P L D 1961 (W (PLP)

4. The following issues were framed: "(1) Was Muzaffar Husain Khan killed on 8‑2‑1957 in accident by bus No. KAP 2721'as stated in‑plaint ? (1‑A) Was the accident caused due to the rash and negligent driving of the driver of the bus No. KAP 2721 ? (2) Did the said bus belong to and was registered in the name of defendant No. 1 at the. time of the accident and if defendant No. 2 was also connected with the ownership thereof? Further, was the said bus run under the care and control of defendant No. 3, the then alleged proprietor of the Zamindar Transport at the material date? (3) Was the said bus insured with defendant No. 4 at the time of accident?‑ (4) Are the defendants or which of the defendants, either jointly or severally, liable for payment of damages as claimed by the plaintiff ? (5) To what damages the plaintiff is entitled? General."

5. I shall take up the issues Nos. 1 and 1‑A together. The fact that Muzaffar Hussain was killed early in the morning at about 6 a.m. on the spot as a result of impact with the bus in question, i.e., KAP 2721 on 8‑2‑1957 has not been contested. The point to determine is whether his death was caused by the rash and negligent driving of the driver of the bus who was admittedly defendant No. 5 P. W. 6 Islam Beg was the Station House Officer of the Soldier Bazar Police Station on 8‑2‑.1957 and had investigated this case. He had after investigation put up a challan under section 304‑A, P. P. C. against the driver, the said Saghir Beg. The next witness on the point is Natha, a Chowkider of the Khowja Jamatkbana which is not far from the place of the accident. At the time when the incident took place he was having tea at the Malabari Hotel which is situated at the crossing of the Lawrence Road and the road coming from Nazimabad where the accident had taken place. He stated that this bus was coming from Tinhatti side and was to proceed towards Nazimabad but when it came near the round‑about from where it had to turn towards Nazimabad bridge it did not take the normal turn, round the round‑about but cut in from the wrong side to go over the Nazimabad bridge and in doing so knocked down the deceased. He stated that the leg of the injured person had got entangled in front of the bumper of the bus and he was pushed ahead in that condition ; his face was smashed and he died on the spot ; that the police soon arrived at the spot and arrested the driver and had taken down the name of this witness. He further stated that the driver of the bus in question was racing with another bus which was coming also from the same direction and both were intending to go towards Nazimabad and the driver of this bus in order to overtake the other bus which was correctly moving round the round‑al3out cut in from the wrong side to save the distance and it was in so doing that the accident took place. To the same effect was the evidence of Habibullah, P. W. 8 who had his Tandoor at the side of the Lasbela House and who had also seen this accident taking place. The next witness on the point is Aqeel Ahmad P. W. 9 who has a sweet‑meet shop at the corner of the Lawrence Road and the road going towards Nazimabad. He had seen the accident on the morning in question and has narrated the incident in the same way as Natha has done. He has also stated that he learnt that the young man who was killed was the son of the plaintiff. All this evidence was not seriously questioned in cross‑examination and the consideration of it establishes beyond doubt that this is a case of the grossest possible negligence on the part of the driver Saghir Beg inasmuch as he was racing with the other bus and in order to overtake it turned in the wrong direction and .in doing so knocked down the unfortunate victim. I, therefore, hold that the deceased Muzaffar Husain was killed on 8‑2‑57 as a result of an accident caused by the bus No. KAP 2721 and that this accident was caused due to rash and negligent driving of the driver of that bus namely, the defendant No.

5. I answer the issues accordingly.

6. The issue No. 2 was loosely framed and that was because the plaintiff herself was not quite sure at the time when the plaint was presented as to who was the owner of the bus at the material time so as to clothe him with the vicarious liability in damages for the rash and negligent act of the driver. The question to consider is as to who was the owner of the bus at the relevant time and under whose control was the, bus running so as to determine whether he could be liable as a master for the wrongful act of the servant namely, the driver. The manner, in which this bus was physically and in fact being transferred from one. person to another without the actual transfer of the regis tration, was responsible for the uncertainty in which the plaintiff was placed with regard to the ownership of the bus at the relevant time. It has however been established that the defendant No. 1 had in fact sold the bus on or about 30th April 1954 to one Mahboob Ali. Apart from the evidence of Suleman Jan himself there is unimpeachable evidence produced from the record of the Traffic Department of the Police which was produced by P. W. 1, Israr Hussain, a clerk of that office. From the file of the case this witness produced an application by Suleman Jan dated 30th April 1954 to the effect that he had sold the bus to Mahboob Ali. This is Exh.

27. This letter is also countersigned by Mahboob Ali. The clerk further admitted that the transfer form must have been submitted in 1954 because it bears an endorsemenly of the officer of the department which is dated 3‑9‑54 and another letter to the same effect is Exh. 28 which is also similarly initialled by an officer on 13‑9‑

54. The transfer of the registration however did not take place as the purchaser did not deposit the necessary fee. Thus, though the defendant No. 1 had sold the bus and had parted with it in 1954 his name continued in the registration papers. I, therefore, hold that the defendant No. 1 cannot be held responsible as a master of the defendant No.

5. There is no evidence that the defendant No. 3 had anything to do with 'this bus and therefore he also cannot be clothed with any liability.

7. We then come to the question whether defendant No. 2 was the owner of the bus or in control of it at the relevant time. The actual transfer of the bus in his name had taken place in December 1957, but the material on record leaves no doubt in my mind that he was the owner of the bus and in control of it on 8‑2‑57 when the accident took place. The driver Saghir Beg has stated in his written statement that the bus belonged to Muhammad Sharif. After this written statement was filed the plaintiff made repeated attempts to produce him as a witness to examine him on this question but the summonses could not be served and be was not traced. The most important documentary evidence in connection with the ownership of the bus at the material time by defendant No. 2 is his own letter, Exh. 20, which is dated 28th March 1957. This defendant had received a registered letter from the lawyer of the plaintiff, in which it was stated that the bus No. KAP 2721 was the property of this defendant namely Muhammad Sharif and was on 8‑2‑57 being driven by the driver Saghir Beg, due to whose rash and negligent driving the accident took place on the crossing of Lasbela House and the Lawrence Road, in which Muzaffar Hussain was killed. A demand for payment of damages amounting to Rs. 81,972 was made against Muhammad Shariff. .This letter is Exh.

46. Having received this letter this defendant wrote to the Manager of the Insurance Company, defendant 4 and it would be useful to reproduce this letter :‑ "This is to inform you that an accident took place on 8‑2‑57 near Lasbela House at about 6 a.m. and Mr. Muzaffar Hussain, Shift Foreman, Dalmia Cement Ltd. Shantinagar, Karachi died due to that accident. "Now I have received a Registered notice from Messrs Sufi & Co., Advocates, Karachi for compensation to the widow (mother) of the deceased, copy of the same is enclosed here with. The said Bus KAP‑2721 is insured with your company and therefore it is requested that necessary action may please be taken in the matter. I have sent a reply to the Advocates and also a copy of the said reply is enclosed herewith for your perusal." On the next day Muhammad Sharif wrote another letter to the Insurance Company, in which he said that the bus in question had been purchased by him and his partner Mir Muhammad Ishaq and that it was very much regretted that they had not been able to get the transfer of the insurance policy in their‑names due to some urjavoidable circumstances. Both these letters were admitted by this defendant in his evidence. As a witness however Muhammad Shariff gave a different story. He stated that he had purchased this bus only a few days before the actual registra tion in his favour which took place in December 1957. But he was mindful of the existence of the letters Exh. 20 & 21, which have been referred to above, so he stated that the negotiation for the purchase of this bus by him had started in March, 1957, with Mir Muhammad Ishaq and he had taken it over from him and was ply ing it and was sharing the profit with Muhammad Ishaq. But when questioned as to why he had not shown the notice Exh. 46 to Mir Mohd. Ishaq he replied that he could not do this because having given over the bus to him, Mir. Mohd. Ishaq had gone away to his native place which was in Azad Kashmir. When asked as to whom he had given the profit of the bus as Mir Mohammad Ishaq, according to him, had gone away to Azad Kashmir, he stated that he was giving it to his brother one Ghulam Ghous. When asked whether he had shown the notice of the claim to Ghulam Ghous, he said that he had not done so. He however admitted that Mir Mohd Ishaq had purchased this bus in the end of 1955 or beginning of 1956. Upon a consideration of all this evidence, to which I have referred, I am satisfied that 'on 8‑2‑57, when the accident took place it was the defendant No. ,2 who was the owner of this bus solely or may be in partnership with Muhammad Ishaq and the bus was in his control and Saghir Beg was his servant. `That the actual transfer took place in December 1957, does not alter the position with regard to the vicarious liability which is based upon the fact that at the material time the driver was under the employment of this defendant. The fact that this defendant was the owner of this bus was admitted by Saghir Beg in his written statement. He could not be produced in evidence because he could not be served. On Issue No. 2 therefore I hold that it was the defendant No. 2 who was the owner of the bus and was the master of the defendant No. 5, the driver at the material time and as such he must be held liable for the purposes of damages vica riously for the rash and negligent act of his servant which. caused the death of the plaintiff's son.

8. Issue No. 3: This issue is also loosely framed but the purpose t of it is to determine whether the Insurance Company is liable in this case. The policy of insurance, Exh. 40, in this case stood in the name of Suleman Jan, the defendant No.

1. The period of Insurance, according to this policy, is from 18th December 1956 to 17th December 1957. Suleman Jan had denied that he had obtained this policy‑a fact which has been established beyond any question. The purported signature in Urdu of Suleman Jan is obviously not his. The position that the benefit of this insurance was not for Suleman Jan is impliedly admitted by the defendant No.

2. Muhammad Shariff Chouhan, in his letter dated 29th March 1957, Exh. 21, which he addressed to the Insurance Company, in which he has regretted that he could not get the transfer of policy effected in .his name due to some unavoidable circumstances. It is plain that since the registration of the motor vehicle in question continued to remain in the name of Suleman Jan in spite of various transfers from one owner to other the policy of insurance was also obtained in the name of Suleman Jan. Therefore, even if this insurance contract was valid for the purposes of keeping Sulemanl Jan indemnified, a position which is contested by the Insurance C Company, 1 do not see how that contract could ensure for the benefit of the defendant No. 2 Muhammad Shriff Chouhan, who, I have held, was the owner of the vehicle on the date of the accident. This could only have been possible if the policy of insurance had been transferred with the consent of the insurance in favour of the defendant No.

2. This admittedly had not been done. The argument of the learned counsel that it was the bus which was insured and anyone who was the defacto owner of the bus on the relevant date must also be deemed to be covered by the policy of insurance, is without any substance. Under the policy, Exh. 49, which can a contract of indemnity, the company has bound itself to indemnify the insured and not anyone who may, at the material time, be the defacto owner of the vehicle. This contract is in keeping with the provisions of the Motor Vehicles Act. Section 94 of that Act provides that: "No person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, un less there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter." The requirements of policies and limits of liability are contained in section 95 of the Act which provides that in order to comply with the requirements of this Chapter, a policy of insurance must be a policy which insures the persons or clause of persons specified in the policy to the extent specified in subsection (2) of that section. Then comes section 96 which deals with the duty of insurers to satisfy judgments against persons insured in respect of third part risks. It will therefore be seen that under the Act it was the person who was to be insured and this is what has been done in the policy Exh.

49. Mr. Nusrat relied on a judgment of Waheed uddin, J. in Mst. Bashir Begum v. Muhammad Ali (P L D 1969 Kar. 785) but that case has no application here because in that case it was held by the learned Judge that the policy of insurance had been duly transferred to the person who was the owner of the vehicle at the time of the accident and the contention of the company that the said transfer was fraudulent had been repelled.

9. In the case of Peters v. General Accident Eire & Life Assurance Corporation Ltd. (1938 (2) All E R 265), the Court of Appeal while affirming the judgment of Lord Goddard, who had tried the case ((1937) (4) All E. R. 628) held, that an insurance policy is a contract of personal indemnity and the insurers cannot be compelled to accept responsibility in respect of a third party who may be quite unknown to them. In this case the vendor of a motor van, which was insured by the defendant company, had handed over the insurance policy with the van to the purchaser. The policy contained the usual clause extending the cover to any person driving with the consent or permission of the insured, The plaintiff, who had been injured by the van after d the sale had been completed, obtained a judgment against the pur chaser, and in the action sought to recover the damages he had been awarded from the Insurance Company under the provisions of the Road Traffic Act, 1934, section

10. This claim was rejected on the ground stated earlier and on the additional ground that at the time of the accident, the purchaser could not be said to be driving the van by the order or with the permission of the vendor, as the van was then the, purchaser's own property.

10. For the reasons given above I hold that the defendant No. 2, Muhammad Sharif, who has been held by me to have been the owner of the bus at the time of the accident, was not insured with the defendant No. 4 and, therefore, the indemnity provided for by the policy cannot be extended to him. The result is that the plaintiff cannot recover from the Insurance Company. But having held this I must observe that the manner, in which the officers of the company have acted in this case, is most shabby. There was deliberate attempt on their part to evade liability under the policy by hook or by crook. It has been shown above that the policy in question Exh. 49 was for the period from 18th December 1956 to 17th December 1957 but the payment of the insurance on this policy was being made in quarterly instalments. It appears that the defendant No. 2 himself or someone on his behalf in order to keep the company bound by the policy made a payment of the second quarterly instalment on 9th February 1957, a date after the accident. Having received this payment it appears that the company came to know of the accident and then they promptly issued a letter on the same day to Suleman Jan, who was the insurer in the document, informing him that the insurance certifi cate issued for the bus No. KAP 2721 "has since been cancelled on account of non‑payment." All this can be seen from the evi dence of the Branch Manager of the Company Mr. Abdul Samad, P. W.

4. But after the letter of 9th February was written it must have been realised that the first quarterly premium would be good until the 17th of March 1957 and inasmuch as the ground of can cellation in the letter was stated to be non‑payment the following words were subsequently added "with retrospective effect." All this contrivance would not have saved the company from its liability established that the insurance policy had been transferred to the subsequent owner, namely the defendant No.

2. My finding therefore with reference to issue 'No. 2 is that the company is not liable.

11. As a result of my finding on issues Nos. 2 and 3 it must follow that the defendant No. 2 alone is vicariously liable for payment of damages to the plaintiff.

12. Issue No. 5 relates to the quantum of damages. The claim in the suit has been made on the basis of the expectation of life of the deceased Muzaffar Husain but that is not correct. What has to be seen is as to what is the reasonable amount of the pecuniary loss which has resulted to the plaintiff by the death of Muzaffar Husain as the result of this accident. The plaintiff has stated her age to be 50 years in her evidence. My impression of her was that she is a slim and wiry person and should live to an age of 65 years. The damages have therefore to be calculated for the period of 15 years, for which‑period the plaintiff is expected to live. Her pecuniary loss must be limited to this period. JIG believe the plaintiff that her deceased son was placing his whole salary in her hand and she was supporting from it also the invalid brother of the deceased and his wife and children. But under the Fatal Accidents Acts they are not directly the beneficiaries of the deceased. The evidence of the plaintiff and other witnesses show that the deceased was an exceptionally good and hardworking boy and apart from his job in the Dalmia Cement Factory he was doing extra work in two places and had been able to save some money for his trip to England for further training. He was at the time of his death drawing a salary of Rs, 207 p.m. but he was a technically qualified man and would, I am sure, have risen fairly high after his further training abroad. Taking everything into consideration I have come to the conclusion that the plaintiff would have reasonably expected a sum of Rs. 150 per month from the deceased until‑ her death, Calculated on this basis the damages would amount to Rs. 27,

000. I accordingly decree the plaintiff's suit with proportionate costs only against the defendant No. 2, Muhammad Sharif Chouhan, and defendant No. 5 Saghir Beg the driver. The suit against the other defendants is dismissed with no order as to costs. K. M. A. Suit decreed.