1. This is a suit for recovery of Rs,15,20,000 under the Fatal Accidents Act, 1855 filed by Hameed Gul, the father (aged 45 years) of deceased, Naimat Gul, who died at the age of 15 years in a traffic accident that occurred on 18-7-199L At the time of accident the Mini Bus bearing Registration No,JE-2480 plying on Route No,D-11 was driven by Ikramuddin, defendant No,3, who was an employee of defendants Nos.1 and 2. It appears that the deceased boarded the said mini bus and was on the foot board when the defendant No,3 rashly and in a most negligent manner suddenly applied the break and on account of sudden jerk and jolt deceased fell down, suffered fatal injuries and succumbed on the spot. F.I.R. No,208 of 1991 of the incident was lodged on the same date and death was (sic) by Abbasi Shahid Hospital. It was further averred that the defendants Nos.1 and 2, who claimed to the registered owner took the delivery and custody of the said vehicle on Superdginama from the concerned police station. From the record, it transpires that the said bus was insured with the defendant No,4 i.e, National Insurance Corporation. The matter proceeded, defendant No,1 though served and he filed his written statement only alleging that the subject vehicle was insured with defendant No,4 and it is the Insurance Company that is liable to discharge its duty, if any. Defendant No,2 chose not to defend and defendant No,3 proceeded ex parte vide Order dated 29-3-1992. Defendant No,4 the Insurance Company while disputing the factual aspect denied the liability under the Insurance policy and asserted that the vehicle is insured under the Third Party Insurance and the liability of an Insurer is restricted to Rs,20,000 only and that too when the liability against the owner of vehicle is established. The suit was only contested by defendant No,4 as defendant No,1 after filing of the Written Statement did not appear. It appears that he was only interested to take back the delivery of his vehicle.
2. Out of pleadings of the parties, Court framed the following issues on 6-5-1994:--
(1) Whether the son Naimat Gul, died as a result of accident on 18-7-1991 caused due to rash and negligent driving of Mini Bus No,JE-2480 by defendant No,3?
(2) Who is the owner of the vehicle in question, the defendant No,1 or the defendant No,2?
(3) Whether the plaintiff is entitled to the amount claimed or any other amount and from whom?
(4) Whether the vehicle in question was insured with the defendant No,4 and if so with what effect?
3. I have heard the arguments and perused the record.
4. Issue No,1.---Plaintiff, Hameed Gul, examined himself. He filed his affidavit-in-evidence produced a copy of Insurance Policy as Exh.P.W.1 which evidence had gone unrebutted as the defendants Nos.1 and 3 were already ex parte whereas counsel for the defendant No,4 Mr. M.A. Rauf chose not to cross-examine. No denial of the fact that deceased Naimat Gull the son of the plaintiff died in the road accident as nothing contrary was alleged nor established by any of the . defendant. The assertion of the plaintiff that defendant No,3 applied sudden break which resulted in jerk and jolt and the deceased who could not maintain his balance fell down and succumbed to the injuries on spot. Such assertion contained in para. 3 of the. affidavit-in-evidence has gone unrebutted, therefore, the issue is answered in affirmative.
5. Issue No,2.---As to the ownership of the vehicle it was averred by the plaintiff that said vehicle as per Police Record is owned by defendant No,1 and defendant No,2 is also the registered owner who took the delivery of the subject vehicle from SITE Police Station on Superdginama. From the Insurance Policy that has been placed on record, it appears that defendant No,2, Sher Alam, is the owner of the vehicle in whose favour the Insurance Policy had been issued. Defendant No,1, Muhammad Azam Khan, while opposing the application for attachment had asserted on Oath in his counter-affidavit that he is the owner of the vehicle. The Insurance Policy, Registration Certificate and the Route Permit relied upon by him showed that the same were issued in favour of defendant No,2. Therefore, there is no dispute as to the ownership or the vicarious liability of the defendant No,2. The registration certificate of the subject mini bus is in the name of defendant No,2, who undoubtedly is the owner therefore, is vicariously liable for the acts and deeds of his servant the defendant No,3. There is no material to show that defendant No,1 is owner of the subject vehicle.
6. Mere delivery of the vehicle on Superdari from the police station or from Court ipso facto will not establish title to the vehicle. Issue No,2 is answered accordingly.
7. Issue No,3.--The deceased admittedly was 15 years of age the assertion of the plaintiff that the deceased was studying in class 5th was a bright student and at the same time working as a Helper in a Auto Workshop and drawing Rs,20 per day as stipend and in addition Rs,30 to Rs,50 per day from the customers as tip for the work. It was further averred that at the age of 18 years he would have easily earned of Rs,3,000 per month and future expectation event of his employment in Middle East, he would have earned a 'salary not lest than Rs,10,000 to Rs,15,000 per month. Plaintiff claimed that the deceased would have given a monetary benefit approximately Rs,15,20,000 which amount has been claimed from the defendants jointly and severally. Life expectancy in the family of the plaintiff is claimed to be eighty (80) years and such was expected of the deceased Naimat Gul, At the time of his death, he was 15 years of age and earning approximately Rs,50 per day (20+30=50). Modestly he was expected to continue to earn such amount up to the age of 18 years, he would earn of Rs,45,000 during this period. The amount of Rs,3,000 per month as claimed by the plaintiff that the defendant would have earned after acquiring the skill in his job is realistic. The claim that he would earn of Rs,10,000 to Rs,15,000 had he been employed in Middle East may be speculative for the purpose of claim in suit modestly I would consider the figure of Rs,3,000 per month is close to a realistic approach. If the life expectancy in average is considered to be 60 years then he would have survived 45 years more. Even if minimum of amount of Rs,3,000 per month is assumed to be a constant earning from 18 years till 60 years i.e, for 42 years and for the purpose of calculation of the entire earning by the deceased such amount is taken as the base figure, though one cannot overlook the fact that with passage of time earning capacity of the deceased was sure to increase. Taking this figure in hand for 42 years x 12 months x Rs,3,000 = Rs,15,12,000 plus Rs,45,000 (the amount he would have earned up to 18 years of age) total comes to Rs,.15,57,000 during this period 42 years he would have spent at least 30% of his earning on his parents which comes to Rs,4,67,100 and the rest of the amount he would have spent on himself and his own family. Pecuniary Benefits that could have been drawn by the plaintiff would come to Rs,4,67,100 which the defendants Nos.1 and 3 are jointly and severally liable.
8. Issue No, 4.---Mr. M.A. Rauf learned counsel has vehemently argued that when Motor Vehicles Ordinance, 1965 was promulgated it repealed the Motor Vehicles Act, 1939; however, in terms of section 122 of the Motor Vehicles Ordinance, 1965 Chapters VII and VIII and section 125 thereof were saved. Chapter VIII of the Motor Vehicles Act, 1939 deals with necessity for a Third Party Insurance Risks and under section 95 thereof, maximum limit of liability under subsection 2(a) against an accident is fixed at Rupees twenty thousand only. Section 95 of the Act of 1939 is reproduced as follows:
95. Requirements of policies and limits of liability.---(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which--insuers the person or classes of persons specified in the policy to the extent specified in subsection (2) 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 in a public place in Pakistan or in a reciprocating territory;
(2) Subject to the prevision of sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits namely:--
(a) where the vehicle is a goods vehicle, a limit of twenty thousand rupees in all, the liabilities, if any, arising under the Worker's Compensation Act, 1923, in respect of the death of or bodily injury to employees other than' the driver being carried in the vehicle being limited to six such employees;
(b) where the vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry out more than six passengers excluding the driver to two thousand rupees in respect of any individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver;
(c) where the vehicle is a vehicle of any other class the amount of the liability incurred.
9. He, therefore, argued that the maximum liability that is under the referred provisions is maximum Rs,20,000 and that too would be payable only if the claim against the insured/owner is established and the Insurance Policy is proved. He submitted that the vehicle as shown by the plaintiff is different than reflected in the policy, therefore, the defendant No,4 had not assumed any liability under the policy. In support of his contention, he has relied upon the case-laws reported as (1)
10. Kulsoom v. Jalil Ahmed Khan and another (PLD 1964 Karachi 72); (2) Ghulam Mustafa v. Trevor A Robertson and another (PLD 1966 Karachi 271); (3) Eastern General Insurance Company Limited, I.I.
11. Chundrigar Road, Karachi v. Syed Mahmood Hussain and 2 others (1987 CLC 772) and unreported judgment in H . C . A . No,70 of 1982 titled as Messrs Crescent Sugar Mills and Distillery Ltd. v.
12. American Export Isbrandtsen and others, decided on 25-2-1988 Mr. Ali Ahmed Jan Banghash, learned counsel for the plaintiff contended that the subject policy has not been disputed by the defendants Nos.1 and 2 nor the Insurance Company when it was produced in evidence. It is not disputed that the mini bus bearing Registration No,JE-2480, Route No,D-11 was owned by the defendant No,2 and Engine No,113526 and Chassis No,102268 are mentioned in the Registration Book. The defendant No,4 though in written statement had denied the insurance policy and stated that they will offer their comment when same is filed as the plaintiff alongwith his plaint had only filed copy of the. Registration Book which showed the registered owner as Sher Alam in respect of Mazda Mini Bus, Model No,1984, which Chassis No,102268 and Engine No,113521 with the Registration No,863-440. It appears that subsequently on account of change in the registration to JE-2480 which is not the same number as reflected the Registration Book but the fact remains that the Engine and Chassis Numbers are given in the policy which is of the same vehicle. Defendant No,4 has not disputed nor controverted the witness/plaintiff that the said registration number is not in respect of the same vehicle of which the chassis and engine numbers are mentioned in the Insurance Policy No,CV-48-0034 of 91. At the foot of the description of the vehicle in the schedule of the policy following endorsement - appears:-- Public place.---A public place in Pakistan within the meaning of the Motor Vehicles Act, 1939, or Qisas and Diyat Ordinance, 1990.
13. Limit of liability.---Such amount as is necessary to meet the requirements of the Motor Vehicles Act, 1939 or Qisas and Diyat Ordinance. 1990.
14. Above endorsement is reflective of the condition on which the Third Party Insurance Risks were provided by the defendant No,4. The case-law relied upon by E the learned counsel for defendant No,4 relates to the limit of the liability in terms when the liability was determined in accordance with the unrepealed provision of section 96(2) of the Act of 1939. It appears that the defendant No,4 by incorporating the clause defining limit of liability in the policy had contracted to reimburse the owners or the insured against any claim to the extent of the value of Diyat amount. In terms of section '223, P.P.C. added under the Qisas and Diyat Ordinance, 1980 wherein such value is deemed to be the value of 30,630 grams of silver on the day when such liability occurs. Value of the silver declared on the first day of July each year is deemed to be the value payable during a particular fiscal year when such liability had accrued. In the instant case, the liability, if any, had accrued on 18th July, 1991 such liability undoubtedly accrued after the provision of said Ordinance comes into being and the value in terms of notification issued by the Federal Government on the first day of July, 1991 was determined. In the written statement, the defendant No,4 had not disputed the liability but had stated that they are only liable' under the Motor Vehicles Act, 1939 to the extent of Rs,20,000 as such liability was restricted by the above referred provisions of Motor Vehicles Act, 1939. It may be observed that when the insurer had assumed the liability in terms of Motor Vehicles Act, 1939 or Qisas and Diyat Ordinance, 1980 mentioned at the foot of the Schedule of the policy as reproduced above. In such cases, a construction as is beneficial to the insured/policy holder is to be preferred over the construction that may favour the insurer. In a case reported M.R. Transport Company v. National General Insurance Company (2001 CLC 1618) in which case Insurance Company denied the liability on the pretext that due to oversight particular risk was not intended to be covered under the policy on the around that such risk due to oversight was omitted to be mentioned in the general exception clause. It was held that Insurance Companies were expected to be more beneficial not only in their outlook but must practise beneficial and generous attitude while settling the claim of the insured rather than finding lame excuse like the one, in the instant case to refute and dislodge the claim at any cost. Even the new Insurance. Ordinance, 2000, section 77 gives statutory recognition to principle of the beneficial construction as were adopted by the Courts of law, in cases of ambiguity in the contract of Insurance Policy it is to be resolved in favour of the insured/policy-holder. Therefore, I would resolve such construction in favour of the insured and would hold that defendant No,4, Insurance Company, is liable to the extent of a claim under third party risks to the extent of the value of Diyat amount determined in terms of section 323(2), P.P.C. Value of Diyat in terms of section 323(1), P.P.C. shall not be less than the value of Thirty Thousand Six Hundred and Thirty Grant (30,630 grams) of silver, such value as declared in the Notification dated 5th June, 1991 (PLD 1991 Statutes 312) issued in terms of section 323(2), P.P.C. is one hundred and seventy-six thousand six hundred and ten rupees (Rs,1,76,610). Defendant No,4, Insurance. Company, out of Rs,4,67,100 (Rupees four hundred and sixty-seven thousand one hundred only) would be liable to pay a sum of Rs,1,76,610 (rupees one hundred and seventy-six thousand six hundred and ten only) on account of compensation to the plaintiff and the balance amount is to be recovered from the defendants Nos.1 and 3 jointly and severally. Defendants Nos.1, 3 and 4 shall also be liable to pay equalizer at 6% per annum from the date of decree. Suit in terms of the above is accordingly decreed.