P L D 1969 Supreme Court 565 (PLP)

HAMOODUR RAMAN, C. J.‑Both these appeals arise out of a suit filed by the respondents herein for the recovery of a sum of Rs. 15,000 as damages suffered by them by the loss of their daughter, a girl of about 6 years in age, who had been killed on the 18th January 1955, by being ran over by a motor bus belonging to the defendant No. I and driven by his employee, the defendant No.

2. Although it was averred in the plaint that the loss caused to the plaintiffs by the death of their daughter could not be compensated by even a lac of rupees, yet damages were claimed not only by way of solatium for the grief caused to the plaintiffs by the loss of their only child but also for pecuniary losses suffered by each of the plaintiffs. The plaintiff No. 2 claimed that as a result of the death of her daughter she bad been deprived of her patrimony by her father on the ground that she being without any children was no longer in need thereof. The plaintiff No. 1 also claimed that he had suffered pecuniary loss as a result of his failure to pay due attention to his business of "Lucky Store" duty to his grief over the loss of his only child. The deceased girl, it was stated in the plaint, was an "uncommon girl" possessed of "unparalleled beauty and unimpeachable sound health." She was also said to have been a "rare expert" in singing and dancing at her age. Her versatile genius and good qualities made her participation sought after at every public or private function in the locality. By her death the plaintiffs had lost all charms and desires and all hopes of their lives had vanished and they had no heart left in either managing their business or their properties or carrying on their house‑hold avocations. It may be mentioned here that the plaintiffs, who are the parents of the deceased child, had in the suit also joined the Insurance Company, with which the motor vehicle was insured, as a proforma‑defendant upon the allegation that after the unfortunate accident the defendant No. 1, the owner of the vehicle, had handed over his insurance policy to the plaintiff No. 1 to take necessary steps for realization of the compensation but the Company had, ultimately, on the 11th July 1955, refused to pay any compensation on the ground that there was no privity of contract between the plaintiffs and the Company. In this suit all the three defendants filed separate written statements. The defendant No. 1 denied the allegations of the plaintiffs and maintained that the plaintiff's had suffered no kind of loss whatsoever by the death of their daughter, who was not an earning member of the family. He even denied that she had died as a result of any rash or negligent act of his servant, the defendant No. 2 herein. According to him the conviction of the defendant No. 2 was procured on the basis of a confession procured by threats". He also claimed that the suit was not legally maintainable in the form in which it had been filed. The driver also in his written statement substantially repeated the story set up by his master. The Insurance Company, which was only joined as a proforma‑defendant took up the plea that it was not liable to indemnify the defendant No. 1 and for loss the plaintiffs, by reason of the terms, conditions and exceptions contained in the policy. It also averred that no legal or cogent grounds or reasons had been given by the plaintiffs for assessing their alleged loss at Rs. 15,

000. On these pleadings the following issues were raised (1) Is the suit maintainable in its present form? (2) Is the suit barred by principles of estoppel, waiver and acquiescence? (3) Has the daughter of the plaintiff died in the manner alleged by them? (4) Is the plaintiff entitled to get any damage, if so, how much? (5) To what relief, if arty, is the plaintiff entitled? At the trial the defendant No. 3 did not press its written statement but on behalf of the other defendants it was urged that the suit was not maintainable as there was not even a word in the plaint to show that the deceased girl was an earning member of the family. This contention was raised on the basis that in a suit under the Fatal Accidents Act XIII of 1855 this was the only ground upon which damages could be claimed. The trial Court, however, repelled this contention holding that the suit was both under the said Act as well as under the general law of torts. Furthermore, it was of the view that in cases of this nature it was not necessary to plead specifically the particulars of the loss sustained or benefit expected. The suit was, accordingly, held to be maintainable. The second issue was also answered in the negative. It was also found as a fact that the girl had died as a result of the rash and negligent driving of the defendant No. 2 without any contributory negli gence on the part of the girl. The plaintiffs were also held to be entitled to recover damages, "even if they did not suffer any other loss, financial or physical, both under the Fatal Accidents Act and under the general law of torts". As to the quantum of these damages the trial Court gave only the following reason :‑‑ "So far as I am aware there is no known principle for assessing the quantity of damages (or compensation) in a case of this nature (when the person killed is not an earning member of the family). Under the circumstances of the case, I am inclined to the view that the end of justice would be met if Rs. 10,000 is allowed to the plaintiffs as damages." Accordingly, a decree was passed for Rs. 10,000 as against defendants Nos. 1 and 2, with corresponding costs but the suit was dismissed ex parse as against the proforma‑defendant, without costs, on the ground that there was no privity of contract between the defendant No. 3 and the plaintiffs. On appeal, a Division Bench of the High Court rejected the contention that the judgment of the trial Court was based on purely "speculative possibilities of pecuniary benefits" and confirmed the decree of the trial Court. In the High Court also the suit was treated as being a suit for damages under the Fatal Accidents Act of 1855, and it was not disputed that the girl had died due to a motor accident or that the accident had been caused by the rash and negligent driving of the bus by defendant No. 2 while in the employment of defendant No.

1. Only two points were urged before the High Court in support of the appeal, namely; (1) that the plaintiffs were not entitled to any damages as they had not suffered any pecuniary loss due to the death of a daughter from whom they could have no reasonable expectation of any pecuniary advantage and (2) that the decree was bad as the trial Court had not given the basis upon which it had assessed the damages at Rs. 10,

000. The High Court repelled both these contentions and held that under section 1 of the Fatal Accidents Act, the "earning of money by the deceased before the date of his or her death, is not the foundation of an action under the Act . . . . . . . . In such a case, prospective loss can be taken into account and parents are entitled to recover damages for the loss of reasonable probability that the child would in future earn and contribute to the family". The High Court was further of the view that under the Fatal Accidents Act loss of service could also be a ground for granting compensation. As regards the method of computation of damages the High Court while agreeing with the contention of the appellants that the trial Court had not given any basis for its assessment took the view that it could itself make the assessment upon the evidence on the record, because, under the said Act it is neither possible nor necessary to calculate damages with meticulous accuracy. "There must", observed the High Court, "be a certain amount of guess work in assessment of damages, because, it is impo3sible to estimate accurately the loss which has been sustained by the death of a daughter, a son, husband, wife, father or mother. In such a case, the Court is to take into consideration all the circumstances which are material for considering the pecuniary loss resulting from the death of the deceased. The prospective earnings of the deceased, the extent of life expectancy not only of the deceased, but also of the beneficiaries and the standard of living of the family of the deceased, are to be taken into consideration. In estimating the prospective earnings of the deceased, the age, health, ability, habits and prospects with the advancement of the age of the deceased are to be considered, Beneficiaries are not entitled to the entire prospective earnings of the deceased, but only to that extent that they could expect to receive from the deceased. In the case of the deceased being a child, the amount to be spent for the maintenance of the child is also to be taken into account. In considering about the likely loss of contribution from the child, the age, the sex, the health, ability, intelligence, reasonable expectation of earning and the status of the family of the deceased are also to be taken into account". Upon this principle the High Court found no difficulty in coming to the conclusion that the loss suffered by the parents in the present case could easily be assessed at Rs. 100 per month and, therefore, taking into account the expectation of life of both the child and the parents the sum of Rs. 10,000 awarded by the trial Court could not "be regarded as excessive". The High Court also apportioned the damages so awarded between the plaintiff's at Rs. 4,000 and Rs. 6,000, respectively, with proportionate costs in both the Courts. In view of the importance of the questions of law involved in the case the High Court also certified the case as fit for appeal to the Supreme Court and from this has arisen Civil Appeal No. 38-D of 1965. During the pendency of the appeal in the High Court the plaintiffs in the suit put their decree into execution. It was stayed pending the disposal of the appeal but was re‑started on the 20th February 1962, after the appeal was dismissed. At this stage the judgment‑debtor, who is now the appellant before us, filed an objection, under section 47 of the Code of Civil Procedure, to the execution of the decree. His contention was that in view of the provisions of section 96 of the Motor Vehicles Act, the execution should be levied against the insurer for the dues adjudged under the decree as if it was the judgment‑debtor and not against the appellant. The executing Court took the view that since the suit was dismissed against the proforma‑defendant No. 3, the insurer, and there was no appeal against such dismissal of the suit, the insurer could not be brought into the picture again. It further held that the appellant judgment‑debtor had, by not impleading the said proforma‑defendant No. 3 in the appeal filed in the High Court, by his conduct, given up the case against the insurer and, therefore, he could not be permitted now to re‑assert that claim. As long as that decree stood, the executing Court, it was said, had no power to go behind the decree. On appeal, a Division Bench of the High Court of East Pakistan affirmed this view holding that in the circumstances of this case the executing Court could not go behind the decree and hold the proforma‑defendant No. 3 liable to pay the decretal amount even after the suit had been dismissed as against it. The judgment‑debtor then came before this Court for special leave to appeal and leave was granted to him to consider as to whether the legal effects of section 96 of the Motor Vehicles Act, had been properly considered by the Courts below. This has given rise to Civil Appeal No. 73‑D of 1966. In Civil Appeal No. 38‑D of 1965 the first contention raised on behalf of the appellant is that upon the pleading in the case the Courts below were wrong in treating the suit as a suit for damages under the Fatal Accidents Act, for, neither was it so averred in the plaint nor did the plaint contain the necessary allegations for making out a case of damages under the Fatal Accidents Act. It is, no doubt, true that in the plaint there is no averment to the effect that the suit was being filed for the recovery of damages under the Fatal Accidents Act, but such averment was not' necessary, because, the Civil Procedure Code does not require the parties to plead the law. The suit was throughout treated by the defendants themselves as a suit under the Fatal Accidents Act and indeed it was on that basis that the defendant No. 1 took the objection as to the form of suit on the ground that in a suit for damages under the Fatal Accidents Act it was necessary to plead that the deceased was an earning member of the family and unless this was done the suit was not maintainable. In support of this contention reliance was also placed on the case of (Khan Sahib) Muhammad Ibrahim Khan and another v. Latif and others (PLD 1957 Kar. 35;) where, too, the principles governing a suit for damages under the Fatal Accidents Act came up for discussion. A learned Judge of the Karachi Bench, sitting singly, there held, that where the only allegation was that the deceased, a boy of eight, would if he bad lived, earned an income of Rs. 500 a month and, therefore, contributed Rs. 300 for the support of his parents there was only a mere speculative possibility of pecuniary benefit and no reasonable probability thereof. The suit as such was not maintainable. The trial Court repelled this contention by holding that the suit was both under the Fatal Accidents Act as well as under the general law of torts. In the High Court too the same argument was advanced on behalf of the appellant and again repelled on the basis that the suit was substantially for damages under the Fatal Accidents Act. It cannot, therefore, be said that there was any misconception in the minds of the Courts or in the minds of the parties as to the nature of the suit. All concerned, throughout, proceeded on the basis that the suit was for damages under the Fatal Accidents Act. The mere omission on the part of the plaintiffs, therefore, to mention this fact in the plaint cannot alter the nature of the suit. There is no substance, accordingly, in this contention of the appellant. The plaint, which has been drafted by a Mofassil lawyer, is no doubt, very inartistically worded and it does not set out the cause of action with any degree of precision. But reading the plaint as a whole liberally, according to the accepted principle of construction of Mofassil pleadings, there can be no manner of doubt that the cause of action pleaded was in substance for damages under the Fatal Accidents Act, even though the draftsman had erroneously included therein averments of general damages by way of solatium for the grief and suffering caused to the parents by the loss of their child and other irrelevant matters. The next contention advanced is, that if the suit is a suit under the Fatal Accidents Act, then it was hopelessly mis conceived, because, under section 1 of the Fatal Accidents Act the only damages that could be claimed were such as could have been claimed by the deceased himself if he had survived. Section 1 of the Fatal Accidents Act is in these terms: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwith standing the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased ; and in very such action the Court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought ; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before‑mentioned parties or any of them in such shares as the Court by its judgment or decree shall direct." Learned counsel has sought to contend that the words "is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof" indicate that the liability was in respect only of such damages as the deceased could have recovered if he had lived but these cannot be read divorced from their context. These words refer only to the "wrongful act, neglect or default" and all that these words in the first paragraph of section 1 of the Fatal Accidents Act mean is that if the act by which the death is cause is of such a tortious nature that if the deceased would have been alive, he would have been entitled to recover damages in torts from the wrong doer than the dependants would in the case of his death be able to maintain the action. They do not mean that the wife, husband, parent or child, if any, of the deceased is restricted to claiming only such damages or such loss to which the deceased himself would have been entitled if he had been alive. The cause of action given to the dependents mentioned in the said Act is a statutory right and is totally different from the cause of action vested in the deceased at the time of his death. The Act does not transfer to the said dependents the right of action which the person killed would have had but gives to them a totally new right of action on different principles. This right is, as observed by Lord Blackburn in the case of The Vera Gruz ((1884) 10 A C 59) `'new in its species, new in its quality, new in its principles, in every way new". It is right which has been given to the beneficiaries as a distinct and several right in respect of the same cause of action at the suit of all or any one of them suing for himself. The words on which reliance has been placed by the learned counsel only mean this that the nature of the cause of action must be such as would have accrued to the deceased himself if he had been alive, i.e. if he had been alive he would have had a valid and enforceable claim in the circumstances of the case. In other words if at the time of his death the right of action of the deceased was barred by his contributory negligence, or by virtue of the doctrine of "common employment" or by any special contract, such as a passenger's ticket under conditions prohibiting any claim for damages for injury, or by accord and satisfaction, or by the operation of some statutory provision then the persons named in the statute would not also be able to maintain an action. It is also often overlooked that this Act provides for two distinct kinds of damages under two distinct heads. Firstly, under section 1 damages are given for the pecuniary loss suffered by certain members of the family of the deceased as a consequence of the death and secondly under section 2, which is in these terms: "provided always that not more than one action or suit shall be brought for, and in respect of the same subject‑matter of complaint ; provided that, in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased." What is recoverable is pecuniary loss resulting to the estate of the deceased not from his death or as a consequence of his death but from the wrongful act, neglect or default itself and as a consequence of such a default. The action for the former is to be brought by the representatives of the deceased not for the benefit of the estate but as trustees for the persons named in the statute. For the latter, namely; the loss caused to the estate, the action may be brought by quite different persons such as creditors, legatees or other beneficiaries although ordinarily the dependents of the deceased will also be the persons interested in the assets of the deceased. In such event both the causes of action may well be combined in the same suit. 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 o to accurately determine the loss which has been sustained by the death of a husband, wife, parent or child. No definite or hard and fast rule can, as such, be laid down as to the matters which should be taken into account. But this such can be said that only such damages can be give at can be shown to have been financially suffered by those who bring the action. In estimating such damages the Court will, no doubt, take into account the age of the deceased, his or her health, earning capacity and even the chances of advancement. These must, however, be evidence of reasonable expectation of pecuniary advantage and not of a "mere speculative possibility." Thus parents may recover for the loss of the probability that the deceased child would have contributed towards their maintenance and children may recover for the loss of education, comfort and position in society which they would have enjoyed if the father had lived and maintained the income which had died with him. The basis of the assessment is not the requirement of plaintiff but the money value of the assistance which the deceased might probably have given had he continued to live. Where the deceased was an earning member of the family such an estimation may not be difficult but it is a misconception to think that under the Fatal Accidents Act it is necessary for the plaintiff to show that the deceased was actually an earning member of the family and that he devoted some of his earnings for the maintenance or support of the family. As was pointed out in the case of Taff Vale Railway Company v. Jenkins ((1913) A C 1) it is now firmly established that there is "no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable". In that case damages were claimed by the parents of a girl of 16 who was killed in a railway accident, under Lord Campbell's Act, 1845, upon which is based our Fatal Accidents Act, 1855. The evidence in that case was that she was at the time apprenticed to a firm of drapers and dress‑makers, that she was shortly to complete her apprenticeship and had prospects of beginning before long to earn a remuneration which might quickly have been substantial. It was also proved that she was staying in her parental home and from time to time rendered some assistance in the house. On these facts Lord Haldano, L. C. held that there was sufficient material on which damages could be assessed under the said Act. This case also established that in an action of this nature damages can be recovered in respect of the reasonable expectation of the value of the services that the deceased might have rendered to the members of the family. If in addition to this the evidence also establishes the prospective earning capacity of the deceased then the loss for that too will certainly be compensated. Although no rule of mathematical calculation can be adopted in every case yet it is the duty of the plaintiff to adduce some evidence to afford the Court a reasonable basis for the ascertain ment of the damages suffered. The value of the life lost, so far as the beneficiaries are concerned, does not depend upon the number of the beneficiaries but upon the earning capacity of the deceased. Applying these principles to the facts of the present case it appears to us that there was abundant evidence here of the earning capacity of the deceased. It was established, as has been found by both the Courts, below, that the deceased girl was an accomplished person. She had a rare talent for dancing even at her tender age and was much sought after by the local community for providing entertainment at public and private functions. She was also an accomplished and intelligent little girl, who looked and behaved as a person much older than her age. There was every reasonable probability, therefore, of her soon earning a decent income from her dancing which has been calculated by the High Court at the very modest figure of about Rs. 400 to Rs. 500 a month and out of this it was not at all unreasonable to expect that she, being a dutiful daughter, would have contributed something towards the house‑hold expenses of her parents until her marriage. In addition to this, she, no doubt, like all other girls in the society, to which she belonged would be helping the mother in the performance of her household duties. On this basis too the assessment made by the Courts below seems to us to be entirely reasonable and in no way excessive. The complaint of the learned counsel that the High Court had fallen into the same error as the trial Court in not first determining any principle of assessment, is entirely misconceived, for the High Court has, in an elaborate judgment, discussed the principles governing the assessment of damages in such cases and has correctly pointed out the circumstances which have to be taken into account. We are unable, therefore, to agree with the learned counsel that the High Court's enunciation of the principles suffers from any defect. Merely because some element of guess work has been introduced into this calculation it cannot be said that there has been any departure from the principles laid down in decided cases for determining the quantum of damages in such cases. The learned counsel himself was frank enough to concede that it was not necessary to make any mathematical calculation. But he still sought to contend that the damage could not be awarded under any head which was not pleaded in the plaint. According to him since the plaint did not allege that the deceased girl would have contributed anything towards the house‑hold expenses or that she ever assisted in the performance of the house hold duties, no damages could have been assessed under these heads. It is no doubt true that the plaint does not specifically raise these grounds, but as already stated, it substantially makes out a case of pecuniary loss as a result of the death of the child though, in an attempt to particularize this loss, certain factors have been taken into account which are not strictly relevant and appear to be somewhat speculative in nature yet in the evidence of the plaintiffs it has transpired that the girl was an expert dancer, was much sought after and that she was of great help and assistance to her parents in many ways. It is quite probable that with her intelligence she might have, as observed by Lord Haldane in the case of Taff Vale Railway Company v. Jenkins even helped her father in the conduct of the business of "Lucky Store" named after her. Her popularity in the area could also have been made a ground for pecuniary loss suffered by the parents due to loss of business in the said store since her death. Whether directly or indirectly, even at her age, as it appears from the evidence, she did contribute towards the welfare of the family and her parents had every expectation that she would have contributed in a much larger measure as she Brew up. It cannot, therefore, be said that any relief has been granted in this case which is beyond the relief claimed in the suit or is based upon purely "speculative possibilities". No other point has been argued by the learned counsel appearing on behalf of the appellant. This appeal is accordingly, dismissed but having regard to the fact that the points of law raised in this case were not only of an unusual and intricate nature but also of first impression we make no order as to costs. With regard to Civil Appeal No. 73‑D of 1966 it is not necessary to reiterate the facts of this appeal which have already been set out earlier. There is no doubt that the Insurance Company was made only a proforma‑defendant in the suit filed by the parents of the deceased girl but it filed a written statement. It did not, however, contest the suit. Nevertheless the suit was dismissed ex parte as against it. In the appeal filed by the appellant, the Insurance Company, was neither impleaded as a respondent nor was the portion of the decree dismissing the suit against it challenged. It was only at the execution stage that an objection was taken under section 47 of the Civil Procedure Code as to the executability of the decree on the ground that under section 96 of the Motor Vehicles Act, 1939, the person entitled to the benefit of the decree was given the right to recover from the insurer the amount of the decree if it did not exceed the sum assured as if the insurer were the judgment‑debtor in respect of the liability‑ The Courts below have as already indicated repelled this contention on the ground that they cannot go behind the decree and since the suit itself was dismissed against the proforma- defendant No. 3 the decree, it was said, cannot now be executed against it. The contention of the learned Advocate appearing in support of this appeal is that both the Courts below have misread and misconstrued the provisions of section 96 of the Motor Vehicles Act, because, thereunder, there was no question of making the insurer liable under the decree itself. Its liability under the said section 96 arose de hors the decree. Thus even if the insurer had not been made a party at all in the suit he would still have been liable under section 96 to pay to the decree holder the amount of the decree if it was within the limit of the sum assured. The relevant provisions of section 96 of the Motor Vehicles Act, are as follows: "(1) If, after a certificate of insurance has been issued under subsection (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 sub section (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 on insurer to whom notice of the bringing of any such proceedings is 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 pro visions 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‑ (ii) 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; or (d) without side‑car being attached, where the vehicle is a motor cycle ; or (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 licence during the period of disqualification ; or (iii) a condition excluding liability for injury caused or contributed to by conditions of 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) . . . . . . . . . (3) Where a certificate of insurance has been issued under subsection (4) of section 95 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any conditions other than those in clause (b) of subsection (2) shall as respects such liabilities as are required to be covered by a policy under clause (b) of subsection (1) of section 95, be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this subsection shall be recoverable by the insurer from that person. (4) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person. (5) . . . . . . . . . . (6) No insurer to whom the notice referred to in sub section (2) or subsection (2‑A) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment as is referred to in subsection (1) or sub section (2‑A) otherwise than in the manner provided for in subsection (2) or in the corresponding law of the reciprocating territory, as the case may be." Reading these provisions it appears to us that they lay down a principle of statutory liability of an Insurance Company to pay an amount due to a decree‑holder even if the insurer is entitled to avoid or cancel the policy or may have actually avoided or cancelled the policy. A plain reading of these provisions thus seems to indicate that the intention thereof was to make the insurer company liable to pay the decretal amount as if the insurance company was itself the judgment‑debtor in respect of the liability even though the insurance company was not co nomine made a party defendant to the suit. The only condition necessary to make the insurance company so liable is that before or after the commencement of the proceedings in which the judgment is given the company had notice through the Court of the bringing of the proceedings. In the present case this condition was fully satisfied, for, the Insurance Company was actually added as a proforma‑defendant, summons was issued to it and it filed a written statement, but thereafter did not contest the suit. The only grounds upon which the Insurance Company could avoid its liability were those mentioned in subsection (2) thereof. None of these defences were, however, pleaded by the Insurance Company in its written statement. It is difficult, therefore, to appreciate how the Courts below could have come to the conclusion that the provisions of section 96 of the Motor Vehicles Act were not attracted in this case. If under this section it is not necessary even to make the Insurance 'Company by name a party to the proceedings then the question of embodying in the decree itself the liability of the Insurance Company does not arise nor does it, in our opinion, make any difference if in the decree it has been said that the suit is dismissed against the Insurance Company ex parte. It was not dismissed because of any defence raised under subsection (2) of section 96 of the Motor Vehicles Act but it was dismissed merely upon the ground that there was no privity of contract between the company and the plaintiffs. No such privity of contract is necessary under the provisions of this section to make an Insurance Company liable. The Insurance Company was in the present case given abundant notice. It could have contested the suit if it so desired. It did not choose to do so. It cannot now be allowed to turn round and say that it was not aware of its liability under section 96 of the Act. Ignorance of law can never be valid excuse. The view taken by the Courts below, in our opinion, amounts to rendering the provisions of section 96 totally nugatory and depriving a successful decree‑holder of a valuable right which the law has conferred upon him. We are, therefore, of the view that the contention of the learned counsel must be upheld and this appeal must be allowed. It is, accordingly, allowed. The orders of the Courts below dismissing the objection under section 47 of the Civil Procedure Code are set aside and the execution case is remanded to the execution Court, to be proceeded with in accordance with law after issuing notice to the Insurance Company to show cause as to why it should not pay to the decree‑holders, the amount awarded by the decree which is well below the amount for which the vehicle was insured. If the Insurance Company has any valid objection to the executability of the: decree it can raise the same in execution proceedings. As the question of law raised is one of first impression we make no order as to costs. K. B. A. Appeal No. 38‑D dismissed. Appeal No. 73‑D accepted: