A. R. SHEIKH, J.-This appeal in forma pauperis has been, filed by Din Muhammad parent, Mst.
Khadija Begum widow. Irshad Ahmad son anal Mst. Jamila Akhtar daughter of Khushi Muhammad deceased; who was killed by having been overrun by Bus No. PBL 3243 belonging to respondent No. 2 driven by Faqir Muhammad respondent No. 1 on the 12th of July 1955, while he (Khushi Muhammad) was driving a tractor from Gujranwala to Lahore and the said bus coming from Sialkot struck against the tractor from behind near Kala Shah Kaku Rice Farm. Respondent No. 1 was convicted by the criminal Court and sentenced to six months' rigorous imprisonment and a fine of Rs. 100.00 for rash and negligent driving under section 304-A, P. P. C and three months' rigorous imprisonment under section 338, P. P. C. Both the sentences were to run con--currently. His appeal before the Additional Sessions Judge failed. However, the complainant's revision petition for enhancement of sentences also failed in this Court. The survivors of Khushi Muhammad, already referred to above, including his mother Mst. Begum Jee (since died), brought a suit in forma pauperis under the Fatal Accidents Act (XIII of 1855) for compensation for a sum of Rs. 50,000.00 against the said two respondents. Along with the suit an application was filed praying that the factum of the claim proceedings may be notified to the insurer company (respondent No. 3), as envisaged in section 96(2) of the Motor Vehicles Act, 1939. The suit was resisted on all grounds and the following issues were framed, which fully reflect the pleadings of the parties :-
(1) Whether the deceased was a first rate mechanic and tractor operator and was drawing Rs.
400.00 as pay with allowances ? O. P. P.
(2) Whether the fatal accident on 12-7-55 near Kala Shah Kaku Rice Farm resulted in the death of Khushi Muhammad deceased as a result of rash and negligent driving of Bus No. PBL 3243 from Gujranwala to Lahore by defendant No. 1? O. P. P.
(3) Whether the suit has not been filed by all the family members of the deceased Khushi Muhammad and if so, to what effect ? O. P. D. No. 2.
(4) Whether the plaintiffs are entitled to the damages assessed in paras. 13 to 15 on the grounds stated therein ? O. P. P.
(5) If issue No. 2 is found in favour of the plaintiffs, is defendant No. 2 not liable for rash and negligent driving of respondent No. 1, who allegedly violated instructions of defendant No. 2 and is also not liable for damages on account of the vehicle being insured with defendant No. 3, who alone is liable for the same ? O. P. D. No. 2.
(6) Is defendant No. 2 entitled to special costs under section 35-A, C. P. C. ?
(7) Relief what and against whom ?
After the close of evidence of the parties, respondent No. 3 made an application for amendment of its written statement to raise the plea of limitation but on the argument of the parties that it was a legal plea and could be raised without amending the written statement, no formal amendment of the written statement was considered necessary.
2. Under issue No. 1 the finding of the trial Court was that the deceased was not getting either Rs.
300.00 or Rs. 400.00 at the time of the accident and his pay was Rs. 100.00 as he was only a tractor driver. Issue No. 2 was found against the plaintiffs and it was held that the accident was not the result of rash and negligent driving of the bus by defendant No. 1. Issue No. 3 was found for the plaintiffs. Similarly issue No. 6 was decided against defendant No. 2. On the question of limitation raised by respondent No. 3, during the course of arguments, it was held that because an application for impleading respondent No. 3 had been made within time, the actual bringing of the said party on the record after the expire of the period of limitation, did not render the suit as barred by time. In view of the trial Court's finding on issue No. 2, issues Nos.4 and 5 were left undetermined, with the result that the suit was dismissed with no order as to costs.
3. The appellants feeling aggrieved have come up to this Court in appeal and that findings of the Court below on issue No. 2 have been the subject of strenuous argument on both sides, In addition, learned counsel for the insurer company has raised the preliminary plea that the date of accident resulting in the death of Khushi Muhammad being the 12th of July 1955, the impleading of insurer company at its own request or, the 5th of January 1957, rendered the suit against the insurer as beyond time by virtue of Article 21 of the Limitation Act, wherein the terminus a quo is the date of death. This preliminary objection has been met by learned counsel for the appellants with reference to the provisions of sections 94, 95 and 96 of the Motor Vehicles Act, 1939. It is argued that by virtue of subsection (1) of section 96 the insurer company is bound to pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if lie were the judgment-debtor, in respect of the liability, together with any amount payable in respect of cog is and any sum payable in respect of interest ors that sum by virtue of any enactment relating to interest on judgments, and under subsection (2) of the said section, such sum is payable by an. Insurer in respect of any judgment only it before or after the commencement of the proceedings is which the judgment is given the insurer had notice through the Court of the brining of the proceedings. It is maintained that it was with a view to giving the insurer company notice under section 96(2) that the informa--petition about insurance of the vehicle involved in the accident was laid by the plaintiffs before the trial Court and in compliance with the said notice the insurer company came to be impleaded as a party to the suit. It is argued that sections 94 to 96 were enacted to give protection to third parties against accidents on roads by vehicles plied by road transporters or other vehicle owners and at the same time the insurers were given the between of watching their interest before the Court in any acting brought by the victim of the accident, but only to the extent indicated in clauses (a) and (b) of subsection (2) of section 96 and. If the objection of limitation is upheld, each and every action brought under the Fatal Accidents Act can be defeated despite a prayer on behalf of the plaintiffs having been made within for notifying the filing of such proceedings to the insurer company, by deliberate non- appearance till such time the period prescribed by Article 21 of the Limitation Act expires and that is no the intention of the Legislature.
4. Independently of section 96, the insurer company has no right to be impleaded as a party to the action by the injured person against the insured causing injury and it bang a statutory right is exercisable only within limits of the relevant provision of the statute. Therefore, the only defences open to at insurer are those specified in section 96(2) and cannot be added to. Further, the suit as originally brought being properly constituted, the addition of defendant No. 3 of its own volition, in pursuance off the notice issued to the said defendant on application made along with the plaint for purposes of section 96(2) of the Motor Vehicles Act, would not render the suit as beyond limitation for the reason that defendant No. 3 being an unnecessary party, its joinder after the statutory period had expired did not prevent the suit as originally constituted from being within time. See Kishan Parshad and others v. Har Narain Singh and others (38 I A 45). In any case invoking the maxim `nunc pro tunc', the addition must be deemed to have effect from the date of the application of the plaintiffs. South India Industries Ltd. v. Mothey Narasimha Rao (AIR 1927 Mad.
468) refers. We accordingly overrule the preliminary objection and hold that the plaintiffs are not to be non-suited on the plea of limitation.
(5) Learned counsel for the appellants has taken us through the evidence of the various witnesses produced by the parties in support of their respective cases. Sakhi Muhammad (P. W. 2) deposed that Khushi Muhammad was his employee as a mechanic driver and that he was drawing Its.
300.00 per mensem, in support of which he has produced the wages register Exh. P. 1 of employees of his factory and driving licence Exh. P. 2 of Khushi Muhammad deceased. He has also proved the signatures Exh. P. 2/1 of Khushi Muhammad on the driving licence Exh. P.
2. He has deposed that he recognised the signatures of Khushi Muhammad on various receipt items in Exh. P.
1. The next witness is Inayat Ullah (P. W. 3), who was one of the passengers of the ill-fated bus on the day of the accident. He has deposed that the bus was coming from Sialkot to Lahore via Gujranwala and that near Kala Shah Kaku Rice Farm, when the tractor driven by Khushi Muhammad was going ahead, the speed of the bus was 50 to 55 miles per hour and the driver while speeding with his bus did not use its horn with the result that the bus struck from behind against the tractor. Khushi Muhammad deceased was thrown off the tractor and was run over by the bus, which also turned turtle thereafter. This witness further deposed that he was treated for his injuries and was paid a sum of Rs. 700.00 by the owners of the bus (defendant No. 2) by way of compensation for the injuries sustained by him. Next in the series is Kale Khan (P. W. 4), who lodged the first information report, Exh. P. W. 6/3, of the accident. He vividly describes the scene of the accident witnessed by him and how Khushi Muhammad was run over and was dragged up to 40 feet by the speeding bus. The father of the deceased, Din Muhammad plaintiff No. 1, has also appeared as his own witness and has placed or? Record copies of the judgments of the trial Court in the criminal case as also of the Additional Sessions Judge as Exhs. P. W. 6/1 and P. W. 6/2. He has deposed that his son was earning a of sum of Rs. 300.00 a month; that he was a mechanic and a driver; that in 1950 he had gone to British Borneo, where he was getting Rs. 500.00 per month; that in 1955 the deceased had gone to Bihar (India) where he earned Rs. 450.00 a month as salary. The letter received by the deceased from the Brigadier, who had asked him to go there, was placed on the record and marked as `A', the same having not been formally proved. The witness stated that the deceased was 29 years of age at the time of his death; he has left a son and a daughter aged about seven years and two years, respectively; he has also left him surviving a widow, an aged mother; the age of the widow at the time of the accident was about 25 years; the entire family was dependent on the deceased and the loss sustained by the family in the form of maintenance, clothings, education, etc., was in the vicinity of a lac of rupees, but he had only demanded Rs.
50,000.00. The defendants have also produced as many as four witnesses, in addition to defendant No. 1 as his own witness. D. W. 1 is Mirza Muhammad Aslam, a cloth merchant of Gujranwala, he deposed that on the day of occurrence he travelled by the bus in question; that the tractor driver, a young man, was driving the tractor in a zigzag manner in the middle of the road and at the time the bus overtook the tractor, the latter swerved towards the right resulting in the accident. He has not stood the test of cross-examination. He, however, could not deny that one of the passengers injured was Inayat Ullah (P. W. 3). Faqir Muhammad (D. W. 2) defendant, stated that a truck was leading him and when the truck was overtaking the tractor, he saw that the right wheel of the tractor was wobbling; when he came abreast of the tractor, its right wheel separated from it and in order to save his bus from striking against the wheel, he took it to the right, with the result that the bus began to run on the kacha berm, leaned towards the right and the separated wheel of the tractor struck against it and the tractor driver was run over by the tractor. He admitted in cross- examination that the tractor had fallen down on the left of the road. D. W. 3 is Ch. M. A. Kalim, Secretary, District Transport Co-operative Society (defendant No. 2). He stated that pay of a good mechanic of his transport company was from Rs. 150.00 to Rs. 250.00 per month and such a mechanic must have fifteen years experience. Next comes D. W. 4 Abdul Latif, who placed the insurance policy Exh. D. 1 of the vehicle, involved in the accident, but on an objection raised, the document was returned by the Court. D. W. 5 Muhammad Aslam has contradicted both Faqir Muhammad (D. W. 2) and Mirza Muhammad Aslam (D. W. 1). He says that he was travelling by the bus in question; when the bus was near the Rice Farm, a truck was seen following the bus and the tractor was leading the bus; the truck which was behind the bus overtook the bus as well as the tractor; when the truck had overtaken the tractor, the tractor driver thought that no other vehicle was behind him and the driver of the bus while passing the tractor drove the bus towards the right side; the rear wheel of the tractor came out and the tractor fell down. He, however, could not say which portion of the bus had struck against the tractor. He admitted that the bus fell down towards its right. He further admitted that only one passenger of the bus was injured. He deposed that when they came out of the bus, they saw the tractor driver under the tractor and he could not say whether he was alive or dead. From the tenor of his discrepant statement, he appears to be a chance witness.
6. Ordinarily it is for the plaintiff to prove facts from which the proper inference is that the injury complained of was the result of the defendant's negligence and not of his own. It is not, however, necessary for him in the first instance to prove that there was no negligence on his part, unless from the material placed before the Court, the inference that lie was negligent himself could as properly be drawn. If, however, the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence or where the event charged as negligence tells its own story of negligence on the part of the defendant, the story so told being clear and unambiguous, the maxim res ipsa loquitur applies. Bearing these principles in mind, we find that the testimony of various witnesses produced by both the parties positively establishes that the accident took place because of the negligence of defendant No. 1. The statements of Inayat Ullah (P. W. 3) and Kale Khan (P. W. 4) two independent witnesses, are clear enough to disprove the plea of contributory negligence attempted to be established by discrepant and highly doubtful evidence of the D. Ws. In view of the positive evidence of negligence on the record, we hold in disagreement with the judgment of the trial Court that the accident had been due to the negligent and rash driving of defendant No. 1 and not because of contributory negligence on the part of the deceased.
7. Next comes the question of quantum of compensation. It has been argued by learned counsel for the insurer company with whose arguments learned counsel for defendants Nos. 1 and 2 has associated himself, that there is no satisfactory evidence of income of the deceased at the time of his death and the state--ment of P. W. 2 Sakhi Muhammad, with whom the deceased was stated to have been employed, is not a sure basis. It was argued that P. W. 2's statement is rebutted by documents Exhs. P. 1 and P.
2. It has been asserted that at best the deceased was a driver and not a mechanic. It has also been argued that in view of the fact that Sakhi Muhammad (P. W. 2) has admitted that he is illiterate, he cannot be considered to be in any manner helpful in proving the signatures of Khushi Muhammad deceased on various entries of receipt of wages in the wages register Exh. P.
1. Regardless of the various technical defects pointed out by learned counsel for the defendants in the testimony of P. W. 2, the statement of this witness and that of P. W. 6 to the effect that the deceased was not only a driver holding a regular licence (Exh. P. 2) but also a mechanic go unrebutted. Therefore, even if we consider the amount of Rs. 300.0 ? Per mensem mentioned in Exh. P. 1 as wages of Khushi Muhammad at the time of his death on the high side, taking into consideration the statement of D. W. 3, the Secretary of defendant No. 2, that a mechanic gets Rs.
150.00 per mensem in the tine scale of Rs. 150 to Rs. 250 in his company, it can be safely said that a young man skilled in the trade, who had been earning Rs. 400.00 to Rs. 500.00 in days prior to Partition of the Indo-Pakistan sub-continent could have safely been earning at least Rs. 200.0') per mensem, if not Rs 300.00. We, therefore, hold that the earning of the deceased at the time of the accident was at least Rs. 200.00 per mensem.
8. The next objection raised on behalf of the defen--dants that deprivation of pecuniary benefits has not been proved by the various plaintiffs and the widow of the deceased has not appeared and the amount claimed is highly inflated needs no serious consideration. We find that the deceased has left behind an aged father nearing 60, a mother equally aged (63 according to the plaint) who has died after the dismissal of the suit and before the filing of the appeal before this Court, a young widow aged 25 years, a son aged 7 years and a daughter aged 2 years. There is no rebuttal on the record of the statement or Din Muhammad (P. W. 6), the father of the deceased.
Keeping in view the fact that the deceased was the only bread--winner of the family, there is no denying the fact, especially in absence of any rebuttal whatsoever, that all the persons named in the plaint were dependent on the deceased and are to be considered to be beneficiaries for the purposes of the action under the Fatal Accidents Act. That quantum of damages because of death of the plaintiff's son, husband or father in an .Accident cannot be awarded merely on the basis of expectation of l the life of the deceased and the assessment is to be made for the period for which the plaintiff is expected to live, is no doubt a sound rule propounded by various judicial authorities on the question, and a familiar quotation putting all relevant factors to be considered dealing with the case of death of a working husband are to be found in Lord Wright's speech in Davies v. Powell Duffryn Associated Collieries Limited (1942 A C 601), which may be reproduced with advantage :- " The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or extended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt."
[When a man who is both a husband and a father is killed, it is usual first to calculate the family dependency and then apportion the resulting figure between the wife and each child sepa--rately keeping in view the share of the, deceased's parents as well, where he supported them too]. Here, we have the aged father, who, according to learned counsel for the insurer company, is expected to live for another 10 to 15 years. The wife being quite young and there being no indication on the record before us of her likely re-marriage is expected to live till the age of at least 60 years and the children till such time they are actually settled in life. All these factors have to be taken into considera--petition. Now calculating the earning capacity of the deceased at Rs. 200.00 per mensem and deducting the benefit which was utilised by the deceased himself, namely, one- fourth of his income, we are left with a sum of Rs. 150.00 and that has to be ultimately distributed amongst the surviving dependants, exclud--ing the mother (who has since died), as follows:- Rate per mensem Rs.
Expectancy of life or period tillattainmentof majority Amount Rs.
Father 30.00 10 years 3 Widow 30.00 35 years 12 Child (7 years)
30.00 11 years 3 Child (2 years)
30.00 16 years 3 Father 30.00 10 years 12 Total 25,920.00