ALI GOHAR Versus MUHAMMAD HANIF

1. The plaintiff has brought this suit for recovery of Rs. 30,000 (Rupees Thirty thousand) only, as compensation under the Fatal Accidents Act, on account of death of his son Muhammad Younus, aged about 18 years, caused by bus accident.

2. On 7‑10‑1968, at about 7‑00 a.m. defendant No. 1, Muhammad Hanif was driving a bus, No. KAH‑9558 belonging to defendants Nos. 2 and 3.: The bus was insured with Insurance Company, defendant No. 4. The' accident took place on Preedy Street opposite the shop of Ahmad Halwa Merchant. On account of red signal at the road intersection the line of buses had stopped. The bus in question which was being driven by defendant No. 1, was the last in line. This bus driver is said to have suddenly reversed his vehicle in order to overtake the buses in front and to cross the signal first. On account of this negligent act of reversing without the aid of the conductor the bus knocked down boy Muhammad Younus, who was standing behind it and the boy sustained serious injuries. He was removed to the hospital where he died. The plaintiff, father of the deceased boy, served the defendants with legal notices and then filed this suit.

3. The defendant No. 1, the bus driver denied all the allegations of the plaintiff regarding this incident. He denied that his bus was involved in any such accident as a result of which the plaintiff's son was injured. Defendants Nos. 2 and 3 in their written statement also denied all the allegations contained in the plaint. Defendant No. 4, Insurance Company admitted that the defendant No. 2, Al‑Hameed Transport Company was, the owner of the bus in question. But the Insurance Company denied its liability to pay compensation or damages.

4. On aforesaid pleadings of the parties the Court framed the following issues:‑

(1) Whether the plaintiff's son Muhammad Younus was run over by Bus No. 9558 and died as a result of injuries received by him in this accident?

(2) Whether the plaintiff has suffered any pecuniary loss on account of the death of his son. If so, in what amount?

(3) Relief.

5. The defendant No. 1 was actually sent up in Court for an offence under section 304‑A, P. P. C. He was convicted by the City and Additional District Magistrate, Karachi, Mrs. Surraya Ahmed Pal and he was sentenced to undergo R. 1. for 2 years and to fine of Rs. 500 or in default further R. I. for six months. Defendant No. I was however, acquitted in appeal as no evidence had been led with regard to the culpable negligence on the part of the accused bus driver and no finding had been given by the City Magistrate on this point. Under the Motor Vehicles Rules, reversing of any heavy vehicle like a truck or bus is altogether prohibited unless the attendant with the bus gets down and gives an all clear signal to the driver to reverse. The overtaking of a bus by another bus is also prohibited at the signal. Therefore, the very act of reversing of the bus amounted to a rash and negligent act.

6. The son of the plaintiff was 18 years of age and he was student of 11th Class having passed his Matriculation Examination in 1967. He was assisting his father in running a restaurant in Mochi. Gali. His father was 55 years of age at the time of the accident and he would have benefited from the income of his son for about 30 years more. The pecuniary benefit was however limited by the plaintiff to Rs. 30,000 only for which he brought the suit.

7. Pending the suit the defendants Nos. 1 to 3 filed two statements admitting the liability. In the first statement defendants Nos. 1 to 3 .admitted that plaintiff's son Muhammad Younus was run‑over by bus No. KAU‑9558 and died as a result of injuries received by him in the .said accident. In the second statement the defendants Nos. 1 and 3 admitted ‑that the amount of pecuniary loss suffered by the plaintiff on account .of the death of his son be fixed at Rs. 15,000.

8. On account of the above admissions with regard to the issues in the suit it was not considered necessary by the parties to lead any evidence in the case. They have therefore. relied upon the documents which have been pled. The counsel appearing on behalf of defendants Nos. 1 or 2 and 3 have not contested the claim of the plaintiff regarding compensation payable by them. The said accident was caused on account of reversing, of bus in question which was prima facie a negligent act and it was for the answering defendants to show teat they had taken all the necessary ‑precautions to avoid running‑over of any pedestrian due to such reversing This burden has not been discharged. The learned counsel appearing on C behalf of defendant No. 4, has tried to argue that negligence on the part' of the bus driver has not been established and the plaintiff is not therefore entitled to claim any damages or compensation. It may however, be pointed out that the question of negligence on the part of the bus driver has not been contested by defendants Nos. 1 to 3 and they have admitted their liability to the extent of Rs. 15,000. Under section 96 of Motor Vehicles Act, 1939, all that it is required is, that the insurer should have notice from the Court of these proceedings. The insurer has actually been made a party in this suit and allowed to defend the action. This ‑statutory liability of the insurer is absolute and lie is allowed to defend the action on 3 grounds only‑‑

(a) that the insurance policy was cancelled by mutual consent ; or

(b) that there had been breach of a specified condition of the policy ; or

(c) that the policy is void for non‑disclosure of a material fact or false representation of some material particular.

9. In (P L D 1963 Kar. 182) it was observed that the insurer can raise only specific differences set out in clauses A, B and C of section 96(2) Motor Vehicles Act, 1939. In (P L D 1963 Kar. 841) also it was held that in a suit under the Fatal Accidents Act for damages the insurer is not entitled to take any defence not specified in section 96(2), Motor Vehicles Act, 1939. In (P L D 1969 S C 565) it was held that section 96 of the Motor Vehicles Act, 1939, lays down a principle of statutory liabilities of an Insurance Company to pay an amount due to a decree‑holder even if the insurer was not made party to the suit. That the only ground upon which the Insurance Company could avoid its liabilities were those mentioned in subsection (2) of section 96 of the Motor Vehicle Act, 1939.

10. As a result of the above discussion, the suit is decreed for Rs. 15,000 ;jointly and severally against all the defendants together with interest at 6 % per annum from the date of the suit till payment and cost of the sued The liability of Insurance Company defendant No. 4 shall however not exceed Rs. 20,000 in any case.

11. S. A. H. Suit decreed.