1. . ' This is a suit under the Fatal Accidents Act, 1855 brough by the widow of Raisham Gul, and three minor sons and a minor daughter of the deceased against driver Abdul Rashid (defendant 1), the owner of mini bus No, K. A. Z. 9485 Javid Khalil (defendant No, 2) and the Insurers Messrs Asian Mutual Insurance Company ,(defendant 3) for compensation in the sum of Rs, 1,20,000 on account of death of Raisham Gul caused by rash and negligent driving of the bus by Abdul Rashid.
2. ' It is averred in the plaint that on 19th June, 1976 at about 6-00 p. m. Defendant 1 while driving the mini-bus rashly and negligently' caused accident to Raisham Gul near Central Automobile Works.
3. Janghir Road, Karachi. It is further averred that the said Raisham Gul suffered serious and grievous injuries in the accident and as a result thereof he died in the Civil Hospital, Karachi where he was taken.
4. ' The deceased at the time of the accident according to the averments made in the plaint was about 40 years of age and was maintaining excellent health. It is further averred that the deceased was earning Rs, 600 per month out of which he used to spend Rs, 500 per month on maintenance of the plaintiff and his for children.
5. ' Defendants 1 and 2 failed to put in their appearance. Therefore, the proceedings against them were ordered to be taken ex parte. However, defendants 3 have filed their written statement wherein they have stated that they did not know whether defendant 1 was the driver of the bus or defendant 2 was the owner of the vehicle in question. It is pleaded that defendant 2 was not insured person and as such defendant 3 are not liable. However, it is not denied by them that the bus was insured with them.
6. ' The learned Advocates for the parties filed the following consent issues which were adopted by the Court :
(1) Whether Raisham Gul died as alleged by rash and negligent driving by defendant No. 1 of bus No, K. A. Z. 9485 owned by defendant 2 ?
(2) Whether 'the plaintiffs have suffered pecuniary loss due to the death of Raisham Gul. If so, how much ?
(3) Whether defendant No, 2 was an insured person ? If the answer is in the affirmative what is the extent of liability of defendant No, 3 ?
(4) What should the decree be and against which of the defendants ?
7. ' The plaintiff examined only Khuda Bakhsh, A. S. I. (Exh. 5) who produced F. I. R. In respect of accident in question. The plaintiff also filed two affidavits of Nek Badin and Pir Mohammad in Ex parte proof on 24th May, 1979.
8. ' Nek Badin who is the attorney of the plaintiff in his affidavit has supported the averments made in the plaint. Pir Mohammad in his affidavit has stated that he had employed Raisham Gul in his flower garden as Head Gardner (Mali) on a monthly salary of Rs, 600.
9. ' Mr. Riazul Hassan stated that he would not cross-examine the said deponents.
10. ' Defendants 3 did not examine any witnesses. However, Mr. Riazul Hassan, Advocate produced the Insurance Certificate No, 40865 which was by consent brought on record marked as Exh. 5 and which reads as follows :- "1/Certl No,) 40865 THIRD PARTY ACT ' K. A. Z.-9485 ' Mini Bus ' Model-1974 ' Mr. Fazal Wahab son of Gul Ghaf......................
11. 12th.July, 1975. 11th July, 1976. Llth July, 1975."
12. ' Mr. Riazul Hassan Advocate also produced a pro forma of the Insurance Policy which was by consent brought on record marked as Exh.
6. It was submitted that since the Insurance Policy is in the name of Fazal Wahab and not in the name of defendant 2, the Insurance Company is not liable on the Insurance policy.
13. ' Now, I proceed to decide the issues. Issue No. 1 : ' It is stated in the plaint that Abdul Rashid, driver (defendant 1) was driving Mini Bus No, K. A. Z. 9485 in a rash and negligent manner and while so driving he knocked down Raisham Gul near the Central Automobile Works, Jhanghir Road, Karachi who suffered serious and grievous injuries as a result thereof he died in the Civil Hospital. The plaint is verified on oath by plaintiff-1. Nek Badin who is the attorney of the plaintiff has filed an affidavit and has supported the aforesaid averments made in the plaint.
14. Defendants 1 and 2 did not choose to contest the suit. However, Mr. Riazul Hassan, Advocate for defendants 3 had stated that he did not wish to cross-examine Nek -Badin, the attorney of the plaintiff 1. Therefore, the fact that Raisham Gul died due to the accident caused due to rash and negligent driving of Mini Bus No, K. A. Z. 9485 by Abdul Rashid driver., (defendant 1) stands proved and accordingly I decide this issue against defendants.
15. ' Issue No, 2 : Since the deceased was undisputedly earning Rs, 600 per month and was spending Rs, 500 per month on the maintenance of the plaintiff and his children and according to the normal expectency of life in Pakistan he being in good health, would have lived for another 20 years and earned for the said period a total sum of Rs, 1,44,000. Out of his amount at the rate of Rs, 500 per month as proved by affidavit of Nek Badin he would have spent Rs, 1,20,000 on the maintenance of the plaintiff and his children. Ordinarily he would have maintained plaintiff-1 for about 20 years and plaintiffs 2 to 5 for about 10 years, 11 years, 14 years, and 15 years, respectively. Although it is not stated in the plaint or in the affidavit filed on behalf of the plaintiffs as to bow much amount the decesed was spending on each of the plaintiffs every month, it was stated by Mr. K. B. Bhutto at the bar that the deceased was spending Rs, 200, per month on plaintiff 1, which included maintenance of the house, Rs 75 each on all the remaining plaintiffs. This statement has not been disputed by Mr. Riazul Hassan Advocate for defendant-3. Accordingly each plaintiff is entitled to the following compensation. Rs,
(i) Plaintiff 1 48,0000
(ii) Plantiff 2 .......................................................... 9,000
(iii) Plaintiff 3 ........................................................ 9,000
(iv) Plaintiff 4....................................................... 13,050
(v) Plaintiff 5....................................................... 13,950 Total...................... 93,900 ' I, therefore, decide this is sue accordingly. Issue No, 3 :- Now, I would consider issue No, 3 which covers the liability of defendant 3. It is admitted that defendants 3 are at all liable as insurers of the bus their liability would be limited to Rs, 20,000. It is also admitted that there is no evidence on record that defendant 2 was the insured person.
16. ' However, it is not denied that the driver of the bus was an insured C person under the policy. There is no doubt that the pro forma of the insurance policy (Exh. 6) which it is not disputed, contains the terms on which insurance of the bus was effected, shows that driver of the bus was one of insured persons and as such defendant 3 would be liable on this policy.
17. ' Here I may refer to a decision of a Division Bench of erstwhile High Court of West Pakistan Karachi Bench which consisted of B. Z. Kaikaus and Waheeduddin Ahmed, JJ. Namely, Fida Hussain v.
18. Messrs Queensland Insurance Co. Ltd. (1). In this case the car belonged to American Embassy and the plaintiff had brought the suit only against the Insurance Company and the driver of the bus for it appears, the American Embassy could not be sued. A notice under section 96 (2) of the Motor Vehicles Act was issued to the Queensland Insurance Co. Ltd. With whom the car was insured but a learned Single Judge on the plea raised by the Insurance company that the car driver was not insured person discharged the notice on appeal it was held by the Letters Patent Bench :- "`It appears to us that the question who is the insured person under section 96 (1) cannot be decided on the terms of the insurance policy. It shall have to be decided on the language of section 96 (1) of the Motor Vehicles Act. A perusal of the language of section 96 (1) shows that the Legislature has made a clear distinction between the person by whom the policy has been effected and the insured person. This distinction is apparent from the fact that at one place the framers of the Act have used the words 'in favour of the person by whom a policy has been {{FOOT NOTE}}
(1) PLD 1959 Kar. 216 {{FOOT NOTE}} effected' and at another place 'any person insured by the policy'. In or opinion if both the insured person and the person who has obtained the Insurance Policy were the same there was no need to mention them separately. The learned counsel for the respondent however urged that the term 'Insured person' should be determined on the terms of the policy of insurance. This contention as already pointed out will render the provisions of the Motor Vehicles Act ineffective and meaningless. What we have to see is whether respondent No, 2 is one of those persons who are entitled to the benefits of insurance and is one of those persons to whom respondent No. 1 under the policy have given a guarantee to indemnify in the event of accident arising out of the use of Motor Vehicle. Clause 3 o the insurance policy is very clear on this matter. The Insurance Company has given the same assurance to the driver of the motor car as to the owner of the car.
19. ' The judgment proceeds :- ' After careful consideration' of the matter, it seems to us that no distinction can be drawn between the person insured and the persons in whose name the policy stands for interpreting the term 'insured person' used in section 96 (1) of the Motor Vehicles Act on the basis of the terms of the insurance policy. This section does not contemplate that a suit must be filed against the person who has obtained the insurance policy. It also applied to those cases where the suit is filed against the persons for whose benefit the policy has been obtained. In or opinion the view taken by lnamullah, J., cannot be upheld on the language of the relevant provisions of law."
20. ' I may also refer to another decision which is again a Division Bench decision of the then High of West Pakistan. Karachi Bench, in Messrs Pak Insurance Company Limited v. Bashir Begum and others (1). In this case the Insurance Company had taken the plea that bus involved in the accident was insured with them by one Abdul Hai Khan who had without their knowledge transferred the bus and in collusion with their agents fraudulently transferred the insurance policy to defendant No. 1 and therefore they were not liable to pay any damages to the plaintiff in respect of the alleged incident. Dealing with this plea it was observed by Khamisani, J. In paragraph 6 of the judgment as follows :- "(6) Apart from that, the fact that the insurance policy was transferred on the 20th of April, 1954 in the name of defendant No, I will not make the slightest difference in so far as the liability of the appellants is concerned. The bus in question was admittedly insured with the appellants and this insurance policy was effective from the 10th of March, 1954, to the 9th of March, 1955. The incident which resulted in the death of the deceased occurred on the 20th of April, 1954 during the subsistence of this insurance policy. The appellants, therefore, in or opinion, will be bound to pay the damages under the Fatal Accidents Act regardless of whether the insurance policy stood in the name of Abdul Hai Khan or in the name of Muhammad Ali Premji defendant 1." {{FOOT NOTE}}
(1) PLD 1966 Kar. 152 {{FOOT NOTE}} ' In this case Qadeeruddin Ahmed, J., who had added a note to the ' opinion expres sed by Khamisani, J. Observed in paragraph 3 of his opinion as follows.: - "(3) The mere contention that the accident took place before the transfer of the policy does not constitute a proper defence in respect of third party insurance. The defence which can be taken in respect of third party insurance by the insurers are set out in subsection (2) of section 96 of the Motor Vehicles Act, 1939. None of the provisions have been or can be invoked to justify this plea. The conclusion, therefore, must be that the plea not "being one of the defences which can be taken by the insurers in respect of third party insurance, is of no effect. The insurance policy was validly obtained and its period was subsisting at the time of the accident as well as at the time of the change of name of the insured. In the above circumstances, the liability of the insurers with respect to the victim of the accident to compensate his dependents under the Fatal Accidents Act, 1855 is not affected. Perhaps a reference can be made in this connection with advantage to Madras Motor Insurance Company. v. Muhammad Mustafa AIR 1961 Mad.
21. 208."
22. ' I may also refer to the case of Mst. Ayeshabai v. Abdul Ghafoor and others (1) in which the same issue as before me was considered by my learned brother Zafar Hussain Mirza, J. While deciding the issue it was observed by his Lorsdhip at pages 545 to 547 of the report as follows :- "(7) Now under section S6 it is the statutory obligation of the insurer to satisfy the judgment against the insured persons in respect of thin party risks, if he has had notice of the proceedings in terms of the section. It is also clear that in such a case the insurer can appear and defend the action only on the ground specified in subsection (2) as mentioned earlier. This is clear from the bate reading o subsection (2) in this connection reference may be made to Pakistan Motor Owners Mutual Insurance Co. Ltd. v. Din Muhammad (1970 SCMR 212) where the Insurance Company raised numerous objections e. g. That the suit was barred by time and that the accident had taken place due to negligence by t driver, it was held that the grounds of defence which an insurance company may take in a suit for compensation by third party are confined to the provisions of section 96 (2) and that all other grounds of defence are by necessary implication excluded Mr. Saeed-uz-Zaman therefore, rightly contended that the company is not entitled to defend the suit on the pleas raised by it in their written statement. However, as stated earlier, the policy o insurance produced in evidence undeniably was effected by one Habib Ahmad who is clearly the principal person insured as the owner of the vehicle as mentioned in the Schedule to the policy. The schedule further extends the insurance cover to the Driver, Conductor and 37 passengers. It is therefore, clear that defendant No, 2 the alleged owner at the time of the accident was not one of the insured under the policy and no decree passed against the said defendant would be liable to be executed against the Company. {{FOOT NOTE}}
(1) PLD 1977 Ku.- 544, {{FOOT NOTE}} ' In such circumstances the company could be made liable only if defendant No. 1 the "Driver of the vehicle is shown to be the insu red under the policy. Therefore, the question that falls for consideration is whether in the circumstances of this case defendant No. 1 can be construed to be insured under the policy."
23. ' After referring to the provisions of section 96, the judgment proceeds :- "(8) Now there is no dispute that there was a valid and effective policy as requ ired by section 94 of the said Act covering the use of Bus No, K. A. T. 7037 the vehicle involved in the event. The policy on its face shows its validity period from 5th April, 1968 to 4th April, 1969 and therefore, on the date of the event viz. 19th February, 1969 it was obviously in force. It is also clear from the policy that it was issued to Mr. Habib Ahmed and the name of defendant No, 2 no where figures as the person insured. The decree against defendant No, 2 therefore, as already stated, would not be enforceable against or bind the company. But Mr. Saeed-uz-Zaman contended that defendant No, 2 has been proved to be the Driver of the bus at the relevant time and as the policy , extended the insurance cover to any driver of the vehicle, the decree against defendant No. 1, in any case will be binding upon the company.
24. "(9) The perusal of the Insurance Policy (Exh. 5/1) shows that it commences with the following recitals :- "Whereas the insurcd by the proposal and declaration dated as stated in the schedule which shall be the basis of this contract and is deemed to be incorporated herein has applied to the company for the insurance hereinafter contained...........
25. ' The terms and conditions of the policy include a reference to the Driver of the vehicle and inter alia provide that the company will indemnify "any Driver who is driving the motor vehicle as declared by the proposer or any person authorised by him on his behalf." The reference therefore, so far as the Driver is concerned is to the driver declared by the proposer which in turn has reference to the declaration to the policy of which reference has been made in the recitals. The Schedule mentions no specific name against the Column relating to the Driver but merely states "Driver, Conductor and 37 passengers." Reading the contents of the policy as a whole it appears that the policy extended the insurance cover to any Driver who was driving the vehicle at the relevant time." The case before me is identifical and the above observation will apply with full force to the instant case.
26. ' Mr. Riazul Hassan relied on Mst. Hamida Begum v. Suleman Jan and others (1). In this case Suleman Jan had got his bus insured with the company but the same was transferred to Muhammad Sharif subsequent to the accident. However, the policy of the insurance was not transferred to him. The claim made by Muhammad Sharif the subsequent owner of the bus against the Insurance Company was not accepted on the ground that the policy was not transferred to him. However, in this case the question whether the driver of the bus was {{FOOT NOTE}}
(1) PLD 1961 Kar. 529 {{FOOT NOTE}} one of the insured persons was not considered and then I am bound by the two decisions of the Division Benches of this Court mentioned above.
27. ' The learned Advocate for defendant 3 also referred to an unreported decision in Messrs Mohammad Sharif Chohan v. Mst. Hameeda Begum and others L. R. A. No, 61 of 1961 and also to a Single Bench decision of this Court in Rukavabai v. Secretary of Defence (1). These cases were also cited before my learned brother Zaffar Hissain Mirza, J. In Ayeshabai v. Abdul Ghafoor but have been duly distinguished by my learned brother as follows :- "On a careful reading of the aforesaid judgment and cases referred therein, I find that the special feature of all the se cases was that the decree against the transferee of an insured vehicle was being sought to be enforced against the insurance company. Although in some of the cases the liability of the transferee of the transferor of the vehicle was sought to be founded upon the rule of vicarious liability arising out of the acts of the Driver in the employment of the owner for the time being, in none of these cases the decree was sought against the insurance company on the basis that the Driver himself was the insured person."
28. ' I, therefore, hold that the Insurance Company is also liable on the insurance policy but its liability will be limited to Rs, 20,000 only as was agreed before me by the learned counsel.
29. ' Issue No, 4: ' In the result I decree the suit against defendants 1 and 2 ex parte for Rs, 93,900 with proportionate cost. So far defendant 3 is concerned its liability would be limited to Rs, 20,000 and the proportionate cost only. {{FOOT NOTE}}
(1) PLD 1976 Kar. 131 {{FOOT NOTE}}