P L D 1978 Peshawar 10 (PLP)

(f) that the tragedy was not only the cause of physical pain, mental tortures and financial loss to the plaintiff but was also a great shock to the members of his family mentioned above. The defendants resisted the suit and upon the pleadings of the parties the following issues were framed :- (1) Whether the plaintiff is entitled to the recovery of Re. 5,00,000 as damages. (2) Whether the plaintiff has cause of lotion? (3) Whether the suit is bad for non-joinder of necessary parties and also for misjoinder? (4) Whether the suit is not maintainable in the present form? (5) Whether the suit is barred by time? (6) Relief. After recording such evidence as the parties wished to adduce, the learned trial Judge decided issues 3, 4 and 5 against the defendants and issue 2 in favour of the plaintiff. In consequence of his findings on these issuer, the learned trial Judge then addressed himself to deal with issue 1, and after discussing this elaborately, decreed the suit of the plaintiff in the sum of Re. 3,55,223 in the manner as would appear from pares. 20, 21 and 22 of his judgment, which may better be reproduced: - "

20. Now we shall work out the details of the compensation to which he is entitled. First of all we shall work out the compensation for the pains and agonies he has gone through. I would fix the compensation at Re. 30,

000. There is no hard and fast rule on the subject but the evidence indicates that the plaintiff has gone through sufferings with apprehension of death, here in Pakistan and abroad where he had gone for his treatment and whereto he would return for his further treatment. Next comes damages for loss of tooth, disfiguration, insensitivity of the lips and tongue and effect of these on his present and future life, and his mental and family life. Keeping all the factors in consideration and also the fact that the loss is irreparable and permanent for the rest of his life, therefore I fix compen4ation for these at Rs. 70,

000. His long separation from his family and income would further entitle him to compensation of Re. 20,

000. Next comes the past, present and future mental agony. The compensation allowed in the above. mentioned P L D 1975 B J 11 sets a scheme for assessing these damages. In the quoted case the train had arrived only some hours late caused mental suffering and inconvenience to the plaintiff in that case and he was held entitled to Re. 8,000 by way of compensation. In the instant case the mental agony is life long, sufferings have no bounds and the plaintiff has lost his former personality which would haunt his mind for the rest of his life. I am inclined to fix the com pensation as Rs. 1,30,

000. I am of the view that even this amount is not adequate to compensate him but then we have to look around and fix the compensation in the light of the life of the normal human beings lives at the present. Actual worries etc. are common and usually caused by external factors which go uncompensated. The plaintiff would once again go for further treatment abroad. At present his face is disfigured and his voice hardly audible and clear. One can with great difficulty understand him. For these future expenses I allow him a further sum of Re. 35,

000. I have filed the above compensation while keeping in mind the physical, mental, psychological, professional and social losses the plaintiff has suffered. He has a good status of life but now he cannot associate with his colleagues and friends. What to say of these he cannot even take food with his friends and has to keep a handkerchief and clear his lips repeatedly as his lips are insensitive and he cannot come to know of the flow of saliva.

21. Now we will consider the financial losses incurred by the plaintiff: He has stated in his deposition dated 28.6-74 (examination-in-chief) that he incurred Rs. 4,0(30 on account of travelling to and from abroad. The surgeon fee he has shown to be 1500 (equal to Re. 350UG at the rate of Rs. 23 per pound during the relevant period) and in addition to the said amount his monthly expenditure in the U. K. was 70/80. If the figure be assumed as 75, the total expenditure for 23 months spent by the plaintiff in the U.K. would come to Re. 39,675 (at the same rate for a pound, as indicated above). At the time of occurrence, the monthly pay of the plaintiff was Rs.

750. For the first six months after the tragedy, the plaintiff received full pay and half pay for the following 11 months only but no pay for the last 6 months. Thus the loss incurred in connection with the pay would come to Re. 8325. The total of these amounts come to Rs. 87,

000. Out of the times above mentioned, the surgeon's fee Le., the amount of Rs. 35,000 has to be deducted as the plaintiff has admitted in his cross-examination that he has not paid any amount from his own pocket in connection with his treatment. Thus we will be left with Rs. 52,000.

22. The loss of the plaintiff as Assistant Radiologist for the months of January and June to December 1972 and January to June and October to December 1973 and for the month of January 1974 comes to Rs.18,223 as is clear from the details given by P. W. Niaz Hussain in his statement on re-examination. From March 1972 upto February 1974, the plaintiff was in U. K., as stated and even during the preceding period upto December 23, 1971 backward the plaintiff could not attend to his work on account of the serious injuries he had received. If the figure last mentioned is added to Re. 52,000 the figure mentioned last but one, the total would be Re. 70,

232. Over and above what has been stated with respect to the monetary loss, the plaintiff will have again to go abroad for further treatment and as already stated he has lost the chance of his promotion to a great extent as well. His earning capacity for the rest of his life would not be as much as it would have been if he had not been the victim of the grossly negligent act of the employees of the defendants. Though the amount of damages for the last two considerations cannot be exactly determined, but this would be no ground for refusing to allow the plaintiff damages therefor. Even if the exact amount of damages is not determinable, the Court has jurisdiction to award appropriate damages as the circumstances of the case may justify. Muhammad Sharff v. Nawab Din P L D 1957 Lah. 283 may be referred to with advantage in this behalf. I would fix Rs. 10,000 as compensation on this score. Thus the total comes to Rs. 3,55,232 and the plaintiff would be entitled to this compensation." The learned Advocate-General appearing on behalf of the State submitted that he would be unable to assail the findings of the learned trial Judge on issues 2 to

5. In regard to issue No. 1, be, however, strenuously contended that the amount of compensation decreed in favour of the plaintiff/respondent would appear to be excessive. In this respect, he invited our attention to paragraph 5 of the grounds of the present appeal and stated that the Govern ment, laving due regard to the recommendations of Mr. Justice Abdul Hakeem Klan (now Chief Justice of this Court) who was then appointed as Commission to inquire into the incident, took note of the fact that the plaintiff/respondent be properly compensated and consequently the Government recommended the sum of Re. one lac as compensation to be paid to the plaintiff/respondent for the physical injuries and mental tortures caused to him as a result of the unfortunate tragedy. He added that in addition to this amount, the plaintiff/respondent would also be entitled to recover from the Government the financial losses caused to him during the course of his treatment, According to him, the compensation of Rs. one lac proposed by the Government to be paid to the plaintiff/respondent would appear to be substantial and adequate, and the plaintiff/respondent should have acquiesced in the same. In other words, the learned Advocate-General wanted this Court to decree the suit of the plaintiff/respondent in the sum of Rs. one lac proposed by the Government to be paid to the plaintiff/respondent as compensation apart from the amount assessed by the learned trial Judge to compensate the plaintiff/respondent for the financial losses sustained by him during the course of his treatment. He added that the plaintiff/respondent has undergone only partial treatment and will have to be sent abroad again for further treatment and in that connection, the Government will also be liable to incur expenses on the treatment of the plaintiff/respondent under the Government Servants Medical Attendance Rules. According to him, the decretal amount should be curtailed on this score also. We would have readily agreed with the learned Advocate-General, had the aftermath of the physical injuries and the mental agony and distress caused to the plaintiff/respondent been transitory and temporary. A look at the evidence on the record will show that the face of the plaintiff/respondent has been very badly disfigured in the prime of his youth. He is no more able to eat solid diet, as he cannot chew and masticate. The diet has to be liquidated for him to be swallowed and on this account, he will obviously not be able to keep normal health. This physical handicap has made him to depend upon the care of others. In this respect, we would recall with approval the following observations of the learned trial Judge contained in paragraphs 12, 13 and 14 of his judgment :- "

12. The injuries were so serious that in spite of the very efficient and able treatment the plaintiff was able to get from very competent Surgeons in the Cannies Burns Hospital, Glascow, he has lost all the lower teeth and instead artificial set of teeth has been improvised for the lower jaw and therefore the Surgeons in Glascow had to take out the bone from the hip of the plaintiff and use it as a jaw bone by means of surgery. The plaintiff had lost 4 upper front teeth but in view of the damage done to the palate by the bullet injuries it was not possible to fix all the four teeth and it is only due to the miracle of surgery that it cannot by detected that the plaintiff has lost the four front teeth, but when closely observed it can be found that in fact only one tooth could be and was fixed in the denture. The plaintiff, while giving his statement in Court on 12-6-74 produced the denture for the observation of the Court and the Court was pleased to put a note in the statement that the statement was correct. The plaintiff mentioned in his statement that his chin and lip near it were injured and permanently disfigured. The Court has been pleased to record its observations about the correctness of this statement as well. As can be very easily imagined by seeing the plaintiff, he must have been a very handsome and presentable youngman before the unfortunate incident. As it cannot be too highly emphasized that in addition to the other mental tortures (i.e. caused by the worry about his personal health and safety and due to the separation from his family and other near and dear ones), the consciousness about the disfiguration of his face which is the most valuable part of the body of a youngman has for life become a source of anguish to the plaintiff.

13. All the details given about the injuries caused to the plaintiff by the firing of the constabulary people and their after effects are true, supported by very reliable oral and documentary evidence and the observations of the Court; besides the defendants have produced no evidence in rebuttal, nor have they even tried to challenge the correctness of those details by putting the plaintiff any question thereabout in the cross- examination which was done on 13-7-1974.

14. Over and above the physical pain and mental tortures mentioned above, the plaintiff's lower lip and chin, as stated by him in his deposition in Court, have become completely insensitive and if anything dribbles down his lip, he does not feel it until it has reached the under surface of the lower jaw. Moreover, the after-effects of the injuries have become a social problem for him, because on many occasions that he should have enjoyed the company of his friends, he cannot do so now due to his inability to eat as a normal parson would. He cannot chow and masticate anything and the diet has to be liquidated for him to be swallowed. In addition to this, his speech has also boon affected and as can be judged from the auditory response of the persons he talks to, his speech is now not clear as it used to be before he sustained the injuries in question. This portion of the plaintiff's statement has not been challenged by way of cross-examination." It will be seen that the learned trial Judge has properly appreciated the evidence brought before him on the record and no exception can be taken against his observations. In his statement, the plaintiff/respondent ha further stated that apart from the disfiguration of his face ha is obliged t invariably take analgesic in order to control the pain in his m,)uth. Keeping this fact in view, it would be obvious that unfortunately for him, he has lost the charm and lustre of life, as he could not be spared from the agonistic and painful condition of his health. It will be clear from what has been discussed above that the damage caused to the plaintiff/respondent is so serious that it cannot be measured and compensated precisely in terms of money. In the Law of Torts, it is laid down that there should be restitutio in integram in the case of personal injuries. In other words, the criteria to assess the damages in the case of personal injuries is that the victim would be entitled to recover the pecuniary losses caused to him. But in the case of physical pains and mental tortures. which are non-pecuniary losses the plaintiff/respondent would be entitled to recover compensation and not restitution. In the reported case Ch. Muhammad Nawaz v. Pak. Western Railway (P L D 1975 B J 11), quoted by the learned trial Judge in his judgment, we have noticed that their Lordships of the Division Bench awarded the sum of Rs. 8,000 by way of compensation to the plaintiff/respondent on the ground of his temporary mental sufferings and inconvenience, as the marriage party of his daughter was late by 8 hours to reach its destination on account of the failure of the Assistant Station Master (Railway). While comparing the said case with the present one, we cannot help observing that the case of the plaintiff respondent admits of no estimated amount of compensation because the unfortunate tragedy of which he has been the victim, has permanently conditioned his life for the future to be one of mental anguish, physical weakness and facial deformity-the consciousness of the charm of life, having gone out of it, would be ever haunting him so long as he lives. To put it in other words, no amount of money can be an adequate recompense to the plaintiff/respondent in the circumstances of the case. In the case cited above their Lordships have held that the award of compensation in the like cases is an arbitrary exercise for the Courts. While respectfully agreeing with legal proposition we might add that in cases of this nature it is a matter for the satisfaction of the judicial conscience of the Court to exercise its discretion in fixing such amount of compensation to be paid to the victim as would appear to be just and proper in the circumstances of the case. In the present case the interest of justice would therefore demand that the plaintiff/respondent be adequately compensated. He is no more a healthy person. Beside the face of a presentable youngman, as the plaintiff/respondent, who is present in Court seems to have been before the tragedy is a very valuable asset to hi as a very important factor in the portrayal of his personality. The impair health arid disfigured face the plaintiff/respondent now has on account of the unscrupulous and callous act of the F. C. men has constantly embittered the, life of the unfortunate young man (the plaintiff/respondent) physically and darkened it psychologically having robbed it of the glare and glamour o t youth. In view of these facts we cannot see as to how any grievance can b made against the decretal amount which at least cause some solace to the plaintiff/respondent and his family. We have gone through the impugned judgment of the learned trial Judge and do not see any reason to interfere with it. He has, with considerable labour and for reasons, worked out the decretal amount in paragraphs 20, 21 and 22 of his judgment. In our view the decretal amount can hardly be said to be in excess of that whereto the plaintiff/respondent is entitled in the circumstances of the case. The learned Advocate-General lastly submitted that the costs of these proceedings may be directed to be borne by the parties. In view of the circumstances of the case we are not inclined to accede to this sub mission. This appeal, therefore, fails and is dismissed with costs. Appeal dismissed.