1983 PLP 3126 (CLC)

FAKHRUDDIN H. SHAIKH, J. This is an appeal from the order of a learned Single Judge of this Court in Civil Suit No. 535 of 1977, dated 28th April, 1980, whereby the learned Single Judge had decreed the suit filed by respondents Nos. 3 to 13 against the appellant and respondents Nos. 1 and 2 in the amount of Rs. 58,456 with 9 per cent simple interest from the date of the suit till payment of the decretal amount with proportionate costs. The suit by respondents Nos. 3 to 13 was filed under Fatal Accidents Act, 1855 for Rs. 2,40,000 by way of compensation on account of death of Abdul Aziz Butt alleged to have been caused by respondent No. 2 Ghulam Nabi by rash and negligent driving of a vehicle. Respondent No. 2 was employee of the appellant at the relevant time and the vehicle also belonged to the appellant. The vehicle in question was insured with respondent No. 1, National Insurance Cor poration, whose liability according to the decree of the learned Single Judge, was held to be to the extent of Rs. 20,000 with 9%, simple interest thereon from the date of the suit till the date of payment with proportionate costs.

2. The facts of the case leading to the suit are as under:‑ Abdul Aziz Butt was husband of respondent No. 3 and father of respondents Nos. 4 to

13. It is alleged that on 12th June, 1979 he was crossing the road near Liaquat College on the National Highway while driving Vehicle No. KCM‑652 belonging to the appellant and in doing so caused an accident resulting in the death of Abdul Aziz Butt. At the time of the accident the deceased was 45 years old enjoying good health earning about Rs. 1,000 per month. Respondents Nos. 3 to 13 filed the said suit in this Court on 17th July, 1977 claiming Rs. 2,40,

000. The appellant defendant No. 1 contested the suit on a preliminary objection that the suit was time‑barred. It was admitted that the vehicle belonged to the appellant but it was denied that the driver Ghulam Nabi (respondent No. 2) was driving the vehicle rashly or negligently. According to the appellant, the deceased had by his own negligence, come before the vehicle all of a sudden and was run over without any fault of the driver. It was further alleged that the appellant was not liable for damages in view of section 66 of the Port Qasim Authority Act, 1973 and that the vehicle was insured with respondent No. 1.

3. Respondent No. 2 Ghulam Nabi, the driver of the appellant authority, did not file any written statement and remained ex parte. Respondent No. 1, the Insurance Corporation also contested the suit on the ground that the claim was time‑barred and there was no contractual relationship between the deceased and the Insurance Corporation nor there was any cause of action against it. The Insurance Corporation however, admitted that the vehicle, being a commercial one the liability of the Company if any would not exceed Rs. 20,000.

4. On the above pleas following issues were settled by the Court :‑ (l) Is the suit time‑barred ? (2) Is the suit not maintainable under section 66 of P.Q.A. Act ? (3) Whether the defendant No. 2 was negligent in driving ? (4) Whether there was contributory negligence of the deceased ? (5) Whether any and if so which defendant of the three is liable to pay the compensation and to what extent ? (6) What should the decree be and the consequence of costs ?" After recording evidence of the parties the learned Single Judge held that the suit was not time‑barred under section 68 of P.Q.A. Act, that respondent No. 2 was responsible for causing death of the deceased by negligent driving, that there was no contributory negligence on the part of the deceased and that the appellant and respondents Nos. 1 and 2 were liable to pay compensation to the extent stated above.

5. Learned counsel for the appellant has pressed this appeal on two rounds only namely, (1) that the learned Single Judge was wrong in holding that the suit was within time and (2) that the entire liability to pay compensation, if any, to the heirs of the deceased Abdul Aziz Butt, was that of respondent No. 1 the Insurance Corporation. Findings of the learned Single Judge on other issues has not been challenged.

6. So far as the question of limitation is concerned, it is argued by Mr. Abbas Ahmed learned counsel for the appellant, that the accident had taken place on 12th June, 1976 whereas the suit filed on 17th July, 1977 P. e. after 13 months of the accident. According to Article 21 of the Limitation Act, a suit under the Fatal Accidents Act, 1855 is to be filed within one year from the date of the death of the person killed. It may be stated that the 12 months period expired on 12th June, 1977 I.e. during the closure of the Court for summer vacations. According to learned counsel for the appellant the closure of the Court for Summer Vacations did not prevent the heirs of the deceased to present a plaint in the office of the Court which was open for the purposes of receiving plaints etc. In support of this plea Mr. Abbas Ahmad has relied on the case of Dharamsi Morarji Chemical Co. Ltd. v. Occhavlal Hargovandas Shah ((1) A I R 1927 Bom 480) in which it has been held that according to the prevailing practice in the Bombay High Court, the Court shall not be deemed to be 'closed' in Summer Vacations for the purposes of presentation of plaints, etc. It has, however, been further held : "Whether a Court is or is not closed is in each case a question of fact and must depend upon the practice which prevails in the particular Court." It has further been argued that in spite of the Summer. Vacations the respondents Nos. 3 to 13 were at liberty to file plaint on or before 16th June, 1977 which was the last date for presentation of the plaint within time.

7. It has on the other hand been argued by Mr. Amir Ahmed Khan learned counsel for respondents Nos. 3 to 13 that the principle laid down in the Bombay case is not applicable in the present case nor the practice of Bomaby High Court is a precedent for' us. He has argued that on the last date of the limitation for filing of the suit the Court was closed due to Summer Vacations and as such the plaintiffs were entitled to file the plaint on the reopening of the Court after the vacations, under section 4 of the Limitation Act. In support of this plea he has relied on the case of Fazal Kariml and another v. Ghulam Jilani and others 1975 S C M R 452. 1t has been held in the above case that in spite of the notification of the High Court permitting the litigants to file petition during the Summer Vacations, the litigants were entitled to the benefit of section 4 of the Limitation Act and can exclude the period of vacation while computing the time limitation for filing suit. It has further been held that the notification of the High Court permitting the litigation to file plaints etc. during the vacations cannot override the statutory provisions of section 4 of the Limitation Act nor deprive the litigants of the benefit of excluding the period of vacations in computing the time of limitation. Similar view was taken by the Supreme Court in the case of lkramullah and others v. Syed Jamal 1980 S C M R 375). In view of the above decisions there was open for the plaintiffs that is, respondents Nos. 3 to 13 either to file suit during the period of vacations or to take advantage of section 4 of the Limitation Act and file the same on the first day after the reopening of the Courts after Summer Vacations. The fact that respondents Nos. 3 to 13 took advantage of the notification of the High Court and filed plaint during the vacations. after the period of limitation, would not deprive them to claim benefit of section 4 of the Limitation Act in view of the law laid down by the Supreme Court. It was, therefore, rightly held by the learn. ed Single Judge that the suit was not barred by limitation.

8. So far as the question of liability to pay compensation by the appellant and respondent No. 1 inter se is concerned, it has been fairly conceded by Mr. Abdul Rauf, learned counsel for respondent No. 1 Company, that the Company is liable only to the extent of Rs. 20,000 under section 95 (2) of the Motor Vehicles Act, 1939. He has further stated that he has no objection ever. if this amount, which has already been deposited in the Court, is paid to the heirs of the deceased. He has, however, argued that by virtue of section 95 (2) of the Motor Vehicles Act, the Company is not liable to any amount exceeding Rs. 20,000 to pay as compensation to the heirs of the deceased. In support of this contention Mr. Abdul Rauf has relied on the case of Ghulanr Mustafa v. Trevor. A Robertson and another P L, D.1966 Kar.

271. It has been held in the above case that under section 95 (2) (4) and section 96 of the Motor Vehicles Act, 1939, the insurer can neither insure vehicle for the amount lesser than fixed under sec tion 95(2) nor reduce his liability by insertingany condition in the certificate issued under section 95 (4) restricting insurance to the amount lower than that statutorily fixed. It was further held that the amount so fixed is Rs. 20,000 to which only the Insurance Company is liable for payment to the heirs of the deceased by way of compensation. In another case relied upon in this connection is Kulsoom v. Jalil Ahmad Khan P L D 1964 Kar. 72 in which it has been clearly held by this Court that the liability of Insurance Company in respect of insurance against third party risk in cases of fatal accidents is limited to Rs. 20,000 according to section 95 (2) (b) of the Motor Vehicles Act, 1939. It may be stated that the West Pakistan Motor C Vehicle Ordinance, 1965 has repealed the Motor Vehicles Act, 1939 except Chapters VII and Vill which include section 95 as well. Learned counsel for the appellant was unable to show a, to how, in view of the clear provisions of section 95 of the Act of 1939 and the law laid down by this Court in the two cases cited above, respondent No. 1 can be saddled with the liability exceeding Its. 20,000 as compensation to the heirs of the deceased. No other point has been urged in support` of the appeal. The quantum of the compensation decided by the learned Single Judge has not been challenged. For the reasons stated above, we do not find any sub stance in this appeal which is dismissed with costs. M. Y. M. Appeal dismissed.