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Petitioner: MUHAMMAD WAJID KHAN VS Respondent: ATTOCK CEMENT FACTORY PAKISTAN LTD. and 3 JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam Title:MUHAMMAD WAJID KHAN vs ATTOCK CEMENT FACTORY PAKISTAN LTD. and 3
JUDGMENT
Reported As: 2016 CLC 1063 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD FAISAL KAMAL ALAM, J.--- The undisputed facts of the case are that the Plaintiff was employed with Defendant No,4 (M/s. Progressive Engineers and Fabricators) as Project Engineer on a salary of Rs,3,500/- (Rupees Three Thousand Five Hundred Only) per month. The said Defendant No,4 was the Sub-Contractor of Defendant No,3 (M/s. M. Iftikhar & Co.) (M.I.C.), which admittedly was a Sub-Contractor of Defendant No,2 (Uzin Export Import) the main Contractor, which on a turnkey basis was constructing a Cement Factory of Defendant No,1 (Attock Cement Pakistan Limited). 1. That while on duty at Lasbella Project Site of Defendant No,1, that is, on 24.11.1984, Plaintiff fell off the Mechanical Erection of Bucket Elevator, (G.O.2 site), from a height of around 17 (seventeen) Meters approximately at around 2:00 PM. The Plaintiff received serious injuries and remained under treatment of different Doctors at different Hospitals. 2. The main grievance of Plaintiff that compelled him to file the instant proceeding was that the Defendants did not provide adequate safety measures at the site. It has been specifically pleaded that scaffolding, safety platform and the other necessary protections and appliances were neither in place nor provided at the site in order to avoid such an incident. Secondly, when the Plaintiff addressed detailed legal notices to all the above 04 (four) Defendants, only Defendant No,1 (Attock Cement Pakistan Limited) and Defendant No,4 (M/s. Progressive Engineers and Fabricators) the employer of Plaintiff though responded, but, despite the fact that the incident itself was not denied, yet they refused to compensate the Plaintiff for the injuries he sustained and the amount he spent on his treatment from time to time, which was a heavy expenditure on Plaintiff's pocket at that
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relevant. Following reliefs have been claimed by the Plaintiff as contained in the last amended plaint:- (a)Surgery and operation charges dated 24.11.1984 and Anaesthesia charges, and cost of plates and screwsRs, 30,000/- Rs,4,700/- (b)Hospitalization, medicines, misc. Expenses etc. Rs,25,000/- (c)Surgery for removal of plates from Homrusoplat plus L-forearm oplus (Lower Arm) on 16.10.1987 Surgery, Anaesthesia, Hospitalization, Medicines, and dressing expenses including X-ray, LabRs,12,500/- d-IFuture essential Anticipated major surgical operation for removal of plates from (upper Arm) likely in March.1988.Rs,12,500/- d-2Future essential Anticipated Major surgical operation to correct radial Nerve Damaged likely in September, 1988.Rs,70,000/- (e)Besides above, Mr. Muhammad Wajid Khan from defendants jointly and severally arrears of pay dues form 1st October, 1984 to November, 1987 upto the filing of this suit. Being physically disabled to perform the duty of an engineer of which the applicant is qualifiedRs,13,300/- (f) Future Salary from December, 1987 till finalization of the claim @ Rs, 3,500/- per month this being a High Court matter minimum period for that purpose is calculated for at least two years basisRs,84,000/- (f- 1)Damages for shock, mental agony and permanent disability due to accident coupled with damages for loss of future earning and bright career of plaintiff.Rs,47,00,000/- (g)Thus the total amount of damages comes to (Rupees Fifty Lac, Seventy One Thousand and Seven Hundred Only) for which a decree a may be passed in favour of the plaintiff as against the defendants Nos. 1 to 4 who all are legally liable to pay to the Plaintiff jointly and severally. That therefore the plaintiff respectfully prays that this Honourable Court will be pleased to grant judgment and decree for a sum of Rs,50,71,700/- (Rupees Fifty Lac, Seventy One Thousands and Seven Hundred Only) against the defendants jointly and severally with cost of this suit and any other relief that this Honourable Court be pleased to grant."Rs,50,71,700/-
3. After filing of the suit, notices were issued to all the Defendants but, eventually through publication the service was effected. Only Defendants Nos. 1, 2 and 3 filed their Written Statements and contested the suit. Subsequently, by the orders dated 05.03.1989 and 20.09.2004 the Plaint was
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amended and the Defendant No,3 also filed its amended Written Statement but despite clear instructions as mentioned in the order dated 20.09.2004, the Defendants Nos.1 and 2 did not opt to amend their pleadings. By the order dated 12.11.1989, the Defendant No,4 (M/s. Progressive Engineers and Fabricators) was directed to be proceeded ex parte. 4. From the pleadings of the parties, though issues were earlier framed but after amendments in the pleadings the following issues were settled by the Court on 22.05.2006. "i) Whether the suit as framed and filed is maintainable in law? ii) Whether the suit is bad for misjoinder and non joinder of the necessary parties? iii) Whether the suit is barred by law of limitation? iv) Whether the defendant No,3 is the Agent of defendant No,1, if so what is its effect? v) Whether the provisions for safe working conditions to the laborers and for insurance covers were the responsibility and liability of the defendant No,3, if so what is its effect? vi) Whether the defendant No,3 is liable for the alleged ihjuries to the plaintiff during the employment of the defendant No,4 allegedly working at Lasbella Project of the defendant No,1 on 24.11.1984? vii) Whether plaintiff has estopped the enhanced the quantum of damages upto the existing cause of action per facts shown in the plaint? viii) Whether the plaintiff can change the fundamental character of the injury, alleged to have been caused to him, which fact is existing at the time of the filing of the suit or it will be deemed to have been amended under Order II, Rule 2, C.P.C.? ix) Whether the additional claim of damages as mentioned in sub paras of Para No,23 of the amended plaint, as per order dated 2.9.2004 is untenable and barred by law? x) What should the decree be?" 5. The Plaintiff examined himself as PW-1 and placed on record number of documents in support of his claim, which he filed with the Plaint as well. However, none of the Defendants opted to participate in the evidence proceedings and by the orders dated 17.01.2013 and 14.02.2013, the side of the Defendants to lead evidence was closed. 6. That the instant cause came up for final arguments, when the Defendant No,1 again appeared in the matter through its newly appointed counsel Mr. A. Nafees Osmani, who filed an interlocutory Application being CMA No,3124 of 2016 under Order IX, Rule VII of C.P.C., inter alia, seeking that the above mentioned orders be set-aside and the Defendant No,1 be given another opportunity to lead evidence. This Application, however, after hearing both the counsel, was dismissed by the order dated 26.02.2016, where after, Mr. A. Nafees Osmani, learned counsel now representing the Defendant No,1 argued the matter primarily on point of law, besides pointing out contradictions in the pleadings of Plaintiff. 7. Findings on the issues are as follows: ISSUES NO.i, ii and iii :Affirmative, Negative and Negative respectively. ISSUES NO.Iv, v and vi :As under, Affirmative and Affirmative respectively. ISSUE NO.Vii, viii and ix:As under, as under and Nagative respectively. ISSUE NO.x. Suit is decreed. REASONS ISSUES NOS.i, ii and iii. 5. Since these issues are interlinked, hence, they have to be decided by a common finding. Mr. A. Nafees Osmani, learned counsel representing the Defendant No,1 has vehemently argued that the instant case of the Plaintiff is hopelessly time barred as admittedly the injury occurred on 24.11.1984,
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whereas, the suit was filed on 17.11.1987, that is, ,almost after three years, though the same should have been filed within one year from the date of incident. 9. To augment his arguments, learned counsel placed reliance on Articles 22 and 24 of the Limitation Act, 1908, where under, to seek compensation for an injury one year limitation is prescribed for seeking the remedy. Mr. A. Nafees Osmani, learned counsel for Defendant No,1 has cited the following decisions in support of his arguments-- (i) 2006 MLD [Karachi] Page-1657 [Mst. Perveen Akhter V. Consulate-General of U.S.A. At Karachi and others]. (ii) AIR 1924 Bombay Page-290 [Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi] (iii) PLD 1970 Lahore Page-298 [Abdul Majid Butt v. United Chemicals Ltd.]. (iv) PLD 1968 Karachi Page-376 [Kayumarz v. Messrs Mohammadi Tramway Company Karachi and others]. (v) 1980 SCMR Page-485 [Nathey Khan v. Government of West Pakistan (Now Punjab)] (vi) 2007 CLC page 1821 [Muhammad Anwar v. Pak Arab Refinery Limited through Managing Director]. 10. The above argument was controverted by M/s. Farrukh Usman and Aamir Maqsood, learned counsel representing the Plaintiff. The main submission from the Plaintiff's side is that it is not a single incident of 24.11.1984 only, for which the suit is filed, but the grievances of Plaintiff including mental anguish and financial losses continued upto 15.10.1987, that is, when the Plaintiff was again operated upon for removal of M.S. Plates from left lower arm. 11. To substantiate his arguments, the Plaintiff has referred the undisputed medical record produced in evidence, including, the Discharge Card of A.O. Clinic (Nazimabad), Karachi (Exhibit P/7), in original, which, inter alia, mentions the fact that the Plaintiff was operated upon for removal of Metal A.O. Plate and Screws and treatment for Radius and Ulna; the large bones of the forearm. The Radiuds is part of two Joints-the elbow and the wrist, whereas, Ulna runs parallel to the Radius. He was operated upon Dr. S.M.A Shah. The second line of argument from the Plaintiff's side is that the latter through his counsel addressed detailed legal notices dated 27.01.1985 to all the above 04 (four) Defendants but only two, viz. Defendants Nos.1 and 4 responded vide their replies dated 20.02.1985 and 05.02.1985, respectively. All these correspondences have been produced by the Plaintiff in evidence and has been exhibited as Exh.P/8/1 to Exh.P/8/3, Exh.P/9, Exh.P/10/1 and Exh.P/10/2. It was next 'contended on behalf of Plaintiff that in all these correspondence(s) as well as in the pleadings of adversaries, the factum of very incident in which the Plaintiff got injured, has never been disputed, but the main plea of Defendants in their defence is about shifting of liability on each other, though with the ulterior motive for frustrating the present proceeding. Mr. Farrukh Usman, learned counsel for Plaintiff has further argued that it is a case of composite negligence and cited a recent Judgment of the Hon'ble Supreme Court reported in 2015 SCMR Page-1406 National Logistic Cell v. Irfan Khan and others, which for the reference sake be referred to as the NLC case. It is further strenuously argued that the law laid down in the above (NLC) case is fully attracted to the present case. 12. The above cited case law relied upon by Mr. A. Nafees Osmani, the learned counsel representing the Defendant No,1, has been considered and precis of which is that for filing an action for damages and compensation, the limitation prescribed in Article 22 of the Limitation Act, 1908, is one year. However, these cited decisions are distinguishable as far as the present case is concerned, inter alia, as facts of the present case are peculiar in nature and quite distinctive from the facts of the above cited cases relied upon by learned counsel for Defendant No, 1. In this regard, the Judgment of Natehy Khan v. Government of West Pakistan 1980 SCMR Page-485 (ibid), is of relevance, particularly with regard to a question of law that a remedy available to a person under the Workmen Compensation Act, 1923, is not a bar for seeking a' remedy under an Ordinary Civil
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Jurisdiction by filing a suit. However, the case law cited above in respect of limitation of one year, is distinguishable, as far as present cause is concerned for the reasons that in the above Natehy Khan's case, the Appellant was partly compensated by his employer-Pakistan Western Railway under the Workmen Compensation Act, 1923, and the said Appellant even after his disability, was allowed to work for one year on compensationate ground, where after, he was retired in due course. As against this, in the present case the service of Plaintiff was terminated by his employer- Defendant No,4, immediately after the incident/accident, which is an admitted fact and is mentioned in the aforementioned reply dated 05.02.1985 of Defendant No,4 (Exh.P/10/1, Page-81 of the evidence file). Since then the Plaintiff is running from pillar to post for redressal of his grievance but without any success. The qualification and occurrence of the incident have not been disputed by any of the Defendants either in their reply to the legal notice, which has been mentioned hereinabove nor in their respective pleadings, therefore, this is a case where a liability for the tortious conduct is of a continuous nature and so is the cause of action which still subsists. Consequently, taking into account the undisputed fact that lastly the Plaintiff was operated upon on 15.10.1987 (as mentioned hereinabove) and the present suit was filed on 17.11.1987, therefore, in my considered opinion the present suit is not a time-barred claim and is maintainable. Additionally, peculiar facts, circumstances and undisputed evidence of this case justifies that a well-entrenched principle that if there is a right, there should be a remedy, should be applied here. Hence, Issue No,(i) is answered in Affirmative, Issue No,(iii) is answered in Negative, whereas, with regard to Issue No,(ii), the recent Judgment of the Hon'ble Supreme Court in NLC case (ibid) is a complete answer, wherein, Mr. Justice Mushir Alam, speaking for the Supreme Court has held, that, "It is the prerogative of the Plaintiff to proceed against any or all such tortfeasors about whom the Plaintiff has specifically pleaded the act of negligence". 13. To the facts and circumstances of the present case, Article 115 of the Limitation Act, 1908, is applicable, where under, a period of three years is provided for bringing an action for breach of any contract. The case record itself proves that Plaintiff and Defendant No,4 had contractual relationship as employee and employer, respectively. Similarly, there was a contractual relationship amongst the Defendants inter se also, a detail of which will be discussed in the following paragraphs, therefore, Issue No,(ii) is also answered in Negative. Issues Nos. Iv, v and vi. 14. It has been vehemently argued on behalf of Plaintiff that the present case falls within the purview of composite negligence and regardless of the fact that whether the Defendant No,3 was an Agent of Defendant No,1 or not, all Defendants being tortfeasors are liable to compensate the Plaintiff jointly and severally. In support of his submissions, the Plaintiff's counsel placed reliance on a Supreme Court decision reported in 1974 SCMR Page-269. This decision is in respect of joint liability of an employer as well as contractor at whose premises the husband of Applicant (Widow) was working and had meet with a fatal accident. This Judgment has specifically expounded Section 12 of the Workmen's Compensation Act (VIII of 1923), but, I am afraid it does not support the Plaintiff's case, as the present proceeding has not been filed under some statutory provision of above referred statute, but, by invoking ordinary civil jurisdiction. On the other hand, the counsel for Defendant No,1 has vehemently controverted this stance of Plaintiff and submitted that there is no direct relationship either between the Defendants Nos.1 and 3 or the Plaintiff and Defendant No,1, therefore, in fact the present grievance of Plaintiff is the matter between his former employer the said Defendant No,4 and Plaintiff. Even though the Defendant No,3 did not participate in the evidence, yet its pleadings/written Statement can be looked into for the limited purposes of ascertaining this question. More so, it is not disputed by any of the parties that the Defendant No,3 was a Sub-Contractor, of Defendant No,2, which was the main Contractor of Defendant No,1 for constructing its Cement Factory Project on Turn-key basis, In paragraph 8 of the Written statement
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of Defendant No,3 a reference has been made to certain clauses of an Agreement entered into between the said Defendants Nos.3 and 4 (the then employer of Plaintiff), where under, inter alia, it was the responsibility of the said Defendant No,4 to provide insurance coverage for all its staff working at the project site of Defendant No, 1. It has not come in evidence nor pleaded by any of the Defendants that Plaintiff did get any amount towards the head of insurance coverage. Secondly, the other undisputed fact is that under an Agreement between the Defendants Nos.1 and 2, latter was authorized to Sub-Contract different components of work to other Sub-Contractors, which was done and, that is how, the Defendants Nos.3 and 4 became the Sub-Contractors of Defendant No,2. Thirdly, for the present Issues too, the above mentioned National Logistic Cell (NLC) case handed down by the Hon'ble apex Court provides the guidance. In the present case independent relationship of Plaintiff with each of the Defendant is not required to be proved, but, the injury itself, which Plaintiff had sustained admittedly during his employment with Defendant No,4, which was the Sub-Contractor of Defendant No,3; the latter was Sub-Contractor of Defendant No,2 the main Contractor of Defendant No,1, at whose premises the Plaintiff sustained injuries. Conclusion is that this is a case of composite negligence. 15. Fourthly, the Plaintiff in his evidence has produced as Exhibit P/11, a copy of the Contract relating to the Project of Defendant No,1, entered into between the latter and Defendant No,2 (Uzin Import Export) and Defendant No,3 (M. Iftikhar and Co. Ltd.) (M.I.C.) as Sub-Contractors, which shows a direct nexus of relationship between the said Defendant No,3 and Defendant No,1. It is the same Contract, a copy of which is filed with written statement of Defendant No,2 (Uzin Export Import) as Annexure D/2" and this fact is mentioned in paragraph-13 of said Written Statement. Hence, this Contract document Exh.P/11 is an authentic one. In terms of Article 24 of this Contract, the said Defendant No,3 was responsible for maintaining adequate welfare and safety measures and amenities for his workmen and the workmen of nominated of sub-Contractors employed in connection with this sub-Contract, whereas, under Article 27, it was the liability of said Defendant No,3, inter alia, to compensate employees of the nominated Sub-Contractors, which in fact the Defendant No,4 was. Therefore, keeping in view this typical nature of tripartite relationship amongst Defendants Nos.1, 2 and 3, all, the two Issues Nos.(v) and (vi) are answered in Affirmative, whereas, Issue No,(iv) is answered accordingly by following the principle laid down in National Logistic Cell (NLC) case (ibid). Issues Nos.Vii, viii and ix. 16. The Plaintiff's counsel argued that since the Defendants despite opportunities did not participate in the evidence and never examined themselves on oath, therefore, their pleadings are to be discarded, to elaborate this, he cited reported cases reported in 2006 CLC 440 and 1991 SCMR Page-2126; gist of the above two Judgments is not different from what has been argued in this behalf by the Plaintiff's counsel, however, it is also a settled principle that Plaintiff has to bring his case home on its own merits rather than relying on the weakness -of Defendants. 17. Mr. Farrukh Usman, learned counsel for Plaintiff has cited Judgment of this Court reported in PLD 1997 Karachi Page-566 (Abdul Qadir v. S.K. Abbas Hussain and two others), and made a statement at bar that this Judgment was never over-turned in Appeal, as the same got executed long time back. It has been authored by Mr. Justice Rana Bhagwandas, (as his lordship then was) and while handing down this Judgment, the learned Judge has taken into account the decisions from foreign jurisdiction as well. This decision all the more has to be given due weightage because the learned Judge was subsequently elevated to Hon'ble Supreme Court and has held by the Hon'ble Apex Court in Agriculture Workers' Union case-1997 SCMR Page-66, that if cases decided by Judges of High Court who subsequently are elevated to the Hon'ble Supreme Court, their decisions are entitled to the highest consideration and respect. The relevant paragraph 18 of the Supreme Court Judgment is as follows:-
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"18. We may incidentally mention here that the decision in A.F. Ferguson & Co. Was rendered by a Division Bench of High Court of Sindh which consisted of Dorab Patel and Muhammad Haleem, JJ (as their Lordships then were). Employees' Union Jamia Karachi's case was also decided by another Bench of Sindh High Court consisting of Zaffar Hussain Mirza (as he then was) and Saleem Akhtar, JJ. While the case of K. G. Old was decided by Shafiur Rehman, J (as he then was) Sitting single in the Lahore High Court. A; the learned Judges who decided the abovementioned three cases were subsequently elevated to this Court and one of them (Saleem Akhtar, J.) is still a Judge of this Court. As this Court neither approved nor disapproved specifically the views expressed in A.F. Ferguson & Co. Employees' Union of Jamia Karachi and K. G. Old they are entitled to the highest considerations and respect as and when these cases come up, for consideration before this Court." 18. In the above referred Abdul Qadir's case the latter got seriously injured in a road accident and after undergoing medical treatment, brought an action against the Defendants for damages and compensation, inter alia, for injuries, shock, physical pain and mental agony and special damages on different counts in the sum of Rs,1.5 Million. The learned Judge while decreeing the suit, laid down: (a) conscious of the Court should be satisfied that the damages awarded would, if not completely satisfactorily compensate the aggrieved party, (b) even though previously Jurists and Judges were reluctant to grant claim for damages for mental shock and torture, but now it is well- settled that a person who suffers mental torture and nervous shock is entitled to recover damages (c) compensation can be granted where wrong has done to a party and the damage flows from that wrong and (d) liability arises where there is a duty to take care and failure has taken place, which has caused damages. A famous case from English jurisdiction was also referred Hinz v. Berry (1970) QB 40, in which, Lord Denning observed that: "It has been settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a dose relative. Damages are, however, recoverable for nervous shock or to put in medical terms, for any recognizable psychiatric illness caused by the break of duty by the defendant." 19. Now turning to the present case, where the question would be that whether the acts of Defendants actually fall within the duty of care as explained herein above. A simple answer to this would be in Affirmative, inter alia, even in Regulation 180 of the Karachi Building and Town Planning Regulations, 1979, which was holding the field at that relevant time, it has been specifically mentioned that appropriate safety measures had to be taken in respect of a building, including suitable and sufficient scaffold, working platforms, etc. In sub-paragraph 5 of the said Regulations it is enjoined that the employer, which in the present case is Defendant No,1, should take express steps to satisfy himself that the scaffold or part thereof is stable. This very assertion of Plaintiff has gone un-rebutted that no scaffolding was in place at the project site when the unfortunate incident occurred in which plaintiff got seriously injured, therefore, I have no hesitation to hold that Defendants and particularly Defendant No,1 have even failed to comply with the basic safety measures as provided in the above Regulations, which otherwise, are to be strictly adhered to, as the same were framed in the public interest and cast a public duty on all those who were required to follow the same. 20. In so far as the claim of the Plaintiff under the heads "a", "b" and "c", the same can be awarded to him as he has produced undisputed documentary evidence about his claim about his hospitalization, surgery and overall medical treatment. Similarly, the claim mentioned under the sub-paragraphs…
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