Muhammad Khalid Mehmood Khan, J. The respondents Malik Muhammad Sher and Mst. Kamal Khatoon filed a suit against respondents No.3 to 5 and appellant for recovery of Rs.76,50,000/- being the damages under Fatal Accidents Act, 1855 claiming that their son Asim Nawaz Qamar while performing his duties at Lahore to Islamabad Motorway died due to negligent driving of respondent No.3, respondents No.4 , 5 and appellant are the owners of vehicles, the accident took place due to negligence of the driver, hence the owners alongwith driver are bound to pay the damages. It was asserted that at the time of death of their son he was 29 years of age and was drawing a salary of Rs.15,000/- per month, the average age in their family is 79 years, hence till the date of retirement he was entitled to receive salary of Rs.90,00,000/- and after deduction of 25% of his personal expenses the respondents are entitled to be paid Rs.67,50,000/-. Respondent No.3 and appellant contested the suit. The appellant claimed that he is not the owner of vehicle and as such he is not liable to pay the damages. The appellant submitted that the vehicle is in the name of respondent No.4 and respondent No.4 alone is responsible for payment of compensation if payable. It was further stated that the deceased met with an accident due to his own negligence as he wrongly crossed the road. The learned trial court framed the issues and after recording the evidence decreed the suit for Rs.49,80,970/- vide judgment and decree dated 19.04.2010. The learned trial court passed the decree against the appellant and respondent No.3. It was ordered that 50% of the decretal amount shall be paid to mother of deceased Kamal Khatoon and 50% will be shared by the legal heirs of Malik Muhammad Sher, father of deceased. It is pertinent to mention that father of deceased, Malik Muhammad Sher, died before passing the decree and his legal heirs were impleaded party to the suit. The appellant has assailed the judgment and decree dated 19.04.2010 through this appeal.
2. Learned counsel for appellant submits that according to FIR No.276 registered on 01.12.2003 under Section 279/320 PPC at Police Station Mid Ranjha District Sargodha the only accused is respondent No.3, the driver, who was driving the vehicle when the accident took place. Respondent No.3 was prosecuted and has been convicted. The appellant was never summoned by the criminal court or any investigating agency, the appellant was not the owner of vehicle at the time when the accident took place i.e 01.12.2003, the vehicle at that time was in the name of Nizam Din respondent No.4, the appellant purchased the vehicle after the accident as scrap, hence the appellant is not vicariously liable to pay any compensation or damages. It is an admitted fact that the appellant was not driving the vehicle at the time when accident took place. The appellant become the owner of vehicle on 17.2.2004 when the Magistrate granted superdari of vehicle to appellant. The insurance company was not made party to the suit. The calculation of damages are wrong, the actual wrong doer has been punished for seven years whereas the appellant has no concern what so ever with the accident. Maximum stake of appellant in the vehicle is Rs.200,000/- hence only a decree for recovery of Rs.200,000/- can be passed against the appellant if the court comes to the conclusion that the appellant is liable to pay. The learned trial court has failed to appreciate that the deceased was a government servant and the government has purchased a group insurance for deceased which is payable to the legal heirs of insurer if he/she dies during the service, the amount of group insurance is deductible from the claim in dispute. Learned counsel further submits that the claim under the Fatal Accidents Act, 1855 is payable to the dependents only and is not payable to the legal heirs. Admittedly Malik Muhammad Sher, father of deceased, died before passing the decree and as such the legal heirs of deceased Malik Muhammad Sher are not entitled of any decree as the suit to the extent of Malik Muhammad Sher stand abated and as such the learned trial court has erred in law while decreeing the suit in favour of legal heirs of Malik Muhammad Sher.
3. Learned counsel for respondents supports the impugned judgment and decree and submits that admittedly the appellant is the owner of vehicle, as he was plying the vehicle on the basis of open transfer letter, he intentionally, to avoid his liability get the vehicle transferred in his name after the accident. Learned counsel submits that appellant has not set-up the defence that group insurance of deceased was deductible from the damages awarded by the court under Fatal Accidents Act, 1855. Learned counsel submits that the amount of group insurance is independent amount which is payable to the legal heirs of deceased whereas damages under the Fatal Accidents Act, 1855 are only payable to the dependants, hence the appellant is liable to pay the decretal amount. Learned counsel submits that maximum effect of death of one of the plaintiffs before passing the decree is that surviving plaintiff will be entitled to recover the entire decretal amount being the dependent of deceased. Learned counsel for respondents has relied on Pakistan through Secretary, Ministry of Defence and others V. Haji Abdul Razzaue (2005 SCM R 587) and Akhtar Ali Khan V. Islamic Republic of Pakistan through Secretary, Ministry of Health, Islamabad and another (2007 M LD 851).
4. We have heard the learned counsel for the parties and gone through the record.
5. The contents of plaint shows that father and mother of deceased Asim Nawaz filed a suit for recovery of Rs.67,50,000/- under the Fatal Accidents Act, 1855 asserting that they are dependent of deceased, the appellant and respondents No.3 to 5 being the owners and driver of vehicle are responsible to pay the damages which they suffered due to accidental death of their son. It was specifically asserted that respondent No.3 was driving the vehicle at the time of accident and due to his negligence their son died while he was on patrolling duty at Lahore to Islamabad Motorway, the appellant and respondents No.3 to 5 are jointly and severally liable to pay the claim. It is an admitted fact that in road accident the son of respondents No.1 and 2 died. It is also an admitted fact that respondent No.3 was driving the vehicle. As per contents of FIR the vehicle was Model 1993 Toyota Hiace and respondent No.3 was driving the said vehicle, the vehicle crushed Asim Nawaz on 01.12.2003. The argument of learned counsel for appellant is that the vehicle was in the ownership of respondent No.4 Nizam Din on the day when the vehicle met with an accident and as such he is not liable for payment of damages, if any. Learned counsel for appellant has relied on Exh.P-5 which is a transfer letter and name of transferee is not mentioned therein and only the name of owner is mentioned as Nizam Din. Exh.P-6 is the copy of registration book which shows that Haq Nawaz is the owner of vehicle and the vehicle was transferred in his name on 12.02.2004. On the basis of above said document the appellant claims that on the day of accident he was not the owner of vehicle and as such he is not liable to pay any damages but his argument fell to earth when we examine Exh.P-7 the application filed by the appellant before Allaqa Magistrate Bhalwal claiming that superdari of accidental vehicle be handed over to him as he had purchased the vehicle, the agreement to purchase and open transfer letter is in his possession, he wants to get the vehicle transferred in his name and as such the SHO Police Station Mid Ranjha be directed to hand over the papers of vehicle detailed in the application to him so the vehicle can be transferred and registered in his name, the Allaqa Magistrate ordered to hand over the vehicle on Superdari to appellant under Exh.P-20. These documents are sufficient to prove that appellant was the owner of vehicle on the day when the accident took place, through Exh.P-7 the appellant admitted that open transfer letter and agreement to purchase of vehicle is with him and he wants to get the vehicle registered in his name. Exh.P-18 is an application of appellant submitted to Allaqa Magistrate, Bhalwal praying that the superdari of vehicle Hiace No.2482/PE alongwith registration book and Root Permit be ordered to be handed over to appellant, he specifically stated in the application that vehicle referred to above is in the possession of police, the appellant is plying the vehicle for earning his livelihood and due to non availability of the vehicle he is suffering business loss. It was further asserted in the application that in case the superdari of vehicle is not given to appellant he will suffer an irreparable loss. The above referred documents are sufficient to prove that the appellant was the owner of vehicle when the vehicle met with an accident and as such he is liable to pay the damages being the owner of vehicle alongwith driver. The learned trial court thus has not committed any error while decreeing the suit against the appellant and the driver. It is an admitted fact that the deceased was drawing a salary of Rs.16084/- per month and the learned trial court has rightly calculated the salary payable to deceased till his superannuation. Learned trial court has calculated the payable salary with a periodical enhancement and deduction of personal expenses and passed the decree of Rs.49,80,970/-, the learned trial court thus passed the decree in accordance with law and facts available on record.
6. The second argument of learned counsel for appellant is that the employer of deceased has purchased group insurance of deceased which was payable to its nominee in case of his death before retirement and as such the amount of group insurance is deductible from the accidental claim. The pleadings of appellant shows that he has not taken the said objection in his written statement nor it is the case of appellant before the trial court that amount of group insurance is deductible from the death claim of deceased, hence the appellant cannot be allowed to take up the said claim before this Court. The issue of deduction of the emoluments payable to the government employee, in case of death during service are deductible or not from the damages payable to dependents of the deceased under the Fatal Accidents Act, 1855 came up before learned Division Bench of Karachi High Court and the Karachi High Court in a case reported as Mst.
Subhan Bang and 4 others V. Sultan Khan and 4 others (1988 CLC 830 Karachi) held as under:- "From the above cited passages from the treatise on the subject in issue and from the above cited cases, it is evident that in a case under the Fatal Accidents Act a dependant is entitled to recover pecuniary loss, which he has suffered on account of the death of the deceased. If he has not suffered any such loss but has received some pecuniary advantage, which he would not have otherwise received if the deceased would have remained alive, he cannot maintain an action under the above act. It also seems to be a well settled principle of law that while computing the amount of pecuniary loss, the pecuniary benefit and other benefits which can be transacted into money received by a dependant on account of the death of the person involved in the fatal accident are to be deducted from the calculated amount of the pecuniary loss. In other words, a balance is to be struck down by keeping in juxta-position pecuniary loss suffered and the pecuniary gains made by the dependant. However, neither the pecuniary loss nor pecuniary gain should be illusory or fictional but should be real. If the deceased had no earning other than from certain property and out of such earning he was providing pecuniary assistance to his dependant and upon his death the said property stands vested in the dependant by operation of law, it cannot be said that he has, suffered any pecuniary loss, on the contrary, he has made pecuniary gain on account of the death of the deceased. Similarly, if a dependant would have otherwise received a particular pecuniary benefit from the deceased on his natural death, merely the fact that the accidental death has accelerated the above event, would not constitute a pecuniary benefit liable to be deducted from the pecuniary loss".
In Daish V. Wauton (1972(1 All England Reporter 25) the court has held as under:- "that such payment which had come as a result of legislation or a contract or provided from beneficial benovelence and which came independently of any right of redress against such tort- feasor so that these salutory benefits conferred on the victim were enjoyed by the victim or the members of his family could never be deducted from the damages looking to the intrinsic nature of its benefits which on equitable consideration could never go for the benefit of the tort-feasor.
The grant of family pension is a right which one inherits on the completion of qualifying service or on super-annuation or on death." The benefits received by the dependants of the deceased in the form of pension etc. cannot be considered as a death benefit. As per the condition of the service, a Government servant in his own right, is entitled to get the regular pension upon superannuation.
His widow is, also; entitled to get the same if the Government servant dies after his retirement. The pension comes as a result of his service career and it is an incidence of service payable to the employee on superannuation and is deeply rooted in the performance of the satisfactory service rendered by the employee and cannot be attributed to the fortuitous circumstances of the accident and the result of the death. The tort-feasor cannot be allowed to take the benefit of - the pension received by the claimant by getting the credit for them in mitigation of the damages that he must pay. There is a difference between the benefits received on account of the death and those which are payable on the death of a person. The grant of pension on attaining the age of superannuation is the benefit which is available indepently of the death but is payable on the death or on the date of the superannuation. The pensionary benefit which one inherits on account of qualifying service or the death cannot be denied to a person entitled to such benefits on the pretext that he has received such other benefits. It is not the pecuniary gain as such but is an accelleration of pecuniary gain. It may be the value of the aceelleration that can be taken into account while determining the amount of compensation and not the value of the benefit itself and some deduction, if possible, can be made for the payments received earlier. But the other aspect of the case, also, cannot be ignored and the amount of family pension cannot be slashed from the amount of compensation because the deceased has put in the qualifying service for the grant of pension. If he would have survived till the age of superannuation he would have put-in 13 years more qualifying service for pensionary benefits and in that circumstance he would have got more pension than what the claimants are getting now and after the superannuation age, the pension received by him would have formed a part of his estate and the dependants would have been entitled to inherit the same. In this view of the matter, also, taking the over-all view of the matter, the amount of family pension received by the claimants cannot be deducted from the amount of compensation determined under Section 168 of the Motor Vehicles Act.
In a case reported as Smt. A. Lakshmi and others v. Arjun Associated Pvt. Ltd. and another (Andhra Pradesh) (2004 (4) Andh LD 618) it is held as under:- "Coming to the other deductions, as far as L.I.C. premium is concerned, it is no more res integra, in view of the judgment of the Supreme Court in Helen C. Rebello v. Maharashtra State Road Transport Corporation, 1974 ACJ 150 (MP). The issue that came up for consideration before the learned judges of the Supreme Court is whether the Life Insurance Money of the deceased is to be deducted from the claimants' compensation receivable under the Motor Vehicles Act 1939? Their Lordships of the Supreme Court referred to various enactments relating to social scheme benefit under the Insurance Act and held that the insurance amount payable on the death of the deceased cannot be deducted. Though the payment might have been accelerated under the policy due to the sudden demise of the deceased, the insurance amount payable to the legal heirs of the deceased person has no nexus, whatsoever, with the statutory compensation payable under the Motor Vehicles Act, since the policy under the Insurance Act is a contractual one, the compensation payable under the Motor Vehicles Act is a statutory one. Of course, their Lordships held that in the event of mere insurance of the life of the employee against any unforeseen contingencies then such an amount is deductible from the compensation payable to the legal heirs of the deceased person. Their Lordships have taken aid from the classic work-out by Lord Fleming, which was followed in Sushila Devi v. Ibrahim, 1974 ACJ 150 (MP) that: "The pecuniary loss of each dependant can only be ascertained by balancing, on the one hand, the loss to him of future pecuniary benefit, and, on the other any pecuniary advantage which, from whatever sources, comes to him by reason of the death. There is a vital distinction between the receipt of moneys under accident insurance and life assurance policies. In the case of accident policies, the full value is deductible on the ground that there was no certainty, or even a reasonable probability, that the insured would ever suffer an accident. But, since man is certain to die, it would not be justifiable to set off the whole proceeds from a life assurance policy, since it is legitimate to assume that the widow would have received some benefit, if her husband had pre-deceased her during the currency of the policy or if the policy had matured during their joint lives. The exact extent of permissible reduction, however, is still a matter of uncertainty."
12. Their Lordships observed that: "in our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, from whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death.
Thus, it would not include that which claimant receives on account of other forms of death, which he would have received even apart from accidental death. Thus, such pecuniary advantage would have no correlation to the accidental death for which compensation is computed. Any amount received or receivable not only on account of the accidental death but that would have come to the claimant even otherwise, could not be construed to be the 'pecuniary advantage', liable for deduction. However, where the employer insures his employee, as against injury or death arising out of an accident, any amount received (sic) out of such insurance on the happening of such incidence may be an amount liable for deduction.
However, our legislature has taken note of such contingency, through the proviso of section 95.
Under it, the liability of the insurer is excluded in respect of injury or death arising out of, (Sic. and) in the course of employment of an employee. This is based on the principle that the claimant for the happening of the same incidence may not gain twice from two sources. This, it is excluded thus, either through the wisdom of the legislature or through the principle of loss and gain through deduction not to give gain to the claimant twice arising from the same transaction, viz., same accident. It is significant to record here in both the sources viz., either under the Motor Vehicles Act or from the employer, the compensation receivable by the claimant is either statutory or through the security of the employer securing for his employee but in both cases he receives the amount without his contribution. How thus an amount earned 'out of one's labour or contribution towards one's wealth, savings, etc., either for himself or for his family, which such person knows, under the law has to go to his heirs after his death either by succession or under a will could be said to be the 'pecuniary gain' only on account of one's accidental death. This of course, is a pecuniary gain but how this is equitable or could be balanced out of the amount to be received as compensation under the Motor Vehicles Act. There is no correlation between the two amounts. Not even remotely.
How can an amount of loss and gain of one contract could be made applicable to the loss and gain of another contract. Similarly, how an amount receivable under a statute has any correlation with an amount earned by an individual, Principle of loss and gain has to be on the same place within the same sphere, of course, subject to the contract to the contrary or, any provisions of law."
13. Their Lordships also pointed out that the compensation received under the Motor Vehicles Act, without any contribution is a statutory one, while the amount receivable under the life insurance policy is contractual".
In United India Insurance Company Limited V. Patricia Jean Mahajan (2002 ACJ 1441 (SC) it is held as under:- "we are in full agreement with the observations made in the case of Helen C. Rebello, 1999 ACJ 10 (SC), that principle of balancing between losses and gains, by reason of death, to arrive at amount of compensation is a general rule, but what is more important is that such receipts by the claimants must have some co-relation with the accidental death by reason of which alone the claimants have received the amounts. We do not think it would be necessary for us to go into the question of distinction made between the provisions of the Fatal accidents Act and the Motor Vehicles Act. According to the decisions referred to in the earlier part of this judgment, it is clear that amount on account of social security as may have been received must have nexus or relation with the accidental injury or death, so far to be deductible from the amount of compensation.
There must be some co-relation between the amount received and the accidental death or it may be in the same sphere, in absence the amount received shall not be deducted from the amount of compensation. Thus the amount received on account of insurance policy of the deceased cannot be deducted from the amount of compensation though no doubt the receipt of the insurance amount is accelerated due to premature death of the insured."
In Asha V. United India Insurance Company Limited (2004 ACJ 448 (SC) it is held as under:- "Lastly, it was submitted that the salary certificate shows that the salary of the deceased was Rs.
8,632. It was submitted that the High Court was wrong in taking the salary to be Rs. 6,642. It was submitted that the High Court was wrong in deducting the allowances and amounts paid towards L.I.C., society charges and H.B.A. etc. We are unable to accept this submission also. The claimants are entitled to be compensated for the loss suffered by them. The loss suffered by them is the amount which they would have been receiving at the time when the deceased was alive. There can be no doubt that the dependants would only be receiving the net amount less 1/3rd for his personal expenses. The High Court was therefore right in so holding."
The perusal of case law referred to above it thus can easily be concluded that there is a distinction between the benefits received on account of the death of a person and the benefits which are payable on his death. So far as the benefits arising out of the first part are concerned, they arise out of the death and would not have been available without the occurrence of the death in an accident, but so far as the benefits which are merely payable on the death of a person are concerned, they are the benefits which are independently available but are payable only after the death. The appellant has not raised the objection regarding the deduction of group insurance from the loss payable due to accident, hence the argument of learned counsel for appellant has no substance.
7. The third argument of learned counsel for appellant is that the father of deceased died before maturing the claim into a decree, hence the legal heirs of the father of deceased are not entitled for any share in the decree. Learned counsel vehemently argued that suit to the extent of father of deceased should have been dismissed, the learned trial court has erred in law while passing a decree in favour of the legal heirs of plaintiff No.1. It is correct that under the Fatal Accidents Act, 1855 the dependents of the deceased are only entitled for the damages payable due to accidental death of deceased.
8. The dependants defined as per Section 1 of Fatal Accidents Act, 1855 are wife, husband, parents and child. It is an admitted fact that in the instant case the deceased was unmarried, hence his dependants are only his parents. The father of deceased died before maturing the claim into a decree and only the mother remained alive. The learned trial court has wrongly impleaded the legal heirs of Malik Muhammad Sher father of deceased and passed the decree in their favour.
Certainly the legal heirs of the father of deceased did not fall within the definition of dependants of deceased Asim Nawaz. The claim of the father of deceased before decree is passed is not an inheritable estate and as such the argument of learned counsel for appellant that suit to the extent of father of Asim Nawaz should have been abated is sustainable in the eye of law but even if the suit to the extent of father of Asim Nawaz is abated even then the claim will not be reduced as the mother of deceased is dependant and decree could be passed in her favour for the entire suit amount for the simple reason that both the plaintiffs to the suit have not claimed amount of damages separately. The entire decree will be payable to the alive mother of deceased who is the only dependent of deceased. Admittedly the mother of deceased was alive at the time when decree is passed and as such the decree was rightly passed by the trial court.
9. The upshot of the above said discussion is that the appeal is allowed to the extent that legal heirs of deceased Malik Muhammad Sher are not entitled for any amount of the decree and the total amount of decree will be payable to the mother of deceased. However, the appellant's appeal has no substance and is dismissed accordingly.