MUHAMMAD FAISAL KAMAL ALAM, J. Due to commonality, through this judgment all the subject Civil Revision Applications are decided.
2. Undisputed essential facts are that two Suits have been filed by the Applicant of Civil Revision Application No.134/2011 and the Applicant of Civil Revision Application No.135/2011, being F.C. Suit No.111/1999 and F.C. Suit No.110/1999, primarily against Official Respondents of Pakistan Railways.
Civil Revision Application No.122/2011 is preferred by Federation through Secretary Railways against only Applicant of Civil Revision Application No.134/2011 (Abdul Naeem), questioning the Appellate Court Judgment, whereby the damages earlier granted by learned Trial Court was reduced from Rs.45,000/- to Rs.20,000/-; whereas Pakistan Railways has not preferred any Civil Revision against the decision of Appellate Court in respect of Applicant of Civil Revision Application No.135/2011 (Ghulam Hassan), which means that Pakistan Railways has accepted the decision of Appellate Court wherein the damages earlier awarded by learned Trial Court was reduced from Rs.35,000/- to Rs.3,000/-.
3. Both the private Applicants, hereinafter for the sake of reference be referred to as 'Passengers', have booked tickets in Coach No. A of Second Class in 18-Up Abbasin Express, from Sukkur to Quetta, for 16.07.1998, for spending Summer Vacations at Quetta. Applicant of F.C. Suit No.111/1999 has mentioned the details of ticket under paragraph 2 of Plaint which is undisputed, which shows that he purchased (08) tickets for himself and his other family members, whereas Applicant of Civil Revision Application No.135/1999 in his Plaint has mentioned that he has booked ticket for himself only but in the same Coach.
4. On 16.07.1998, the Coach was not attached with the Abbasin Express and hence above named Passengers lodged protest with Pakistan Railways.
5. The gist of the pleadings of both Plaints is that due to wrongful acts of Official Defendants, Passengers and their family members suffered humiliation and mental anguish as their vacation plan was grossly disturbed. In this regard a written complaint was also lodged with Assistant Station Master under Complaint No.51967 in F.C. Suit No.111/1999 and Complaint No.51068 dated 16.07.1998 in FC Suit No.110/1999 [produced in the Evidence].
Both the Passengers have claimed damages of Rs 45,000/- and Rs.530/- towards refund of tickets whereas Applicant of Civil Revision Application No.135/2011 has claimed a sum of Rs.35,000/- in addition to Rs.65/- towards refund of tickets.
6. The claim was contested by Pakistan Railways primarily on the issue of maintainability. It is further averred that due to technical fault Coach could not be attached with 18-Up Abbasin Express from Sukkur to Quetta while offering to refund of the amount spent for tickets, but above Passengers did not agree with the offer. Pakistan Railways took a further defence that whenever such a technical fault occurs, Pakistan Railways in its discretion can take any step and for which no damages can be claimed in terms of Railway Rules; Rule 3.8 of Coaching Tariff Rules. He has provided a copy of said Rules.
7. After framing of the Issues, evidence was led.
8. After perusal of the evidence, the decision was handed down, which were partly maintained by the Appellate Court as mentioned herein-above.
9. Mr. Muhammad Imran Khan, Advocate, has laid much stress on the maintainability of the above Suits as they were not filed in the personal capacity of officials but all the officials were made parties, which cannot be done. He further states that both Suits were barred by limitation as the incident is of 16.07.1998 and both Suits were filed on 16.07.1999. He has cited following case law:
1. PLD 2004 Karachi 472 (Taluka Mukhtiarkar, Latifabad Hyderabad and another v. Vaqar Muhammad Shaikh and 2 others)
2. PLD 1999 Karachi 223 (Mst. Khadija Karim v. Zia-ur-Rehman Khanzada and 7 others)
3. PLD 1971 Karachi 625 (Secretary, B & R, Government of West Pakistan and 4 others v. Fazal Ali Khan).
4. PLD 2020 Sindh 700 (Noor Ali v. The Province of Sindh through Secretary to Government of Sindh, Home Department, Karachi and 3 others)
5. 2003 YLR 136 (Ameeruddin v. Fazalur Rehman Khan)
6. 1999 SCMR 700 (Subedar (Retd) Fazale Rahim v. Rab Nawaz)
The crux of the above case law is that suits against Central and Provincial Governments have to be filed in the name of Pakistan and Provincial Government, through the concerned Secretary to the Government, as envisaged under Section 79 and Order XXVII of Civil Procedure Code [C.P.C.]; officials cannot be sued with reference to their official designation(s) concerning their official acts, but, they have to sued under ordinary law, in terms of Order I, Rule 3 of C.P.C., that is, suits can be filed against legal and natural persons. Suit for damages in respect of malicious prosecution should be brought within a period of one year.
10. Mr. Faisal Naeem, Advocate, for Applicants / Passengers has controverted the arguments on behalf of Respondent -- Pakistan Railways, inter alia, contended that the learned Appellate Court has reduced the amount of damages not after any appraisal of evidence but considering alleged poor financial health of Pakistan Railways, which finding itself is beyond pleadings and liable to be interfered with. In support of his contentions, he has relied upon the following case-law:
1. 2005 SCJ 550 (Federation of Pakistan v. Mrs. Sultan Saud)-Railway case.
2. 1993 SCMR 1185 (Muhammad Yousaf v. Syed Ghayyur Hussain Shah and 5 others) - Yousaf case.
3. PLD 2004 SC 465 (Muhammad Bashir and others v. Iftikhar Ali and others)
4. 2007 SCMR 569 (Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtiarkar Ali Shah and another)
5. 2001 SCMR 1700 (Muhammad Akhtar v. Mst. Manna and 3 others)
6. PLD 2015 SC 187 (Farzand Ali and another v. Khuda Bakhsh and others).
7. PLD 2004 SC 682 (Chief Engineer, Irrigation Department. N.W.F.P Peshawar and 2 others v.
Mazhar Hussain and 2 others).
Gist of the above case law is that action in respect of malicious prosecution, is to be considered in the light of Islamic Principles as well as constitutional dispensation; it is held by Hon'ble Supreme Court in Yousaf case [ibid], to such claims residuary Article 120 of the Limitation Act, is applicable, prescribing a period of six years; that if certain material portion of the assertion in the evidence is not cross examined, then such part of testimony amounts to admission by the opposite party The reported decisions relied upon by learned counsel for Pakistan Railways is distinguishable, firstly, because both Suits filed by above Passengers are Suit for Damages for recovery / refund of amounts paid towards tickets so also damages and not for malicious prosecution, which was the subject issue in the case law relied upon on behalf of Pakistan Railways. Secondly, undisputedly, cause of action has accrued (as mentioned in both suits) on 16.07.1998, when Passengers of both connected Civil Revisions along with their family members, could not travel in Abbasin Express, whereas, both Suits were filed on 16.07.1999; period of summer vacations has to be excluded, coupled with the fact that wrong complained of is of continuous one, in terms of Section 23 of the Limitation Act [1908]; hence the Suit is filed within time, even in terms of Article 22 of the Limitation Act, relating to filing of suits for damages. As far as impleading of officers of Pakistan Railways in their personal capacity is concerned, this argument on behalf of Pakistan Railways is not tenable, because the claim in both suits filed by above Passengers are primarily against Pakistan Railways and its officers are impleaded who were/are the concerned functionaries of Pakistan Railways, considering the nature of present dispute.
Conversely, Railways case [supra], co-incidentally, in which Pakistan Railways was an appellant before the apex Court, damages were awarded against Pakistan Railways in respect of the claim filed by different Passengers (of the reported case) although they were accommodated by Pakistan Railways in some separate bogie / coach, which was not even done in the present case, yet Hon'ble Supreme Court ruled in favour of Passengers that they had suffered mental agony and have to travel although in alternate coach but without air-condition.
11. The crucial fact is not disputed that both Passengers could not travel on that date due to non- availability of Coach in Abbasin Express in which they had made their reservation.
12. Evidence adduced in both Suits is also considered Shareef Ahmed, the then Station Master is unable to produce the original complaint of both Passengers, dated 16.07.1998 bearing Complaints Nos.51967 and 51968, however, copies whereof are produced by the Passengers in their evidence, which are available on record, wherein both Passengers have lodged their protest in writing besides mentioning that said unilateral action of not attaching the Coach No.A with Abbasin Express, in which the said Passengers have booked their tickets was an illegal action. It means that a timely Complaint / Claim has been lodged by both the Passengers of both the above Suits and on this ground also, their claim cannot be treated as time barred, as argued by learned counsel for Pakistan Railways. The evidence on behalf of Passengers that Pakistan Railways has announced a package for transportation of the Passengers for Quetta and arranged one Special Bogie from Sukkur to Quetta wherein both Passengers have made reservation for themselves and family could not be controverted in cross-examination. Assertion in the testimonies that Railway Authorities have cancelled reservation of the above Passengers [Plaintiffs] without any prior information, also could not be contradicted. In the cross-examination, both Passengers (Plaintiffs of their respective Suits) have denied the suggestion that they were offered refund / charges of the tickets.
The witness on behalf of Pakistan Railways, namely, Parvez Ahmed the then Commercial Inspector, DS Railway, appeared end testified. He, in his cross-examination, has admitted that he has not produced any authority to give evidence on behalf of Pakistan Railways. He has admitted that the Railway Authorities were in knowledge that Subject Bogie/Coach in which reservations were made had not arrived and they did not inform any passenger on telephone; further admitted that after parking of the 18-Up Abbasin Express for departure to Quetta, Railway Authorities announced that the Subject Coach was not available. Acknowledged that Railway Authorities did not send any reply to the Complaint made by both the Passengers / Plaintiffs, while disputing that the Passengers have suffered any torture, mental agony and humiliation.
The other contradiction in the stance of Pakistan Railways is that they have not challenged the quantum awarded by the learned Appellate Court in the case of Applicant of Civil Revision Application No.135/2011, but, they have only questioned the Appellate Court decision in respect of Applicant of Civil Revision Application No.122/2011, which means that Pakistan Railways has accepted the damages awarded in respect of one of the Passengers of the connected LIS because its quantum was low; whereas it has not accepted the same in case of another Passenger (Plaintiff of Suit No.111 of 1999), wherein the quantum was higher.
13. In the case of Passenger / Applicant of Civil Revision Application No.134 of 2011 the consideration before the Appellate Court was that although the said Applicant, present Respondent in Civil Revision Application No.122 of 2011 is entitled for damages but the amount of damages is on the higher side, considering the poor financial condition of Pakistan Railways; consequently, Appellate Court by invoking the rule of thumb has modified the judgment and reduced the damage amount from Rs.45,000/- to Rs.20,000/- (for Applicant in Civil Revision Application No.134/2011) against which Pakistan Railways has preferred Civil Revision Application No.122 of 2011.
14. Taking into account the entire record, testimonies of witnesses and case law cited, the criteria invented by the Appellate Court, with respect, cannot be sustained. It is also observed in the Impugned Judgment of the Appellate Court that "such like negligence happens from the Railway Functionaries in routine........"; this is against the judgment of Railway case cited above, handed down by the Hon'ble Supreme Court. Through the Impugned Decisions, the learned Appellate Court has tacitly encouraged the Respondent -- Pakistan Railway to repeat such negligent acts, which cannot be permitted. The principle behind the rule of thumb is that such amount of damages be awarded to a victim against the tort feasor, which In the conscience of Court is reasonable. The reason mentioned by the learned Appellate Court in which it has given sympathetic consideration to Pakistan Railway, is completely beyond pleadings and record. This is the same Pakistan Railway which incur losses running into billions of rupees annually but is / was not ready to give the compensation of Rs.45,000/- to Applicant (of Civil Revision Application No.134/2011) who and his family members admittedly suffered inconvenience, hardship and mental anguish on 16.07.1998 when they were told that their tickets have been cancelled. Pakistan Railways did not plead this fact nor any evidence led that above Passengers were offered to be accommodated in some other Coach / Bogie of train going to Quetta. As already observed in the foregoing paragraphs that to the facts of present case the reported Judgement of Hon'ble Supreme Court handed down in Railways case [supra] is relevant; what has been observed for Government Departments including Pakistan Railways is reproduced herein under for a ready reference.
"6. It may be noted with grief that the departmental / governmental authorities do not bother to realise the difficulties faced by the public-at-large who, even to get their vested rights, have to run from pillar to post. It is sorry to say that instead of curing/mending their faults the departmental functionaries conceal the same and try to justify their shameful act with obstinacy. "; [underlined for emphasis].
15. Courts have to decide the matters in accordance with law and particularly in such claims under the Tort Law, on the evaluation of evidence and not on financial conditions of Government Organizations, which are otherwise saddled with the law to serve the people and not to cause them inconvenience and hardship, as is done in the present case.
16. With regard to award of damages for mental anguish, torture and inconvenience no fixed criteria can be laid down as also held in the famous case of Sufi Muhammad Ishaq v.
Metropolitan Corporation Lahore, PLD 1996 SC 737. In another exhaustive judgment handed down in the Case of Abdul Majeed v. Tawseen Abdul Haleem, 2012 CLC 6, the Hon'ble Supreme Court has discussed the parameters of special and general damages.
It is relevant to reproduce herein under the paragraph-8 from the Sufi Ishaque Case (ibid).
"8. Once it is determined that a person who suffers mental shock and injury is entitled to compensation on the principles stated above, the difficult question arises what should be the amount of damages for such loss caused by wrongful act of a party. There can be no yardstick or definite principle for assessing damages in such cases. The damages are meant to compensate a party who ho suffers an injury. It may be bodily injury, loss of reputation, business and also mental shock and suffering. So far nervous shock is concerned, it depends upon the evidence produced to prove the nature, extent and magnitude of such suffering, but even on that basis usually it becomes difficult to assess a fair compensation and in those circumstance it is the discretion of the Judge who may, on facts of the case and considering how far the society would deem it to be a fair sum, determines the amount to be awarded to a person who has suffered such a damage. The conscience of the Court should be satisfied that the damages awarded would, if not completely, satisfactorily compensate the aggrieved party."
17. In view of the above, it is a proven fact that both Passengers including the Family members of one of the Passengers / Plaintiff have suffered mental anguish and extreme inconvenience when they learned that the Subject Coach having their reservations is not available. Secondly, the learned Appellate Court has not found any irregularity in the evaluation of the evidence done by the learned Trial Court but has decided the matters / appeals on a completely new and invented consideration, which has no nexus with the facts of the case and thus, it cannot be sustained.
18. Accordingly, both judgments of learned Appellate Court in Civil Revision Applications Nos.134 and 135 of 2011 are set aside and that of Trial Court are maintained, with the result that both Civil Revision Applications Nos.134 and 135 of 2011 are allowed as prayed whereas Civil Revision Application No.122/2011 filed by Pakistan Railways is dismissed.