SYED SAEEDUDDIN NASIR, J.---This High Court Appeal is directed against judgment dated 02.04.2014 and decree dated 11.04.2014 passed by the learned Single Judge in Suit. No. 923 of 2010 filed by the respondent against the appellants whereby the learned Single Judge decreed the suit of respondent to the tune of Rs.2.00 Million with 10% interest from the date of decree till payment of compensation to the respondent.
2. Facts giving rise to the instant appeal are that the respondent is a foreign qualified Chemical and Gas Engineer, who has served in the appellant No.3 Company in the capacity of General Manager from June, 1982 to June, 1995 and as a Director from June, 1995 to 2004. In 1982 when the respondent joined the service, the Company was ESSO Eastern International which was subsequently taken over by the Fauji Foundation. Later on it was taken over by Mari Gas Company.
3. The respondent after serving in the capacity of General Manager as well as in the capacity of one of the Directors of the Board of appellant No.3 retired in 2006. He was enjoying different pensionery benefits including medical benefits as per medical policy approved in the 24th meeting of the Board of Directors of Mari Gas Company Limited held on 4th June, 1990. According to the said health policy the medical benefits were continued even after the retirement.
4. The appellants by a letter dated 15.11.2006 informed the respondent that they have changed their medical policy as per approval of meeting of Board of Directors held on October, 2006. The respondent challenged the adverse effect of change in the policy on the entitlement of respondent through a Constitution Petition No.D--2224 of 2007. This Court first granted interim relief to the respondent.
5. The appellants preferred a Civil Petition for Special Leave to Appeal before the Hon'ble Supreme Court of Pakistan against the interim order dated 01.11.2007 and got the interim orders suspended, however, the Hon'ble Supreme Court vide; order dated 09.07.2009 dismissed the appeal of appellants and ultimately this Court vide; order dated 29.03.2010 allowed the aforesaid petition by holding that the respondent shall be entitled to the medical benefits as they were applicable prior the new policy of 2006.
6. The learned counsel for the appellants has inter alia argued that the company's medical policy has been changed several times and under the policy effective from 01.12.2006 the medical benefits were monetized and pensioners were given a fixed amount of Rs.7000/- per month on the basis of average claim of pensioners and it was communicated to the respondent. The respondent is bound by the policy of the appellants. The appellants also raised several preliminary objections in their memo of appeal.
7. The learned counsel for the appellants has further argued that the learned Single Judge neither appreciated the evidence that the appellants adduced in suit nor considered the fact that respondent failed to bring on record any evidence to substantiate his claim; that the learned Single Judge gave erroneous findings because various pieces of evidence produced by the appellants were ignored; the learned Single Judge erroneously held that the suit was filed by the respondent after the judgment of this Court dated 29.3.2010 in C.P. No.2224 of 2007 and ignored the fact that the medical policy was revised on 15.11.2006, and despite the fact that the policy was so revised the entire reimbursement was made by the appellants to the respondents inclusive of benefits of old policy which was availed by the respondent; and therefore, the suit was wrongly held to be within time; that the learned Single Judge has wrongly awarded damages against the appellants to the tune of Rs.20.00 million; that the trial Court wrongly held that the respondent served the defendant No.3 from 1982 to 2006, however, the respondent retired in the year 1995 and then elected as Director till the year 2004, it was totally ignored that the appellants elected the respondent as Director of the appellant No.3 as gesture of goodwill towards the respondent and provided him all the facilities of a Director for as long as he was on the Board at par with other Directors; the basis of award of damages to the tune of Rs.20.00 million is not justified by the trial Court in its judgment, inasmuch as the evidence laid by the respondent in the suit was not sufficient to justify award of such hefty damages. The learned trial Court did not employ precision and a reasonable guess work while assessing such damages.
8. The learned counsel for the appellants, in order to substantiate his arguments has relied upon the case of Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore, reported in PLD 1996 SC 737.
9. On the other hand the learned counsel Mr. Rauf Ahmed Butt, appearing for the respondent, while controverting the arguments of the counsel for the appellants has submitted that respondent's case is that the change of policy was illegal, and mala fide which has deprived him of his legitimate entitlement of medical benefits. It was also contrary to the legal opinion given by the Legal Advisor of defendant No.3 Company in the year 2004. The learned counsel for the respondent has referred to an Exhibit, also placed on record as Exh.PW-1/3, which is a letter of the Legal Advisor of respondent No.3, wherein it is stated that it is basic principle of law that a benefit once given to the employees cannot be withdrawn unilaterally (i.e. without the express consent of the other party), which shows that the revised medical policy was against the legal advice of the defendants own legal experts. Per learned counsel, the respondent was, therefore, compelled to go for litigation for restoration of his medical benefit and the cumbersome lengthy process caused mental torture and harassm ent to him. The respondent claimed a sum of Rs.500,000,000/- as compensation for such mental torture and harassm ent.
10.The learned counsel further contends that the respondent was forced to file aforesaid Constitutional Petition in order to secure his medical benefits, which was allowed in favour of the respondent, to which he was entitled at the time of his retirement from the appellant No.3.
11. The respondent was shocked to receive the information from the appellants that from 01.12.2006 onwards management of the appellant No.3 will not be responsible for the medical expenses of the respondent.
12. This was a shock for the respondent, who at the advanced age of 73 years, needed more medical facilities than before, which were curtailed to just Rs.7000/- per month as medical expenses, without assigning any lawful reasons, and merely in the name of exercise of absolute power of the appellants to change the medical policy of their retired employees without consulting with them.
13. The respondent invested 22 years of his prime life in the appellant No.3, therefore, the respondent did riot deserve the treatment meted out to him by the appellants. He further contends that since the revised medical policy of the appellants of 2006 has been turned down by the Division Bench of this Court, and the old policy of 1990 has been restored, therefore, the withdrawal of the medical benefits of the respondent has caused a great deal of mental torture and agony to the respondent, firstly; upon receiving the painful information of the withdrawal of medical facilities and secondly; upon going through a cumbersome legal battle to get the same restored. The respondent remained without medical cover/ benefits for a period of about 3-1/2 years i.e. from 01.12.2006 to 29.03.2010.
14. The learned counsel for the respondent has also placed reliance upon the case of Sufi Muhammad Ishaque v. The Metropolitan Corporation Lahore, reported in PLD 1996 SC 737 as well as the case of Malik Gul Muhammad Awan v. Federation of Pakistan reported in 2013 SCMR 507.
15. We have heard the learned counsel for the parties, examined the material available on the record of the case and appreciated the case law cited by the learned counsel with their able assistance.
16. The suit was resisted by the appellants on various grounds, both legal as well as factual. We see that the appellants in their written statement denied the allegations of the respondent in suit. They averred that the company's medical policy has changed several times and under the policy, effective from 01.12.2006, the medical benefits were reduced and pensioners were given a. fixed amount of Rs.7,000/- per month on the basis of average claim of pensioners and it was communicated to the respondent, and that the respondent is bound by the policy of the appellants.
17. Upon pleadings of the parties the trial Court on 5.11.2012 framed the following issues:-- "1. Whether the suit is maintainable?
2. Whether the suit is time barred. The medical policy was made effective on 01.12.2006 and suit was filed on 02.06.2010?
3. Whether the defendant is liable to pay to the plaintiff as per rules the Medical facilities after his retirement from service?
4. Whether the change in medical policy applicable only to the plaintiff or all its employees?
5. Whether the plaintiff is entitled for his medical benefits as per medical policy?
6. Whether the conduct of the defendant caused mental torture agony/stress to the plaintiff?
7. Whether the plaintiff is entitled for damages/compensation of Rs.50 Crores.
8. What should the decree be?".
ISSUES Nos.1 and 2: These two issues were interconnected and, therefore, discussed together by the trial Court. The counsel for the appellants contended before the trial Court at the time of final arguments that the suit was not maintainable on the ground that the respondent retired from the service in 2004 and enjoyed the benefits up to 15th November 2006, where after the policy was revised and th.e suit was filed on 2.6.2010, after lapse of four years whereas the limitation for claiming compensation of an injury is one year in terms of Article 22 of the Limitation Act and, therefore, the suit is not maintainable. The respondent filed the suit for compensation on account of mental torture and harassm ent caused to him on account of change in medical policy of the appellants.
18. The policy was made effective in November 2006, but it was declared illegal by this Court in C.P.
No.D-2244 of 2007 and, therefore, the cause of action for filing the suit, on account of injury caused to the respondent due to change in medical policy, continued from the date of announcement of policy till the date of judgment in favour of respondent and the respondent filed suit within three months from the judgment dated 29.3.2010, hence it was righty held by the learned trial Court that suit filed by the respondent was within time and maintainable.
19. The cause of action was continuing and matured on 29.3.2010 and time for filing of suit started on 29.3.2010. In view of this admitted position from the record the Issue No.1 was rightly decided in affirmative and Issue No.2 in negative by the learned trial Court.
ISSUES Nos.3, 4 and 5: Since all these three issues were inter related, therefore, the learned trial Court has ventured to answer the same together.
20. There appears to be no dispute with regard to the liability of the appellants to provide medical facilities to the respondent after his retirement as per medical policy already in existence at the time of his retirement. Neither the respondent claimed any medical benefits in the suit nor did the appellants deny the fact that the respondent was entitled to medical facilities even after the retirement. However, in the suit the respondent only claimed damages for the mental torture and harassm ent on account of the change in the medical policy which according to the respondent was an illegal and unjustified act on the part of appellants. The respondent was forced to file C.P.
No.D-2224 of 2007 to secure his medical benefit.
21. The assertion of the learned counsel for the respondent that respondent remained without medical cover/benefits for a period of about 3-1/2 years i.e. from 01.12.2006 to 29.03.2010, is undoubtedly correct, however, the respondent has not led any evidence to the effect as to what specific amount of medical expenditure was borne by him during the aforesaid period, and as to what efforts he made and agony sustained in order to arrange the amount for his medical expenditure.
22. Upon perusal of the evidence we have observed that the respondent has admitted in his cross- examination that "the revised policy was applicable to other employees also," which means that the revised medical policy was applicable to all the employees of the petitioners across the board, and the same was not formulated maliciously in order to deprive the respondent of the entitlement of the aforesaid benefits, therefore, we do not agree with the contention of the counsel for the respondent that the move of the petitioner was malafidely directed against the respondent in order to deprive him of his due benefits under the medical policy, which was applicable to him at the time of his retirement. Therefore, in the absence of any evidence being brought on record by the respondent with regard to alleged mala fides against the petitioners, we do not agree with the quantum of damages awarded by the learned trial Court in this matter.
23. The respondent's case is that the change of policy was illegal, and mala fide which has deprived him of his legitimate entitlement of medical benefits. It was also contrary to the legal opinion given by the Legal Advisor of defendant No.3 Company in the year 2004. The respondent has also placed on record Exh.PW-1/3, which is a letter of the Legal Advisor of respondent No.3, wherein it is stated that it is basic principle of law that a benefit once given to the employees cannot be withdrawn unilaterally (i.e. without the express consent of the other party), which shows that the revised medical policy was against the legal advice of the defendants' own legal experts.
The relevant part of Exh.PW-1/3 is reproduced as under:-- "PW -1/3 M ARI GAS COM PANY LIM ITED Minutes of the 26th meeting of the Board of Directors held on June 24, 2004 at 10.45 a.m. b. It is legally permissible for the Board to change any of the existing Policies whereby the eligibility criteria is revised for future implementation which would render some of the existing employees ineligible for particular benefit to which they would otherwise have become entitled on the happening of a specific event e.g. on completion of prescribed service or promotion to higher grade etc.
39. The legal advisors' opinion is as under: a. It is basic principle of law that a benefit once given to the employees cannot be withdrawn unilaterally (i.e. without the express consent of the other party). A Managing Director, acting on an ostensible authority binds the Company in a contractual obligation with any third party (i.e. employees) irrespective of the validity of the actual/express authority. The Board may initiate an action against Managing Director(s) for acting beyond their express authority but cannot take any step which would amount to repudiating existing contracts with employees. b. The Board has the legal authority to change the Company policies for future implementation so long as any such change does not adversely affect the existing contractual rights of the ex- employees. The change can also be applied to a particular section of the existing employees who have not yet become entitled to or taken a benefit under a specific policy. However, there may be a possibility of the affected employees challenging such change on the ground of "Discrimination".
The outcome of any such challenge will depend on the particular facts of each case and any legal precedents. (emphasis supplied).
24. Despite the above legal advice the Defendants changed the medical policy and attempted to apply it on the plaintiff with effect from 01.12.2006.
25. The trial Court, while deciding the aforesaid issues, has rightly held that the findings of this Court in favour of the respondent in Constitutional Petition No.D-224 of 2007, restoring the medical benefits to the respondent, as they were applicable prior to the new policy of 2006, are not only binding on the appellants, but also on the trial Court, and consequently rightly answered issues Nos. 3, 4 and 5 in affirmative.
ISSUES Nos.6 and 7: We observe that after answering the issues Nos.1 and 3 to 5 in favour of the respondent, the trial Court has rightly held that the change of medical policy was not applicable in the case of respondent and an attempt was wrongly made by the appellants to enforce it against the respondent in an unlawful and capricious manner due to which the appellants must have caused some mental stress to the respondent.
26. Upon the facts and circumstances as narrated hereinabove, our considered view is that admittedly the respondent has served in appellant No.3 for 22 years from 1982 to 2006 and invested the prime time of his life in the service of respondent No.3. The respondent was entitled to certain pensionery benefits including but not limited medical benefits as per medical policy approved in the 24th meeting of the Board of Directors of Mari Gas Company Limited held on 24th June, 1990. According to the said health policy the medical benefits were to be continued even after the retirement.
27. However, the appellants by letter dated 15.11.2006 informed the respondent that they have changed the medical policy after getting approval by the Board of Directors in their meeting held in October, 2006, according to which the monthly medical benefits to the pensioners were reduced to a fixed monthly amount of Rs.7,000/-, which adversely affected the respondent, inasmuch as, at the advanced age of 73 years, the respondent's medical expenses were on the rise every year.
28. It is the case of the respondent that on account of abrupt discontinuation of medical benefits the respondent suffered acute mental torture, shock and agony, firstly; upon receiving the painful information of the withdrawal of medical facilities, which must have panicked the respondent, and secondly; upon going through a cumbersome legal battle up to Hon'ble Supreme Court to get the same restored. Moreover, the respondent remained without medical cover/benefits for a period of about 3-1/2 years i.e. from 01.12.2006 to 29.03.2010.
29. The respondent challenged the adverse effect of such change in the policy on the entitlement of respondent's medical benefits through Constitutional Petition No.D-2224 of 2007, which was ultimately allowed on 29.3.2010 restoring the medical expenses as they were applicable prior the new policy of 2006 with the following observation:-- "For the above reasons this Constitution Petition is allowed and Mari Gas Company is directed to allow the same benefits as were applicable in the case of the petitioner at the time of his retirement and not to make any change in any of such benefits to the detriment of the petitioner or any other person after the petitioner or any such person has retired."
30.It was after the said judgment that the respondent filed Suit No.923 of 2010 on 02.6.2010claiming damages and compensation against the appellants for their illegal and mala fide act of depriving the respondent of the medical benefits. Therefore, we find ourselves in agreement with the finding of the learned Single Judge with regard to the question of limitation that the suit filed by the respondent was well within time.
31. As to the question of determination of quantum of damages by the learned trial Court reference can be made to the case of Sufi Muhammad Ishaque v. the Metropolitan Corporation Lahore supra relied upon by the learned counsel for the appellants, wherein it is held that:-- "The damages for mental torture, nervous shock etc. fall in the category of general damages for which no standard or method of proof can be laid down with precision. The claim of such nature is difficult to estimate. The Courts, therefore, in assessing such damages employ a guess work which can only meet the test of a reasonable assessment by a man of ordinary prudence."
32.Following the dictum laid down as aforesaid the Hon'ble Supreme Court in the case of Malik Gul Muhammad Awan v. Federation of Pakistan supra, which is also relied upon by the learned counsel for the respondent, has held that: "It is by now a well-established principle that the person claiming special damages has to prove each item of loss with reference to the evidence brought on record and for general damages as claimed by the petitioner relating to mental torture, agony, defamation and financial loss, those are to be assessed following the Rule of Thumb and the said exercise falls in the discretionary jurisdiction of the court which has to decide it in the facts and circumstances of each case."
33. Upon careful examination of both the aforesaid judgments of the Hon'ble Supreme Court, we are of the considered view that the same support the impugned judgment and are in favour of the respondent, and the judgment relied upon by the learned counsel for the appellant does not lend any support to the appellants. However, while determining the quantum of damages to be awarded to the respondent, the learned Single Judge has not taken into consideration the fact that the respondent has failed to adduce evidence corroborating his claim of Rs.500,000,000/- as damages and compensation or even being entitled to be awarded damages and compensation for the amount of Rs.20.00 million.
34. #TS##In the light of aforesaid judgments it can rightly be observed that when the damages claimed are of general nature, as claimed in the suit before the trial Court, which are obviously general damages, the exercise of jurisdiction in determining and justifying the quantum in awarding the compensation vests in the trial Court. However, the quantum of damages to be awarded by the Court is to be determined by employing reasonable assessment and guess work of a man of ordinary prudence, subject to keeping in view the evidence adduced by the parties in a particular case and surrounding circumstances thereof.
35. Mere assertion that on account of such act of the appellants, the respondent has suffered serious shock, agony and mental torture cannot be sufficient to grant the damages of such a magnitude. It has been held in the case of Azizullah v. Javed Bajwa reported in 2005 SCMR 1950 "That the court must determine proper damages keeping in view the nature of the wrong done and loss caused to such person on account of such wrong. However, the petitioner has not been able to bring on record any evidence regarding the nature of his business in Doha, Qatar, and the loss of reputation and good will, therefore, he would not be entitled to claim any damages in this behalf."
Similarly, in the case of Dr. Prof. Haroon Ahmed v. British Airways ,reported in PLD 2004 Karachi 439, it has been held that "damages are usually considered under two heads viz. general or non- pecuniary loss or damages i.e. physical injury, pain and suffering, impaired or lesser capacity for enjoyment of life, and special or pecuniary damages that are actual incidental and direct expense capable of calculation in terms of monetary value, may it be on account of medical treatment, loss and business profit earning or otherwise, and in such cases the burden of proof in an action for damages either general or special is always on the plaintiff."
36. It is settled law that the suit for damages can only be decreed when averred in the plaint on each score separately and proved by the evidence on each point. General, vague and scanty evidence in this regard cannot be relied upon. The damages suffered and the quantity of the amount claimed under each head is to be proved by cogent evidence. Mere assertion of inflated amounts without any corroboration of evidence is of no avail to the plaintiff. Reference in this respect can be made to the following case law:
(1) Muhammad Ishaque v. The Metropolitan Corporation, Lahore PLD 1996 SC 737 wherein it is held that: 'person claiming any damage has to prove same through evidence---General, vague and scanty evidence in that regard cannot be relied upon .......... In awarding damages for nervous shock and mental torture, or 'psychiatric illness' or 'psychoso-matic illness', which are the terms currently used, the Court should be vigilant to see that the claim is not fanciful or remote and in fact it fairly or naturally results from the wrongful act of the defendant."
(2) M. Younas and Co. v. Hajiani Mariam Bai and others PLD 1963 W.P. Karachi 791, wherein it is held that: "we are reluctant to fix any amount to be it nominal or otherwise reflecting the damage or loss sustained by the plaintiffs particularly in the total absence of any evidence to show whether the re-sale of the goods had in fact brought about a loss rather than a profit."
"Therefore, on this third and last contention raised in this case namely that the amount of damages awarded against the appellants had not satisfactorily been proved or established, we are constrained to hold that this contention must be upheld and that the result of this would be that the respondents-plaintiffs have failed to prove that they have sustained any loss in this matter as a result of the breach of contract committed by the defendants."
37. Applying the aforesaid principles to the facts of the present case, we find that the respondent had claimed Rs.500,000,000/ - as damages for nervous shocks, pain, suffering and agony etc. which fall in the category of general damages for which no standard or method of proof can be laid down the precision. However, in the impugned judgment we have observed that the learned Single Judge has not taken into consideration each and every aspect of the evidence of the plaintiff/respondent adduced in the case while determining the quantum of damages and Wad awarded damages to the respondent, for an amount of Rs.2.00 million without examining the evidence of the parties available on record minutely, which, in our opinion, are exorbitant inasmuch as the respondent has failed to lead evidence to the effect that he is entitled to the same. The claim in the nature of general damages of Rs.500,000,000/- as prayed by the respondent for failure of the appellants to provide him compensation on account of mental torture and harassm ent caused to him due to change in medical policy of the appellants, has not been substantiated by cogent evidence led by the respondent.
38. The respondent has not been able to place on record-any evidence in the form of medical bills that were accumulated during the period for which the medical benefits were reduced by the appellants. The only proof of medical expenditure 'is the receipt of Dr. Mohammad Altamash produced by the respondent in suit as Exh.PW-1/6, which is also appearing at page-97 of this file, but that is also in respect of Dental Treatment on 15.04.1998 for an amount of Rs.20,300/-, and for another Dental Treatment on 01.06.2001 for an amount of Rs.15,900/-. It is pertinent to note here that during the said period the plaintiff/respondent was on duty as he retired in the year 2004, therefore, he cannot claim any damages for that period inasmuch as during continuation of service all the medical expenses of the respondent were being borne by the appellants. No other medical bills were accumulated that could be said to have caused panic to the plaintiff/respondent on account of reduction in medical benefits by the appellants.
39. Upon careful consideration of the principle laid down in the above cases, it is observed that the plaintiff/respondent was required to prove the damages sustained by him on account of default committed by the defendant towards fulfillment of his commit-ment, however, the plaintiff/ respondent has not given any details in this regard, therefore, until and unless the plaintiff/ respondent specifically proves damages through some tangible evidence, he is not entitled to any such damages as are awarded to him by the learned Single Judge.
40. Since we have heard the learned counsel for the parties at some length, therefore, we convert the instant appeal into regular hearing and dispose of the same by this judgment.
41. Therefore, the judgment and decree of the learned Single Judge of this Court by which it granted Rs.2.00 million to the respondent/plaintiff must be modified so as to reduce the amount of damages to be paid to the respondent by the appellants to an amount of Rs.20,000/- (Rupees twenty thousand only) and award the same as token damages, which are being awarded for ego satisfaction inasmuch as the plaintiff/ respondent has failed to prove an actual loss caused to the plaintiff/respondent on account of discontinuation of medical benefits by the appellants.
42. For the aforesaid reasons, we see no force in the arguments extended by the learned counsel for the appellants. Consequently, we uphold the judgment and decree impugned in this appeal as there is no reason to interfere with the same, however, with slight modification as aforesaid in the amount of damages awarded by the learned trial Judge. Subject to this modification of the judgment and decree the appeal is dismissed along with all listed applications with no order as to costs.