' This suit is filed by the plaintiff for recovery of Rs,2,838,072 with interest/profit thereon at the rate of 18 per cent per annum.
2. The facts leading to this case, gathered from plaint, briefly stated, are that the plaintiff was employed with the defendant-PIA on or about 1-12-1954, and while on duty, on account of an accident, was declared medically unfit followed by order of retirement/release from service dated 18-10-1989 with effect from 16-10-1989. The plaintiff has claimed disability compensation from the defendant in terms of agreement dated 7th March, 1991, herein after referred to as ' the Agreement'.
The terms of the said Agreement became effective from 1st May, 1989 and remained in force till 30th June, 1992. Prior to commencement of the Agreement, plaintiff's terms and conditions of service, with the defendant, were governed by Administrative Order No, 38 of 1981 dated 3-9-1981, hereinafter referred to as the ' Administrative Order. The plaintiff's case is that disability compensation payable to flying engineers of his category was equivalent to three years' gross salary under the Administrative Order. The plaintiff, at the time of accident, claims to have been drawing gross salary of Rs,56,631 per month inclusive of all allowances; and, calculating the same for 36 months, a sum of Rs, 2,038,716 is claimed as Disability Compensation. According to the plaintiff, the defendant has failed to fulfil its obligation to pay compensation despite repeated demands including legal notices calling upon it to make payment of Disability Compensation. The defendant, initially, had kept negotiating but eventually through its letter, dated 21-11-1990, informed the plaintiff that National Insurance Corporation, the insurer, had approved the plaintiff's claim to the maximum possible extent of Rs,1,008,000. The reason, discovered, later by the plaintiff, was that the defendant had neglected in having the Insurance cover enhanced with the insurer who had under-written the liability for a far lesser amount. The plaintiff, therefore, stuck to his claim in terms of the Agreement and insisted for discharge of its liability by the defendant. The plaintiff was eventually constrained to file complaint before the Wafaqi Mohtasib on 25-2-1991. After calling for comments from the defendant and hearing the parties, through his order, dated 5-6-1991, the Wafaqi Mohtasib was pleased to hold that the defendant had failed to have the Insurance Cover enhanced commensurate with the increase in salaries and was guilty of maladministration thereby. The Wafaqi Mohtasib was further pleased to record that the plaintiff was entitled to Rs,1,998,116 as the Disability Compensation, payment whereof was the liability of the defendant. The defendant, however, was directed to pay 50 per cent of the difference amount to the plaintiff within 30 days of the order. The defendant, instead of complying with the order of Wafaqi Mohtasib, preferred a representation before the President of Pakistan and informed the plaintiff about submission of representation through letter dated 17-7-1991. With the passage of time, the plaintiff's need for money kept growing. In October, 1991, the plaintiff addressed a letter to the President of Pakistan, in a rather desperate tone, and- sought expeditious decision on the representation of the defendant. The plaintiff did not receive any apply from the President of Pakistan and approached the defendant beseeching early decision and payment of Disability compensation during his life time. On 2-5-1993, the plaintiff was suddenly conformed that the representation of the defendant, against recommendations of afaqi Muhtasib, was accepted. The non-speaking order received by the plaintiff, as above, was passed without even calling upon him to submit a reply to the representation. At that stage the defendant is stated to have taken unfair advantage of the situation and made the plaintiff sign an acceptance letter pre-drafted by the concerned Officer of the defendant purporting to give full and final discharge of the plaintiff's Disability Compensation.
The plaintiff was allegedly made to believe that unless a clean bill was signed, nothing would be paid to him. In order to salvage the situation, faced on account of serious financial strain, the plaintiff alleges to have signed the document acknowledging complete discharge under duress and undue influence. The admitted sum of Rs,1,008,000 was then paid to the plaintiff. According to the plaintiff, the defendant, thus refused to pay the balance amount of Disability Compensation which gave cause of action for filing the present suit. The plaintiff has further claimed a sum of Rs,839,745 as interest/profit on the amount paid to him and has further claimed a sum of Rs,967,611 as interest/profit on the remaining amount of Disability Compensation.
3. The defendant has disputed the plaintiff's claim and in its written-statement has averred that on 23-8-1988, when the plaintiff had suffered injury, the Administrative Order was applicable and then plaintiff was drawing monthly salary at the rate of Rs,24,537. Calculating in terms of the compensation admissible under the Administrative Order, the plaintiff's entitlement is admitted to the extent of Rs,88,332. However, on account of the plaintiff's long service, it is averred, the matter was taken up with National Insurance Corporation who had agreed to pay a sum of Rs,10,08,000 purely on ex-gratia basis as full and final settlement of the claim. According to the defendant, it had, thus, discharged its obligation in an adequate manner. It was further pleaded that the plaintiff had voluntarily and of his own volition, accepted the sum of Rs,1,008,000 in full and final settlement after having exhausted all his remedies and could not contend, otherwise. Besides the above, the maintainability of the suit was questioned and bar of limitation was also pleaded.
4. On the basis of pleadings of the parties, the following issues were settled on 22-1-1995:-
(1) Whether the suit is barred?
(2) Whether the suit is not maintainable?
(3) Whether the defendant has discharged his legal obligations in respect of the compensation due to the plaintiff?
(4) Whether this Court has no jurisdiction once an Order has been passed by the President of Pakistan under Article 32 of the President's " Order 1 of 1983?
(5) Whether the plaintiff is entitled to recover Rs,2,838,072 or any other amount from the defendant?
(6) What should the decree be?
(5)' The plaintiff has examined himself as Exh.5 and produced the various agreements, correspondence and the order passed by the Wafaqi Mohtasib. The defendant has also examined one witness namely M. Saleem Khan, its personal officer (Flight Operations) as Exh.6.
'6. I have heard the learned counsel who have both dealt with the issue quite exhaustively and taken me through the record. My findings, issue-wise, are as under:-- ' Issue No, 1:
7. The burden of this issue lies on the defendant. According to the defendant, the plaintiff had met with accident while on duty in Kuwait on 23rd August, 1988. As a consequence of the injury, the plaintiff was retired/released from the service of defendant w,e,f, 16-10-1989. The learned counsel for defendant has referred to paragraphs 19 and 20 of the plaint to submit that the cause of action for the present suit was based on the injury suffered by the plaintiff. It is pointed out that the suit for compensation for any injury could be filed within one year from the date when injury was committed by virtue of Article 22 of the Limitation Act. The present suit having been filed on 17-11- 1993, it is contended, is hopelessly barred by time; In support of his submission that an injury affords cause of action, reliance is placed on the case of Nathey Khan v. Government of We 3t Pakistan 1980 SCM R 485, N.A. Shaharyar v. Messrs Conformed Limited 1979 CLC 740 and Abdul Majid Butt v. United Chemicals Limited PLD 1970 Lah.
298.. In the first cited cases which had arisen out of suit for compensation filed by an employee of Pakistan Western Railway on the ground of negligence, resulting in loss of his left leg and right foot, it was held that the cause of action in the plaint was based on negligence of the defendant and Article 22 was found applicable notwithstanding the absence of an overt act on the part of defendant. The judgment in the third cited case of Abdul Majid Butt (ibid) was considered by the Honourable Judges of the Supreme Court and was not approved. It may be noted that the learned Judge who had decided the case of Abdul Majid Butt (supra), was also a party to the judgment in the case of Nathey Khan but had expressed his reservations on the question of limitation. The second case, cited on behalf of the defendant, had also arisen out of claim for damages asserting negligence on the part of respondent. The prime question involved in such case, however, was if application to sue in forma pauper is could he maintained; and the question of applicability of Article 22 of the Limitation Act or Articles 36 and 115 thereof was not decides.
8. In reply, the learned counsel for the plaintiff has urged that the claim against the defendant is based on contra between defendant and Flight Engineer National Association (F.E.N.A), Exh.5/22.
Whereby the defendant had agreed for payment of Disability Compensation in terms of Article IX Clause (1)(a) which is as follows:-- "The Corporation will pay compensation to every Flight Engineer for death of the total partial disability as a result of accident. Whether such accident occurs on day or off-duty, for an amount equal to three years gross salary, all allowances including guaranteed flying allowance with full benefits. All claims arising out of this clause shall be settled in accordance with the terms and conditions of Aviation Personal Accident Insurance Policy which will be taken out by the Corporation."
9. The plaintiff, it is asserted, was number of F.E.N.A. And therefore, entitled to benefits held out under the said Agreement, Exh.5/32. Reference has been made to para 33 of the plaint wherein cause of action is stated to have arisen, amongst there, on 16-10-1989 when the plaintiff was retired from service due to accidental disability and on 21-11-1990 when the defendant through its letter, Exh.5/42, had disputed the plaintiff's claim in reply to his legal notice. It is urged that the suit for compensation is based on breach of contract, the Agreement Exh.5/32, and can be filed within three years under Article 115 of the Limitation Act from the date when the complained breach occurred. The plaintiff's contention is that the suit having been filed on 17-11-1993, within three years from 21-11-1990, is validly instituted. According to the learned counsel for the plaintiff, Article 22 of Limitation Act is not attracted 40 the present case since the plaintiff has not sued in torts on account of the injury but has based his claim on the undertaking contained in the Agreement, Exh.5/32, flowing out of the plaintiff's retirement/release with full benefits, upon having been declared medically unfit for flying duties. Mr. Kaz Faes Isa has referred to the case of Emirates Bank International Limited v. Super Drive-in-Limited (1990 M LD 538) in support of his submission that limitation to claim compensation for breach of contract is three years from the date, when contract is broken. Another aspect urged, rather on equitable ground, is that defendant being a public authority having lured the plaintiff into negotiations for settlement of claim, cannot turn round to dispute the claim as barred by time. Reference in this behalf has been made to the case of Barkat Bibi v. The West Pakistan Province and another (1984 CLC 2314), The three provisions of the Limitation Act referred by both the learned counsel may be reproduced here for convenient reference:
22. For compensation for any other injury to the person. One year when the injury is committed.
23. For compensation for any malfeasanse, misfeasance or non feasance independent of contract and not herein specially provided for.
' Two years When the malfeasance, misfeasance or non-feasance takes place.
115 For compensation for the breach of any contract, express or implied, not in writing, registered and not herein specially provided for.
' Three years ' When the contract is broken, or (where there are successive breaches when the breach in respect of which the suit is instituted occurs, or (where the breach, is continuing) when it ceases.
10. The question of limitation primarily depends on the cause of action pleaded in the plaint, and the relief sought therein. The plaintiff in this case has sought money decree in the sum of Rs,2,838,072, break up whereof is contained in paragraph 31 of the plaint and is as follows:-- ' Balance amount due in Rs,1,030,716 respect of Disability Compensation calculated in accordance with the last drawn gross salary (inclusive of all allowances) Rs,56,631 x 36 (three years) less amount of Rs,1,008,000 already received.
' Interest/ profit/ Rs,839,745 depreciation in the purchasing power of money @ 18% per annum on the amount of Rs,1,008,000 illegally withheld from 16-10-1989 to 6-6-1993.
' Interest/ profit/ Rs,967,611 depreciation in the purchasing power of money @ 18% per annum on the amount of Rs,1,030,716 continued to be illegally withheld.
' Total: Rs,2,838,072
11. The first item of the claim for Rs,1,030,716 is calculated on the basis of claim amount of gross monthly salary multiplied by the figure of 36 to ascertain the amount of gross salary for a period of three years which comes to Rs, 2,038,716 and deducting therefrom the sum of Rs,1,008,000, the balance comes to Rs,1,030,716. The remaining two items, claimed by the plaintiff, are worked out al.
Interest/profit at the rate of 18% per annum. Thus, the principal amount claimed by the plaintiff in this suit is the balance of Disability Compensation calculated, as above The said amount of Disability Compensation has no nexus with the injury sustained by the plaintiff but is preferable to terms of the Agreement Exh.5/32, reproduced herein above. The defendant has pleaded non applicability of the Agreement, Exh.5/32, on the sole ground that the plaintiff had sufferance the injury prior to 1-5-1989 when the Agreement had not become effective. But for such reason, it is conceded that the Agreement was validly executed and the terms of plaintiff service would have been regulated thereunder. Consequently, the plaintiff could invoke the terms of the Agreement and seek enforcement there of like any contracting party.
12. The plaintiff had, admittedly suffered injury on 23-8-1988 while on duty of Kuwait. The injury by itself did not entered the plaintiff to claim Disabilities Compensation. The plaintiff could possibly sue the defendant in torts at that time if cause for the claim had existed, otherwise. In such event, Article 22 of the Limitation Act would have clearly applied to the claim. Conversely, in the event of allegation of malfeasance or non-feasance, Article 36 of the Limitation Act would have been attracted. The plaintiff, however, did not claim any compensation for the injury sustained by him on 23-8-1988. The plaintiff continued to remain in service and drew monthly salary regularly till 16th October, 1989 which position is acknowledged through letter dated 27-9-1990, Exh.5/33. The plaintiff, despite the injury, as above, was member of F.E.N.A. On 1st May 1989 which was the effective date of the Agreement, It is true that the Agreement was executed much later on 7th March, 1991 when the plaintiff, admittedly, was no more in the employment of the defendant. By taking stricter view, it could be argued that notwithstanding the effective dale of the Agreement, determined as 1st May, 1989, the plaintiff did not fall within the definition of term "Flight Engineers" contained in para.(1)(b)(viii) of Article III and had ceased to be member of F.E.N.A. Even prior to his retirement i,e, 16-10-1989. However, para 2 of Article 1 of the Agreement indicates that a memorandum of understanding had been signed between the defendant and F.E.N.A. On 15-45- 1989 and the Agreement was specifically made effective retroactively from 1st May, 1989. The Agreement was in respect of the Flight Engineers employed by the defendant and para 3 of its Article 1 provides that the terms of Agreement would prevail over various rules, regulations and orders of the defendant in the event of conflict. The Agreement, it may be noted, contemplates revision of salary and allowances of the Flight Engineers but the plaintiff has not claimed any benefit thereunder up to the date of his retirement and has calculated the amount of Disability Compensation on the basis of gross monthly salary actually drawn by him at the time of retirement. Nevertheless, the effect of retroactive applicability of the Agreement attracts fictional assumption about its existence with effect from 1-5-1989. The plaintiff's terms and conditions of service, therefore, are to be deemed to have been changed with effect from 1-5-1989 for all intents and purposes in terms of the Agreement. The plaintiff has sought enforcement of the terms of service as a result of his pre-mature release on 16-10-1989. The date of injury, therefore, is irrelevant in the. Context of the terms of service of plaintiff.
13. Having held that the terms of service of the plaintiff were regulated by the Agreement, the question of cause of action vis-a-vis limitation can conveniently be dealt-with. The cause of action is the event which makes a right enforceable. It is pertinent to refer here to the note contained at the foot of clause 1 of Article IX of the Agreement which is as follows:-- "Disability here shall mean any physical condition due to accident which may render a Flight Engineer unfair for flight duties."
' The date of actual injury, in view of the above referred note, is not material. The unfitness for flying duties, becomes effective upon declaration to that effect and not earlier. In the present case although the physical condition which had eventually rendered the plaintiff unfit for flying duties was caused by the injury sustained on 23-8-1988, the plaintiff was adjudged disabled and unfit for flying duties w,e,f, 16-10-1989 through letter dated 18th October, 1989 Exh.5/31. The disability, thus, came about on 16-10-1989 when the plaintiff was found-unfit for flying duties and given release with full benefits contemplated by the order of retirement, inclusive of the compensation visualised under Article IX of the Agreement which is to be deemed to have become operative from 1st May, 1989. The plaintiff's claim is based on the above referred term of the contract which obliges the defendant to pay compensation for the disability earned by the plaintiff under the contractual obligation. The cause of action for the present suit has, thus, accrued initially on 16-10-1989 when the right to claim Disability Compensation had arisen in favour of the plaintiff. The claim is based on contractual obligation undertaken by the defendant and not on the injury. The plaintiff has claimed that the defendant has failed to pay compensation in breach of the above referred liability and has filed.. The present case to enforce the liability. Such claim manifestly would fall under Article 115 of the Limitation Act.
14. What remains to be determined, next, is the starting point of limitation to claim compensation for breach of the contract. According to column No,3 of Schedule to the Limitation Act, the time to sue for compensation, on account of breach of contract, falling under Article 115 thereof, is three years which commences from the date when the contract is broken or when the breach occurs. In the present case, the plaintiff has produced series of correspondence as Exh.5/3 to 5/41 shocking that the parties were negotiating the amount payable to the plaintiff by way of retirement benefits inclusive of Disability Compensation. The letter, dated 18-6-1990, Exh.5/36, dated 23-6-1990, Exh.5/37, dated 26-6-1990, Exh.5/38, dated 30-7-1990, Exh.5/39, dated 22-10-1990, Exh.5/40 and dated 6-11-1990, Exh.5/41, are reflective of negotiations between the parties and the efforts made to reach , a consensus. On 21-11-1990, in reply to legal notice, dated 9-10-1990, the defendant while offering payment of Rs,1,008,000 through Exh.5/42, for the first time notified the plaintiff as follows:- "Accordingly you are requested to see the undersigned during working hours in my office within two weeks of the receipt hereof for signing the claim settlement documents. In case you fail to turn up within the stipulated period as mentioned above it may be presumed that you are not interested to settle your claim and the offer may be treated as withdrawn and the case may be closed without further communication."
15. The defendant has not been able to show if had declined to discharge its contractual obligations in terms of the Agreement prior to 21-11-1990 when Exh.5/42 was sent to the plaintiff. By closing the negotiation and putting the plaintiff on note that the defendant was not agreeable to pay the Disability Compensation in excess of Rs,1,008,000, the defendant, for the first time, had refused to pay the amount claimed by the plaintiff and therefore, Mr. Kazi Faez Isa has rightly pointed out that the limitation for the present Suit, in terms of Article 115 of the Limitation Act, would commence from 21-11-1990 and not from any date prior thereto. The present suit having been filed on 17-11-1993 was well within the period of limitation, as above. My finding on issue No,1, therefore, is in the negative.
' Issues Nos.2 and 4:
16. Issue No,2 is pressed by the defendant on the ground that the plaintiff had preferred Constitutional Petition No,D-1817 of 1992 before this Court, invoking jurisdiction under Article 199 of the Constitution of Pakistan. According to the defendant, the plaintiff had sought issuance of writ directing the defendant to fix his pension in terms of the Agreement, Exh.5/32. The petition is stated to have been withdrawn followed by representation before the Wafaqi Mohtasib. Although, copy of the Constitutional Petition or the order passed thereon has not been produced in evidence, the plaintiff, during his cross-examination, was pertinently asked the question which was answered to indicate the nature of relief sought on such proceedings in the following terms:-- Q. In the petition that you ' had filed, damages or compensation were not claimed?
' Ans. It is correct. The petition had been filed since the defendant did not pay me half of the pension as per the Rules.
17. Likewise, issue No,4 is based on the proceedings filed before the Wafaqi Mohtasib and the order, dated 5-6-1991, Exh.5/44, passed thereon. Indeed, the order, dated 5-6-1991 passed by Wafaqi Mohtasib shows that the plaintiff had claimed Disability Compensation amount of Rs,1,918,116 on the basis of Administrative Order No,38/81, dated 11th September, 1981. It may be noted that the said Administrative Order was superseded by the Agreement and I have already held under issue No,1 that the terms of service of the plaintiff were regulated by the Agreement at the time of his retirement. The Disability Compensation payable under the Administrative Order again had to be calculated on the basis of three years' salary with full benefits but it had increased on account of inclusion of full allowance by virtue of Article IX of the Agreement. The contractual term regulating payment Disability Compensation under the Administrative Order was as follows:-- "Compensation and Insurance.--- (1) Compensation for Death or Disability.
(a) The Corporation will pay compensation to every cockpit crew for death or the total or partial disability as a result of accident, whether such accident occurs on duty or off duty, of an amount equal to three years salary with full benefits. All claims arising out of this clause shall be settled in accordance with the terms and conditions of Aviation Personal Accident Insurance Policy which will be taken out by the Corporation.
(2) In case of an accident, if a cockpit crew is disabled and he loses his licence he will be paid--
(a) Compensation as per terms of Loss of Licence Insurance Policy.
(b) Disability compensation as admissible under APA Insurance Policy. "Disability" here shall mean and physical condition due to accident which may render a cockpit crew for flying duties."
' While the defendant has not pleaded estoppel in view of the plaintiff's claim based on the Administrative Order, as above, objection is raised about maintainability of the present suit on the principle of bar against filing fresh proceedings after withdrawal of earlier claim under Order XXIII, Rule 1, C.P.C. And on the basis of principle of res judicata. It may be observed, at once, that the bar visualised under Order XXIII, Rule 1, C.P.C., is not attracted to the present proceedings since the relief claimed in the petition was different from that claimed herein. Even the prohibition, contemplated by Order II, Rule 2, C.P.C, shall not apply since the claim for Disability Compensation could not have been made in proceedings under Article 199 of the Constitution. The principle of res judicata like- wise, could not be attracted since proceedings before Wafaqi Mohtasib cannot be termed as suit tried by a Civil Court of competent jurisdiction. For the same reason, the jurisdiction of this Court is not barred by the order passed by the President of Pakistan under Article 32 of President's Order No,l of 1983. My fading's on issues Nos.2 and 4, therefore are in the negative.
' Issue No,3:
18. The burden of this issue, again, is on the defendant. The defendant in its written statement has pleaded payment of Rs,10,08,000 to the plaintiff in full and final settlement of his claim. According to the defendant, the payment was made on 6-6-1993 and the plaintiff had accepted it without any reservation. The plea raised by the defendant founds mention in paragraphs 11 and 12 of the written statement which are as follows:-- "11. That as regards the contents of para.30 of the plaint it is to submit that since the issue of disability compensation of the plaintiff has finally been settled and the plaintiff had received the amount of Rs,10,08,000 as full and final settlement of his claim therefore, the defendant expressed its inability to accept the proposal of arbitration as the defendant did not consider the matter as a "dispute" any further.
12. That as regards the contents of paras.31 and 32 of the plaint it is to submit that the plaintiff has accepted Rs,10,08,000 as full and final Payment towards disability compensation from the defendant and thereafter no amount whatsoever is due against the defendant. The claim, therefore, in view of the above is illegal, untenable, unjustified, frivolous and vexatious and plaintiff is not entitled to any payment of any amount."
' In support of the above plea, the defendant's witness M. Saleem Khan, in his affidavit in evidence, Exh.6, has averred that the liability of the defendant on account of retirement benefits of the plaintiff was much lower but on account of long service of plaintiff, the matter was agitated with the National Insurance Corporation as a special case which had agreed to payment of Rs,1,008,000 as the maximum amount under the Aviation Personal Accident Insurance Policy (APA) taken out by the defendant. The above amount was offered to the plaintiff but he chose to opt for proceedings before this Court under the Constitutional jurisdiction and before the Wafaqi Mohtasib. After having exhausted his remedy the plaintiff, according to Exh.6, had voluntarily approached the defendant and accepted the sum of Rs,1,008,000 in full and fmal settlement of his claim. The relevant portion contained in the affidavit of M. Saleem Khan is as follows: "The plaintiff have exhausted the above remedy voluntarily approached and accepted Rs,10,08,000 as full and final settlement of all his claims. There was absolutely no cause for threatening the plaintiff and all allegations relating to undue influence, coercion and duress are specifically as being concocted, after thought baseless and incorrect. It is submitted that after having voluntarily signed an acceptance letter and received an amount of Rs,10,08,000 as full and final settlement, the plaintiff is no longer an aggrieved and is barred from agitating a settled past and closed matter."
' The document signed by the plaintiff, acknowledging receipt of Rs,10,08,000, is dated 24-5-1993 and has been produced as Exh.5/58. Reference has also been made to letter, dated 19th May 1993, Exh.5/59, written by the plaintiff to the defendant seeking payment of dues on account of the order passed by the President of Pakistan and conveyed through letter, dated 12th May, 1993, Exh.5/61, by the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan. In his cross- examination, the defendant's witness M. Saleem Khan, Exh.6, was confronted with questions suggesting that the acceptance of money by the plaintiff was not voluntary. The following statement made during cross-examination is important:- "It is incorrect to suggest that signatures of the plaintiff were obtained by the defendant on Exh.5/58 under duress. At the time of signing of Exh.5/58 by the plaintiff I was not present. It is incorrect to suggest that Exh.5/58 was drafted and typed in the office of the defendant . I see Exh.5/60 and say that an acceptance letter to be signed by the plaintiff was enclosed therewith.
Exh.5/58 is such enclosed acceptance letter. I do not know what is the reasons for asking the plaintiff's acceptance of the payment to him vide Exh.5/60. I do not know whether reason for seeking such acceptance was on account of the fact that the defendant wanted to cause further harassm ent to the plaintiff, which was continuing for 2 or 3 years. Normally claim of nature which is subject-matter of this suit is paid within six months unless there is some dispute. It is correct to suggest that the money value by the passage of time depreciates."
' As against the above material, from the plaintiff's side, it is urged that upon release from service on 16-10-1989, the plaintiff became entitled to payment of Disability Compensation in terms of the contractual liability under the Agreement, Exh.5/32, which was not paid to the plaintiff. It is pointed out that the plaintiff was accustomed to reasonably high standard of living but on account of the sudden mishap, followed by untimely release from service, the plaintiff's life style was disturbed and he found himself in a fix account of inability to meet his commitments towards the family. The claims of similar nature, it is pointed out, are normally met within six months but the plaintiff was made to wait indefinitely with the hope that the insurer would pay the amount of claim under the Aviation Personal Accident Policy. The learned counsel for the plaintiff has further pointed out that the sum of Rs,1,008,000 was offered to the plaintiff only after the insurer, namely, National Insurance Corporation of Pakistan had agreed to pay the same. It is pertinent to note that the Aviation Personal Accident Insurance Policy had to be taken out by the defendant in terms of para 1(a) of Article IX, of the Agreement and the defendant had independently. Undertaken to pay the Disability Compensation to the concerned Flight Engineers, in this case the plaintiff, under the above referred clause of the Agreement.
19. The oral evidence in regard to this issue contains the respective case put forth by the parties.
The plaintiff in his evidence has narrated the details of the ordeal and after referring to the decision taken by the President of Pakistan under Article 32 of the President Order I of 1983 has stated: "He offered to pay Rs,10,08,000 and suggested that I had no option but to accept the offer. He stated that even if I were to approach a law Court the value of money would be substantially depreciated by the time a decision was taken. I was in dire need of money so I was forced to accept this offer."
In his cross-examination, however, the plaintiff has stated as follows: "It is correct that I had approached the PIAC after the acceptance of representation, as above, for payment of my dues. It is correct that I had accepted Rs,1.008 million from PIAC in full and final settlement of my Aviation Personal Accident Claim and such acknowledgment was duly signed by me on 24th May,' 1993. I produce the acknowledgment, dated 24-5-1993 as Exh.5/58. Voluntarily adds that such acknowledgment was executed by me under duress since the defendants refused to make any payment unless the receipt of money was acknowledged as above and I was in dire need of money. The threat about non-payment, as above, was oral. I did not submit my protest against the acknowledgment obtained from me through Exh.5/58 until service of legal notice, dated 22-7-1993."
' The above statement shows that the plaintiff admits to have signed acknowledgment to be effect that Rs,1,008 million were accepted in full and final settlement of Aviation Personal Accident Claim but has hastened to add that the acceptance was on account of the circumstances in which he was placed and the threat of non-payment by the defendant. The payment of Rs,1.008 million was made to the plaintiff on 24-5-1993 almost four years after his retirement from service. The delay in making payment and the hopelessness of the plaintiff in getting the amount of compensation despite receipt of Rs,1.008 million from National Insurance Corporation in the year 1990 could have raiser apprehension in the mind of plaintiff that even the sum of Rs,1.008 million might not be paid to him after indefinite period. Such factor is likely to have influenced his mind in accepting what was offered by the defendant. The institution of Constitutional petition, to seek payment of pension indicates that the defendant had intentionally adopted negative attitude and creation of financial crunch which must have had its impact on the plaintiff. It is an admitted position on record that the acknowledgment receipt, Exh.5/58, signed by the plaintiff was prepared and got typed by the defendant and sent to the plaintiff for his signatures along with the letter, dated 20th May 1993, Exh.5/60. It is pertinent to note that the sum of Rs,1.008 million has been paid to the plaintiff upon receipt of the such amount from National Insurance Corporation. The acknowledgment letter, Exh.5/58, also refers the full and final settlement of Aviation Personal Accident Claim. The Agreement, however, shows that clause 1(a) of Article IX thereof consists of three parts. The first part refers to liability undertaken by the defendant to pay Disability Compensation; the second part, refers to the computation of amount payable as Disability Compensation; and the third portion, refers to settlement of claims in accordance with the terms and conditions of Aviation Personal Accident Insurance Policy taken out by the defendant. The liability of defendant to pay Disability Compensation .Is, thus, distinct from settlement of claim under the Aviation Personal Accident Insurance Policy. The defendant corporation therefore could not evade its contractual obligation to pay Disability Compensation at the agreed rate on account of having received shorter amount from the insurer. Again, it has come out during the cross-examination of M. Saleem Khan, Exh.6, that the defendant had failed to revise the Aviation Personal Accident Insurance Policy upon revision of scales of the Flight Engineers. Such factor is further borne out from the letter, dated 31-10-1990, Exh.5/35 which contains acknowledgment on the part of defendant in having failed to take out revised Aviation Personal Accident Insurance Policy. The letter, Exh.5/35, being pertinent is reproduced hereunder:-- "The Manager (Head Office)
National Insurance Corporation, NIC Building, Abbasi Shaheed Road, Karachi.
Atten: Mr. Jafri Sun: A.P.A. Policy ' Dear Sir, ' A study of the policy wordings reveals that the maximum limit under the above policy is Rs,1,008,000.
' You will kindly observe that the limit was fixed about ten years ago. During the period salaries have been revised and consequently, premium has also increased. In order to avoid complications, we request you to enhance the limit from Rs,1,008,000 to Rs,3,000,000 effective 1st July, 1990 i,e, effect date of the policy. Kindly confirm. Yours faithfully, for Pakistan Intentional Airlines Corporation (Sd.)
(S. F H Rizvi)
General Manager ' Insurance and Terminal Benefits."
' The defendants' assertion about payment of Rs,1.008 million, having been made in full and final settlement of claim is primarily based on Exh.5/58 which does not contain acknowledgement of full and final settlement of the claim based on Disability Compensation which is distinct from the A.P.A.
Insurance Policy/claim underwritten by the National Insurance Corporation. Moreover, the evidence on record shows that the said amount was accepted under the compelling circumstances and application of free mind, signifying free consent, was lacking. In this behalf the learned counsel for the plaintiff has referred to the observations of Lord Denning, M.R. In the case of D&C Builders, Limited v. Rees (1965) 3 All England Law Reports 837 which are in the following terms:-- "The creditor was in need of money to meet his own commitments, and she knew it. When the creditor asked for payment of the pound 480 due to him, she said to him in effect; 'We cannot pay you the pound 480. But we will pay you pound 300 if you will accept it in settlement. If you do not accept it on those terms, you will get nothing. Pound 300 is better than nothing'. She had no right to say any such thing. She could properly have said: 'We cannot pay you more than pound 300.
Please accept it on account'. But she had no right to insist on his taking it in settlement. When she said: ' we will pay you nothing unless you accept pound 300 in settlement', she was putting undue pressure on. The creditor. She was making a threat to break the contract (by paying nothing) and she was doing it so as to compel the creditor to do what he was unwilling to do (to accept pound 300 in settlement); and she succeeded. He complied with her demand. That was on recent authority a case of intimidation (see Rookes v. Barnard (13) and J.T. Stratford & Son, Ltd. v. Lindley (14)., In these circumstances there was no true accord so as to found a defence of accord and satisfaction (see Day v. McLea (15). There is also no equity in the defendant to warrant any departure from the due course of law. No person can insist on a settlement procured by intimidation."
' Similar view was expressed earlier by Lord Denning, M.R. In the case of Loyds Bank v. Bundy (1974) 3 All England Law Reports 757. The principle quoted herein above from the judgment of Lord Denning, M.R. Is essentially contained in the Islamic jurisprudence and is one of the cardinal principles of Sharia. A person, who is financially estranged cannot be expected to act with free mind and to offer him anything less than what is due to him amounts to exporting pressure upon and taken undue advantage of the situation. Such conduct would, surely, fall within the ambit of provisions contained in sections 14 and 16 of the Contract Act. The views expressed in the case of D&C Builders Ltd., (supra) have substantially been approved in A.R. Azar v. Pakistan through the Chairman, Railway Board, P.W.R., Lahore and 5 others 1980 PLC (C.S.) 139 and Abdul Rahim and 2 others v.
Messrs United Bank Limited of Pakistan PLD 1997 Kar.
62.
20. The upshot of the above discussion is that the defendant cannot be held to have discharged its obligations in respect of the compensation amount due to the plaintiff. My finding on issue No,3, is therefore, in the negative.
' Issue No,5:
21. As regards this issue, the plaintiff has claimed a sum of Rs,2,038,716 being the gross monthly salary for three years calculated at the rate of Rs,56,631 per month. The plaintiff has admittedly received the sum of Rs,1.008 million out of the said amount leaving a balance of Rs,1,030,716. The defendant has urged that the plaintiff had claimed a sum of Rs,1,918,116 by calculating three years' salary on the basis of relevant clause contained in the Administrative Order. However, the sum of Rs,1.008 million was accepted by him. The claim for Rs,1,918,116 was, admittedly, made by the plaintiff in his representations to the defendant as well as in the complaint preferred before the Wafaqi Mohtasib. Such claim, however, was made ,before the Agreement was signed. I have already held that the terms and conditions of the plaintiff's service came to be governed under the Agreement w,e,f, 1st May, 1989 C and, therefore, the plaintiff was entitled to Disability Compensation calculated in terms of clause 1(a) of Article IX of the Agreement.
' The amount of the gross monthly salary drawn by the plaintiff is acknowledged by the defendant through letter, dated 27th September, 1990, Exh.5/33, as Rs,56,361. Thus, calculating the compensation amount on the basis of above, figures, the plaintiff is entitled to payment of Rs,2,038,716 as Disability Compensation out of which he has already received Rs,1.008 million leaving a balance of Rs,1,030,716. As regards the claim for interest and profit, the same cannot be granted for the reason that the amount had not been settled and no agreement exist between the parties for payment of any profit or mark-up. The amount payable as Disability Compensation has been determined hereby and the plaintiff, therefore, cannot claim any interest or mark-up thereon.
No evidence has been put forth to establish depreciation in the purchase power of the money. In the circumstances, the plaintiff's claim for interest/profit/depreciation in the purchasing power of money, is declined.
' Issue No,6:
22. In view of my findings on issues Nos.3 and 5, the plaintiff's suit is decreed against the defendant in the sum of Rs,1,030,716 with markup at the rate of 16% per annum from the date of decree till its payment. The parties are left to bear their own costs.