P L D 1966 (W (PLP)

QADEERUDDIN AHMAD, J.‑

This is a Letters Patent Appeal against the judgment of our learned brother, A. S. Faruqui, J., dated the 27th of May, 1960. This appeal was heard previously by another Bench of this Court, and judgment was reserved on the 6th of May 1964, but later on, a notice was issued to the advocates of the parties as well as to the Asian Mutual Insurance Company Limited, vide the order of this Court dated the 9th of May 1964, because the decree under appeal is for Rs. 22,027.00 with proportionate costs against the defendants; but during the arguments counsel for the parties gave the Court to understand that the liability of the Insurance Company was limited to Rs. 2,000.00 only in terms of the insurance policy, Exh.

23. We have heard counsel for the parties over again, but have heard counsel for the Insurance Company on the limited question of the extent of the liability of the Insurance Company.

2. The facts which form the background of this appeal, briefly, are that respondent No. 1 Trevor A. Robertson filed a suit for the recovery of Rs. 50,000.00 as damages as against the present appellant, Ghulam Mustafa, owner of a truck bearing No. KAP 6849 and respondent No. 2 Moharam Shah, the driver of the truck. The allegation of the plaintiff was that, on the 23rd of March 1957, at about 3 p.m. he was driving a Fiat Jeep car in the company of a friend and was going from Karachi towards Thatta. Another vehicle proceedings in the same direction ahead of the plaintiff went off the road whereby it raised a cloud of dust. The plaintiff, therefore changed down to third gear and went to his extreme left, so much so that both of the left wheels of the jeep car went on to the kutcha part of the road and then he applied brakes to bring his jeep car to a stop. As the plaintiff's jeep car was about to stop, a huge 6 weeler Bedford truck bearing No. KAP 6849 driven by Moharam Shah, respondent No. 2, suddenly emerged at fast speed out of the cloud of dust on its own wrong side and struck the plaintiff's jeep car with such force as to cause the front wheels of the truck to go over the front portion of the car and to push the car back for some distance. The distance has been found to be; about 30 feet. The force of this impact not only smashed up the jeep car, but also caused serious injuries to the plaintiff and his company. He alleged that this collision use was wholly due to the rash and negligent driving of respondent No.

2. Respondent No. 2, the driver of the truck, was tried for a traffic offence and was convicted under section 338, P. P. C. and sentenced to rigorous imprisonment for three years as well as to pay a fine of Rs. 500.00.

3. The injuries sustained by the plaintiff included "fracture of his right forearm, right fabula, left forearm at two places, and complete fragmentation of the right knee‑cap". The conse quences of the injuries were that the plaintiff‑ "Was an indoor patient in the nursing home of Col. Simcox from the 23rd March 1957, to the 12th of April 1957. Even after his discharge the plaintiff was confined to his home and under treatment. According to expert medical advice he will not be able to do his ordinary pursuits of life for a total period of 6 to 7 months and that thereafter while walking he will have a permanent 15 per cent. defect of locomotion as a result of the loss of his right knee cap." To compensate the above injuries and losses he claimed: Rs. (i) by way of hospital and medical charges 7,527.00 (ii) by way of loss of income 14,000.00 (iii) by way of future loss owing to reduced efficiency and earning capacity ... ... 8,500.00 (iv) for being condemned to be a sort of a cripple and unable to share and enjoy all that life offers ... 15,000.00 (v) for loss of health, diminished expectancy of life, pain and bodily as well as mental suffering ... ...... 5,000.00

4. The truck was insured with the Asian Mutual Insurance Company Ltd. with respect to third party liability; therefore, an application was made under subsection (2) of section 96 of the Motor Vehicles Act, 1839, for a notice to be issued through the Court to the Company. The notice was accordingly issued, but the company did not exercise its option of defending the suit. The case was, therefore tried in the absence of the company.

5. The plaintiff examined, besides, himself, 3 witnesses, namely: (1) Dr. Simcox, (2) Shafiq Ahmad S. I. P. at Thatta at the relevant time, and (3) B. A. Marolly, a gentlemen who was following the jeep of the plaintiff in his own car and was a member of the plaintiff's party which was going from Karachi for a pig shoot. The defendants appeared as their own witnesses. In addition to the evidence of the above‑mentioned witnesses of the plaintiff, his case was supported by a mashirnama of the site of the accident, Exh. 13; a sketch of the place of incident, Exh. 14, and photographs Exhs. 9, 11 and

12. The high speed as well as rashness and negligence of the driver of the truck, namely Muharam Shah, was found by the learned Single Judge to be established by the fact that the truck pushed the jeep car for about 30 feet before it stopped, combined with the following admission of the driver:‑ "I had crossed the octroi post of Thatta and must have gone about a mile away from Thatta when a truck belonging to Sui Gas Company, which was coming from behind passed me. It raised such a dust that it was impossible to see the road. I was still on my correct side when I became aware of an impace with my truck. I released the accelerator and put my foot upon the brake. It was a terrific impact, and my truck was badly damaged. Even the mobil oil chamber had burst up." The stand taken by the defendants that the truck was on its correct side was found to be disapproved by the location of and the position in which the truck and the jeep car were found after the accident. They were interlocked, and the truck was on its wrong side, while the jeep car was on its correct side.

6. Mr. Ghulam Ali, counsel for the appellant, has criticised the judgment of the learned Single Judge by contending that the oral evidence has been found by the learned Single Judge to be unreliable, and reliance was placed on circumstantial evidence. This view has been expressed by him in the following sentence: "In a case of this nature where the evidence on either side is interested, it becomes necessary to look into the cir cumstantial evidence as a safer guide for reaching at the truth." The oral evidence was discarded by the learned Single Judges according to counsel, because the case of the plaintiff, in term, of paragraph 1 of the plaint, was that the cloud of dust was raised by a vehicle which was proceeding in the same direction as the jeep car of the plaintiff. But, according to B. A. Marolly as well as Moharam Shah, respondent No. 2, the vehicle which raised the dust was coming from the opposite direction and had overtaken the truck which Moharam Shah was driving. The learned Single Judge has dealt with this part of the evidence, as follows:‑ "The defendant No. 1 (respondent No. 2 in these proceedings), who was driving the truck in question was behind the truck which had caused the cloud of dust and which had, according to him passed (by) his truck. He (respondent No. 2) has admitted in his evidence that the truck of the Sui Gas Co. had raised such a dust that it was impossible to see the road and it was at this point of time that he became aware of an impact with his truck which was of a terrific nature. The plaintiff in his examination‑in‑chief said that the cloud of dust was raised by a truck which was going ahead of him. This was not correct, and in his cross‑examination he admitted that he was not able to see whether the dust was raised by the truck going in front of the defendant's truck or by the truck which had gone ahead of him towards Thatta. The point, however, is set at rest by the evidence of P. W. 4, Mr. Marolly, according to whom the dust had been raised by the truck coming from the opposite direction and ahead of the truck of the defendant. It may thus safely be held that the cloud of dust which obstructed the sight was caused by the truck (which was) going ahead of the defendant's truck."

7. Mr. Ghulam Ali argued that, in the context of the judg ment, the above conclusion should be taken to be the result of the view that the learned Single Judge took of the circumstances of the case, and not o: any particular oral or documentary evidence. The circumstances were that a mashirnama of the site of the accident was prepared on the day of the accident, but the sketch was prepared after one day of it, and neither the writer of the mashirnama nor the person who prepared the sketch had been examined as witnesses. Additionally, one of the photo graphs, which is Exh. 9, shows that the oil which had leaked owing to the damage sustained by the oil chamber was on the correct side of the truck. This means, according to counsel that the truck was on its correct side when it passed through the cloud of dust and collided with the jeep car. If, in spite of this proof, which is on the record, the mashirnama and the sketch of the site showed that the truck and the jeep were located at a place which was on the wrong side of the truck and on the correct side of the jeep car, then in the absence of proper proof of those documents, the photographs should be taken to be the best evidence and the mashirnama and the sketch of the site should be attributed to the manoeuvrings of the police.

8. The above argument of Mr. Ghulam Ali appeared to have some weight to begin with, but its weakness was exposed when it was emphasised that not only the mashirnama and the sketch of the site supported the plaintiff's version, but the truck and the jeep car also supported it because they were in an inter locked state and were found in the position in which they ought to have been according to the plaintiff's version. If they were on the correct side of the truck at the time of the accident, then there should be an explanation as to how they were later on found to be physically located on its wrong side. Counsel explained that the police must have removed them and placed them in the position which suited their case. We enquired from counsel as to what possible method there could be by which a huge six wheeler truck which was interlocked in an accident with a jeep car could be lifted from one place and deposited at another place in the same stage of entanglement. The suggestion ap peared to us to be an impracticable one. The mashirnama was admittedly prepared on the same day on which the accident took place, and it supported the version of the plaintiff. Moreover, it was not the plaintiff or any body from his party who lodged the report with the police. His party was busy in removing the plaintiff owing to the serious injuries that he had sustained, from the place of the accident to Karachi. It was respondent No. 2, who reported the accident at the police station, and in his presence the mashirnama was prepared. The sketch of the site was pre pared under the directions of Shafiq Ahmad who has been examined as a witness. The sketch confirms the mashirnama. Shafiq Ahmad has also said that he had checked the contents of the mashirnama with the position of the vehicles at the site. In these circumstances, the only positive evidence in favour of the appellant that needs serious thought is the alleged trial 'of oil that can be seen in Exh.

9. As a matter of fact, the positive part of Mr. Ghulam Ali's argument was founded on this alleged trail of oil only. It has been dealt with by the learned Single Judge, as follows:‑ "With regard to the mark of Mobil Oil shown in Exh. 9 it is quite clear by merely looking at the mark in the photo graph that it is not the same trial which is shown in Exh. 14 (the sketch of the side) commencing from the point of impact to the point where the vehicle came to rest. This mark runs parallel to the place where the two vehicles are shown standing and goes even beyond the jeep. But the trial which was caused by the dropping of the mobil oil after the accident could only extend from the point of impact to the place where the two vehicles came to rest. This mark, therefore, is more likely to have been caused by some other vehicle which may have trudged upon the mobil oil which was lying on the road after the accident and which may have passed the road thereby causing the mark in the position in which it appears in Exh. 9." The above defect in the positive evidence combined with the explanation as to how it could appear inconsistently with the actual position of the vehicle at the site, leaves no doubt in our minds that the evidence on which Mr. Ghulam Ali relies is a spurious mark which the camera has caught.

9. The next objection of Mr. Ghulamally to the judgment under appeal was that the plaintiff had broken up his claim for damages into five items (see paragraph 3 above) but the last three items were in reality different aspects of the same loss. That loss consisted of the consequences of the injury, namely reduced physical efficiency, inability to enjoy life fully and mental suffering. The learned Single Judge has allowed Rs. 10,000.00 as damages (a) for future loss resulting from reduced efficiency and earning capacity and (b) for being condemned to be a sort of a cripple unable to share and enjoy all that life offers; but on the top of it all has also allowed Rs. 5,000.00 for (c) loss of health, dimi nished expectancy of life, pain and bodily suffering. The third item, counsel contended is included in the first two. Mr. Nusrat's reply was that hospital charges and loss of income could be proved by direct evidence, but the above‑mentioned items needed a general assessment of the loss by a judicial mind. The learned Single Judge has allowed Rs. 15,000.00 in respect of them as against the claim of the plaintiff for Rs. 28,500.00. The amount of Rs. 15,00(1.0(1 is shown in the judgment to relate to the three items mentioned by the plaintiff. If the defendants' contention was that the last three items could be grouped under one head, then the learned Single Judge would have lumped them together. It is no real objection according to Mr. Nusrat, that the amount of Rs. 15,000 has been divided into two figures because it was the consequence of the manner in which the loss was classified. Mr. Ghulam Ali has not directly objected to the quantum of damages but has directed his criticism to the classification and in consequence of that criticism to the quantum. The assessment of damages is primarily the work of the trial Judge whose discretion should not be lightly interfered with in appeal. See in this connection Bisseswar Lal v. Rup Kishore (62 IC72) and Skipp v. Kelly (AIR1920PC27). Kameswara Rao has summarised the purport of the rulings on this question at .p. 1104 of his book, the Law of Damages and Compensation, (3rd Ed.) as follows:-- "Except on a question of principle; the High Court or the Privy Council will not interfere with the quantum of the measure of damages fixed by the lower Court. Even where the action was pursued in et spirit of vindictiveness and with a desire to x inflict punishment on the defendant, a Court of appeal ought not to interfere with the decision of the trial Court on the question of the amount of damages; unless it appears to be entirely erroneous. (Justin Hull v. Arthur Francis Paul 58 I C 421). In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled : (Flint v. Lowell, 1935‑1 K B 354 at 360). But what an appellate Court must avoid doing is to substitute its opinion as to what it would have awarded for the sum which has been awarded by the Judge below. But in Subbiah Reddv v. T. Ferdon (A I R 1945 P C 168) the Privy Council have thrown out a caution that in India there was no reason for holding that the full rigour of the rule to Flint v. Loweli applies. Their Lordships consider that the appellate Court is sometimes entitled to give effect to its own view on matters within its competence. To hold otherwise, they say, would be to deprive parties of the benefit of a right of appeal which they possess. But an award made for a claim which is not made by the plaintiff and without affording an opportunity to the defendant to meet, will not be maintained. (Haung Aung Pu v. Maung Si Maung 12 I C 809)." In this case, the objection of the appellant to the quantum of damages, which has been determined by the learned Single Judge, is founded on the language which was employed by the plaintiff for classifying the damages. No reason has been advanced B before us to find fault with the total amount which has been granted. The criticism, to our minds, does not go to the root of, the matter. We, therefore, do not uphold it.

10. Lastly, we wish to express our views with regard to the liability of the Insurance Company for paying the damages that have been determined in this case. The truck which belonged to the appellant and was driven by respondent No. 2, was insured with the Asian Mutual Insurance Company Limited, vide the insurance policy, Exh. 23, for the period beginning from the 2nd of July, 1956 to the 1st of July, 1957. The limits of the liability were stated in it as follows: Rs. "Limit of the amount of the Company's liability under section II‑I (i) in respect of any one accident 2,000 Limit of the amount of the Company's liability under section II‑I (ii) in respect of any one claim or series of claims arising out of one event 20,000" But the certificate of insurance, which was issued under sub section (4) of section 95 of the Motor Vehicles Act; 1939 was admittedly for Rs. 20,000.00 without the above limits. Even if there was any condition inserted in the certi ficate restricting the insurance to any lower amount than the overall limit of Rs. 20,000.00, it would have been invalid with respect to third party liability, in terms of subsection (3) of section 96 of the Motor Vehicles Act, 1939, excepting in three respects. These three restrictions are set out in clause (b) of subsection (2) of section 96 of the Act and relate to the use; of insured vehicle, the exclusion of permission to certain persons to drive it, and the exclusion of the liability owing to war, civil commotion, etc. This shows that the limits placed on the liability, of the above‑quoted provision of the policy cannot reduce the insurer's liability. Additionally, the insurer could not insure the vehicle for a lessor amount than Rs. 20,000.00 because that limit is also fixed statutorily, vide subsection (2) of section 95 of the Act. The next result of these statutory provisions in this case is that the Insurance Company is liable to pays Rs. 20,000.00 to the plaintiff, Trevor A. Robertson, out of the, total decretal amount of Rs. 22,027.00 and costs.

11. The above clarification was necessary, because counsel for the parties in those proceedings were under the impression that the Insurance Company was not liable to pay more than Rs. 2,000.00 to the plaintiff. We must, however, put it down to the credit of Mr. Riazul Hasan, Advocate, who appeared for the Insurance Company that at the outset be conceded that the Company could not limit its liability to Rs. 2,000.00 only with respect to one accident, and referred to the above‑mentioned provision of law. He has also cited in this respect B. I. C. Insu rance Co. v. Itbar Singh (A I R 1959 S C 1331) and Nusrat Ali v. U. K. Construction Co. (P L D 1963 Kar. 841, p. 852).

12. The overall conclusion of the above discussion is that this appeal cannot be accepted. It is accordingly dismissed with costs. This conclusion was announced by us at the close of the arguments which were addressed to us on the 19th of October 1965. K.B.A. Appeal dismissed.