1984 PLP 756 (MLD)

(4) Whether the defendant No.2 was not the owner of the minibus in question on the day of accident? If so, to what effect? (5) What should the relief be?

2. On behalf of the plaintiffs the following persons gave evidence: (i) Khatija Begum widow of deceased Muhammad Ibrahim and plaintiff No.2 in the suit (Exh. 6) is P.W.1, who stated in her evidence that plaintiff No.l, Mst.Asghari Begum, is the mother of the deceased and plaintiffs Nos. 3 4, 5 and 6 are the children of the deceased. The age of the plaintiff No.l, mother of the deceased was given as between 60-66 years and it was deposed by Khatija Begum that the ages of the children are correctly stated in the plaint and that they are all minors. According to the widow deceased Muhammad Ibrahim used to do nickel polish work, from which he was earning about Rs.100 per day. He used to pay to the widow for the house expenses about Rs.50 a day. In addition to that he used to provide the family with clothings and other necessities of life. She has deposed that the deceased had a motorcycle. Exh. 6/1 produced by her is the driving licence of the deceased. She also produced death certificate (Exh.6/2) and the certificate dated 15-12-1979 of Abbasi Shaheed Hospital certifying the death of the deceased on account of the injuries on the person of the deceased caused by some heavy moving vehicle. According to this certificate of Abbasi Shaheed Hospital (Exh.6/3), when Muhammad Ibrahim was brought he was already dead. The counsel for defendants Nos. 2 and 3 did not cross-examine this witness. (ii) P.W.2 is Ghazanfar Ali (Exh.7). He is an eye-witness and he stated in his evidence that he had seen the accident, in which the minibus coming from the opposite direction at a very fast speed swung towards its right side crushing the motorcyclist, the deceased. (iii) PW.3 Muhammad Rafiq (Exh.8) is also an eye-witness. He saw the accident taking place and he deposed that the minibus was coming at a very fast speed and collided with the motorcycle on the wrong side of the road. This witness accompanied the police party and other persons to the Hospital but, the deceased, who was badly injured, collapsed and died before tiny medical aid could be provided to him in the Hospital. According to this witness, the deceased Muhammad Ibrahim was going on the left side of the road and the minibus approaching from the opposite direction suddenly swung towards its right side and the accident occurred on the wrong side on the road. This witness later on came to know that the name of the deceased was Muhammad Ibrahim. In his cross-examination by the learned counsel for the defendant No.2, this witness stated that he came to know about the name of the deceased when the police on search of the body of the deceased discovered some papers indicating his name. (iv) PW-4 Sajjad Mushir (Exh.9) is a Sub-Inspector in the Excise and Taxation Department and he brought the complete file of his department relating to Minibus 806-427. He deposed that according to his record the ownership of this minibus stands in the name of Murad Gut. He produced a transfer form showing that the vehicle in question was transferred from its previous owner Iqbal Ahmad to Murad Gul and this transfer form is dated 18-6-1976 (Exh.9/1). tie also produced as Exh. 9/3 a registration form bearing a report and also an order of the Excise and Taxation Officer sanctioning the transfer in favour of Murad Gut. He also produced a receipt dated 28-5-1983 showing that the taxes of the minibus had been paid for the period ending on 30-6-1983. In his cross-examination by the learned counsel for defendant No.2, the witness stated that he did not know who had paid the taxes. (v) PW-5 is Javed Iqbal Exh.10, Sub-Inspector of Police. He stated that on 15-12-1979, he was Sub-Inspector of Police Station Nazimabad, where the accident was reported and after receipt of the information about the accident he proceeded to the spot but before that he had gone to Abbasi Shaheed Hospital where he saw corpse of deceased Muhammad Ibrahim. He got the body examined by the Duty Medical Officer at Abbasi Shaheed Hospital, who issued a post-mortem report and this was produced as Exh.10/2. According to this post-mortem report, the cause of death of the deceased is shock and haemorrhage due to the injuries on the person of the deceased caused by some heavy moving vehicle. At the Vardal, this witness saw a motorcycle lying down and also the minibus in question. He produced the Mashirnama of the scene of the accident. He had carried out investigation and recorded the statements of the witnesses. In his cross-examination he has stated that he had seized the minibus and it was delivered to defendant No.2 in view of the order of Court but the order of the Court was not available with him. He also produced the sketch of the Wardat as Exh. 10/3. On behalf of the insurance company, Muneer Ahmed, P.W.1 Branch Manager of the Insurance company, gave the evidence Exh. 11 and stated that a third party risk insurance policy was issued to Murad Gut (defendant No.2) in respect of minibus in question for the period from 22-7-1979 upto 21-10-1980. The original policy was produced as Exh. 12 and photostat copy of the certificate of the insurance as Exh.

13. Murad Gut, defendant No. 2 produced the original policy and photostat copy of the certificate of the insurance. Murad Gut (defendant No.2) gave evidence (Exh. 12). He stated that he had purchased the bus in 1976 and then he sold it to one Ajab Khan on 8-7-1977 and he also handed over possession of it to Ajab Khan and he was divested of all his rights over the minibus and Ajab Khan became its exclusive owner. According to defendant No.2, originally the registration number of minibus was KCB 1826 and later on it was given a new registration No.806-427. He further stated that he has no concern with the bus since he sold it to Ajab Khan and that the sale of the bus had taken place in the presence of Awal Shah, Gut Rehman and Muhammad Naseem. In his cross-examination he stated that he had not informed the Motor Registration Authorities about the sale of the minibus and that he had retained 'A' form of the registration document and delivered all other documents to Ajab Khan-and that 'A' Form was to be delivered on his making full payment. No information was also given to the insurance company about the sale of the bus to Ajab Khan. He denied that the minibus was in his possession and control on 14-12-1979 when the accident had taken place or that he was its owner or that it was being driven by his driver Ali Rehman. One other witness gave evidence on behalf of defendant No.2 and he is Awal Shah (Exh.13). This witness stated that he deals in purchase and sale of buses and that the minibus in question had been sold by defendant No.2 to Ajab Khan in his presence on 8-7-1977. He gave entire details of the transaction. I have heard the arguments of Mr. Asad Ali Bilgrami, learned counsel for the plaintiffs, Mr. Hussain Shah Rashidi, learned counsel for defendant No.2 and Mr.Muneer. Rehman, learned counsel for defendant No.

3. As observed earlier, defendant No.l, the driver, is ex parte.

3. Issue No.1 is whether the death of the deceased was caused by the negligent or rash driving of the defendant No.1, servant of defendant No-2. The evidence on behalf of the plaintiffs, which includes the evidence of the two eye-witnesses namely Ghazanfar Ali (Exh.7) and Muhammad Rafique (Exh.8) as regards the negligent, and rash driving by defendant No.l, the driver of the minibus in question, has gone uncontroverted. There has been no cross-examination of these two witnesses at all on the question of the manner in which the accident had taken place. From the evidence on record it has been established that the accident took place on account of rash and negligent driving of defendant No.1 which resulted in serious injuries being caused to the deceased Muhammad Ibrahim, who succumbed to the said injuries within a short time of the accident. However, the evidence has not established that defendant No.l was the employee of or servant of defendant No.

2. There is no evidence on behalf of the plaintiffs to the effect that defendant No. 1 was the servant of defendant No. 2 at the time of accident and the evidence of defendant No. 2, who himself came into the witness box to the effect that defendant No. 1 was not his driver or employee has not been controverted. There is no cross-examination of defendant No. 2 on this point. I, therefore, hold that the death of deceased Muhammad Ibrahim was caused by the rash and negligent driving of defendant No. 1 but it has not been established that defendant No. 1 was the employee of defendant No.

2. Issue No. 1 is decided accordingly.

4. I will take up issue No.4 now and which is whether the defendant No. 2 was not the owner of the minibus in question on the day of the accident and if so, what is its effect. P.W.4 Sajjad Mushir (Exh.9) Sub-Inspector of Excise and Taxation Department had brought the entire record relating to the bus in question and according to this record the bus in question stood in the name of defendant No.

2. However, defendant No. 2 gave evidence that he had sold the bus to one Ajab Khan, whose address was also given by the defendant No.2 in his written statement. According to defendant N3.2, the bus was sold on 8-7-1977, more than two years prior to the date of accident and that since the sale of bus to Ajab Khan on 8-7-1977, Ajab Khan became exclusive owner of the bus in question and- that since 8-7-1977 he had no concern with the bus. The evidence of Murad Gut is supported by the evidence of Awal Shah Exh.13 in whose presence the sale had taken Place. It is strange that no effort was made by the plaintiffs to add Ajab Khan as a defendant to the suit in spite of the fact that defendant No.2 had taken a specific plea in his written statement that he had sold the bus as far back as 8-7-1977 to Ajab Khan, whose address has also been given in the written statement of defendant No.2. The evidence on record shows that since 8-7-1977 the defendant Nu.2 no longer remained the owner of the bus in question and it became the property of Ajab Khan and that possession and control of the bus w.e.f.8-7-1977 also came to Ajab Khan. Mr.Asad Ali Bilgrami, learned counsel for the plaintiffs conceded that in case it is found that the minibus in question had been sold on 8-7-1977 by defendant No.2 to Ajab Khan as alleged by defendant No.2, no decree can be passed in the present suit against defendant No.2. On the basis of the evidence on record I have reached the conclusion that defendant No.2 was not the owner of the minibus in question on the date of the accident and as conceded by Mr. Asad Ali Bilgrami, learned counsel for plaintiffs, defendant No.2 cannot be made liable for payment of any compensation or damages to the plaintiffs on account of the death of deceased Muhammad Ibrahim in the accident, which took place on 14-12-1979. Issue No.4 is decided accordingly.

5. Issue No.2 is whether the plaintiffs are entitled to any damages and if so, to what amount. The plaintiffs being the dependents of the deceased are entitled to the compensation under the provisions of the Fatal Accident Act, 1855. It was submitted by Mr.Asad Ali Bilgrami, learned counsel for the plaintiffs, that the figure of damages claimed was wrongly inserted in the original application at Rs.6,48,000 and the plaintiffs may be allowed to reduce the amount of damages to Rs.60,000 and the plaint may also be allowed to be amended accordingly. The two learned counsel are present and have no objection to this request. In the interest of justice this request is granted and the amount claimed in the plaint is reduced to Rs.60,

000. In this suit, therefore, the plaintiffs have claimed a sum of Rs.60,000 as damages under the Fatal Accidents Act, 1855, resulting in the death of Muhammad Ibrahim, who was their financial supporter. As regards the quantum of damages, evidence of the widow is that deceased Muhammad Ibrahim used to do nickle polish work and was earning Rs.100 per day and he used to pay to the widow Rs.50 a day for house expenses and in addition to this, he used to provide the plaintiffs with their clothings and other necessities of life. The age of the deceased at the time of his death is given in the Exh. 6/3, medical certificate as 32 years and it is also given as 32 years in the driving licence of the deceased (Exh. 6/1). The span of life of the deceased is taken as 60 years if he had not died in the accident. Even if a very conservative estimate is made about the financial assistance that he would have furnished to his widow and children, the amount of Rs.60,000 claimed by the plaintiffs in the present suit is not exaggerated. It can reasonably be expected that on an average the deceased would have given about Rs.300 per month for the remainder of his life to the plaintiffs up to the age of 60 years if he had not died in the accident on 15-12-1979. Calculated at this rate, the damages would come to more than RS.60,000 but as the claim has been restricted by the plaintiffs to Rs.60,000 they are entitled to a decree of Rs.60,000 only. But it is conceded by Mr. Asad Ali Bilgrami, learned counsel for the plaintiffs, that the liability of the insurance company is limited to Rs.20,000, as the vehicle involved and insured with defendant No.3 company was a public vehicle. Issue No.2 is decided accordingly.

6. I will now take up issue No.3 which relates to the payment of court-fee. This suit was filed on 13-1-1980 and on that date the court-fee was payable on suits filed for recovery of damages under the Fatal Accidents Act, 1855 also and this has been conceded by Mr.Asad Ali Bilgrami.. It may be observed that by Sind Finance Act XV of 1975 Article 20 was added in the Second Schedule to the Court Fees Act and according to this Article 20 on plaint or memorandum for recovery of damages under the Fatal Accidents Act, 1855, a fixed court-fee of Rs.15 was payable. In the present suit which was filed on 13-1-1980 an amount of Rs.15 as court-fee was paid, under the impression that the said article was still on the statute book. However, Article 20 was omitted by the Sind Finance Ordinance XI of 1979 which came into force from 1-7-1979 and in the circumstances, court-fee was payable ad valorem on the amount of the claim in the suit. Again by the Sind Finance Ordinance, 1981, Court Fees Act was amended and w.e.f. 1-7-1981, no court-fee is payable on the suits filed under the Fatal Accidents Act, 1855, for recovery of the damages. However, suits filed during the period from 1-7-1979 till 30-6-1981 were subject to payment of court-fee ad valorem on the amount of the claim. The present suit was filed on 13-1-1980 i.e. during this period of two years when court-fee was payable ad valorem on the amount claimed in the suit. I, therefore, hold that court-fee is payable on this suit. The plaint has been allowed to be amended and the court-fee becomes payable on Rs.60,000 which is the amount claimed in the suit. However, in view of the special circumstances, and in the, interest of justice, it is ordered that the court-fee will be recovered from the plaintiffs out of the amount recovered by the plaintiffs under the decree.

7. I pass a decree in the sum of Rs.60,000 with interest at the rate of 14 per cent per annum from the date of decree till realization with costs in favour of plaintiffs and as against defendant No.l. I also pass a decree in favour of the plaintiffs and as against defendant No.3 in the sum of Rs.20,000 with interest at the rate of 14 per cent per annum from the date of judgment till realization and costs under the decree passed in this suit. The suit of the plaintiffs as against defendant No.2 is dismissed but with no order as to costs. Out of the decretal amount the share of the plaintiff No.l will be Rs.5,000 and the rest of the plaintiffs Rs.11,000 each. M.Y.H. Suit decreed.