P L D 1966 (W (PLP)

KHAMISANI, J.‑

This is a Letters Patent Appeal filed against the Judgment and decree passed by our learned brother Mr. Justice Wahiduddin Ahmad on the 6th of July 1960, decreeing the suit of the plaintiffs against defendants No. 2 appellants in the sum of Rs. 14,280 with proportionate costs.

2. The relevant facts on which this appeal is founded are that on the 20th of April 1954, at about 6 a.m., while the deceased was going to his office at Manora in the Himalya Naval Headquarters on his motor‑cycle, bus No. K A P 548 knocked him down and brought about his death. The deceased at the time of the incident was a young man of thirty‑five years and was employed in the Pakistan Navy drawing a, salary of Rs. 220 per month in the grade of Chief Ordnance Artificer. The plaintiffs, who are the wife and the minor children of the deceased, filed a suit under the Fatal Accidents Act for a sum of Rs. 50,

000. This suit was filed against the owner of the bus defendant No. 1 only. During the pendency of the suit Messrs Pak Insurance Co. Ltd. defendant No. 2 were impleaded under the order of this Court dated the 20th of January 1958.

3. Defendant No. 2 took up the plea that bus No. K A P 548 was insured with them by one Abdul Hai Khan who had without their knowledge transferred the bus and in collusion with their agents fraudulently transferred the insurance policy to defendant No.

1. Their case before the Court was that they were not liable to pay any damages to the plaintiffs in respect of the alleged incident. They had also alternatively pleaded that their liability was limited to Rs. 20,

000. On the pleadings of the parties, the following issues were framed:‑ (1) Did the driver of the passenger bus No. K A P 548 cause the death of Sher Ali Durrani by his rash and negligent driving? (2) Was the deceased Sher Ali Durrani driving his motor cycle very rashly?. (3) To what damages, if any, are the plaintiffs entitled? (3A) Was the Policy in question properly transferred in the name of the defendant No. 1? If not, what is the effect? (4) Is the defendant No. 2 liable? (5) What should be the decree and against which of the defendants ?

4. The suit was decreed against both the defendants, but defendant No. 2 alone has preferred this Letters Patent Appeal.

5. The learned counsel for the appellants has not argued any of the issues except Issue No. 3A which deals with the question whether the Policy under which the bus was insured was properly transferred in the name of defendant No.

1. He has contended that the insurance policy under which the bus in question was insured was not transferred properly. He has not placed reliance upon any law or rule in support of his contention. His only argument is that the incident which resulted in the death of the deceased took place on the 20th of April 1954, and the policy under which the vehicle was insured was transferred on the same day in the name of defendant No. 1, suggesting thereby that the insurance policy under which the vehicle was insured could not have been transferred in the name of defendant No. 1 earlier than the time of accident which took place at 6 a.m. We have examined the arguments put forward by the learned counsel for the appellants and are clearly of the view that there is no force in them. It is an admitted position that the vehicle was insured with the appellants under a Policy, the certificate of which has been brought on record as Exh. 12/2. This certificate of insurance shows that the insurance of the vehicle with the appellants was effective from the 10th of March 1954 to the 9th of March 1955. The insurance policy, however, was in the name of one Abdul Hai Khan. ‑It is not contended that Abdul Hai Khan had not transferred the bus in question on the 17th of April 1954, to Muhammad Ali Premji defendant No.

1. Exh. 9/4, which is a letter from the Deputy Superintendent of Police, Registration, Karachi, shows that the bus was shown to have been transferred in the register maintained by the police on the 17th of April 1954. This letter establishes unmistakably that the bus had been registered to have been transferred in the name of defendant No. I on the 17th of April 1954. It is extremely difficult to believe that when defendant No. 1 took immediate steps to have the bus registered in his name, he would not make an application for the transfer of the insurance policy in his name. It is also difficult to believe that the certificate, Exh. 9/3, transferring the insurance policy in the name of Muhammad Ali Premji was issued to him on the 20th of April 1954, without his making a move earlier than the 20th of April 1954, for the transfer of the Policy. This certificate shows that the insurance policy stood transferred to defendant No. 1 from the 20th of April 1954, to the 9th of March 1955. The plea of the appellants that the transfer of the insurance policy in the name of Muhammad Ali Durrani was fraudulently made in collusion with their agents is not at all borne out by the record. The evidence of Ghulam Sadik, who was the Manager of the appellants, shows that transfer certificate, Exh. 9/3, bears his signature and that it was issued by him. He has spoken a lie in regard to their having been made to move with regard to the transfer of the policy. The fact that the transfer of the Policy was made by the agents of the appellants would unmistakably bind them with such a transfer, the same having been made by their agents. We are, therefore, clearly of the view that the transfer of the insurance policy of the bus in question was neither made without the knowledge of the appellants nor was it made fraudulently in collusion with their agents.

6. Apart from that, the fact that the insurance policy was transferred on the 20th of April 1954, in the name of defendant No. 1 will not make the slightest difference in so far as the liability of the appellants is concerned. The bus in question was admittedly insured with the appellants and this insurance policy was effective from the 10th of March 1954, to the 9th of March 1955. The incident which resulted in the death of the deceased occurred on the 20th of April 1954, during the subsistence of this insurance policy. The appellants, therefore, in our opinion, will be bound to pay the damages under the Fatal Accidents Act regardless of whether the insurance Policy stood in the name of E Abdul Hai Khan or in the name of .Muhammad Ali Premj defendant No. 1.

7. The case put forward by the learned counsel for the appellants that the case of the plaintiffs was not covered by section 96 of the Motor Vehicles Act will by no stretch of imagination give any benefit to the appellants.

8. The learned counsel f9r the appellants pressed no other argument in service in support of the appeal. On the view expressed by us on the points raised by the learned counsel for the appellants, we are of the view that the appeal filed by defendant No. 2 is without any merit. The appeal is consequently dismissed with costs.

9. We had announced the oral order in Court on the 29th of September 1965, the date on which this appeal was heard. The present judgment contains the reasons for our oral order. QADEERUDDIN AHMED, J.‑

I would like to add a few words by way of clarification of our own judgment which has been proposed by my learned brother Khamisani, J. on behalf of this Bench and which has already been signed by him. Firstly, I should add that Mr. Ihsanul Haq, Advocate, who appeared for the appellants addressed almost no arguments to us beyond stating the objection which he had to the decision of the learned Single Judge. His objection was that the bus which caused the death of Sher Ali Durrani was transferred without the knowledge of the appellant insurance company, and that the insurance policy was also transferred by its agent without its knowledge as well as fraudulently. Additionally, counsel stated that the accident had taken place at 6 a.m. on the 20th of April 1964, and that the insurance policy was also transferred on the same date. As its transfer could not have taken place before 6 a.m. on that date, the inference had to be that the accident took place first and the transfer was made afterwards. But he has offered no explanation as to how the last mentioned fact did away with the liability of the appellant insurance company to pay the decretal amount under the third party insurance.

2. As pointed out by the learned Single Judge, the mere fact that the bus or the policy of insurance was transferred without the knowledge of the appellant insurance company has no adverse effect on the liability of the insurance company since the authority of the agent to effect the transfer is not denied. The allegation that the insurance policy was transferred fraudulently or collusively has not been supported by any evidence worth the name, with the result that no fraud or collusion has been established.

3. The mere contention that the accident took" place before the transfer of the policy does not constitute a proper defence in respect of third party insurance. The defences which can be taken in respect of third party insurance by the insurers are set out in subsection (2) of section 96 of the Motor Vehicles Act, 1939. None of those provisions have been or can be invoked to justify this plea. The conclusion, therefore, must be that the plea, not being one of the defences which can be taken by the insurers in respect of third party insurance, is of no effect. The insurance policy was validly obtained and its period was subsisting at the time of the accident as well as at the time of the change of name of the insured. In the above circumstances, the liability of the insurers with respect to the victim of the accident to compensate his dependents under the Fatal Accidents Act, 1855, is not affected. Perhaps a reference can be made in this connection. with advantage to Madras Motor Insurance Company v. Muhammad Mustafa (A I R 1961 Mad. 208) as well as to the observations of Chaudhuri at p. 332 of his book, The Motor Vehicles Act (5th Edn.):‑-- "The statute as expressly confined the right of the insured to avoid his liability to certain grounds and the Court cannot add to those grounds for reasons of hardship. Any alternative view would involve the difficulty which would result in the injustice that the third parties who may be injured by any such accidents, may be unable to obtain the benefit of compulsory insurance, under a variety of circumstances such as the transfer of property in the vehicle, or the death of the insured resulting in an immediate devolution of title by operation of law, etc."

4. The result of this appeal was announced at the close of the arguments of counsel for the parties on the 29th of September 1965. K.B.A. Appeal dismissed.