1999 PLP 13 (MLD)

16. Mr. Nasir Maqsood, learned amicus curiae brought to my attention two authoritative pronouncements of the Honourable Supreme Court in the cases of Mst. Kamina and another v. Al-Amin Goods Transport Agency (1992 SCMR 1715) and Pakistan Steel Mills Corporation v. Malik Abdul Habib (1993 SCMR 848), which have a direct bearing on the subject. In the first case it was observed: "In cases under fatal accident a general rule is that the burden of proof with regard to negligence is on the plaintiff, but in cases where true cause of accident lies solely within the knowledge of the defendants then his lordship is avoided by invoking the rule res ipso loquitur (the thing speaks for itself). In such circumstances where accident speaks for itself, it is sufficient for plaintiff to prove the accident and nothing more. It is then for the defendant to persuade the Court that the accident arose not through their negligence." In the second case, the above maxim was explained in the following words:-- "This maxim means that an accident by its nature be more consistent with its being caused by negligence for which the defendants are responsible than by any other cause and in such a case the mere fact of the accident is prima facie evidence of such negligence."

17. I had requested Mr. Nasir Maqsood to assist me on the question that assuming the version of the accident being given out by the defendant No.2 as correct, were the defendants still liable to adduce further evidence of absence of negligence. It may be recalled that the defendant No.2 had stated that the accident occurred because of rain owing to which when he applied the brakes the jeep slipped and collided with a bus. Learned counsel after meticulous research drew my attention to several standard textbooks and reported cases having a bearing on the question. In law of Tort by A.J. Pannelt (6th Edition, page 260). It is stated "Act of God is a defence of very limited application comprising a heavy onus on the defendants. There are dicta in a number of cases to the effect that heavy rain fall and violent snow storm were not acts of God i.e. the result damage could have been avoided by human care and forethought." In P.K. Kalasami Nadar v. K. Ponnuswami Mudaliar and others (AIR 1962 Madras 44) it was held that an act of God will be extraordinary occurrence due natural causes which is not the result of any human intervention and which could not be avoided by any amount of foresight or care". In Greenock Corporation v. Glasgow and South Western Railway (1917 AC 556).it was held:-- "Assuming an act of God such as flood of wholly unprecedented, the damage in such a case result not from the act of God, but from the act of man in that if he failed to provide a channel sufficient to met the contingency of the act of God. But for the act of man there would have been no damage from act of God." Learned counsel also referred to Charlesworth on Negligence (6th Edition, page 454) where reference is made to several cases from England and Canada, where heavy rain fall, or snow storms have not been treated as acts of God and parties not taken reasonable fore-cautions have been held liable for negligence.

18. Against the above legal position it seems quite clear that the burden was on the defendant to prove absence of negligence. In the first place they failed to produce material evidence. The other occupants of the vehicle were Tariq Jawed Siyal, who is, admittedly, an employee of the defendant No. l and his wife. Neither of them was called as a witness. Secondly, the mere existence of rain fall could not release the defendant from liability. Rain fall occurs very often in Punjab and a driver is expected to drive slowly and cautiously to prevent an accident. According to the defendant No.2, he was driving at a speed of 60 to 65 km. per hour. There is no evidence to indicate that, by driving at such speed, he had taken reasonable precaution to prevent an accident.

19. As regards the defence that the defendant No.2 was acquitted in the criminal case at Gujjar Khan, it might-be sufficient to state that the findings of the Criminal Court are not conclusive proof of absence of negligence as held by this Court in Nimi Frances and others v. Muhammad Saeed Qureshi and another (1982 CLC 1703). In a `criminal case it is the duty of the prosecution to prove the offence beyond a reasonable doubt. Whereas in the present suit the defendants were required to affirmatively prove absence of negligence. Moreover, as is evident from the judgment placed on record that two witnesses examined had supported the prosecution case but did not give any evidence either way on the question as to whether the accused/defendant No.2 drove negligently. In view of the above, I am clearly of the opinion that the accident was caused owing to negligence of the defendant No.2. Admittedly the vehicle was owned by the defendant No.1 and as such the aforesaid defendant is, also vicariously liable. ISSUES NOS. 3 AND 5:

20. Issues Nos. 3 and 5 relate to the liability of the defendant No.3 under the Private Car Comprehensive Insurance Policy issued by the defendant No.3 in respect of the vehicle whose collision caused the demiset of Zulfiqar Ahmad. This policy has been produced in evidence as Exh. 2/D and the relevant provision of section 2 thereof relate to liability to third parties may be reproduced as follows:-- "

1. The Company will indemnify the ,insured in the event of accident caused by or arising out of the use of the motor against all sums including claimant's costs and expenses which the insured shall become legally liable to pay in respect of-- (a) death or bodily injury to any person but except so far as is necessary to meet the requirements of section 95 of the Motor Vehicles Act, 1939 the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured;

21. It is agreed by learned counsel that the question of existence or extent of liability of the defendant No.3 can only be decided on the basis of the requirements of section 95 of the Motor Vehicles Act, 1939 (which have been retained on the Statute Book despite repeal of the Act by West Pakistan Ordinance (XI of 1965) mandating obtaining on third party risk insurance cover for every motor vehicle. The rather involved text of the aforesaid section 95 maN be reproduced as under:-- 95.Reqnirements of policies and limits of liability.--(I) In order to comply with the requirements of this chapter, a policy of insurance must be a policy-- (a) is issued by a person who is an authorised insurer or by a cooperative society allowed under section 108 to transact the business of a insurer: and (b) insures the person or classes of persons specified in the policy to the extent specified in subsection (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place in Pakistan or in a reciprocating territory: Provided that a policy shall not be required-- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment, other than a liability arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to any such employee-- (a) engaged in driving the vehicle; or (b) if it be a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle; or (c) if it be a goods vehicle, being carried in the vehicle; or (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises; or (iii) to cover any contractual liability. (2) Subject to the provision of subsection (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits namely-- (a) here the vehicle is a goods vehicle, a limit of twenty thousand rupees in all, the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of or bodily injury to, employees other than the driver being carried in the vehicle being limited to six such employees; (b) where the vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand rupees; and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver; (c) where the vehicle is a vehicle of any other class the amount of the liability incurred. (3) (Omitted). (4) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any conditions subject to which the policy is issued land any of other prescribed master; and different forms, particulars and matters may be prescribed in different cases. (5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."

22. Evidently subsection (5) of the aforesaid section the defendant No.3 would be liable to indemnify any person or classes of person covered by the Policy, notwithstanding anything contained in any other law subject to the limits of such liability laid down in the said section. Mr. Ghulam Muhammad Ibrahim, however, argued that by virtue of proviso (1) to subsection (1) if death or injury of an employee of the insured is caused during the course of his employees, the liability of the Insurance Company is confined to the amount payable under Workmen's Compensation Act. Since there is nothing on record to indicate that the deceased was so covered no liability has attached to the defendant No.3. Alternatively, he alleged that in any case, the extent of such liability cannot exceed Rs.20,000 in terms of clause (b) of the above-quoted section 95(2).

23. Learned counsel has, unfortunately not been able to cite any reported precedent to support his contention. However, having carefully considered, I am of the view that he is only partially correct. For this purpose an analysis of the rather complex provision of the aforesaid section 95 might be in order.

24. Subsection (1) of section 95 mandates the prerequisitions of an Insurance Policy under the abovementioned provisions of law. The proviso to the above stipulate that such policy will not include certain risks. Under clause (1) of the aforesaid proviso it will not cover death or injury arising out of and in the course of the employment of an employee who is engaged in either of the three categories (a), (b) and (c) of proviso (1) except to the extent provided for in the Workmen's Compensation Act. 1t is pertinent to mention that proviso (1) does not refer to any employee of the insured, but only certain categories of employees specified in the three sub-clauses. In other words it applies only when the suffering death or injury is engaged as the driver of the vehicle, is a conductor or Ticket Examiner in public service vehicle or is being carried in goods vehicle. Proviso (ii) stipulates that the policy will not cover death or injury caused to a person being carried in or upon entering or alighting from a vehicle. This condition, however, will not apply when the vehicle is one in which passengers are carried for hire or reward or pursuant to a contract of employment. Proviso (iii) contemplates that the policy will not cover any contractual liability.

25. Admittedly, the deceased did not fall within any all the three categories of an employee stipulated in sub-clauses (a) to (c) of proviso k1) and, therefore, the liability of the defendant No.3 could not be held dependent on the requirements of Workmen's Compensation Act. Moreover, according to defendant No.3 themselves the accident occurred when the vehicle was carrying passengers in the course of their employment and, therefore, they cannot take an advantage of the requirements of proviso (ii). As such there is no force in. the contention that no liability devolves upon defendant No.3.

26. Subsection (2) of section 95 seeks to limit the amount of liability of Insurance Company clause (a), therefore refers to goods vehicles and does not concern us. Clause (b) relates to vehicles carrying passengers for hire or reward or in the course of employment. Under this clause the liability of the insurer is confined to Rs.20,000 and in the event or death or injury caused to passengers Rs.4,000 and 2,000 respectively depending upon the size of the vehicle. I need not go into the question whether the expression "passengers" is only referable to a person travelling in a public service vehicle i.e. carrying people for hire or reward or even the vehicles carrying on employees, as Mr. Ibrahim himself conceded the liability of the defendant No.3 could extend to Rs.20,

000. Clause (c) I residuary provision and stipulates that if the vehicle is not covered by clauses (a) and (b) the insurer is liable for the entire amount of liability incurred.

27. Mr. Nasir Maqsood, however, supporting the plaintiffs' claim for the entire amount of compensation as against defendant No.3, however, argued that the vehicle having been registered as private vehicle the matter would not be covered by clause (b) and clause (c) was applicable. In support of his contention he referred to a judgment from the Indian jurisdiction in Vanguard Fire and General Insurance Company v. Saria Devl (AIR 1959 Punjab 297), para. 41 whereof reads as under:-- "

41. The last point that requires consideration is whether the liability of the Company is limited to Rs.20,000 irrespective of the amount payable by the assured. As I have already said provisions relating to third party risk are given in Chapter VIII of the Motor Vehicles Act, section 95(2) lays down the limit of liability whichiffrtust be covered by a policy of insurance. The limit prescribed in cases of insurance.of goods vehicle and of vehicles in which passengers are carried for hire is Rs.20,000 and in other cases under section 95(2)(c) 'where the vehicle, is a vehicle of any other class the .amount of the liability incurred' is the limit. In the present case, the liability incurred is Rs.50,000 and, therefore, the limit If the insurance company is also of the same amount. The present vehicle (7 seater station wagon) was insured as a private passenger vehicle. Obviously to such a vehicle the residuary provision contained in section 95(2) (c) applies. The case of the company, however, is that at the time of the accident the vehicle was being used as a 'Soda Water Fountain' and, therefore, the case is covered by section 95(2)(c). There is no force in this argument. Section 95(2) relates to insurance policy. It has nothing to do with user of a vehicle. When the insurance is as a private passenger vehicle the limit of the liability of the company is prescribed in section 95(2)(c) irrespective of this user."

28. The proposition of law laid down in the above case may be unexceptionable. The argument of the learned counsel, however, overlooks the facts that the same is of no help to the plaintiff. In the reported decision the victim of the fatal accident was overrun by the vehicle whereas in the present case he was being carried in the same. If it be assumed that the vehicle was not one engaged carry the passengers in pursuance of contract of employment, the matter would only within the scope of proviso (ii) to section 95(1) whereby no insurance cover is available to a person "carried in or upon mounting or alighting from the vehicle". The Punjab High Court was able to foist the Insurance Company with a liability only because the victim was overrun and not being carried in the vehicle.

29. While Mr. Ibrahim did not cite any case-law on this aspect of the matter I have been able to lay my hands on a reported judgment of the Hon'ble Supreme Court in Port Muhammad Bin Qasim Authority v. National Insurance Corporation (1989 SCMR 100) in the case one Abdul Aziz Butt was runover by a Pick-up used for carrying employees of the appellant insured with the respondent. A suit for compensation under the Fatal Accidents Act filed on the original side of this Court was decreed far Rs.78,456 but the liability of the respondent Insurance Company held to be limited to Rs.20,

000. The question whether such liability was limited to the amount mentioned in clause (b) of section 95(2) was, apparently, specifically urged only before the Supreme Court. In dealing with such contention Muhammad Haleem, C.J (as his lordship then was) observed "apart from the fact that this defence was not taken at any stage of the proceedings either before the learned Single Judge or before the Division Bench of the High Court, there is, however, evidence on record to sustain factually that the vehicle was not for private use, but for carriage of the employees of the appellants. As Against it no evidence was led to establish that it was not so".

30. In the instant case the defendant No.2 have categorically pleaded that the vehicle was used for carriage of employees. Neither the plaintiff nor the defendants Nos. l and 2 have led any satisfactory evidence to show that it was not so. Even if such evidence had been led, it could only have defeated the claim against defendant No.3 in view of the proviso (ii) to section 95(1). Therefore, I would hold that the defnedant's liability cannot exceed Rs.20,000 and decide issue No.3 accordingly. ISSUE NO4.: It is not disputed that an amount of Rs.50,000 payable under the Group Insurance Scheme was actually disbursed by the defendant No.1 .to plaintiff No.2. However, admittedly, such amount devolved upon all the legal heirs and the plaintiff No.2. Being the nominee of the deceased only received the same as a Trustee for other heirs. Under the law of inheritance, each of the plaintiffs was entitled to their respective shares of Rs.8,

333. The existence of a Group Insurance Scheme does not debar the plaintiff from recovering the compensation under the Fatal Accidents Act. However, the amount received by them would be required to set-off against the compensation payable. ISSUE NO. 6:

31. In such cases it is extremely difficult to determine the measure of damages to which the plaintiffs might be entitled. Courts, however, have evolved certain just and equitable formulae and in this context one may refer to a judgment of G.H. Malik, J. (as his lordship then was) in Dost Muhammad v. Pakistan Steel Mills (1996 CLC 530). I have myself followed this method for determining coition payable in similar cases, inter alia, in Merajuddin v. Government of Sindh (Suit No.527 of 1989) the average life span in Pakistan is assumed to be 70 years and the quantum of compensation is to be determined on the basis of the life expectancy of the youngest plaintiffs. Though there is no oral evidence as to the ages of the plaintiffs, notice from the plaintiffs' counsel addressed to the defendants dated 22-6-1988 (Exh. 1/B) indicates that the ages of the plaintiffs Nos. 1 and 2 at that time were 70 and 55 years respectively. The quantum of compensation, therefore, tray be worked out on the basis of the expected earnings of the deceased for 15 years. It has been admitted in cross -examination that the deceased was drawing monthly emoluments of Rs.2,200 plus a daily allowance of Rs.30. The quantum of compensation payable may, thus, be calculated as follows:-- (1)Average income of the deceased = Rs.3 ,1,00 x 12 x 15 according to the emoluments drawn by him for 15 years: = Rs.4 68,000.00 (ii) Add 20% expected increase: =Rs. 93,000.00 Total =Rs.5,61,600.00 (iii) Deduction: (iv) 1/3rd for presumed personal Rs.1,87,200.00 expenses: (v) Share of the plaintiff from a Group = Rs. 16,667.00 Insurance Policy: (vi) Share of the plaitniff from the = Rs.4,000.00 additional amount paid by defendant No. 1: (vii) Benefit acquired through waiving of = 2,000.00 loan: (viii) Total deduction: Rs, 2,09,887.00 Amount payable: (iii)- (viii)= Rs.3,51,733.00

32. In view of the above I would decree the suit for Rs.3,31,733 jointly, and severally against the defendants Nos. l and 2 only and for a further amount of Rs:20,000 against all the three defendants together with interest at the rate o; Rs.10 % per annum from the date of decree till final payment is made The plaintiff will also be entitled to proportionate costs. A.A./N-82/K Suit decreed,