2015 PLP 111 (MLD)

IKRAMULLAH KHAN, J.

By the instant appeal, filed under the provisions of section 96 of the Civil Procedure Code, 1908, the appellant has questioned the impugned judgment dated 7-12-2009 passed by the learned Civil Judge, Peshawar, whereby the suit instituted thereof by the appellant was dismissed.

2. The necessary facts of the case are that the appellant herein, sued for the recovery of Rs.1404000 (Fourteen Lacs and four thousand only), from the respondent (Frontier Pharmaceutical Private Ltd.,) alleging that on 27-11-1998, while on duty and in due discharge of his employment he met with a serious accident, due to the respondent's culpable negligence, in consequence whereof he lost his left hand, permanently become disabled, accordingly claimed thereof Rs.1404000 (Fourteen Lacs and four thousand only) as damages.

3. The respondent contested the suit, raised thereof, a number of legal and factual objections, to the maintainability of the suit. However, made admissions in its pleadings to the extent of the accident and amputation of the left hand of the appellant, while working there in the unit of respondent company, though with serious objections that the accident took place due to the appellant's own negligence.

4. The learned Civil Judge, casted the respective issues out therefrom the divergent pleadings of the parties and on conclusion of the trial, dismissed the suit of the appellant on the following grounds:-- (i) The suit instituted by the appellant was hopelessly time barred. (ii) No role of negligence, was attributed therein the suit particularly to respondent personally. (iii) That the person who switch on the energy, which culminated into the fatal accident, was not being sued. (iv) That the real cause of accident was not proved by the appellant.

5. The learned counsel on behalf of the appellant made there at the bar its submissions as:-- (a) That no doubt the injury was received by the appellant on 27-11-1998, but he continued to be in service of the respondent till December, 2000, upto which date the appellant was paid his salary; the services of the appellant were thereafter terminated, being rendered unfit for further service. The cause of action to sue the respondent accrued to the appellant with effect from January, 2001 and that being so, the suit was within time, according to Article-36 of the Limitation Act; (b) That where the employer keeps the employee in service till when the period of limitation is expired, provided therefor, institution of a suit for damages or compensation (what may be the case), the limitation in such cases shall commence and would be reckoned from the date of his release from service. As no party can be allowed to play fraud with the other to take benefit of limitation. (c) That the appellant and the other employee, who switched on the electricity, when the appellant was still at work of cleaning the machine, both were under the immediate control and responsibility of the respondents, could not be absolved from its responsibility on this premise, that the action or omission of its employee was his personal one. (d) That the burden of proof, in regard to the accident, was wrongly placed on the appellant as, the facts admitted, required no proof. (e) That the impugned judgment is perverse, fallacious and the result of mis-reading and non-reading of evidence, which resulted thereto in gross miscarriage of justice, which deprived the appellant of its due rights.

6. The learned counsel who, made good its appearance, on behalf of the respondents, urged that, the suit of the appellant was hopelessly time barred, instituted after the expiration of the prescribed period of limitation as envisaged under Article-22 of the Limitation Act, 1908, also stressed the ground, which has already been taken up therein the pleadings as:-- "The accident never occurred due to negligence, carelessness or fault of the employer's(respondent ) machinery rather it was the negligence and carelessness of the appellant for which the respondent could not be held responsible, and supported the impugned judgment."

7. I anxiously considered the arguments of both the learned counsel for the parties and carefully gone through the record with able assistance of them.

8. It would be not out of context to give a brief description herein-after as far as the period of limitation so for applied to suit filed for relief therein in regard to various kinds of compensation pertain to the person of an individual. To seek the relief of compensation in case, if any other injury is caused to the person of an individual, the period of limitation, provided thereunder Article 22 of the Limitation Act, is one year, when injury is committed but the period of limitation for any malfeasance, misfeasance or non-feasance, independent of contract and not specifically provided for, is 2 years as provided thereunder section 36 of the Limitation Act, 1908.

9. The appellant has specifically attributed the cause of its disablement to the respondent, on account of misfeasance of the respondent.

10. The injury suffered by the appellant was the consequence of culpable negligence and the failure of the respondent, and its employees, whose act and omission resulted into permanently making the appellant disable.

11. It was the legal obligation of the respondent/employer to maintain and install therein its plants such a foolproof system, which was useful to avoid such like accidents, but the respondents, did not care for its this responsibility to install such an equipment which may be useful and to provide safeguard for such like accidents as complained one, anywhere to appreciate its this legal obligation, and such kind of negligence fulls in the category of cases visualized by the provisions of Artice-36 of the Limitation Act, 1908.

12. Even so, in case the provisions of Article 22 be applied, the question of fraud, envisaged thereunder section 18 of the Limitation Act, could not be excluded therefrom consideration as the respondent categorically had admitted themselves in their pleadings that the appellant was employed therein the plant till December, 2000, the period of limitation would be reckoned in such a situation from 1st January, 2001, while the suit was instituted as 21-6-2001, being instituted within the prescribed period of one year, thereafter when the fraud become known to the appellant for the first time.

13. Nobody, would be given premium for its act or omission, committed to defraud a person and to deprive him in obtaining its legal rights. Reliance be placed on the case of Muhammad Yousaf and 4 others v. Mst. Zenab Bibi (2006 YLR 490).

14. Respondent had not denied therefrom the accident faced by the appellant, in the discharge of his duty. The plea raised thereof by the respondent, that the accident took place due to the carelessness of the appellant, was not proved by any reliable, cogent evidence, adduced thereof by the respondent, during course of trial.

15. The onus of proof in this regard was on the respondent as per section 119 of the Qanun-e-Shahadat Order, 1984 to prove, what had been alleged by them in their pleadings. Article 119 of the Qanun-e-Shahadat Order reads:-- "

119. Burden of proof as to particular fact. The burden of proof as to any particular fact lies on that persons who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."

16. Though initial burden was on appellant that he faced the fatal accident, due to negligence of the respondent, but when, the occurrence of an accident is admitted, in such a situation when the dispute is civil one, the onus shifts to the other party, who puts a plea, different from one alleged therein the pleadings of the first party.

17. Burden to prove interse liability is on defendant, where no evidence was led by defendants the issue is said to be not proved. Reliance be placed on the case of New Jubilee Insurance Company v. Messrs Lelakis Shipping and three others (1990 ALD 367(1))].

18. Onus probandi postulates that where no evidence adduced by one who asserted proposition must fail. Reliance be placed on the case of Sanawar Jan v. Temash Khan (PLD 1991 Peshawar 101).

19. As the respondent did not discharge its burden to lead this Court to an inference, that the accident took place was the result of the negligence of the appellant, then the assertion put forward by the appellant shall be admitted, stand un-rebutted.

20. Insofar, the findings of the learned Trial Court that the person employed was a Supervisor and due to its action or omission, the accident took place and no criminal case was registered against him, as such irresponsible act could not be attributed to the respondent, is misconceived.

21. Respondents are responsible for all the acts and omissions of their duly appointed employees, committed during their course of duty.

22. The responsibility of supervising and handling with the machinery installed therein the plant, was assigned to the concerned supervisor by the respondent, could not be absolved from their contractual and legal obligations on the premises that the accident was the result of the personal action of the employee of the respondent.

23. The respondent has not brought on record, that what were the precautions, taken by the respondent to avoid such like accidents, being legally bound to provide all the safety, equipment to save the employees from such untoward accidents.

24. Respondent could not be absolved from all the consequences, happened to be the result of action or omission of any of the employee, appointed thereunder and were under direct control of the respondent, therein the plant owned and under operation of the respondent. Reliance may be placed in this regard on the case of Mohanzmadi Steam Ship Co. Ltd. v. Federation of Pakistan and others (PLD 1959 WP Karachi 232).

25. The impugned judgment passed by the learned Civil Judge, Peshawar is based on incorrect construction of facts and misconstrued the law in this regard, not sustainable, in its essence.

26. The upshot is that the instant appeal is allowed, impugned judgment of the learned Trial Court is hereby set aside, resultantly, and the suit of the appellant is decreed as prayed for. ARK/153/P Appeal allowed.