1. ' MUHAMMAD HALEEM, C.J.-- Leave to appeal was granted to consider whether the High Court was in error in holding that the maximum liability of the Insurance Company was limited to Rs, 20,000 under section 95(2) of the Motor Vehicles Act, 1939, in the context of the fact that vehicle involved in the accident was a private vehicle.
2. ' A suit was instituted on 17th of July, 1977, in the High Court of Sind on the original side for the recovery of Rs, 2,40,000 as compensation for the loss of life of one Abdul Aziz Butt who was hit by the vehicle bearing No, KCM 652 belonging to the appellant ,while crossing the road near Liaquat College on National High Way, Karachi, on 12th of June, 1976. He was said to be 45 years of age and enjoying good health at the time of the said accident and his income was stated to be Rs, 1,000 per month with better future prospects.
3. ' The appellant while admitting that the vehicle belonged to it pleaded that the suit was time- barred and that as framed it was bad in law. It was further pleaded that the vehicle was not driven rashly and negligently and that it was the deceased who was at fault who suddenly appeared from behind the standing bus in an attempt to cross the road and came before the vehicle and was knocked down before he could succeed in his attempt to cross the road. Liability was denied not only under section 66 of the Port Qasim Act 1973 but also because it was insured with respondent No, 1 under Policy No, NIF/CV-883/75 for the period from 9th of August, 1975 to 8th of August, 1976 as per certificate of insurance bearing No, NIF/CV/9356/75. Respondent No, 2 remained ex parte and did not file any written statement. Respondent No, 1, however, contested the suit and contended that the claim was barred by time and that they were not legally liable to compensate respondents in the absence of any contract or under the Law of Ports. Liability was further denied on the ground that as the respondents Nos. 3 to 14 had failed to file the insurance policy or the certificate of insurance, no claim thereunder could be entertained. Lastly, it was pleaded that as the vehicle involved in the accident was a commercial vehicle, therefore, the liability of respondent No, 1 was restricted to Rs, 20,000.
4. "Whether any and if so which defendant of the three is liable to pay the compensation and to what extent?"
5. ' Amongst the issues framed, issue No, 5 is material and is worded as under: ' The High Court in its original jurisdiction held that the vehicle was driven negligently and that there was no contributory negligence on the part of the deceased. Assessing the compensation payable the High Court held that respondents 3 to 14 are entitled to recover Rs, 78,456. Out of this amount respondent No, 1 was held to be liable to the extent of Rs, 20,000 with 9% simple interest thereon from the date of the suit till payment under section 95(2) of the Motor Vehicles Act, 1939, and the balance of Rs, 58,456 with 9% simple interest thereon from the date of the suit till payment was payable jointly and severally by the appellant and respondent No,
2. The suit was, accordingly, decreed on 28th April, 1980.
6. ' The appellant went in appeal and only two questions were raised before the Division Bench. The first was in regard to the limitation and the second related to the liability of respondent No, 1 to pay the entire compensation. On both the questions, the Division Bench held against the appellant.
7. While disposing of the question of liability, the High Court held that its extent was limited by section 95(2)(b) of the Motor Vehicles Act, 1939, as it was kept alive by the repealing Ordinance namely the West Pakistan Motor Vehicles Ordinance, 1965. It further placed reliance on two precedents of the same High Court wherein the extent of the liability was considered and held to be Rs, 20,000.
8. By section 122 of the Motor Vehicles Ordinance, 1965, as amended by the West Pakistan Motor Vehicles (Amendment) Ordinance, 1970, the whole except Chapters VII and VIII and section 125 of the Motor Vehicles Act, 1939, was repealed. (See Schedule XIV). Chapter VIII of the Motor Vehicles Act, 1939, relates to the insurance of motor vehicles against third party risks. Section 95 therein by its subsection (2)(b) prescribes the limit of liability to Rs, 20,000 in case where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment.
9. ' The letter dated 11th of August, 1975, from the Mechanical Engineer of Muhammad Bin Qasim Port Authority addressed to the National Insurance Corporation, will show that comprehensive insurance policies of 28 vehicles including the involved vehicle -KCM 652, were taken from the respondent No, 1 which, of course, included third party risk. The vehicle was described as a pick-up and the liability was limited to Rs, 20,000 under the insurance policy. It was being used for the carriage of appellant's employees and fell within the category of a vehicle for the carriage of persons by reason of or in pursuance of a contract within the meaning of the expression in subsection (2)(h) of section 95 of the Motor Vehicles Act, 1939.
10. ' On these facts, the High Court held that the liability of the respondent No,1 was limited to Rs, 20,000 in respect of the loss of life of a passerby by reason of his being run over by the vehicle under section 95(2)(b) of the Motor Vehicles Act, 1939.
11. ' The learned counsel for the appellant vehemently urged that the liability was unlimited in the context of clause (c) of subsection (2) of section 95 of the Motor Vehicles Act, 1939, as the category of the vehicle was private, apart from the fact that this defence was not taken at any stage of the proceedings either before the learned Single Judge or before the Division Bench of the High Court.
12. There is however evidence on record to sustain factually that the vehicle was not for private use but for the carriage of the employees of the appellant. As against it, no evidence was led to establish that it was not so. However, section 95(2)(b) of the Motor Vehicles Act, 1939, relates to the limit of liability against third party risk irrespective of the user; and under the policy, for which a cover note was issued, this liability is limited to Rs, 20,000. This being a statutory liability it cannot be deviated from.
13. ' In that view of the matter it is in vain to rely on clause (c) of subsection (2) of section 95 of the Motor Vehicles Act, 1939, to the use of the vehicle as a private vehicle.
14. ' Accordingly, the appeal is without any merit and is dismissed with costs.