P L D 1980 Karachi 271 (PLP)

This is a suit for the recovery of Rs. 60,

000. The facts leading to the filing of the above suit, as asserted in the plaint, are that the deceased Muhammad Ishaque was killed in an accident on 12-3-1973 near water pump at Super Highway by a taxi bearing registration No. KAX 3892 belonging to the defendant No. 1 and was driven by defendant No.

2. It has been averred that the deceased Muhammad Ishaque was going on his cycle from the side of Aisha Manzil towards water pump on Superhighway and that the defendant No. 2 came from Karimabad side driving the said taxi No. KAX-3892 recklessly, rashly, and negligently at a very fast and terrific speed and hit the bicycle of Muhammad Ishaque from behind. It has been further averred that the deceased was thrown on the road and received grievous injuries on his head and other parts of the body and died on his way to the Civil Hospital. It has also been asserted that the deceased was the earning member of his family consisting of plaintiff No. 1, his widow and the remaining plaintiffs are his children. It has also been averred that the deceased at the time of his death was earning Rs. 500 per month and his age was about 50 years. The plaintiff after serving a notice through their Advocate on the defendant No. 1 Exh. 6/3 filed the present suit. The defendants Nos. I and 2 have filed a joint written statement which contained the denial of the assertions contained in the plaint including the factum that the aforesaid taxi was involved in any accident resulting in the death of the deceased. The defendant No. 3 (which is the insurance company) has also filed a written statement in which it has been averred that there is no insurance policy issued by the defendant No. 3 in the name of Mir Abbas (i.e., defendant No. 1) for the vehicle in question as alleged by the plaintiff.

2. On the basis of the above pleadings the following issues were framed "ISSUES (1) Whether the plaintiffs are the legal heirs of the deceased Muhammad Ishaque ? (2) Whether there was accident as alleged by the plaintiffs? (3) Whether the deceased Muhammad Ishaque was killed in the alleged accident by Taxi No. KAX-3892? (4) Whether the Taxi No. KAX 3892 was rashly and negligently driven at the time of accident. If so, who was driving the said Taxi? (5) What was the age and income of the deceased Muhammad Ishaque at the time of his death ? ' (6) Whether the Taxi No. KAX-3892 was insured with the defendant No. 3? If yes, what is its effect? (7) Whether the defendants or any of them are liable to pay compensation? (8) To what amount of compensation, if any, are the plaintiffs entitled? (9) What should the decree be?

3. My findings on the above issues are as under Issue No. 1-P. W. 1 Exh. 6 has stated that the plaintiffs are the legal heirs of the deceased, as there is no evidence in rebuttal to the above statement, my finding on this issue is in the affirmative.

4. Issues 2, 3 and 4.-As the learned counsel for the plaintiff Mr. Said Qureshi has dealt with the above issues together, I also intend to take up the same together. In support of the above issues the learned counsel for the plaintiff has relied upon the depositions of P. Ws 2, 3, 5 and 7 Exhs. 7, 8, 10 and 12 and also on the post-mortem report Exh. 9/4. The testimony of the above witnesses clearly proves that the deceased died because of the accident referred in the plaint and the taxi involved in the accident was bearing No. KAX-3892. It has also been proved that the defendant No. 2 was driving the taxi rashly and negligently causing the accident. It may be observed that the defendants Nos. 1 and 2 remained absent during the trial of the above suit. The learned counsel for the defendants Nos. I and 2 Mr. K. A. Ghani has stated no instructions. In the absence of any other evidence yin rebuttal of the evidence referred to hereinbelow produced by the plaintiff, my answer to the above issues are in the affirmative.

5. Issue No. 5.-On this issue the plaintiffs have examined P. W. 1 Exh. 6 and P. W. 6 Exh. I 1 and have also produced the post-mortem report dated 14-3-1973 Exh. 9/4. P. W. 1 who is a son of the deceased has stated that at the time of his death the deceased father was earning about Rs. 500 per month from the provision store and tuitions. P. W. 6 Exh. 11 has supported this statement and has stated that the deceased was earning Rs. 15 to 20 per day from the provision store in addition to Rs. 110 per month from the two tuitions referred to in his statement. P. W. 6 is a senior Government servant and is a distant relation of the deceased. P. Ws. I and 6 have given the age of the deceased at the time of death as 50 years. The post-mortem Report Exh. 9/4, also gives 50 years as the approximate age of the deceased. In the absence of any evidence in rebuttal, my answer to the above issue is that the deceased was earning Rs. 500 per month at the time of his death and his age was about 50 years.

6. Issue No. 6.-On this issue there is no controversy and the fact that the taxi in question was insured with the defendant No. 3 has been admitted by D. W. 1 Exh. 13 in support of which he has produced Exhs. 13/2 and 3, copy of the insurance certificate and the entry In the register containing the detail of the insurance policies issued by the defendant No. 3 to the various persons. The only contention raised is that the above taxi was not insured in favour of the defendant No. 1 but was in fact insured in the name of one Afzal Nawab. In view of the above-admitted position my finding on this issue is in the affirmative.

7. Issue No. 7.-This issue has been contested by the defendant No.

3. According to the learned counsel for the defendant No. 3 as the taxi was insured in the name of Afzal Nawab and not in the name of the defendant No. 1, the defendant No. 3 cannot be made liable to pay any damage on account of the accident referred to in the plaint. Whereas Mr. Said Qureshi learned counsel for the plaintiff has contended that the defendant No. 3 after having admitted the fact that the taxi was registered with it, it was liable to pay the damages to the extent mentioned in the Motor Vehicle Act as the question in whose name the taxi was insured was immaterial. (b) Mr. Said Qureshi in support of the above contention has referred to the case of Kulsum v. Jalil Ahmed (P L D 1964 Kar. 72), relevant portion at page 78, the case of Messrs Pak. Insurance Co. Ltd. v. Mst. Bashir Begum alias Farzana and others (P L D 1966 Kar. 152), and the case of Sri Manmatha Nathkari v. Mokhleesur Rehman (P L D 1969 S C 565). On the other hand, Mr. Muhammad Shafi learned counsel for the defendant No. 3 has relied upon the case of Mst. Hamida Begum v. Suleiman Jan and others (P L D 1961 Kar. 529), and the case of Rugaiya Bai and others v. Secretary of Defence and others (P L J 1976. Kar. 279). (c) Referring to the case of Kulsum v Jald Ahmed, it may be observed that the point in issue in the above case was different than what is involved in the instant case. In the above case it was urged by the insurance Co, that there was misdeclaration about the ownership of the bus inasmuch as it was declared that the bus belonged to Messrs Samaja Transport Co., but whereas the defendant No. 1 Jalil Ahmed Khan had claimed indemnification on the basis of the above insurance policy. It was claimed by the defendant No. 1 that he was the sole proprietor of the aforesaid firm and, therefore, was entitled to be indemnified by the insurance company. In view of the aforesaid factual position. His Lordship Qadeeruddin, J. was pleased to observe that it was not material whether the bus was insured in the name of Messrs Samaja or in the name of the defendant No. 1. (d) Reverting to the Supreme Court case of 1969 viz. Sri Manmatha Nathkari v..Moulvi Mokhlessur Rehman, it will suffice to say that the point in issue before their Lordships of the Supreme Court was, as to whether a decree passed against an insured in a fatal accident case, could be executed against the insurance company though not a party to the suit. Their Lordships were pleased to hold that such a decree could be executed against the insurance company. (e) Reverting to the case of Messrs Pak. Insurance Co. v. Bashir Begum it may be advantageous to reproduce hereinbelow para. 6 of the judgment, which reads As under :- "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. Thus 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 whdther Insurance Policy stood in the name of Abdul Hai Khan or in the name of Muhammad Ali Premji defendant No. 1." (f) It may be observed that Khamisani, J. was pleased to observe that the insurance company was bound to pay the damages under the Fatal Accidents Act regardless of the fact as- to whether the insurance policy stood in the name of Abdul Hai Khan or in the name of Muhammad Ali. The above ruling supports the contention of the learned counsel for the plaintiff. If the matter would have rested here, I would have been inclined to agree with the above view. But Mr. Muhammad Shafi learned counsel for the defendant No. 3 has referred to the above two rulings, mentioned hereinabove in para. 7(b) in which a contrary view was taken. (g) Referring to the case of Mst. Hamida Begum v. Suleiman Jan and others, it may be observed that Farooqui, J. had dealt with the question in issue. It was held by his Lordship that under this insurance policy, which constituted a contract of indemnity, the company had bound itself to indemnify the assured and not any one who may at the material time be de facto owner of the vehicle. (h) Referring to the second case of Mst. Ruqaiya Bai and others v: Secretary of Defence and others, it may be observed that in para. 12 of the above judgment it has been observed that the aforesaid case of Pak Insurance Co. v. Bashir Begum was dissented to in L. P. A. No. 61/61, in which a Division Bench comprising of Khamisani and H. T. Raymond, JJ. took a contrary view to the above case reported in P L D 1966 Kar. Mushtak Kazi, J. in the aforesaid case of Ruqaiya Bai and others after discussing the relevant provisions of the Motor Vehicles Act, and the various rulings on the point in issue agreed with the conclusion arrived at by A. S. Farooqui, J. in the aforesaid reported case of P L D 1961 Karachi. (i) I am also inclined to concur with the aforesaid view of A. S. Farooqui, J. followed by a Division Bench in L. P. A. No. 61/61 and Mushtaq Ali Kazi, J. in the aforesaid cited case. In the instant case it has been proved that the taxi in question was not insured in the name of the defendant No. I and was in fact insured in the name of one Afzal Nawab. D. W. 1 Exh. 13 has produced a copy of the insurance certificate and a register containing the entries of the insured vehicles as Exh. 13/2 and 3 respectively. In view of the above factual and legal position my finding on this issue is that the defendants Nos. 1 and 2 are jointly and severally liable but the defendant No. 3 is not liable as the insurance policy was not in favour of t dh two defendants in the present suit.

8. Issues 8 and

9. There is no evidence in rebuttal to the evidence produced by the plaintiff on the quantum of the deceased's monthly earning. It has been established that the deceased was earning about Rs. 500 p.m. before he met with the accident. After deducting 1/3rd on account of personal expenses of the deceased, the balance comes to Rs. 334 per month. The plaintiffs, therefore, have suffered pecuniary loss to the extent of Rs. 334 per month. As the age of the deceased was 50 years at the time of his death and as the expected average age was 60 years, the plaintiffs have suffered pecuniary loss for a period of 10 years. The plaintiffs are therefore, entitled to a sum of Rs. 40,080 (i.e. Rs. 334 x 12 x 10). I accordingly decree the suit against the defendants Nos. 1 and 2 jointly and severally with 9 % interest thereon from the date of the suit till the payment with proportionate costs. The suit against the defendant No. 3 is dismissed but there will be no order as to costs. S. G. D. ????????????????????? Order accordingly.