the appellant’s cause of action arose as soon as his leg was fractured, and whilst the amputation of his leg was relevant to the amount of damages claimed by him, it was the injury to him combined with the respondent’s negligence which gave rise to the cause of action for his suit, therefore, the injury was actionable per se. Similarly, in the instant case, on the assumption that the respondent was negligent, the fact that the appellant’s leg was cut off by a train was an actionable wrong which by itself gave a complete cause of action to the appellant for his suit and he could have filed his suit against the respondent the day after the accident. Nor would he have been prejudiced in the prosecution of his claim, if he had done so. That is clear from a casual perusal of his plaint and I would recall here that he had claimed Rs. 9,000 for non‑pecuniary losses and Rs. 21,000 for pecu niary losses. Now, the cause of action in the instant case for the non‑pecu niary losses was the pain and suffering caused by the accident and the fact that the appellant’s employment was terminated was completely M irrelevant to this cause of action. Next, as to his claim for pecuniary, losses, as I have explained, the appellant could only claim for the dimi nution of his earning power, and as a man’s earning capacity is diminished, if he looses one of his legs, the accident, itself furnished the appellant with the cause of action for the claim for pecuniary losses, therefore, sec tion 24 was not attracted, because it is attracted only when the tortfeasor’s act “does not give rise to a cause of action unless some specific injury actually results therefrom.” But that was not so in the instant case, and if, for example, the respondent had admitted its negligence, the appellant’s claim for pecuniary losses could have been decreed immediately on the basis of evidence about the extent of his injuries and the effect of those injuries on his prospects of future employment. And, further merely because the respondent retained the appellant in its service for almost a year after the accident, this could not and did not alter the fact that the accident had permanently reduced the appellant’s earning capa city, and, on the other hand, the respondent’s termination of the appel lant’s employment did not mean that he had totally lost his earning power. The position no doubt might have been different, if the appellant’s employment had been terminated illegally, but that would have been an independent cause of action unconnected with the claim for damages. But, as that is not the appellant’s claim, nothing turns on the respondent’s failure to terminate appellant’s employment immediately after the accident.

 

Looking at the matter from another angle, why did the respondent wait for nearly one year before terminating the appellant’s employment? Was it to lull him into a false sense of security or that he would not file a suit until after the expiry of the period of limitation? Or was it because the respondent wanted to help the appellant in his distress? If the former the case would have fallen under section 18 of the Limitation Act and the suit would not have been time‑barred. But that is not the appellant’s case. Therefore, although the position is not clear, the respondent appears to have kept the appellant in its employment for a while on a compassionate basis and if we treat this assistance as a ground for extending limitation we will not only be misreading section 24, but we will also be discouraging employers from giving any assistance to their workmen in their hour of distress.

 

It is true that there is no evidence to show that the respondent had continued with the appellant’s services on an ex gratis basis, but the respondent had only to meet the case raised by the appellant in his plaint and in his replication. As the appellant has nowhere alleged that time had been extended, because the respondent had not terminated his employment immediately, the respondent was not required to explain why it did not terminate the appellant’s services immediately. In these circumstances, it would also be unjust and oppressive to hold that time was extended because the respondent had not terminated the appellant’s employment immediately after the accident. And, it is for situations like these that rule 6 of Order VII prescribes “where the suit is institu ted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed.” This rule is not a technicality. It embodies a basic principle of equity and justice, and I would hold that the suit under appeal cannot be saved under section 24 of the Limitation Act on the further ground that the plaint is hit by this rule.

 

In the result, 1 would dismiss the appeal both because the appellant’s suit is time‑barred and because the appellant has failed to prove the respondent’s negligence. However, I would leave the parties to bear their own costs.

 

NASIM HASAN SHAH, J. ‑1 have carefully read the judgment of my Lord Mr. Justice Dorab Patel and agree that the suit must be dismissed on the ground that the appellant has failed to prove the negligence of respondent. In this view of the matter I do not think it is necessary to express my considered views on the question of limitation.

 

MUHAMMAD AKRAM, J.‑I agree.

 

G. SAFDAR SHAH, J.‑‑I agree.

 

NASIM HASAN SHAH, J.‑I agree subject to my note.

 

Appeal dismissed.

 

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