1. ' SYED HASAN AZHAR RIZVI, J.---The plaintiff is a qualified Master Marine Engineer holding certificate under the Merchant Shipping Act, 1923 now the Merchant Shipping Ordinance, 2001 has filed the suit for recovery of US$ 138, 250 under section 3(2)(N) read with section 3(2)(F) of the Admiralty Jurisdiction of the High Court's Ordinance, 1980. The defendants Nos.1 and 3 are the beneficiary owned by defendant No,2 the Government of People's Republic of Bangladesh and the defendant No,4 is a local crewing/manning agent of defendant No,2. The plaintiff signed an agreement dated 1-2-2008 to serve on board the defendant No,3 vessel before the Shipping Master, Ministry of Shipping, Government of Pakistan, under section 125 of the Admiralty Shipping Ordinance, 2001 on monthly US$ 2750 as Chief Engineer of defendant No,3. The plaintiff joined defendant No,3 vessel on 2-2-2008 at Chittagong Bangladesh and had started his service from the said date. On 31-3-2008 on or about 1000 hours local time while the plaintiff was serving on board when the defendant No,1 vessel was at the outer anchorage of Chittagong Port the plaintiff while descending through the access ladder into Tween Deck Cargo hold No,1 for the purpose of inspecting Cargo Holds during Hatch Cleaning Operation in the capacity of Chief Officer, fell down accidentally from a height of about 10 to 12 feet. The plaintiff remained in the cargo hold for about two hours and finally at around 12 hours the plaintiff was brought back to the deck with the help of stretcher and crane.
2. Thereafter the plaintiff was transported to Holy Crescent Hospital Chittagong, Bangladesh, where the doctors prescribed for immediate surgery of the plaintiff, the plaintiff underwent surgery and internal fixation of Dynamic Hip Screw was done on 1-4-2008. The plaintiff was then advised for five to six weeks rest by the surgeon. The Master of the Vessel on 1-4-2008 immediately signed off the plaintiff as he was fully aware that the plaintiff will not be able to continue sea service. The plaintiff was informed that after his operation he will be recovered within six weeks and on this hope the plaintiff remained far from his family and home in the hospital at Bangladesh. In Bangladesh no proper care of the plaintiff was taken at the hospital, the plaintiff had to pay "Tips" to the local staff of the hospital for taking him to toilet etc., as the plaintiff was not even able to move from his bed.
3. The surgeon at Bangladesh only used to visit the plaintiff on routine visit. In the end of May, 2008 one Mr. Gholam Maula of defendant No,2's company along with the Master of the ship "Captain Shams" visited the plaintiff at the hospital and presented the copy of service contract of defendant No,2 and articles of agreement/employment contract of Government Shipping Office of Bangladesh for signatures on the ground that such documents are necessary for claiming the Medical Expenses, Wages and compensation P and I Club of defendant No,2.
4. ' On 7-7-2008 the plaintiff was finally discharged from hospital with the doctor's advice to take rest for further four weeks. The plaintiff was brought to Pakistan Karachi through Bangladesh Airlines on wheel Chair. The plaintiff is still unable to walk without crutches. Since after arriving at Karachi the plaintiff obtained medical consultations with five well-reputed Orthopedic Surgeons out of which two doctor/surgeon Dr. M.A. Shah and Dr. Khan Shahe Azam advised for immediate re-operation of the plaintiff whereas the other three doctors/ surgeons (Dr. I.A. Jokhio, Dr. Z.K. Qazi and Dr. Ali Muhammad Ansari) advised the plaintiff to wait for natural healing at least ending of December, 2008. The plaintiff vide various e-mail requested the defendant No,2 to pay his balance wages, but after all such requests the plaintiff was only paid a meagre sum (i) initial payment of wages on board the defendant No,3 vessel in respect of services on the vessel prior to the accident and (ii) wages for the period of hospitalization at Chittagong till 7-7-2008 was paid through remittance at Karachi but no payment under Clause 17 or Clause 11 of the Employment Agreement was paid to the plaintiff. The plaintiff through his email dated 10-9-2008 requested for approval and arrangement for further medical treatment and wages earned from July to September, 2008; but the same was refused by the defendant No,2 on the ground there is no scope to send any amount for further treatment of the plaintiff. The plaintiff vide his e-mail dated 6-11-2008 requested the defendants to arrange his wages till December, 2008 when the plaintiff was expected to undergo re-operation and also requested for payment of operation cost. The defendants did not bother to reply to such request of the plaintiff. The plaintiff as restricted ability to move and cannot walk without the help of crutches and is permanently disable/ incapacitated for sea service, as sea service/employment on board the vessel essentially requires full physical fitness, vigor and activeness. Professor I.A. Jokhio a leading Orthopedic Surgeon of Pakistan on November 4th 2008 certified that the plaintiff is unfit and is likely to remain unfit for sea service for the rest of his life as such he is permanently disable. Under Clause 17 of the Agreement of Employment in the event of injury resulting incapacity of seafarer during the employment on board, the owner will pay the compensation equivalent to 48 months wages/salary to the said seafarer. The plaintiff therefore claiming that he is entitled to US$ 132,000 in that regard, as per clause 11 of the Agreement of Employment in the event of any crew being discharged by reasons of illness/injury during the tenure of Agreement, in addition to wages earned on board the ship during the agreement the crew shall be entitled for cost of treatment for a period of four months. The plaintiff after arriving to Pakistan in the month of July, 2008 immediately requested the defendants through e-mail to pay for his medical treatment amounting to Rs,5,00,000 incurred by the plaintiff after arrival in Pakistan on the injury caused to him while serving on board of defendant No,3 vessel. The claim of the plaintiff against the defendant No,3 being the beneficiary owner of the defendant No,2 at the time of accrual of the cause of action is liable in an action of personam and the defendant No,2 is also the beneficial owner of defendant No,1 vessel when this suit is filed, therefore, such action in rem against the defendant No,3 vessel lies under the admiralty jurisdiction of this Court.
5. ' The notice under Rule 732 of SCCR (OS) along with an affidavit for institution of this suit had been issued and served upon Deputy High Commission of People's Republic of Bangladesh at Karachi.
6. The defendants avoided, neglected and refused to pay the claim of the plaintiff, therefore, the plaintiff has filed present suit with the following prayer:--
(a) Pass judgment and decree in favour of the plaintiff in the sum of US$ 138,250 against the defendants, jointly and severally with 15% interest per annum.
(b) Direct the defendant No,1 vessel or any other vessel in the beneficial ownership of the defendant No,2 to be arrested forthwith and may not be allowed to leave the jurisdiction of the honourable High Court unless and until bank guarantee to the equivalent amount is deposited with the Nazir of this honourable High Court.
(c) Upon failure of the defendants to furnish security direct the defendant No,1 vessel or any other vessel arrested to be sold along with her tackles, apparels and appurtenances and the claim of the plaintiff be satisfied against the sale proceeds of the said defendant vessel.
(d) Grant cost of the suit.
(e) Grant any further and better relief as, may be deemed appropriate by this honourable Court in the fact and circumstances of the case and in the interest of justice.
7. ' On 25-11-2008 this Court passed order to arrest the vessel and in case the security is furnished by the defendants for the same amount which has been claimed by the plaintiff to the satisfaction of the Nazir of this Court the order of the arrest of vessel will be recalled. On 28-11-2008 Mr. A. H. Mirza, Advocate for the defendants undertook to arrange bank guarantee within ten days for the amount of US$ 138,250 to the satisfaction of the Nazir and on this statement of the learned counsel for the defendants the order for arrest of vessel of defendant No,1 was recalled. On 6-12-2008 bank guarantee of the afore-said amount was furnished by the defendant No, 1.
8. ' Summonses were issued to the defendants who returned duly served on 18-12-2008 upon defendants Nos.1 and 4. On 29-1-2009 the defendants filed their written-statements in this suit. On 16-3-2009 this Court framed/ settled the following issues:--
(1) Whether the plaintiff is permanently incapacitated by the accident occurred on the vessel and is unfit for service on sea for the rest of his life?
(2) Whether the defendant No,2 has failed to pay the medical expenses of the plaintiff during the period 31-3-2008 to 31-7-2008 in terms of clause 11 of the Agreement of Employment? If so, its effect?
(3) Whether the plaintiff has been paid the amount of wages and medical expenses as per admission in para 13 of the plaint?
(4) To what relief the plaintiff is entitled to?
(5) What should the decree be?
9. ' By consent, Mr. Mansoor A. Shaikh, Advocate was appointed commissioner to record the evidence of the parties. On 29-7-2009 the Commissioner returned commission duly executed, the learned Commissioner recorded the evidence of P.W. No,1 Muhammad Sirajullah and has produced the documents as Exh.P/1 to P/22 and D.W.1 Muhammad Gholam Moula had also produced the documents as Exh.D/2 to D/12 which were taken on record on 2-11-2009 and the matter was adjourned for final arguments.
10. Issue No,1:--The plaintiff in his affidavit-in-evidence stated that while he was descending through the access ladder into Tween Deck of Cargo Hold No,1 for the purpose of inspecting the cargo holds during Hatch Cleaning operation in the capacity of Chief Officer, fell down accidentally from a height of about 10 to 12 feet. The plaintiff remained in the cargo hold for about 2 hours and finally at around 1200 hours he was brought back to the deck with the help of the stretcher and crane.
11. Thereafter transported to Holy Crescent Hospital, Chittagong Bangladesh, where the doctors prescribed for immediate surgery and admitted the plaintiff in the hospital. The plaintiff underwent surgery and internal fixation of Dynamic Hip Screw was done on 1-4-2008 and then he was advised by the surgeon to stay on the bed for 5 to 6 weeks. The master of the vessel signed off the plaintiff on 1-4-2008 as he was fully aware that the plaintiff will not be able to continue his sea service after the accident. The plaintiff was informed that he would be covered within six weeks after the operation and on that hope he remained far from his family and home in the hospital at Bangladesh. In Bangladesh hospital he had not proper care, the plaintiff had to pay tips to lower staff of the hospital for taking him to toilets etc, he was not even able to move from the bed. The surgeon of Bangladesh was not used to visit on routine; but at the request of the plaintiff.
12. ' The plaintiff produced a certificate issued in May, 2008 by the Holy Crescent Hospital Ltd, Chittagong Bangladesh as Exh.P/9. The plaintiff was discharged from hospital on 7-7-2008.
13. According to the Operation Note mentioned in Discharge Certificate produced as Exh.P/10 "Mr. Sirajul Haq Sayed son of late Nurul Haque, Pakistani national working in Banglar Doot of B.S.C.
14. Chittagong Bangladesh was admitted in Holy Crescent Hospital, on 31-3-2008 at 2-30 p.m. And the complaints of HPO Fall from height followed by inability to move the Rat lower limb associated and pain and swelling of the affected part. The doctor has further advised which are:-- ' The put can walk on a pair of crutch touching on ground and toes, (2) Gradual hip-knee exercise,
(3) Hop Compression, (4) Rest for 4 weeks and (5) Consult Orthopedic Surgeon locally.
15. ' On 7-7-2008 as per Exh.P/11 a certificate was issued to the plaintiff that he was fit to fly home from Dhaka. The plaintiff travelled by air from Chittagong to Dhaka by an ambulance along with an escort upto Dhaka Airport. As Exh.P/12 is the Medical Certificate for Air Travel the plaintiff's case was shown as Wheel Chair Case. Soon after arrival of the plaintiffs Karachi, he obtained Medical consultations with five well-reputed Orthopedic Surgeons. Dr. M.A. Shah and Dr. Khan Shahe Azam advised for immediate operation whereas the other three senior doctors Dr. Prof. I.A. Jokhio, Dr. Z.K.
16. Qa.Zi and Dr. Ali Muhammad Ansari advised to wait for natural healing at least till ending of December, 2008. As Exh.P/13 the medical certificate when the plaintiff was examined at A.O. Clinic, Nazimabad Karachi and as Exh.P/14 the medical certificate of the plaintiff he was examined at T.O.
17. Clinic, Gulshan-e-Iqbal, Karachi. On 14-11-2008 the plaintiff was examined by Prof. I. A. Jokhio, Consulting Orthopedic Surgeon, according to the medical examination/opinion of Dr. I.A. Jokhio the plaintiff is unfit for sea service for rest of his life, the said certificate had been issued, verified and countersigned by Abdul Qadir Bhutto, Port Health Officer, Port Health Department, Karachi. The plaintiff during the cross-examination has stated that he got certificate of accident of incapacity from Port Health Officer which he has already produced as Exh.P/19.
18. ' One D.W.1 Golam Moulla who appeared before the Commissioner produced the Discharge Certificate issued to the plaintiff by the Holy Crescent Hospital Chittagong Bangladesh as Exh.D/4 wherein the doctor diagnosis Comminuted fractures injuring plaintiffs back and neck of Rt. Femur bone, he was admitted on 31-3-2008 in that hospital at 2-30 p.m. And was operated on 1-4-2008 for closed reduction and internal fixation by the surgeon Dr. Salahuddin and his team. The plaintiff remained in the hospital as indoor patient till 7-7-2008 according to the Discharge Certificate.
19. Plaintiff was directed to consult Orthopedic Surgeon locally at the time of his discharge. According to the definition the comminuted fracture is an injury in which bone is broken, splintered or crushed into a number of pieces. The plaintiff in paras 21, 22 and 26 to 31 of his affidavit-in-evidence has mentioned about the consultancy of various renowned surgeons of Pakistan. The plaintiff was cross-examined at length by the counsel for the defendant but the averments on oath as stated by the plaintiff in paras Nos.21, 22 and 26 to 31 have not been denied, challenged or controverted during the cross-examination of the plaintiff. The plaintiff has stated in para 36 of his affidavit-in- evidence that he had satisfied about his permanent incapacity to the Port Health Officer, Government of Pakistan, who had confirmed the plaintiffs position regarding his sea service. This portion of the plaintiff is also not denied or challenged during the cross-examination. Defendant's witness during cross-examination admitted that generally and without exception their company will not accept any disable person as an employee on board the vessel. Hence my finding on issue No,1 is in affirmative and I hold that the plaintiff is permanently incapacitated and the plaintiff after the accident is unfit for service on sea for rest of his life.
20. Issue No,2:--The plaintiffs' counsel referred to clause No,11 of the Agreement for Employment on Ships produced as Exh.P/5 which provides that in the event of any member of the mentioned crew being discharged by reasons of illness/injury during this agreement and not due to his own wilful act he shall be pain full wages for a period of 12 weeks from the date of his discharge in addition to wages earned on board the ship during the agreement and cost of any treatment for a period of four months. Admittedly on 31-3-2008 during the employment of the defendant the plaintiff was injured while he was performing duty in the capacity of Chief Officer, and he underwent surgery on 1-4-2008. The plaintiff was finally discharged on 7-7-2008 from hospital and was advised by the doctor of Bangladesh to take rest for further four weeks. The plaintiff was brought back in injured condition on wheel chair by air from Bangladesh to Pakistan Karachi. On 23-7-2008 plaintiff sent e- mail the period of four months from the date of accident i,e, 31-3-2008, requested to defendant No,2 to provide him costs of charges of Dynamic Hip Screw re-operation as suggested by the renowned surgeon of Pakistan and to pay the costs of medical treatment as provided in clause 11 of the agreement referred to above. Again on 10-9-2008 the plaintiff requested to the defendants for approval and arrangement of further medical treatment; but the defendant No,2 refused on the ground that there is no scope to pay any amount for treatment to the plaintiff. The plaintiff after arrival from Bangladesh to Pakistan in July, 2008 spent more than Rs,5,00,000 for treatment of his injuries caused to him while serving on board of the vessel of defendant No,3, which the plaintiff had claimed in para. 37 of his affidavit-in-evidence. This portion of the affidavit-in-evidence of the plaintiff has not been specifically and categorically denied during the cross-examination of the plaintiff and simply a general and vague E suggestion was put in cross-examination to the plaintiff that owner is not liable to pay as has been claimed by the plaintiff in para 37 of his affidavit-in- evidence. This suggestion is absolutely contrary to the clause 11 of the contract of the Employment.
21. The defendants have not denied the fact that during the four months period of agreement the plaintiff claimed the amount of Rs,5,00,000 for his treatment. The learned counsel for the plaintiff during the cross-examination asked the specific question regarding the entitlement of the plaintiffs incurred medical expenses for four months after the date of accident to which the defendant's witness replied that the "plaintiff was entitled only for those medical expenses that were related to the doctor and hospital advised". The clause 11 of the contract is self-explanatory, the plaintiff had lodged the claim of Rs,5,00,000 to the defendants through e-mail as stated in para 37 of his affidavit-in-evidence and this fact has not been denied by the defendant's witness or challenged this fact in cross-examination of the plaintiff, therefore, I hold that the defendant No,2 had failed to pay the medical expenses of Rs,5,00,000 during the period from 31-3-2008 to 31-7- 2008 in terms of clause 11 of the Contract of the Employment and I direct the defendants to pay the said amount to the plaintiff.
22. Issue No,3:--In para. 13 of the plaint the plaintiff has categorically stated that the payment under clause 17 or clause 11 of the Employment Agreement was not paid to the plaintiff. The plaintiff in paras Nos.32 and 33 of his affidavit-in-evidence stated that as per clause No,17 of Agreement of the Employment in the event of injury resulting incapacity of a seafarer during the employment on board, the owner will pay compensation equivalent to 48 months wages to the crew. The plaintiff claims that he is entitled to US$ 132,000 (US$ equivalent to 48 months). The defendant denied to pay that amount to the plaintiff. The defendant's witness during his cross-examination stated that the plaintiff has demanded compensation regarding his incapability according to Article 17 of the Agreement of the Contract of service he must be produced himself before the Medical Board which must be constituted by Shipping Master or related concerned authority. The clause 17 of the agreement of the contract of employment of Ship Exh.P/5 is as under:-- Clause 17:-In the event of death or injury resulting in incapacity of a seafarer during employment on board, the Owner/Agent will pay compensation to him or his legal heirs as follows:--
(a) 60 months wages, if crew is less than 30 years of age on the day of his death, or accident causing permanent incapacity,
(b) 48 months wages, if crew is over 30 years of age on the pro-rata compensation shall be paid to a crew if he/she becomes partially incapacitated. The Port-Health/ Officer, Medical Board will certify the degree of incapacity.
23. ' There is no mention of constitution of Medical Board by Shipping Master, on bare reading of clause 17 of the Agreement that there is no requirement of constitution of Medical Board by the shipping master as stated by the defendant's witness. Merely it is mentioned that the Port Health Officer, Medical Board will satisfy the degree of incapacity. The defendant's witness during his cross- examination stated that "I see para 7 of my affidavit-in-evidence and say that the information as mentioned in this paragraph was received to me by the relevant hospital. The plaintiff remained for about three months and eight days in hospital in Bangladesh and it was the duty and responsibility of the defendants to examine the plaintiff before Port Health Officer or at their own constituted the Medical Board to verify the of incapacity in Bangladesh while plaintiff had been admitted in hospital there for more than three months. The medical evidence produced by the defendant's witness which is discharge certificate of Holy Crescent Hospital as Exh.P/10 and D/4 showing the fact beyond any shadow of doubt that the plaintiff received serious injury of comminuted fracture in which bone is broken, splintered or crushed into a number of pieces and that fracture is distinguished from a compound fracture. The plaintiff remained as indoor patient from 31-3-2008 to 7-7-2008 and not even discharged from hospital for a single day the plaintiff cannot walk without crouches and he was advised rest for our weeks and the plaintiff further advised to consult the Orthopedic Surgeon locally. These facts are mentioned in the Discharge Certificate produced by the defendant's witness. Even the plaintiff whenever appeared before this Court could not walk without stick or wheel chair.
24. ' The dispute between the parties is of the amount of compensation, according to the learned counsel for the defendants full wages of three months and the total costs of medical treatment has been paid by the defendants to the plaintiff. He further contended that under clause 17(c) of the Contract of Agreement, plaintiff had to appear before the Port Health Officer/Medical Board; according the learned counsel for the defendants as Exh.Nos.P/13, P/18 to P/20 were challenged by the learned counsel for the defendant on the ground that the plaintiff is not the author of the documents and the author of those exhibits had not appeared before the Court, therefore, under Article 78 of Qanoon-e-Shandat and Article 67 of Evidence Act, those documents are not admissible, unless the author appear before the Court for their evidence. In support of his contention he relied upon the case-law, reported in PLD 1973 SC 1076, 1982 CLC 1128, PLD 1975 Kar.819 and 1996 M LD 1819. The learned counsel for the plaintiff referred to Article 113 of Qanun-e-Shandat and submits that the facts admitted need not to be proved and in support of his contention he relied on PLD 1968 SC 140 and further submits that the facts are not challenged by the defendants in the written statement and also during the cross-examination of the plaintiff shall be deemed to have been accepted by the defendants. In this regard the plaintiffs' counsel relied on 2001 SCM R 1700, moreover the learned counsel for the plaintiff urged that the defendants never attempted/directed the plaintiff to appear before the Medical Board/Port Health Officer during the stay of the plaintiff for more than three months in Bangladesh. On the advice of the doctors of Holy Crescent Hospital Chittagong Bangladesh as stated in Discharge Certificate Exh.P/4 the plaintiff consulted the Renowned Orthopedic Surgeon locally and in the opinion of Prof. 1.A. Jokhio, fracture is not united and advised another operation in near future and confirmed that the plaintiff is likely to remain unfit for sea service for rest of his life and this certificate was seen by the Port Health Officer at Karachi who confirmed the position.
25. Hence in my view after perusal of the pleadings, evidence of the parties and the medical record produced before this Court. I am of the view that beyond any shadow of doubt the plaintiff was completely and permanently incapacitated for rest of his life for sea service, and therefore, under clause 17 of Agreement of Employment produced as Exh.P/5, the plaintiff is entitled for 48 months wages which comes to US$ 138,000 and Rs,5,00,000 the medical expenses during the period from 31-3-2008 to 31-7-2008, in terms of clause 11 of Contract of Employment which have already granted while deciding issue No,2.
26. Issues Nos.4 and 5: --In view of the findings of issues Nos.1 to 4, I pass the judgment and decree in favour of the plaintiff in the sum of US$ 132,000 plus Rs,5,00,000 against the defendants jointly and severally with mark-up as prescribed by the State Bank of Pakistan from the Gate of filing of the suit till the realization of the whole decretal amount and with costs I of the suit.