Z. C. VALLIANI, J.-The appellant above-named, being aggrieved and dissatisfied by the judgment in Suit No. 197/1974, passed by the learned Single Judge of this Hon'ble Court dated 8-12-1980, has filed this appeal, inter alia on the following facts and grounds.
2. The respondents Nos. 1 to 6 and one Mr. Muhammad Yousuf Nizami filed the suit for the recovery of damages, on account of an accident, which took place on 22nd May, 1973. Two persons, namely, Amin Yousuf Nizami and Aslam Yousuf Nizam, were injured in the said accident. Amin Yousuf Nizami, later on died. There were seven plaintiffs, who had filed the suit. Respondent No. 6, who was plaintiff No. 7 in the said suit, also claimed damages on account of injuries received by him in the said accident, in the said suit.
3. According to the plaint, on 22-5-1973, the deceased and his brother respondent No. 6 (plaintiff No. 7) were travelling on a motor, scooter belonging to the deceased. Deceased was driving the scooter, while respondent No. 6 was sitting on the back seat. They were going on the scooter on the left side of the main North Nazimabad Road, from Hydari towards Railway Bridge, when according to the plaintiffs in the said suit, respondent No. 7, who was defendant No. 1, in the said suit--- was driving his car in the second lane on the same side, in the same direction suddenly, rashly and negligently and without giving any signal, turned his car towards the footpath and brought his car to sudden stop. This resulted in an accident, as the scooter hit the car, which caused serious injuries to the deceased and plaintiff No. 7, now respondent No. 6, in the above appeal. That deceased Amin Yousuf Nizami succumbed to his injuries on 27th May, 1973 in the Civil Hospital, Karachi. According to the plaint, the accident also caused respondent No. 6 (plaintiff No. 7) three fractures, on different parts of his body. Plaintiffs Nos. I to 6 in the said suit, as heirs and dependents of the deceased, claimed the sum of Rs. 1,50,000 as compensation for the loss, resulting from the death of the deceased, Rs. 20,000 for shock and pain and Rs. 2,000 for medical and other expenses.
Plaintiff No. 7 now respondent No. 6 claimed Rs. 70,000 as compensation for loss of income and permanent disability besides Rs. 10,000 for pain and shock and Rs. 2,500 for medical and other expenses. In the written statement filed by defendants Nos. 1 and 2 (now appellant and respondent No. 7) respectively in the said suit, it was denied that respondent No. 7 (defendant No. 1) was negligent. It was further pleaded, that in fact the accident took place on account of the negligence of the deceased, who was driving the scooter at the time of the accident. It was further averted in the said written statement, that defendant No. 1, after giving proper signal, stopped his car at the usual spot, to drop his children, the place, where later the accident occurred. It was further alleged in the said written statement, that after dropping the children, when defendant No. 1 had just started his car and was about to put the car in motion, the car was hit from the back by scooter, which was driven by A min Yousuf Nizami,, the deceased. It was further asserted, that defendant No. 1 took both the inured persons to the Civil Hospital, where they were admitted and the matter was reported to the Police, who investigated the same and found the driver of scooter negligent. It was submitted that in the circumstances, the accident was caused by the gross negligence and reckless driving of the scooter by the deceased, as the scooter rammed into the rear of car, when the car was stationary. Defendant No. 1 denied the knowledge about the nature of injuries received by the deceased and respondent No. 6 (plaintiff No. 7) and as such, he did not admit the same.
4. Defendant No. 2 (now appellant), the Insurance Company, filed a written statement in the said suit, which was identical to the written statement of defendant No. 1. On the basis of above pleadings of the parties, the Hon'ble Single Judge framed the following issues:-
(i) Whether the late Amin Yousuf Nizami and plaintiff No. 7 met with an accident as a result of reckless and negligent driving of defendant No. 1 as alleged?
(ii) Whether the plaintiffs are entitled to compensation as claimed?
(iii) Whether the suit is bad for misjoinder of parties and causes of action ?
(iv) What should be the decree?
5. Before the learned Single Judge, the plaintiffs examined five witnesses, whereas defendants examined three witnesses. The learned Judge after taking into consideration the evidence adduced by the parties as well as the arguments advanced by the learned counsel for both the sides, decided all the issues in favour of the plaintiffs and decreed the suit for a sum of Rs. 1,,50,000 in favour of plaintiffs Nos. 2 to 6 and for a sum of Rs. 70,000 in favour of plaintiff No. 7.
6. The appellant above-named, being aggrieved by the judgment dated 8-12-1980 of the Hon'ble Single Judge, has filed the above appeal, on the grounds mentioned in the memo. Of appeal, whereas defendant No. 1, the owner of the motor car in the said suit, has filed no appeal and as such, he has been joined as respondent No. 7, in the above appeal, by the appellant, who is an Insurance Company, with whom the motor-car was insured.
7. At the outset attention of the learned counsel for the appellant was drawn to section 96 of the Motor Vehicles Act, 1939, according to which, the appellant was entitled to raise only those defences which are set out in clauses (a), (b) and (c) of subsection (2) of section 96 of the said Act and as such he was called upon to show, how the above appeal filed by the appellant, who is the Insurance Company, was maintainable on the grounds mentioned in the memo. Of appeal, as the said grounds relate to the merits of the case and/or unconnected with the grounds, which the appellant as the Insurance Company is entitled to raise under section 96 of the Motor Vehicles Act, 1939. The learned counsel for the appellant submitted, that as the decree in question has been passed jointly and severally against both the defendants, the appellant was entitled to file the above appeal on all the grounds mentioned in the memo. Of appeal, in spite of section 96 of the Motor Vehicles Act, 1939. We are afraid, we cannot agree with this contention of the learned counsel as the provisions of section 96 of the Motor Vehicles Act, 1939 are very clear and the Insurance Company under the said section can only raise those defences, which are set out in the said section. In order to appreciate the defences available to the appellant, we quote below the provisions of section 96 which reads as follows :- "96.-(1) If after a certificate of Insurance has been issued under subsec--tion (4) of section 95 in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required, to be covered by a policy under clause (b) of subsection (1) of section 95 (being a liability covered by terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurrer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of cost and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given, the insurer bad notice through the Court of the bringing of the proceeding, or in respect of any judgment so long as execution is stayed thereon, pending an appeal, and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :-
(a) That the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of Insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of section 105, or
(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle-
(a) for hire or reward, where the vehicle on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a public service vehicle or a goods vehicle, or
(d) without side-car being attached, where vehicle is a motor-cycle, or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been qualified for holding or obtaining a driving licence during the period of disqualification ; or
(iii) a condition excluding liability for injury caused or contributed by conditions of war, civil war, riot or civil commotion ; or
(c) That the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.
(2) (a) Where any such judgment as is referred to in subsection (1) is obtained from a Court in a reciprocating territory and in the case of a foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908, conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938, and whether or not he is registered under the corresponding law of the reciprocating territory) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in subsection (1) as if the judgment were given by a Court in Pakistan."
8. The provisions of the above section clearly lay down, that the Insurance Company shall be bound by the decree, that may be passed again the insurer, as if the judgment was given by Court against it. This vie of ours is fully supported by the case of Mls. Rah-e-Manail Transport and others v. Muhammad Amin PLD 1963 Kar. 182in which it has been held "that the insurer can of course, raise only those defences which are set out in clauses (a), (b) and (c) of subsection (2) of section
96. A glance of them will show, that they are all defences of fact and law, namely, cancellation of the policy of the insurance, breach of certain conditions and nullity of the policy of the insurance owning, suppression or misrepresentations of material facts. In view of this, in our opinion, the present appeal filed by the appellant on the grounds mentioned in the memo. Of appeal is not at all maintainable, as these grounds are not available to the appellant, who is an Insurance Company, for challenging the judgment and decree dated 8th December, 1980 of the Hon'ble Single Judge. As far as ground No. 1 mentioned in the memo. Of appeal is concerned, the liability of the Insurance Company is only limited, to the terms and conditions of the insurance relating to the insured amount. The learned counsel for the appellant has failed t point out that the appellant's liability under the policy of insurance in question, is less than the decretal amounts in question. In the absence of this, we are of the considered opinion, that the above appeal is not at all maintainable, on the grounds mentioned in the memo. Of appeal.
9. Even on merits, we find that that Hon'ble Single Judge has taken into consideration all the evidence that was adduced before him and has appraised the said evidence fully and thereafter, for the cogent reasons given by him in the said judgment, he has decreed the suit as herein above-mentioned.
10. The Hon'ble Single Judge has taken into consideration both the versions, of appellant and defendant No. 1 on the one hand and of the plaintiffs in the said suit,' on the other hand and has discussed the evidence adduced in this connection, at great length, in his judgment and has come to the conclusion that the version given by plaintiff No. 7 (respondent No. 6 in the above appeal) was more plausible and as such he came to the conclusion that the accident was caused due to rash and negligent driving of the defendant No. 1 (respondent No. 7). We see no reasons to disagree with the conclusion arrived at by the Hon'ble Single Judge on this issue, as the same is based on cogent reasons after due appraisal of all the evidence, that was laid by both the, parties on this issue.
11. As far as the quantum of damages is concerned, the Hon'ble Single Judge has relied upon the evidence of the widow of the deceased, on the basis of the age of the deceased, as given by the said widow, in her statement on oath as well as on Exhs. 9/i and 9/2, the income-tax assessment orders of the deceased, produced by his widow and has accepted the income of the deceased at Rs. 1,500 per month which is fully supported by Exh. 9/1 and 9/2 and there--after having come to the conclusion, that deceased was spending at least Rs. 1,000 per month on his widow and his minor children, calculated the damages due and payable to plaintiffs Nos. 2 to 6 only in the said suit, having come to the conclusion that plaintiff No. 1, the mother of the deceased w44not being supported by the deceased, no decree in her favour was passed.
12. As far as the damages awarded to plaintiff No. 7 in the said suit, (respondent No. 6 in the above appeal), the Hon'ble Single Judge has relied upon the evidence on oath of the said plaintiff, that he was earning Rs. 2,000 per month, which statement of the said plaintiff was not challenged in his cross-examination and having taken into consideration the medical evidence produced by the said plaintiff about the injuries, which shows, the said plaintiff remained under treatment for about 7 months, which evidence was also not challenged in his cross-examination, the Hon'ble Single Judge came to the conclusion, that the said plaintiff according to his statement continues to have constant pain, which was even present when he was giving evidence, and as such further came to the conclusion, that he has suffered a permanent dis-, ability, as he cannot according to his statement work in the same manner as he used to do before the accident and awarded him a sum of Rs. 70,000. This finding of the Hon---ble Single Judge is also based on cogent reasons, on the basis of the evidence, that was adduced before him and we see no reasons to interfere with these findings of fact as well.
13. Further it may be noted that respondent No. 7 (defendant No. 1 in the said suit) has filed no appeal against the judgment and decree in question.
14. The learned Advocate of the appellant further submitted, that above being 1st appeal, the same ought to be admitted as a matter of course and in this connection, he relied upon the case of Abid Hussain v. Mst. Afsar Jehan Begum and another PLD1973SC1In our opinion this decision of the Hon- --ble Supreme Court relates to dismissal of 1st regular appeal in limine, under the provisions of Order XLI, rule 11, C. P. C. And not in respect of an appeal under the provision of section 3 of the Law Reforms Amendment Act, 1972, which is a High Court Appeal, against the judgment and decree of the Hon---ble Single Judge of this Court. Further the learned Advocate for the appellant has not pointed out any consistent practice of this Court, to admit appeals against the judgment and decree of the Hon'ble Single Judge of this Court., as a matter of course, for regular hearing. In view of this in our opinion the above-cited ruling is not at all applicable to the above appeal.
In view of our above conclusions and findings we find no force in the above appeal, which is dismissed in limine.