AJMAL MIAN, J.-This appeal is directed against the judgment/decree dated 1-12-1975 passed by a learned Single Judge of this Court in Suit No. 171/69.
The brief- facts leading to the finding of the above appeal are that respondent No. 1 was going on scooter as pillion, ride driven by his friend Najmul Islam on-Jehangir Road.. The scooter was coming from the direction of Gurumandir side and going towards Tinhatti. It seems that respondent No. 2 while driving Bus No. KAU-9282 coming from the side of Tinhatti towards Gurumandir overtook another bus and is that process came on the wrong side of the road. It seems that the right side bumper of the 'bus struck against the scooter with the result that both the driver and the respondent No. 1 were thrown of from the scooter on the road. Both of them received injuries. Respondent No. 1 had sustained compound fracture of the right leg which eventually resulted in its amputation from the thigh. Respondent No. 1 had filed the above suit for the recovery of Rs. 98,400 the break up of which is given in para. 11 of the plaint, which reads as follows :- "II. That the plaintiff assess the damages as given below
1. Special damage on account of medical expenses2,000-00
2. Amount spent on special diet.1,000.00
3. Loss of income from 11-4-1968 to the date of filing of this case (about one year).5,400.00
4. Compensation for loss of leg and earning capacity.70,000.00
5. Compensation for mental shock suffering and for bodily pains and for shortening expectancy of life.20,000.00 98,400.00
2. The above suit was resisted by the owner of the bus as well as the Insurance Company, i. e. Respondent No.
3. On the basis of the pleadings the learned Single Judge framed 5 issues. Respondent No. 1 in support of the suit claim examined himself, his employer Mr. Saeed Abdullah Haroon, driver of the scooter Najmul Islam and Shabbirul Hassan for production of X-rays and the reports etc. And Muhammad Islam an eye-witness, whereas the appellant examined Abrar Muhammad Qureshi, Riaz Hussain and Chawan. Mr. Najmul Islam was recalled by Respondent No. 3 as their witness in order to prove that he had no driving licence. The learned Single Judge by his judgment under appeal decreed the suit as claimed. The appellant being aggrieved by the above judgment/decree has filed the above appeal The above appeal was admitted only on the ground of the quantum of damages and, therefore, the learned counsel for the appellant has confined his arguments on the above question.
3. (a) It has been contended by Mr. Rizvi, learned counsel for the appellant that there is no reliable evidence on record to prove the various items of damages claimed by respondent No. 1. On the other band, it has been urged by Mr. Mubarak Hussain Siddiqui, learned counsel for respon--dent No. 1 that since the evidence of respondent No. 1 on the quantum of damages remained un-challenged, the learned Single Judge could decree the suit on the basis of the above evidence in the absence of any evidence in rebuttal.
Mr. Nur Muhammad appearing for respondent No. 3 has urged that the insurance policy was taken by Mils.
National Bank of Pakistan and not by the appellant and, therefore, the Insurance Company was not liable under the Insurance Policy.
(b) Reverting to the contention of Mr. Rizvi that there was no reliable evidence on record to prove the various items of damages, it may be pertinent to observe that item No. 1 relates to the special damages on amount of the medical expenses, namely, Rs. 2000. Item No. 2 .Pertains to the amount spent by respondent No. 1 on the special diet Rs. 1000 during his treatmentitem No. 3 is the loss of income from 11-4-1968 to the date of filing of the suit for a period of one year amounting to Rs. 5,400 ; item No. 4 relates to the compensation for the loss of earning capacity amounting to Rs. 70,000 and item No. 5 being the amount of Rs. 20,000 claimed on account of the compensation for mental shock and suffering and for the bodily pain and for shortening of expectancy of life.
(i) As regards item Nos. 1 to 3, it will suffice to observe that Respondent No. 1 was the person to know how much amount was spent on the above three items, and, therefore, he could depose on oath in support of the above items. It is an admitted position that respondent No. 1 remained as an indoor patient in the hospital for nearly 6 months. Keeping in view the above period, in our view the amount of Rs. 2000 claimed on account of the medical expenses is very reasonable amount. Similarly the amount of Rs. 1,000 spent on the special diet appears to be on the low side. Furthermore, the loss of income for a period of one year at the rate of Rs. 450 namely, Rs. 5,400 also seems to be reasonable. It may be observed that respondent No. 1 was not cross- examined on the above items, and there is nothing on record to conclude that these figures were not genuine/reasonable. In the absence of any evidence in rebuttal, in our view the learned Single Judge acted in accordance with law in accepting the above figures.
(ii) With reference to Item No. 4 being the amount of Rs. 70,000 claimed by Respondent No. 1 as compensation for the loss of earning capacity, it may be observed that there is no dispute on the factum that respondent No. 1's right side leg was amputated from thigh. It has come on record through the evidence of P. W. Saeed Abdullah Haroon that at the time of the accident, respondent No. 1 was employed as an Assistant Manager in M/s. Eastern studios Karachi, and was drawing a salary of Rs. 450 p. m. Respondent No. 1's above job involved lot of running inside and outside the studio according to the evidence. Mr. Saeed Abdullah Haroon in his deposition has also stated that according to his estimate respondent No. 1 would have been drawing a salary about Rs. 2,500 in December, 1974 when the above witness was examined. It may be pertinent to mention that this statement was made nearly after more than 6J years from the date of the accident. The learned Single Judge has calculated the loss of earning capacity on the basis of Rs. 200 per month and according to the evidence on record in respondent No. 1's family the expect--ancy of life is about 70/75 years, whereas at the time of the accident age of the respondent No. 1 was about 6 years. In this- view of the matter, the learned Judge, in our view has rightly observed that respondent No. 1 would have been entitled to claim about a sum of Rs. 96,000 as compen--sation for the loss of earning capacity because of the amputation of the right side leg. i. e. Rs. 200 x 12 x 40-96,000. However, the learned Single Judge has awarded a sum of Rs. 70,000 only as respondent No. 1 had claimed only the above amount in the suit. In our view, no exception can be taken to the above figure which seems to be reasonable.
(i.e) Reverting to the last item, i. e. Rs. 20,000 being the amount of compensation of mental shock, suffering.
And for bodily pain and for shorten--ing of expectancy of life, it may be observed that there cannot be any definite evidence on the quantum of damages for the above items. In this connection a reference may be made to the case of Sri Man Matha Nattkuri v. Moulvi Muhammad Mokhlisur Rehman's, (PLD 1969 SC 565) which was a case of fatal accident in which Hamoodur Rahman, C. J. While dealing with the question of assessment of quantum of damages made the following observations "If this distinction is kept in mind, it will not be difficult to appreciate that under section 1 the pecuniary loss will be loss resulting to the parties beneficially entitled as consequence of the death. The Act itself does not, however, lay down any principle for calculating the measure of such loss but an estimate has still to be made by the Court which has also to apportion the sum so determined between the beneficiaries proportionately, according to the nearness of their relationship and the interest which each of them had in the life of the deceased. Under this head legal liability alone is not the test of the loss. But even the reasonable expectation of pecuniary advantage which might have been derived from the deceased had he remained alive, may be taken into account, and damages given in respect of that expectation.
Assessment of damages in such a case must, therefore, necessarily be to some extent of a rough and approximate nature based more or less on guess work, for it may well be impossible to accurately determine the loss which has been sustained by the death of .a husband, were, parent or child."
(c) Reverting to the contention of Mr. Noor Muhammad that the Insu--rance Policy was not in favour of the appellant but. Was in favour of M/s. National Bank of Pakistan and, therefore, Respondent No. 3 is not liable under the insurance policy, it may be pertinent to refer to Exh. 7/1, which is a certificate dated 17-5-1967 issued under the Motor Vehicle Act, 1939 in respect of the bus involved in the accident for the period commencing from 10-6-1967 to 9-6-1968. It may be pertinent to reproduce column 2 of the above certificate, which reads as under "2. Name and address of Insured : M/s. National Bank of Pakistan Mr. Azizullah Qureshi, 201 PTB Colony Nawab Doulah Street.-- Karachi. "
It may be observed that the above Insurance Policy was taken by ~M/s. National Bank of Pakistan on account of Mr. Azizullah Qureshi, 201, P. T. B. Colony, Nawab Dou?a Street, Karachi, 1. e. On account of the appellant.
The above entry clearly indicates that M/s. National Bank of Pakistan was merely acting as an agent and in fact the insured was the owner of the bus. However, it was urged by Mr. Nur Muhammad that M/s. National Bank of Pakistan being the pledge of the bus had taken this policy order to protect their interest as such. His further contention was that under section 94 of the Motor Vehicles Act, 1979, the liability is of the person who drives or allows other person to ply the vehicle on the road. In our view the above contention is devoid of any force. The insurance certificate has been issued in compliance With the provisions of the Motor Vehicles Act 1939 in order to cover inter alia the third party risk as the Policy was a comprehensive policy. There is also no merit in the contention of Mr. Nur Muhammad that under section 94 of the Moto Vehicles Act the liability is of the person driving vehicle or allowing some one to ply the vehicle on the road. In this connection, it may be pertinent to observe- that M/s. National Bank of Pakistan were the pledge of the bus in question. They granted a loan against the security in the form of the pledge of the bus in question without possession. The very fact that M/s. National Bank of Pakistan had not obtained the possession of the bus indicates that the appellant was plying the bus on the road with consent and knowledge of M/s. National Bank of Pakistan and, therefore, section 94 of the Motor Vehicles Act is very much applicable to the instant case.
4. For the aforesaid reasons, we do not find any merit in the appeal and the same is dismissed with costs.