' This is a suit under the Fatal Accidents Act, 1855 for damages in respect of a fatal accident in which one Mr. R. P. Hamm lost his life, by his widow Mat. Aishabi on her own behalf and for the benefit of the children of the deceased who were at a result of the death of the deceased deprived support and thee peovalay bneriti,
2. According to the plaintiff on the fateful day at about 2-30 p.m. The deceased was proceeding on his scooter from his place of employment in Karachi Port Trust to his home at North Naaimabaci Karachi. As the deceased drove down the Hardinge bridge, Bus No, K. A. T. 7037 owned by defendant No, 2 United Bus Service and driven by defendant No, 1 Abdul Ghafoor came from behind at a fast speed and ran over the deceased near the traffic point opposite Qamar House crushing the deceased under its front wheel as a result of which he died after about one hour in the Hospital.
According to the plaintiff the deceased was about 45 years of age at the time of his death and was employed as a Junior Assistant Mechanical Engineer with the Karachi Port Trust in the Grade of Rs, 410-30-500--35-850. He was drawing a salary of Rs, 858 per month including allowances out of which 90% of his salary he spent on the maintenance of the plaintiff and her children. The deceased had 3 sons aged about 11 years, 9 years and 2 years respectively and 3 daughters aged about 10 years, 7 years and 9 months respectively. The plaintiff averred that the deceased was a man of sober habits and sound physique. The deceased's future prospects of improvement in his service have also been mentioned in the plaint. It is further averred by the plaintiff that defendant No, 1 was in the employment of the defendant No, 2 at the time of the said accident and was acting in the course of such employment for and on behalf of defendant No,
2. Upon these allegations the plaintiff claimed a decree in the sum of Rs, 1,00,000 with interest at 8 % per annum until payment.
3. The defendants were served but in spite of service defaulted in appearance as a result the suit was ordered to proceed ex pane against them by order dated 1-12-1970. At the instance of the plaintiff notice under section 96(2) of the Motor Vehicles Act, 1939 was issued to the Pakistan Mutual Insurance Company Limited (hereinafter referred to as the Company) with whom the bus involved in the accident was insured. The company put in appearance in consequence of the notice and filed written statement. The company inter alia denied that Bus No, K. A. T. 7037 involved in the accident was owned by defendant No, 2 on the material date as well as denied that the said bus was being driven by defendant No, 1 rashly and negligently. It was contended that the Insurance was effected by one Habib Ahmed who had failed to inform the company of the accident in violation of the obligation imposed under the Insurance Policy. They also denied the rest of the allegations contained in the plaint for want of knowledge and particularly repudiated liability by reason of the fact that the bus was insured in the name of Habib Ahmed who was not impleaded as a party. The company also expressly denied that the Insurance Policy was ever issued in the name of defendant No,
2. It was contended that the company was not responsible for an accident caused by a third party who appears to have been plying the bus without notification of transfer to the company and without obtaining fresh Insurance Policy. The company also denied that defendant No, 1 was in the service of the assured.
4. On the pleadings of the parties the Court framed the following issues
(1) Whether Bus No, KAT 7037 was owned by defendant No, 2 and was driven by defendant No, 1 in the course of business and employment with defendant No, 2 ?
(2) Whether the bus in question was being driven net gently by defendant No, 1
(3) To whet West.
(4) Whether defendant No, 2 was holding an effective policy in his name with respect to KAT-7037 on the material date 1 if not what is its effect ?
(5) Whether this suit is liable to be dismissed for want of impleading the real owner i,e, the assured Habib Ahmad ; as such the defendant No, 3 is absolved from the liability ?
(6) To what relief if any the plaintiff is entitled.
5. The plaintiff has led no oral evidence and has remained content with affidavit of proof against the ex parte defendants. In the affidavit of the plaintiff all the facts pleaded in the plaint have been proved. On behalf of the company, however, one witness Syed Hameeduddin, the Manager of the company at Karachi was examined for the purpose of proving the Insurance Policy (Bah. 5/1).
6. Mr. Saeed-uz-Zaman, learned counsel for the plaintiff submitted that as against defendant's dos.
1 and 2 the ex parte proof was sufficient for passing a decree for the amount claimed. As regards the liability of the company the contention of the learned counsel was that on the basis of the facts established against the defendants, the company was ipso facto liable by virtue of and to the extent prescribed by section 96 of the Motor Vehicles Act, 1939. Referring to the terms of the Insurance Policy, counsel submitted that the policy extended the insurance cover to any driver who for the time being was driving the vehicle at the relevant time. As regards the defense set up by the company it was contended that it was not open to the Insurance Company to defend the action on behalf of the insured as the defenses that an insurer can plead in a case of third party insurance are limited to those specified in section 96(2) Motor Vehicles Act, 1939 and counsel's submission was that none of the defenses pleaded by the company falls within the ambit of the section.
7. Now under section 96 it is the statutory obligation of the insurer to satisfy the judgment against the insured persons in respect of third party risks, if he has had notice of the proceedings in terms of the section. It is also clear that in such a case the insurer can appear and defend the action only on the grounds specified in subsection (2) as mentioned earlier. This is clear from the bare reading of subsection (2) of section 96. But if authority is required in this connection reference may be made to Pakistan Motor Owners Mutual Insurance Co. Ltd. v. Din Muhammad (1) where the Insurance Company raised numerous objections, e.g., that the suit was barred by time and that the accident had taken place due to negligence by the Driver, it was held that the grounds of defence which an insurance company may take in a suit for compensation by third party are confined to the provisions of section 96(2) and that all other grounds of defence are by necessary implication excluded. Mr. Saeed-ur-Zaman therefore, rightly contended that the company is not entitled to defend the suit on the pleas raised by it in their written statement. However, as stated earlier, the policy of insurance produced in evidence undeniably was affected by one Habib Ahmad who is clearly the principal person Insured as the owner of the vehicle a mentioned in the Schedule to the policy. The Schedule further extends the insurance cover to the Driver, Conductor and 37 passengers. It is therefore, clear that defendant No, 2 the alleged owner at the time of the accident was not one of the insured under the policy and no decree passed against the said defendant would be liable to be executed against the company. In such circumstance the company would be -trait, Pablo only if defendant 19705 3M ii 212 No, 1 the Driver of the vehicle is shown to be the insured under the policy. Therefore, the question that falls for consideration is whether in the circumstances of this case defendant No, 1 can be construed to be insured under the policy. This question can be decided on the language of the terms of the policy and true construction of the provisions of section 96, Motor Vehicles Act, which read as under "(1) If, after a certificate of insurance has been issued under sub.. Section (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 the 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 insurer 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 costs 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 subsection (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, 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 if 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 is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organized 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, Of
(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 disqualified for holding or obtaining a driving license during the period of disqualification ; or
(iii) a condition excluding liability for injury caused or contributed to by conditions to 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) .
' Subsection (1) of this section is quite obviously a declaratory enactment. For the present purposes the important words of this subsection to note are "judgment . . . . ..... Obtained against any person insured by the policy." The essential pre-requisite for application of section 96 is that the judgment.
Before it can bind the insurance company must be obtained against the 'insured'.
8. Now there is no dispute that there was a valid and effective policy as required by section 94 of the said Act covering the use of Bus No, KAT 703 the vehicle involved in the event. The policy on its face shows its validity period from 5-4-1968 to 4-4-1969 and therefore, on the date of the oven viz. 19-2-1969 it was obviously in force. It is also clear from the policy that it was issued to Mr. Habib Ahmad and the name of defendant No, 2 n where figures as the person insured. The decree against defendant No, 2 therefore, as already stated, would not be enforceable against or bind the company. But Mr. Saeed-uz-Zaman contended that defendant No, 2 ha been proved to be the Driver of the bus at the relevant time and as the policy extended the insurance cover to any driver of the vehicle, the decree against defendant No, 1, in any case will be binding upnn the company.
9. The perusal of the Insurance Policy (Bah. 5/1) shows that it commences with the following recitals "Whereas the insured by the proposal and declaration dated as stated in the schedule which shall be the basis of this contract and is deemed to be incorporated herein has applied to the company for the insurance hereinafter contained......................
The terms and conditions of the policy include a reference to the Drive of the vehicle and inter alia provide that the company will indemnify "any Driver who is driving the motor vehicle as declared by the proposer or an person authorised by him on his behalf". The reference therefore, so far a the Driver is concerned is to the driver declared by the proposer which in turn has reference to the declaration contained in the schedule annexed to the policy of which reference has been made in the recitals. Th schedule mentions no specific name against the Column relating to the Driver but merely states "Driver, Conductor and 37 Passengers." Reading the contents of the policy as a whole it appears that the policy extended the insurance cover to any Driver who was driving the vehicle at the relevant time.
10. Mr. Shaikh Haider for the company, however, submitted that under Chapter VIII Motor Vehicles Act, 1939 it is not the vehicle which is insured but it is the owner of the vehicle who is insured against third party risks. On these premises learned counsel contended that the company would be liable only if it is established that the Driver defendant No, 1 was acting ' In the course of his employment under the assured shown in the policy namely Mr. Habib Ahmad.
Since admittedly the case of the plaintiff is that the defendant No, 1 was acting in the employment of the defendant No, 2 who was not the owner, the question of a decree against the owner does not arise. Learned Counsel relied upon several decisions from the Indian and English Jurisdictions in support of the propositions canvassed by him. But it is not necessary to deal with these cases separately as the council also relied upon Rukayabai v. Secretary of Defence (1), in which Mushtak All Kazi, J., noticed all the relevant decisions on the point and held the view that the insurance company would not be liable where the insured vehicle was lent on hire purchase agreement by the assured to the purchaser without having the insurance policy transferred in the name of the purchaser and without informing the insurance company about the transfer. Mushtak All Kazi, J.
Noticed the previous judgment of this Court on the point in Mst. Hameela Begum v. Sideman Jan and others (2), where it was held by Farooqi, J., (as he then was) that insurance company could not be held liable in case of transfer of the vehicle if the insurance policy also was not transferred to the purchaser. A contrary view was however, taken by a Division Bench in Messrs Pak Insurance Co. Ltd. v. Mst. Bashir Begum (3) which in turn followed the decision of the Madras High Court in Madras Motor Insurance Co. v. Mohammad Mustafa (4). However, after noticing these cases Mushtak All Kazi, J., referred to an unreported judgment of this Court in L. P. A. No, 61 of 1961 where a Division Bench of this Court held that where the insurance policy continued to remain in the name of the original owner assured and the vehicle was transferred to the purchaser. Any accident which occurred thereafter would make the transferee liable and not the original owner ; consequently as the transferee was not the assured under the policy, the insurance company would not be liable for the judgment under section 96(l), Motor Vehicles Act. The L. P. A. Bench had in taking this view followed an Indian decision reported as Gyarsilal v. Sitacharan (5). Upon the consideration of the afore-mentioned cases the learned Judge held that "where a car is transferred along with the policy the transfer must be consented to by the insurance company" and further that before the transferee can be compensated in case of a judgment against him in respect of third party risks the assignment of the policy in favor of the transferee must be so assented to.
11. On a careful reading of the aforesaid judgment and cases referred therein, I find that the special feature of all these oases was that the decree against the transferee of an insured vehicle was being sought to be enforced against the insurance company. Although in some of the cases the liability of the transferee or the transferor of the vehicle was sought to be founded upon the rule of vicarious liability arising out of the acts of the Driver in the employment of the owner for the time being, in none of these cases the decree was sought against the insurance company on the basis that the Driver himself was the insured person. The English decisions cited by Mr. Shaikh Haider were also on the principle of vicarious liability of the owner for the acts of the Driver through whose negligence the accident occurred. But the point in this case is entirely different. As pointed out earlier a decree obtained by a third party against P the 'insured' is enforceable against the insurance company under section 96(1)
(1) PLD 1976 Kar. 131 (2) PLD 1961 Ku. 529
(3) PLD 1966 Kar. 152 (4) AIR 1961 Mad. 208
(5) A I B 1963 Madh. Pra. 164 ' Motor Vehicles Act. Consequently a policy which insures the owner of the vehicle as well as the Driver and other persons, the transfer of the vehicle by itself, cannot in my opinion relieve the insurance company of liability under the policy if it is shown that the Driver involved in the accident was one of the persons insured under the policy. In that case the question of vicarious liability does not arise, in so far as the decree is sought against the insured for his own acts which are indemnified under the terms of the policy. Under section 95, Motor Vehicles Act a policy of insurance for the purposes of the Act must be a policy which "insures the person or classes of person specified in the policy against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle".
Keeping this aspect of the case in mind, it is not difficult to see that the policy in the present case, relevant parts of which have been reproduced above, directly insures the Driver against, third party risks apart from the original owner Mr. Habib Ahmad. In none of the cases cited above the provisions of the policy in question were examined with a view to determine whether the Driver himself was one of the insured persons. Here the decree is sought against the insurance company not because defendant No, 2 was the insured person vicariously liable for the accident caused by the defendant No, 1, but the liability of the Insurance company is claimed on account of the decree passed against defendant No, 1 as an insured person.
12. In New Asiatic Insurance Co. v. Pasqual (1), the policy provided as under :- "The company will indemnify any driver who is driving the motor car on the insured's order or with his permission, provided that such driver is not entitled to indemnify under any other policy."
' Upon the plea of the Insurance Company that the driver had the cover of another policy, the Indian Supreme Court held that the proviso is not really a classification of drivers but is a restriction on the right of the driver to recover any damages he had to pay, from the company, but this has nothing to do w.Th the liability which the driver has incurred to third party for injuries caused to it. It was further held that once the company had undertaken liability to third parties incurred by persons specified in the policy, the third parties' right to recover any amount under or by virtue of the provisions of the Motor Vehicles Act is not affected by conditions in the policy. In the instant case the language of the relevant term of the policy relating to the driver is coached in much wider terms than in the reported case. Here there is no qualification that the driver to be entitled to indemnity must be one who should be driving the vehicle on the insured's H order or with his permission. The dictum laid down in the decision is therefore applicable with greater force in the present case and the insurance company cannot therefore avoid its liability by pleading the absence of the main insured's permission. In this view of the matter the entire argument of Mr. Shaikh Haider becomes irrelevant and untenable. By virtue of section 95 the Driver, Conductor and Passengers whoever they may be at the material time as a class of person were clearly insured unconditionally in the policy. It will not be proper to add the condition that only a driver in the employment of the main insured person was intended to be covered by the insurance as no such qualification has been imposed in the terms of the policy. The intention was therefore, clearly to extend insurance cover to any driver irrespective of the fact whether he was acting in employment of the owner or otherwise. I am accordingly inclined to hold that defendant No, 1 was the insured person under the policy.
(1) AIR 1964 SC 1736
13. The issues of fact arising between the plaintiff and first two defendants were not contested. The defendant No, 1 has been established on the ex parte proof to be responsible for causing the death of deceased R. P. Hamza by rash and negligent driving of Bus No, KAT-7037. Defendant No, 2 is also proved to be the owner of the bus at the relevant time and would therefore, be liable for damages claimed. As regards the liability of the insurance company, I have in the foregoing discussion shown that the company is liable to indemnify the loss sustained by the plaintiff on account of the defendant No, l's use of the vehicle to the extent covered by the policy. The non-joinder of the original owner, in the view that I have taken, is immaterial and has no bearing on the maintainability of the suit.
14. As to the amount of compensation it is established that the deceased was 44 years of age and was earning Rs, 858 per month at the time of his death. It is further proved that out of this amount he spent 78 rupees over himself leaving Rs, 780 per month to be spent on the upkee and maintenance of his family. Calculating on this basis yearly income spent by the deceased on his family comes to Rs, 9,360. The deceased is established to have been a person of sober habits and sound physique and was the only earning member of the family. Taking the ordinary life expectancy of the deceased at least up to the age of 65 years, the deceased K would have provided maintenance to his family for the next 21 years if he had not been cut-off by the accident.
On this basis the deceased would have provided more than 2 lacs of rupees during the remaining part of hi life for his family. The dependents of the deceased for whose benefit the suit has been brought comprise his widow who was 38 years of age at the time of his death and six children ranging between the ages of 10 years to 9 months. Apart from his widow who would have depended upon the deceased, his eldest child would have needed his assistance for at least seven years more and the youngest for at least seventeen years.
15. The principles for determination of damages to be awarded in a case under the Fatal Accidents Act were laid down in Manmatha Nath Kuri v. Mohammad Mokhlisur Rehman (1). It was laid down by their Lordships in this case that under section 1 of the said Act pecuniary loss will be loss resulting to the party's beneficiaries as a consequence of death. It was further laid down that 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 to him in respect of that expectation. Their Lordships further expressed the view that assessment of damages in such a case must 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 husband, wife, parent or child.
16. In the light of the principles stated above, the claim of the present plaintiff does not appear to be excessive and in my opinion, is on the contrary far less than the reasonable amount that could have been claimed. As stated above the total pecuniary advantage available to the family of the deceased in the course of his expected life if he had lived would have been more than Rs, 2 lacs but the plaintiffs claimed only Rs, 1 lac. Applying the rule of rough estimate and guess work on the date mentioned above, the plaintiffs are clearly entitled to the compensation claimed.
(1) PLD 1969 SC 565
17. Section 95(2)(b) prescribes for covering any liability in an accident] the, limit of Rs, 20,000 so far as the insurance company is concerned. In 'N the insurance policy (Exh. 5/1) third party risk to this extent is covered. I Accordingly the company would be liable to this extent only.
18. In the result this suit is decreed jointly and severally against the defendants Nos. 1 and 2 for Rs, 1,00,000 and the costs of the suit. Against defendant No, 3 out of the aforesaid amount there will be a decree jointly and severally with the first defendant to the extent of Rs, 20,000 and proportionate costs. The amount of court-fees shall be first charged on the amount recovered in the suit. Out of the decretal amount plaintiff No, 1 Mst. Ayeshabi may be paid her the share and the remaining shares of the minor sons and daughters be kept, in their names in fixed deposit till they attain majority. It will however be open to those of them who have attained majority since the filing of the suit to be paid their shares determined according to Muslim Law. It will also be open to the plaintiff to apply to the Court for a monthly allowance for the maintenance of the minors on appropriate grounds.