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Petitioner: ABDUL MAJEED KHAN VS Respondent: TAWSEEN ABDUL HALEEM and others
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Amir Hani Muslim Title: ABDUL MAJEED KHAN vs TAWSEEN ABDUL HALEEM and others Case No.: Civil Petition No,463 of 2011 Date of Judgment:2011-09-19 Reported As: 2012 CLD 6 Result: Petition dismissed
JUDGMENT
JUDGMENT AMIR HANI MUSLIM, J.---Through this petition, the petitioner impugns the judgment of the learned Lahore High Court by which it has denied damages claimed by the petitioner in a suit against the respondents. 2. The relevant facts as they appear from the record are that the petitioner filed a suit for recovery of damages to the tune of Rs,5.00 million against the respondents before the Civil Judge, First- class, Mianwali. 3. The facts as have been pleaded in the plaint are that the petitioner applied for L.P.R. On 13-5- 2002, but later on, withdrew the same on 22-5-2002. On account of mala fide on the part of respondent No,1, the L.P.R. Was allowed with effect from 2-12-2002 and on appeal, the competent authority allowed the same and the petitioner was reinstated in service. It was further pleaded that again retirement order was issued by the respondent No,3 at the instance of respondent No,1 on the basis of personal enmfity. As a result of which, the petitioner challenged the said order before the learned Federal Service Tribunal and the petitioner was reinstated in service by the learned Tribunal. 4. The petitioner has pleaded in the suit that he has suffered huge losses during the period when his L.R.R. Was unauthorizedly allowed and further that on account of unlawful order of reinstatement issued at the instance of respondent No,1, which order was set aside by the Federal Service Tribunal. The petitioner in the plaint has claimed the damages in the following terms:- (i) Damages to the service career, mental torture,Rs. 4,550,000
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death of my father, health damage to my wife. (ii) Illegal act of the then Administrator defendant No.1 on LPR allowances are also ceased (sic)Rs. 2,00,000 (iii) Lodging of 1st appeal in FST, Islamabad, travelling and staying charging Court fee, Counsel feeRs. 50,000 (iv) Lodging of 2nd appeal in FST, Islamabad, travelling and staying charging Court fee, Counsel charges.Rs. 1,00,000 (v) Lodging of 3rd appeal in FST, Islamabad, travelling and staying charging Court fee, Counsel charges.Rs. 1,00,000 5. The written statement was filed by the respondents disputing the claim of the petitioner and on the basis of the pleadings, the trial Court framed following issues:- (1) Whether the plaintiff has no cause of action to file the suit? OPD (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the plaint has not been verified in accordance with legal requirements? OPD (4) Whether the suit is bad due to mis-joinder of the parties. (5) Whether this court lacks jurisdiction to try the suit? OPD (6) Whether 'the suit is liable to be dismissed in view of preliminary objection Nos.6, 7 of written statement? OPD (7) Whether the plaintiff has not come in the court with clean hands? OPD (8) Whether the plaintiff is estopped by his words and conduct to file the suit? OPD (9) Whether the plaintiff has filed frivolous suit and vexatious and defendants are entitled for special costs? OPD (10) Whether plaintiff suffered mental torture by the act of the defendants and he also suffered loss of reputation, loss of business, health and he is entitled for the compensation of Rs,50,000? OPD 6. After the evidence, the trial Court, by its judgment dismissed the suit of the petitioner with compensatory costs of Rs,25,000. The petitioner preferred R.F.A. Before the learned Lahore High Court, which by its impugned judgment has maintained the judgment of the trial Court. 7. It Is contended by the petitioner that both the judgments of the learned courts were erroneous as they have failed to appreciate the evidence brought on record by the petitioner. According to him, he has suffered the injury and mental agony on account of unauthorized acts of the respondent No,1. He has submitted that he has proved the claim of damages before the trial Court and the courts below have wrongly dismissed his suit overlooking the evidence brought on record. 8. On the other hand, the learned counsel for the respondents Nos.1 and 3 supported the impugned judgment of the High Court. 9. We have heard the petitioner in person, the learned counsel for the respondents and have also perused the available record. The petitioner has brought on record sufficient evidence which
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reflects the conduct of respondent No,1 . The orders passed by the respondent No,1 were reversed by the competent authorities and they were found to be passed unauthorizedly. The petitioner has brought on record a number of official documents through custodian of the record, which documents were neither objected to nor their contents were challenged by the respondents before the trial Court at evidence stage. It is, however, correct that the petitioner has failed to quantify the damages claimed by him as required under the law. This does not mean that the petitioner was not entitled to the grant of general damages under the rule of thumb on the face of the material brought on record by him during trial. 10. We have gone through the documentary evidence brought on record with the assistance of the parties and we are of the view that the petitioner was entitled to the grant of general damages for the mental agony which he has suffered on account of the conduct of the respondents. The petitioner has pleaded specific instances to establish personal vengeance against the respondent No,1, on account of which he claimed to have suffered losses and mental agony. We may observe that the pleadings and the evidence brought in support of the claim of damages by the petitioner were sufficient to award general damages to the petitioner against the respondent No 1. 11. For the aforesaid reasons, we accordingly convert this petition into appeal and partly allow the same setting aside the impugned judgment as well as the judgment of the trial Court, award damages to the petitioner to the tune of Rs,1,00,000 with mark up at the rate of 10% from the date of filing of the suit, till the recovery of the entire amount against the respondent No,1 for his unwarranted actions which resulted the petitioner to suffer mental agony and the injury as pleaded by him in the suit. This amount shall be paid by the respondent No,1 from his own pocket. (Sd.) Amir Hani Muslim, J I agree and have also added my separate Note. (Sd.) Iftikhar Muhammad Chaudhry, C.J. I have recorded my own reasons. (Sd.) Khilji Arif Hussain, J IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---I have had the benefit of perusing the judgment rendered by my learned brother. I am in full agreement with his conclusion; however, I would like to add a few lines in this regard. 2. In the instant case the petitioner has, claimed damages on the basis of loss caused to his service career; mental torture; death of his father; health damage to his wife; and expenses for the litigation, which were allegedly caused due to the mala fide acts on the part of respondent No, 1 . 3. At this stage, it is to be noted that there are two types of damages namely; 'special damages' and 'general damages'. The term 'general damages' refers to the special character, condition or circumstances which accrue from the immediate, direct and approximate result of the wrong complained of. Similarly, the term 'special damages' is defined as the actual but not necessarily the result of injury complained of. It follows as a natural and approximate consequence in a particular case, by reason of special circumstances or condition. It is settled that in an action for personal injuries, the general damages are governed by the rule of thumb whereas the special damages are required to be specifically pleaded and proved. In the case of British Transport Commission v. Gourleu [(1956)AC 185] it has been held that special damages have to be specially pleaded and proved. This consists of out-of- pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. The general damages are those which the law implies even if not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to
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continuing or permanent disability, compensation for loss of earning power in the future. The basic principle so far as loss of earnings and out-of-pocket expenses are concerned is that the injured person should be placed in the same financial position, so far as can be done by an award of money, as he would have been had the accident not happened. The same principle has been referred to in the case of Qazi Dost Muhammad v. Malik Dost Muhammad (1997 CLC 546), in the following terms:-- "It is a settled principle of law that in respect of special damages it is the duty of an aggrieved person to prove each item of the loss, on the basis of evidence and as far as general damages are concerned, relating to mental torture, defamation etc. Those are to be measured, following the 'Rule of Thumb', according to which, discretion rests with the Court to calculate such compensation keeping in view the attending circumstances of the case. As far as inconvenience is concerned, this item can be considered while assessing the general damages." In the case of Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991 the principles for ascertaining the quantum of general and special damages has been discussed in the following words:-- "13. Principle for ascertaining the quantum of general and special damages is laid down in the leading case of Hadly v. Baxendale (1854) 9 Exch. 341 which clearly provides the distinction between the two. The provisions of section 73 of the Contract Act, 1872 are not much different for purpose of practical application. Claim for damages was rejected as being too remote in the case of Banco de Portugal v. Waterlow and Sons Ltd. (1932) A.C. 452 and again in the case of Commell Lairds and Co. v. Managanese Bronze and Brass Co. (1993)2 KB 141. General damages naturally arising according to the usual course of things from the breach of contract are recoverable in the ordinary circumstances. Special damages are awarded in cases, as may reasonably, be supposed to have been in contemplation of both parties at the time of contract. The law does not record consequential damages arising of delay in respect of money as one in the case of Graham v. Campbell. (1877) 7 Ch. D. 494 and Urquhart Lindsay and Co. v. Eastern Bank Ltd. (1992) 1 K.B. 318. Same view has been taken by Honourable Supreme Court of Pakistan in the case of Syed Ahmad Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd. 1993 SCM R 441." While relying upon the above said judgment, this Court in the case of Azizullah Sheikh v. Standard Chartered Bank Ltd. (2009 SCM R 276) has held as under:- "6. The petitioners did not produce any evidence to show that in fact they suffered any loss due to breach of contract. Solitary statement of petitioner No,1 is not sufficient to decree the colossal suit amount, as P.W.2 did not state anything about the damages. Besides the reasons advanced by the learned High Court (single Bench and. Division Bench) for declining the total claim of the petitioners, we may add here that the petitioners through production of evidence comprehensively failed to prove that due to breach of contract they are in fact entitled to damages and to what extent, which are sine qua non for the grant of damages under section 73 of the Contract Act. Thus we are clear in our mind that the petitioners could not prove that they suffered any loss. They also failed to prove, through production of evidence on record, that they were entitled for decree of the total amount claimed in the suit." In the case of Mrs. Alia Tareen v. Amanullah Khan (PLD 2005 SC 99), it has been held that in a suit for damages, the wrong done to the plaintiff must be proved to be the immediate, direct and proximate result of the act or acts attributed to the defendants. 4. It is an admitted fact that human life is invaluable. Any effort at assessing its loss in terms of money is an exercise nearing an impossibility. Although there can be no compensation of mental tension and agony in monetary terms, as money cannot renew a shattered human frame, but still the law has provided that on account of damages, monetary compensation can be awarded, and so the Court must do the best it can in the light of the facts of each case, on the basis of settled
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principles of law. In the case of C. K. Subramonia Iyar v. T. Kunhikuttan Nair (AIR 1970 SC 376), the Indian Supreme Court has observed as under:- "There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority." 5. It is to be noted that it cannot be specifically declared that what should be the right sum of damages in any particular case, and no two cases are alike. It cannot be suggested that by any Arithmetic computation the exact sum of money could be assessed, which would represent mental agony, pain and suffering which a person has undergone. Reference in this behalf can be made to the cases of Sinolete, J. Said in Waldon v. War Office [(1956) 1 WLR 51) and The Mediana (1900 AC 113). In the case of British Transport Commission (supra), Lord Goddard has also observed as under:-- "Damages which have to be paid for personal injuries are not punitive, still less are they a reward. They are simply compensation, and this is as true with regard to special damages as it is with general damages." In a similar case titled as Cooper v. Firth Brown Ltd. [(1963) 2 All ER 31] = [(1963) 1 WLR 418], Lawson, J. Made the following observations:-- "It seems to me that the object of damages is to compensate the plaintiff for what he has lost, and what he has lost is what would have been in his pay packet, when he took it home and it seems to me that when special damages are being calculated there should be deducted the amount of any National Insurance contributions the plaintiff would have had to make, if he had remained in work." 6. The principle is, therefore, well settled that damages are intended to put a person in the same position as he would have been in, had he not received the injury. We will endeavor to examine the measure of damages which the plaintiff is entitled to get in the light of the above principles. In the instant case, the plaintiff is only entitled to get as special damages all expenses actually and reasonably incurred during the medical treatment of his family members; on the litigation before the competent form, whereby, his claims were accepted and the orders of the authority were set aside; and loss of earnings which would have accrued to him due to non-payment of salary, etc., subject to the condition that the same are specifically pleaded and proved. In this view of the matter, the petitioner has claimed for Rs,45,50,000 on account of damages to the service career, mental torture, death of his father, health damage to his wife, as an item of general damages. Second item relates to special damages on the ground loss of professional earnings. The petitioner has claimed Rs,2,00,000 for the reason that his LPR allowances were ceased due to illegal act of the then administrator, defendant No,1 . In addition to it, the petitioner has claimed special damages amounting to Rs,50,000, 1,00,000 and 1,00,000 respectively, by way of compensation on account of three appeals filed before the Federal Services Tribunal, Islamabad. For all these items the petitioner has not produced any documentary proof in support of his claim. Further, while appearing as P.W.1, he did not try to explain the causes of the said damages except stating that due the acts of respondent No,1, he remained job less for four years; suffered loss of lacs of rupees;
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his father died due to mental torture; and had to spend lacs of rupees on litigation as well as on the medical treatment of his wife. It is, therefore, necessary to determine in the light of the evidence available on record the expenses which the plaintiff has actually and reasonably incurred for the medical treatment and litigation. The plaintiff can recover as special damages under this head only the amount so determined. 7. The learned counsel for the respondent vehemently objected to the manner in which damages were claimed by the petitioner. It is to be noted here that the petitioner has claimed a round sum on each head. Apparently, it has not been based on any account; neither any breakup has been given nor any explanation has been offered in this behalf, therefore, the petitioner has failed to quantify the special damages as such he is not entitled for the same. On the other hand, there is no denial of the fact that the petitioner had to suffer mentally due to illegal acts of respondent No,1, which were ultimately set-aside by the competent forum. Therefore, the petitioner is entitled for general damages under the rule of thumb, detail of which has been provided in the concluding para. Of the opinion given by Mr. Justice Amir Hani Muslim. (Sd.) Iftikhar Muhammad Chaudhry, C J KHILJI ARIF HUSSAIN, J.---I have had the privilege of going through the opinion recorded by my learned brother Mr. Amir Hani Muslim, J. And note annexed by the Hon'ble Chief Justice of Pakistan. With respect, I could not persuade myself to agree with his Lordship that the petitioner is entitled for markup from the date of filing of the suit on the general damages awarded, and I would like to give my own reasoning. 2. The conventional classification of damages was made under two broad heads, (i) General Damages: and (ii) Special Damages. 3. General damages are such, as the law will presume to be natural and probable consequences of the defendant's act. Special Damages are such as the law will not infer from the wrongful act, but they must, therefore, be specially claimed in the pleadings, and proved through evidence thereof at the trial. 4. Besides the broad classifications of General and Special Damages, damages may also be of the following kinds: (i) Contemptuous damages; (ii) Nominal damages; (iii) Punitive or exemplary; (iv) Compensatory; and (v) Prospective damages. 5. In Black's Law Dictionary (Fifth Edition) Compensatory Damages, Nominal Damages, Presumptive Damages and Prospective Damages have been defined as under:-- Compensatoru damages.---Compensatory damages are such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury. Damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him. Nominal damages.---Nominal damages are trifling sum awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or a breach of the defendant's duty, or in cases where, although there has been a real injury, the plaintiffs evidence entirely fails to show its amount." Presumptive damages.---A term occasionally used as the equivalent of "exemplary" or "punitive" damages."
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Prospective damages.---Damages which are expected to follow from the act or state of facts made the basis of a plaintiffs suit; damages which have not yet accrued, at the time of the trial, but which, in the nature of things, must necessarily, or most probably, result from the acts or facts complained of 6. It is difficult to draw line between what are general damages and special damages, but the line though it may be thin, is yet there. 7. In case of general damages, the well-established principle is that damages must be such, which would compensate the injured. As far as money is concerned, it is true that loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses may not be accurately calculated in terms of coins, but for this reason alone, courts do not decline to grant compensation and the courts have formulated certain parameters and devised principles for evaluation or assessme nt of such general damages. Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to the victim. From the preponderance of authorities on this issue of quantification, it emerges that there is no yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation. In these circumstances, it is the discretion of Court, which may on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person, who has suffered such damage. The general damages are those, which law will imply in very violation of legal rights. They need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown. The vital canon followed by judicial mind in such cases is that the conscience of Court should be satisfied that damages awarded would, if not completely, satisfactorily compensate the aggrieved party. However, adequate care should be taken in this regard while dilating on the quantum of awards and the Courts should be vigilant to see that claim is not fanciful or remote, the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony, but the Court should give the aggrieved party what it considers in all the circumstances a fair and reasonable compensation for his loss. 8. The law of torts or civil wrongs in Pakistan is almost wholly the English Law which is administered 'as rules of justice, equity and good conscience. However, in Pakistani Courts before applying any rule of English Law it is to be seen whether it suits to our society and circumstances. 9. The term 'Tort' is the French equivalent to English word 'wrong'. It means breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. The maxim that 'The King Can Do No Wrong" resulting that the Crown was not answerable for the torts committed by its servant, was never applied in our country, like in case where due to negligence of a driver of a car owned by the Government, damages have been awarded under tort against the Government. 10. If a person has been malafidely prosecuted, it is to be presumed that some damage to that party has resulted. He may or may not have suffered pecuniary loss, but loss to his reputation and mental anxiety in every case is bound to result. A plaintiff may recover damages for the distress, which normally results from being prosecuted for a time without proving that he has suffered any emotional disturbance. Damages of this kind are called general damages. While awarding damages, the wounded feeling and injured pride of a plaintiff are taken into consideration. 11. In the case of C.B. Singh v. Agra Cantonment (AIR 1974 Allahabad 147), it was held that:- "The next question relates to the quantum of damages. The most important remedy which is available to a victim of tort is award of damages. The conventional classification of damages is made under two head-- general and special. General damages are those which the law presumes to flow from the negligence complained of. These damages must be proved, but it is not necessary to allege them in detail in the statement of claim. Special damages mean some
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specific item of loss which the plaintiff alleges is the result of the defendant's negligence in the particular case, although it is not presumed by the law to flow from the negligence as a matter of course. Full particulars of all special damage must…
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