P L D 1971 Karachi 505 (PLP)

(4) Is the plaintiff entitled to Rs. 2,600.00 as expenses for treatment? (5) Is the plaintiff entitled to Rs. 10,500.00 as salary? (6) Is the defendant entitled to Rs. 7,500.00 from the plaintiff? (6-A) At what period of time the defendant/plaintiff contract stood terminated .and what is its effect? (7) What should the decree be? Decision of the issues is as under:

2. Issue No. 1.

This issue raises the question whether the plaintiff met with the accident alleged by him in his plaint. As noted above, the defendants took different pleas in the corres pondence between the parties and in the written statement to avoid liability for the claim in the suit. But these different pleas are not merely alternative pleas. They are totally incon sistent with each other. For example, the defendants' first contention is that the accident did not at all take place within their factory, nor did the plaintiff receive any injury, in any such accident and that the plea of this injury has been falsely raised by the plaintiff to avoid his. liability to make payment of Rs. 4,000.00 to the defendants. But, at the same time, the defendants go on to say that if the accident did take place within their factory, then the injury was aggravated by the plaintiff's own negligence. These are totally inconsistent pleas which cannot be allowed to be put forth by the defendants in view of the observations of their Lordships of the Supreme Court of Pakistan in Budho and others v. Ghulam Shah (P L D 1961 S C 553). Be that as it may, when the case came to trial, the defendants gave up each and every plea which they had taken in their written statement and brought evidence for the purpose of proving that the accident did in fact occur in their factory, on the date and the time as alleged by the plaintiff, but that the cause of this accident was the plaintiff's own negligence. Again, the case, set up by the defendants in the course of the trial was not at all pleaded by them in their written statement. Mr. Iqbal Kazi is correct in his contention that it is not open to the defendants to prove at the trial a case which was not pleaded by them at all in their pleadings. Assuming, however, that the defendants can be allowed to set up a different case at the trial, the question is whether there is evidence to prove, under issue No. 1, that the plaintiff met with the accident alleged by hi .u in the plaint and, as a result, had the index finger of his right hand been crushed by the gears of the defendants' twisting machine. Now, the evidence of both the plaintiff as well as the defendants establishes that this accident did take place, and that the plaintiff received the injury of which he has complained in his plaint. Therefore; the simple answer to issue No. 1, would be that the plaintiff did meet with the accident, which resulted in the crushing of the index finger of his right hand. But at the trial, under Issue No. 1, the defendants went on to take the plea that the accident was the result of the plaintiff's negligence. Not one of the issues, which were framed by the Court with the consent of the parties, raises the question of the plaintiff's negligence at all. This plea has not even been raised in the written statement or even in the correspondence between the parties, wherein the defen dants' case has proceeded on the basis that no accident at all occurred in the defendants' factory causing injury to the index finger of the plaintiff's right hand. However, assuming that the defendants can raise the plea of the plaintiff's negligence, the question is whether such negligence on the plaintiff's part has been proved by the defendants. Now, according to the plaintiff, the defendants had purchased the twisting machine in about December 1966 for their factory. This machine was erected and installed by the plaintiff. In the forenoon of 19th December 1966, while the plaintiff was fixing the gear box of this machine, which necessitated that he should put both his hands inside the machine, Haji Haroon (D. W. 1) put on the electric coinection of the machine to check whether it was working properly. This he did without verifying that there was no one about the machine, so that when the machine started operation, the plaintiff's right hand became entangled, whereupon he shouted to stop the machine which was stopped at once. Then some persons moved the machine in reverse to take out the plaintiff's hand. But by this time the index finger of the plaintiff's right hand had become completely crushed and the bones thereof broken into pieces. According to the plaintiff, he was given first aid at the factory and was sent by Haji Haroon to the Civil Hospital with a letter, which is Exh. 7/2 and bears D. W. 1's signature. At the Civil Hospital, the plaintiff was given two morphia injunctions and then sent to the orthopedic Surgeon who, however, was not then present in the hospital. The plaintiff visited Surgeon Rahim at his private clinic in the same evening. He was operated upon by Surgeon Rahim at his clinic the next day and after one month another operation was carried out on the right index finger of. the plaintiff. According to the plaintiff; his index finger remained in plaster and his right hand in bandage for six months during which time he could not pursue his ordinary vocation. The plaintiff produced, in proof, the Civil Hospital Admission Card Exh. 7/3, the Civil Hospital Case Sheet Exh 7/4 and the certificate of incapacity issued by Surgeon Rabim Exh. 6/1. These documents and Exh. 7/2, as also the evidence of Surgeon Rahim (Exh. 6) conclusively establish two facts-(f) that the accident mentioned by the plaintiff in his plaint did in fact occur at the defendants' factory in the manner stated by the plaintiff, and (ii) this accident resulted in the crushing of the right hand index finger of the plaintiff. D. W. 2, Wajid Ali Khan, the defendants' storekeeper and P. W. 3 Ahmed Khan also confirmed that the plaintiff did meet this accident which resulted in grievous injury to his right hand index finger. Even Haji Haroon (D. W. 1), the Managing Director of the defendants, admitted that the plaintiff did in fact receive the injury in question. But Haji Haroon set up the case that the plaintiff had no business to be about the twisting machine at all. But this version cannot be accepted on account of the inherent contradictions in the evidence of Haji Haroon. According to him, the twisting machine had already been erected and its trial run had also taken place through another contractor. But he failed to give the name of this contractor or even to produce a receipt for payment made to this contractor for his charges for the erection and installation of the twisting machine. But then, this witness also admitted that he had received information from the workers in the factory that the accident occurred while the plaintiff was applying grease to the wheel of the twisting machine. It is difficult to accept the contention that the plaintiff would voluntarily take upon himself this job, when he was not at all required to, attend the twisting machine or test its working. In my opinion, the plaintiff's evidence is more consistent and truthful when he says that he erected and installed the twisting machine and his duty with the defendants included the duty of attending to the various machines in operation in the defendants' factory, and that while he was fixing the gear box, the electric power of the twisting machine was suddenly switched on, which started the machine thereby causing entangle ment of the plaintiff's hands in the gear box, which resulted in the crushing of his right hand index finger. This could have been possible only if some one had, without verifying that no one was about the machine, suddenly put on the electric power and started the twisting machine. The plaintiff's evidence and that of P. W. 3 Ahmad Khan is that this was done by Haji Haroon. Haji Haroon has denied it. But he has admitted that the version of the accident, which he received from his workers in the factory, was that the accident occurred while the plaintiff was applying grease to the wheel of the twisting machine. Unless the machine had suddenly started, the plaintiff could not have received the injury in question. Therefore, some one did put on the electric power and started the machine without knowing that the plaintiff was attending to the wheel of the twisting machine or its gear box. Who was that person? No evidence has come on this point from-the defendants at all, and no reason has been given to disbelieve the plaintiff that it was Haji Haroon who was responsible for starting the machine all of a sudden to test its working. Thus there was negligence on the part of Haji Haroon, for which the defendants are liable. Thus, under Issue No. 1, to the conclusion is that not only that the plaintiff met the accident and received the injury in question at the defendants' factory during the course of his employ ment with the defendants, but, further, that this injury was caused to him due to the negligence on the defendant's part.

3. Issue No. 2.

The question under this issue is whether the plaintiff received injury, which he has complained of in the plaint. The evidence on this point has already been discussed under Issue No.

1. The deposition of Surgeon Rahim and that of the plaintiff and his witness P. W. 3 Ahmad Khan, the cer tificates and case sheets of the Civil Hospital Exh. 7/3 and Exh. 7/4 and the certificate of Surgeon Rahim Exh. 6/1 prove that the plaintiff received the injury to the extent and in the manner stated in, the plaint.

4. Before taking Issue No. 3, I would discuss Issue No. 4 and Issue No.

5. Issue No. 4 raises the question of the plaintiff's claim to Rs. 2,600.00 on account of medical expenses incurred by him in his treatment. It has been established by the evidence` of the plaintiff and of Surgeon Rahim that the plaintiff had to undergo two operations on his finger and that he remained under treatment for six months. Further, the plaintiff has /is produced and proved two receipts of payments of fees to Surgeon Rahim, Exh. 6/3 and Exh. 6/4, one in the sum of Rs. 632.00 and other in the sum of Rs. 630

00. He has also proved expenses incurred by him in the purchase of medicines by pro ducing receipts Exh. 7/5/1 to Exh. 7/5/7. 1 would, there fore, hold that the plaintiff did spend Rs. 2,600 in his medical treatment, which he is entitled to recover from the defendants.

5. Under Issue No. 5, the point which has to be decided is whether the plaintiff is entitled to receive Rs. 10,500.00 from the defendants for the period he remained disabled from pursuing his ordinary vocation of life due to the injury suffered by him. The plaintiff has stated in his evidence that he remained under medical treatment from 20th December 1966 to 21st June 1967, and that throughout this period his right hand index finger was in plaster and his right hand was in bandage with the result that he could not do any work at all with his right hand. The plaster was removed from the finger on 21st June 1967, when Surgeon Rahim issued his certificate Exh. 6/1, certifying that the plaintiff had suffered eight per cent. permanent total incapa city. The plaintiff has further stated that his services were terminated by the defendants by letter dated 27th March 1967, which is Exh. 7/14: In my opinion, notwithstanding the termination of service, the plaintiff is entitled to receive from the defendants compensation for the whole period that he remained disabled from pursuing the ordinary vocation of his life. In this conclusion I am supported by the case of The Owners of No. 7 Steam Sand Primp Dredger v. The owners of s, s. "Great Holme" (1897 A C 596), in which Lord Halsbury held that in personal injury cases, the injured may recover damages, not only for pain and suffering and injury, but also for the loss which he sustains by reason of being unable to pursue his ordinary avocation. Same view has been taken in Halsbury's Laws of England, Volume II, (Third Edition), page 258, paragraph 430, wherein it is stated that "in an action for damages for personal injuries loss of earnings by the plaintiff in his ordinary vocation, which he has been prevented from following owing to his injuries, and which has already accrued, may be claimed and recovered as special damages". This is also the view taken by Kemp and Kemp (Third Edition in "Quantum of Damages" and in my judgment in Suit No. 14 of 1964 (Dr. Gohar Ali Baig v. Messrs Caledonian Insurance Co. Ltd.). The evidence has established that the plaintiff remained disabled for six months, this is, from 19th December 1966 to 21st June 1967. His salary was Rs. 1,500.00 per month at the time he sustained the injury in question. At this rate, therefore, the plaintiff is entitled to receive from the defendants Rs. 9,000.00 for loss of his earnings for six months during which he remained disabled.

6. Issue No. 3.

This issue raises the question as to the "quantum" of general damages to which the plaintiff is entitled. The plaintiff himself has claimed Rs. 28,800.00 under this head. In determining the question of the "quantum" of general damages, the vocation of the plaintiff has to be borne in mind. 1L The plaintiff is a weaving master and this job would ordinarily include, according to his statement, the preparation of designs of textile fabrics, calculation of cost of production and to set and arrange the weaving machines for production of the textile fabrics. In carrying out this job, the importance of the function of the right hand index finger cannot be ignored. At least this finger is important in the preparation of the designs of the textile fabrics. It has come in evidence that the plaintiff's right hand index finger was completely crushed in the accident in question. I had the opportunity of observing this finger in Court, and I found that in spite of the two operations carried out on the finger by Surgeon Rahim, the finger has become completely crooked and cannot be used with the same dexterity if it had remained healthy. The plaintiff stated in his deposition that, due to this disability, he cannot make complicated designs of textile fabrics. According to the certificate and evidence of Surgeon Rahim (P. W. 1), the permanent incapacity suffered by the plaintiff due to this accident is eight per cent. This witness examined the finger of the plaintiff again in the Court during his evidence, and he stated that the plaintiff was still suffering from the incapacity for which the certificate Exh. 6/1 was issued. In cross-examination Surgeon Rahim stated that the injury on the right hand index finger of the plaintiff was such that it would interfere with the working of any person whether in routine life, or whether he is a labourer or skilled worker. According to Surgeon Rahim, the injury was such that even the work of supervision and administration, if entrusted to the plaintiff would suffer. According to the plaintiff, after he lost the job with the defendants, he was given an employment with a textile mill at Chittagong at Rs. 1,200.00 per month, and then with Karim Silk Industries at Karachi on Rs. 1,0"0.00 per month. It is the plaintiff's contention that the reduction of his salary from Rs. 1,500.00 to Rs 1,000.00 per month is due to the permanent incapacity sustained by him in his right hand index finger in the accident under discussion. Mr. Iqbal Kazi, on this evidence, contended that the plaintiff being thirty years of age at the time of the accident, and being otherwise sound and healthy, should ordinarily be expected to pursue his ordinary vocation up to the age of sixty years and therefore, if the damage caused to him by this incapacity is calculated at the rate of Rs. 500.00 per month, then for thirty years the plaintiff would be entitled to compensation of Rs. 1,80,000.00 though the plaintiff has claimed only Rs. 28,800.00 as general damages. No doubt it is corect that the permanent incapacity suffered by the plaintiff in his right hand index finger is such as would interfere with the ordinary vocation of weaving master for the reasons mentioned above. But the question is whether the reduction in salary from Rs. 1,500.00 to Rs. 1,000.00 per month is due only to this incapacity, or due to other economic factors like supply and demand of skilled workers such as weaving masters. It is possible that the reduction in the) monthly remuneration of the plaintiff may partly be attributed) to availability now of more skilled workers like weaving masters) than when the plaintiff was in the employment of the defendants. These economic factors should be taken into consideration.1 Counsel on both sides referred me to several decisions which may be briefly noted here. In Rickus v. Morris Motors Ltd. cited by Kemp and Kemp Quantum of Damages (Third Edition), page 489, the Court of Appeal awarded pound 600 as general damages to a machine setter aged forty-three, whose left hand index finger was caught in a machine and two-thirds of the finger had consequently to be amputated, resulting in the weakening of the grip of the left hand. This amount was assessed as general damages keeping in view the fact that the injury was caused to the left hand index finger, whereas the plaintiff was a right handed man. In other case, Gray v. Ministry of Defence, cited by Kemp and Kemp (pages 489 and 517) the plaintiff, aged nineteen or twenty years at the date of the accident was a craftsman trained for precision work. He received injury in the tip of his right hand index finger but the wound healed, though he lost some dexterity with his right hand, which dexterity was found to have affected his work with small com ponents. But the plaintiff resumed work and con tinued to earn the same wages which were being received by him before the accident. The Court of Appeal con firmed the assessment of damages at pound

750. In another case, Eaves v. Morris Motors, Ltd. ((1960)3 All ELR656), a machine operator aged under twenty-one years, received injury on his left hand index finger. The finger had to be amputated. The man was found to be left handed. The Court assessed general damages at pound 1,

250. Recently the Courts in England have been assessing damages according to the method of capitalisation on an annuity basis. On this basis, the Court of Appeal found in Sentor v. Barker & Allen, Lid. ((1965) 1 All ELR 818), that the plaintiff, a man of twenty years of age, had suffered reduction in income at the rate of pound 5 or pound 6 a week due to injuries received in his hand, and therefore, he was awarded pound 4,000 as general damages for loss of earning power on the basis of fifteen years' purchase of an annuity. In Rowden v. Clarke Chapman & Co. Ltd. ((1967) 3 All E L R 608) it was found that the injured, a man of 36 years, had suffered a permanent reduction in earning of pound 7 a week. General damages of pound 5,000 were awarded on the basis of less than 16 years purchase of annuity. Now, in the present case, as I have stated, economic factors have also to be taken into con sideration. It cannot be said with certainty, as there is no evidence on this point, that the reduction in the plaintiff's earning from Rs. 1,500.00 to Rs. 1,000.00 per month is only due to the injury in his right, hand index finger. In the present case, the reduction in income can safely and reasonably be based on Rs. 1,500.00 per month. On this basis the general damages may either be awarded to the plaintiff according to the method of capitalization on annuity basis, or by capitalizaing the reduction in income for a number of years, or a third alternative method may be adopted, that is, damages may be assessed according to the extent of the permanent incapacity suffered by the plaintiff. According to Surgeon Rahim, the plaintiff has suffered eight per cent. permanent incapacity. Then the loss in earnings per year would be Rs. 1,440.00 and this amount, if capitalized for fifteen years, would give the figure of Rs. 21,600.00 as general damages. In view of Surgeon Rahim's statement that the permanent incapacity is eight per cent., I think I should adopt this basis for assessment of general damages and accordingly, under the head of general damages, the plaintiff would be entitled to receive Rs. 21,600.00 from the defendants. Mr. Iqbal Kazi referred me to my judgment in Suit No. 14 of 1964 (Dr. Gohar Ali Baig v. Messrs Caledonian Insurance Co. Ltd.) where I had adopted a different basis for calculation and captalization of general damages. But I would take this oppor tunity to state that the method adopted in that case cannot be treated as a rigid and fixed method to be applied in all cases. The method of calculation of general damages may vary from case to case. In Suit No. 14 of 1964, there was no medical evidence as to the percentage of incapacity suffered by the injured in that case. But, in the instant case, Surgeon Rahim has certified permanent incapacity to be eight per cent. and I think it would not be prudent to ignore this evidence. Accordingly, I would assess the general damages at Rs. 21,600.00 for fifteen years according to the loss of earning per year at the rate of Rs. 1,440.00.

7. Issue No. 6-A.

Under this issue, the question is at what point of time the plaintiffs' contract of service was terminated by the defendants. In my view, this issue is irrelevant, as the case has proceeded on the basis that the plaintiff is entitled to compensation for the time during which he was totally unable to pursue his ordinary vocation due to his right hand index finger having remained in plaster and his right hand in bandage. Accordingly this issue does not require any answer and is, there fore, struck off.

8. Issue No. 6.

Under this issue, the defendants have claimed Rs. 7,500.00 from the plaintiff on account of the advances alle gedly made by thenp1 to him. The plaintiff has admitted his liability to the defendants for Rs. 4,000.00. But he has denied receipt of Rs. 2,500.00 from them. The defendants claim that they had paid to him, after his injury, Rs.2,500.00. They produced a writing Exh. A, purporting to be signed by the plaintiff in which only a sum of Rs: 2,000.00 is mentioned. But the plaintiff has denied his signature on this writing, and on com paring this signature with the plaintiff's signatures on record, I am of the view that the writing marked `A' does not bear the plaintiff's signature at all. Further, the body of the writing is in different hand from the signature. According to Haji Haroon, this amount was paid to the plaintiff's brother. But this person has not been examined by the defendants. I am, therefore, of the view that the writing marked `A' has not been proved. Nor have the defendants produced their account books showing any entry of such payment, and therefore the presumption should be that no such payment was made. Under this issue, therefore, I hold that the plaintiff is liable to the defendants only for Rs. 4,000.00.

9. Issue No. 7.-In view of the conclusions under the foregoing issues, I hold that the plaintiff is entitled to receive from the defendants the following sums: (1) Rs. 2,600.00 for medical expenses. (2) Rs. 9,000.00 for loss of earning for the period the plaintiff remained under total disability. (3) Rs. 21,600.00 as general damages. Thus, the plaintiff is entitled to a total sum of Its. 33,200.00 against which Rs. 4,03().00 due from tile plaintiff to the defendant will be adjusted, leaving a balance of Rs. 29,200.00 for which decree is hereby given to the plaintiff with interest at six per cent, per annum from the date of the suit until payment and with proportionate costs. K. B. A. Suit decreed.