P L D 1960 (W (PLP)

2. It was alleged in the plaint that Faiz Muhammad Khan was travelling in the motor vehicle, PBL 8436, run by the Omnibus Company for the. Provincial Government and when the vehicle was at the Bhabra Bus Stand, Faiz Muhammad Khan was in the act of alighting but before he had come off the vehicle, it started. The vehicle was stated to have started without warning and being run over by it Faiz Muhammad Khan received injuries which led to his death. At the time of his death, the age of Faiz Muhammad Khan who was in receipt of Rs. 40 p.m. as his pay, was 40 years. The children of Faiz Muhammad Khan claimed compensation on the basis of Faiz Muhammad Khan's normal expectation of life being 70 years. The written statement put in by the Provincial Government, the sole defendant in the case, controverted the allegation that Faiz Muhammad Khan received injuries because of the negligence of the driver of the bus. It was pleaded that Faiz Muhammad Khan received injuries because of his own negligence, and the defendant was not liable for damages. It was further pleaded that even if the death of Faiz Muhammad Khan resulted from the negligence of the driver of the motor vehicle in which he was travelling, the Provincial Government was not liable to pay damages in spite of the fact that the motor vehicle was run for its benefit and the driver of the motor vehicle was its servant. It was also urged that the damages claimed were too high. On the pleadings of the parties, the learned tria'1 Judge framed the following issues:‑ (1) Whether Faiz Muhammad Khan deceased tried to get down from the bus on 11th December 1950 after it had stopped, and the driver drove it before he had alighted, and he died being crushed under the wheel of the bus ? (2) Whether the deceased mentioned in issue No. 1 jumped out of the bus before it stopped and got injured and died ? (3) Whether the deceased died through the mistake, careless ness and negligence of the driver ? (4) Whether Faiz Muhammad deceased died through his own mistake ? (5) Whether the plaintiffs are entitled to any compensation ? If so, how much and why ? (6) Whether the deceased died on account of the personal act of the driver and what is its effect ? (7) Relief. Dealing with issues Nos. 1 to 4 together, the learned trial Judge decided all of them in favour of the plaintiffs. With regard to issue No. 5, the finding of the learned trial Judge was that the children of Faiz Muhammad Khan were entitled to get com pensation on the basis of the normal span of life of Faiz Muhammad Khan being 55 years and as Faiz Muhammad Khan was spending a sum of Rs. 25 p.m. on his children, they were entitled to Rs. 4,500 of which Rs. 1,000 were to be paid to Muhammad Sharif, the eldest of the plaintiffs, Rs. 1,500 to Mst. Sharifan a daughter of Faiz Muhammad Khan, and Rs. 2,000 to Muhammad Khalil, the youngest son of Faiz Muhammad Khan. Issue No. 6 was decided against the defendant because no evidence was led nor arguments addressed on behalf of the defendant with regard to it.

3. The first point raised by the learned counsel for the appellant was that the suit, even if it lay, was barred by limitation and should have been dismissed on that ground. The learned counsel referred to Article 21 of the Limitation Act which prescribes a period of one year for recovery of damages under the Fatal Accidents Act. That the Article relied upon by the learned counsel for the appellant had application cannot be doubted, but when addressing the argument that the suit was barred by time the learned counsel for the appellant overlooked a very important circumstance which was that all the three plaintiffs were minors on the 28th of January 1953 on which date the suit was instituted in the trial Court. I have already indicated that Faiz Muhammad Khan died on the 11th of December 1950. If the plaintiffs were entitled to no extension of time the suit should have been instituted on the 10th of December 1951 at the latest. In the written statement it was not pleaded that the suit was barred by limitation, but the omission to plead the bar of limitation does not preclude a party from urging the bar or the Court from holding a proceeding to be so barred if it is clear that it is Now, section 6 of the Limitation Act lays down that if the period of limitation prescribed by that Act, which means the Act itself, and the Articles mentioned in the Schedule appended to it, expires during the minority of a sole plaintiff, or if there be more plaintiffs than one, during the minority of all of them, the period of limitation starts running after the minority has terminated with the condition that the maximum period which can be availed of for lodging the proceeding would be three years from the date when the minority came to an end. In view of this, it is manifest that the suit was within time, and it was evidently for that reason that in the written statement the defendant did not plead the bar of limitation against the suit.

4. The next point raised by the learned counsel for the appellant was that the appellant was not liable to pay any damages. It was, however, admitted by him that the material findings of the learned trial Judge with regard to the cause of death of Faiz Muhammad Khan, father of the respondents, was not easy to attack and he said that his argument was based mostly on the ground that the Government was not liable to pay any damages for tortious acts. In support of this contention the learned counsel for the appellant mainly relied on the decisions of the Supreme Court of Pakistan with regard to Government servants being disentitled to claim through Courts their salary from the Government. It appears to me that the considerations that apply in cases in which Government servants pray for a decree of a Court for salary due from Government stand on an entirely different footing from those in which the Government is sued for damages for torts committed by its servants while working for the Government in a commercial or business under taking. The learned counsel for the appellant cited no decided case to support his contention with regard to the Government being immune from praying damages for any tortious acts which, if committed by a private person, would make him liable. To my mind, the law with regard to the liability of Government in cases of the present type is no different from the law applicable in the case of a private party and I, therefore, repel this con tention of the learned counsel for the appellant.

5. It was then said by the learned counsel for the appellant that the damages had been fixed at too high a figure, but he was not able to show in what respect there had been a miscalculation in favour of the respondents. In my view, the amount fixed is by no means high if all the circumstances of the case are kept in view.

6. No other point was urged, and as those urged by the learned counsel for the appellant have been held to have no force I would dismiss the appeal with costs.

7. I find that the learned trial Judge did not fix any time within which the money decreed is to be paid. If the money bas not been already paid, it is directed that it shall be paid within three months of the date of this judgment. B. Z. KAIKAUS, J.‑I agree. K. M. A. Appeal dismissed.