KHURSHEEDA Versus QUDRUTULLAH

This is a suit for recovery of compensation under Fatal Accidents Act 1855.

2. Case of the plaintiffs is that plaintiffs Nos. 1 and 3 are daughters and plaintiffs Nos.2 and 4 are sons of deceased Haji Nizamuddin. On 8‑3‑1974 the deceased was travelling by, Bus No. HDB‑2557 from Hyderabad to Karachi via Super Highway. This bus was owned by defendant No.l and driven by defendant No.2. Defendant No.2 was driving the bus rashly and negligently and thereby dashed it against a truck causing the death of Haji Nizamuddin. Defendant No.l being the employer of defendant No.2 and the accident having been caused during the course of his employment, is vicariously liable for the said accident. At the time of his death the deceased was aged about 50 years. He was said to be a businessman and his monthly income was Rs.2,000. The plaintiffs were minors a that time. The suit has been filed by them on 2‑1‑1984 i.e. about 1 years after the accident but since they were minors the period o JA limitation will not start running against them until and unless the become majors. It is stated that they would have received pecuniar benefits from their deceased father at least to the tune of Rs.2,00,000. Hence a prayer for a decree in that amount has been made.

3. Defendant No.l Haji Qudratullah has filed a written statement wherein he has denied the knowledge of the alledged accident. He has also denied the knowledge of the fact that the plaintiffs are heirs of the deceased or that the deceased was travelling in the bus. He has also denied the knowledge of defendant No.2 being his employee or that he was driving the bus as alleged. Even regarding the remaining pleas the defendant No.l has either stated that .the same are not admitted or that he has no knowledge about the same and that he does not know how they are calculating the compensation. He has also challenged the maintainability of the suit on the ground of limitation. Defendant No.2 has chosen to remain absent, hence the suit has proceeded ex parte against him.

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

(1) Whether the suit is maintainable in law?

(2) Whether the plaintiffs are entitled to claim the amount on account of the alleged accident from the defendant No.l ?

(3) Whether the defendant No.l is liable to make any payment to the plaintiffs?

(4) Whether the claim of Rs.2. lacs by the plaintiffs against the defendant No.l is justified with interest and costs?

(5) What should the orders be?

My findings on these issues with reasons therefor are as follows:‑

5. REASONS. ISSUE NO.1:

The first objection to the maintainability of the suit has been raised in the written statement on account of its having been filed after a period of 10 years, although the period of limitation for filing a suit under the Fatal Accidents Act is only one year as provided by Article 21 of the Limitation Act. Plaintiffs' counsel has contended that the period of limitation does not start running against a minor so long as he does not attain majority in view of the provisions of section 6 of the Limitation Act. Even Mr. S.M. Afzal concedes to this legal position.

6. The second objection on the maintainability of this suit is on the ground that a sum of Rs.8,000 was paid by the defendant No.l to the heirs of the deceased numbering 11 as compensation under section 67 of Motor Vehicles Act. It was contended by Mr. S.M. Afzal that the said compensation was paid to the plaintiffs in full and final settlement of claim and therefore this suit was not maintainable.

Mr. Mohammad Maqsood, the counsel for the plaintiffs relies upon section‑67 of the Motor Vehicles Ordinance as amended, which reads. as follows:‑

"67. Compensation for the death of, or injury to a passenger:.

(1) In the case of death of,. ow injury to, a passenger in a stage carriage or a contract carriage other than a contract‑carriage 'constructed, adopted or used to carry. not more than six passengers, including .the driver, arising out of the .use of such carriage, there shall be paid, if a permit has been granted in respect of that carriage', by the holder of the permit, and, if no permit has been so granted, by the owner of the carriage, as compensation of the amount specified in the Thirteentjy Schedule‑

(a)' In the case of death of a passenger, to the legal representatives of the deceased passenger, and

(b) in the case of an .injury to a passenger, to the injured passenger.

(2) The compensation gayable under subsection (1) shall be in addition to sum which the person entitled ta.receive compensation may receive or be eligible to receive under a policy of insurance under the provisions of section 95 of the Motor Vehicles Act (IV of 1939).

(3). Any contract for the conveyance of a passenger in a stage carriage or contract‑carriage; other than a contract‑carriage constructed, adopted or used to carry riot more than six passengers including the driver, in respect of which permit has been issued under this chapter, shall so far as it purports to restrict the liability of any person, or to absolve any person from his liability, in respect of any claim made against that person in respect of the death of, or injury to the passenger who is being carried in, entering from the vehicle , or purports, to impose any conditions with respect to the enforcement of any such liability, be void."

He contended and rightly so, that the plain reading of subsection (2) of section 67, would show that the compensation payable under subsection (1) is in addition to any sum which a person. entitled to receive as compensation may receive or be eligible to receive under a policy of ‑ insurance under the provisions of section 95 of the Motor Vehicles Ordinance. He then relied upon the case of Mohammad Younus Khan v . K . R . T . C . reported in 1984 C L C 2830 where it; was held by Fakhruddin H. Shaikh, J. that section 67 of Motor Vehicles Ordinance does not prevent the plaintiff from p.ursuing his ,remedy under Fatal Accidents Act 1855 even after having received compensation there under.

Similar question had arisen in the c9se of Qasier Ali vs. K . R . T . C . reported in P L D 1986 Karachi 489 where Dr. Tanzilur Rehman, J. relying upon P L D 1983 FSC 29 observed as follows:‑

"I am therefore of the clear view that the plaintiff could file suit for compensation under Fatal Accidents Act 1855 even after he had received compensation under section 67 of Motor Vehicles Ordinance, 1965."

The provisions contained in the compromise that the plaintiff shall not claim any more amount in the Tribunal or in any Court of law will have to be read in context with the plaintiff's receiving compensation under section 67. Furthermore subsection (3) of section ' 67 makes it quite clear that any contract which purports to restrict the liability of any, person or to absolve any person from his liability in respect of claim for death is void. Hence the receipt of paymeritby the plaintiff under section 67 of the Motor Vehicles Ordinance with an averment that he will not claim any further compensation in the Tribunal or any other Court being void, does not debar the plaintiff from filing a suit under Motor Vehicles Ordinance. As pointed out by the Federal Shariat Court in their report referred to above the compensatid under section 67 was, in order to immediately alleviate the' suffering of the family of the deceased or injured person. Additionally it was given irrespective of the fact as to whether issue death' or injury was caused by a rash and negligent act of the driver or not. Therefore additional compensation could be claimed any plaintiff who could prove that the death or injury was due t the rash or negligent act of the driver of the bus. However, compensation paid under Section 67 was to be deducted there from while awarding the corppensation under the Fatal Accidents Act.

7. Similar point had also arisen in the case of Shaukat Khan v. Karachi Transport Corporation reported in 1988 C L C 48 where it was held by me that additional compensation could be claimed by any plaintiff who could prove that death or injury was due to the rash and negligent act of the driver of the bus in spite of the fact that compensation was received by him under Section 67 of the Motor Vehicles Ordinance even if he had agreed not to claim any further amount. However, the compensation already paid as above was to be deducted there from. I, therefore, hold that the payment of compensation to the plaintiffs in this case under section 67 of Motor Vehicles Ordinance would not debar them from claiming additional 'compensation under Fatal Accidents Apt, However compensation paid under Section 67 of Motor Vehicles Ordinance was to‑ be deducted there from while aviarding the compensation under Fatal Accidents Act.

ISSUES NOS. 2, 3 AND 4:

8. The plaintiffs have averred in the plaint that deceased Haji Nizamuddin was travelling in Bus No. HDB.2557 on 8‑3‑1974 which was being driven by defendant. No:2 Mohammad Rafiq and was owned by defendant No.l Haji Qudratullah. He has further averred that defendant No.2 was driving the bus rashly and negligently and while so driving struck it against a truck thereby causing injuries to Haji Nizamudclin which culminated into his death. He has alleged that defendant No.l is liable for this tortious act of defendant No.2 as it was committed by him during the course of his employment: Defendant No.2s as I have already pointed out, has chosen to remain absent and has not filed any written Statement denying these averments. Defendant No.l has no doubt filed a Written Statement but he has not specifically and clearly denied anyone of the above allegations. Ail that he has said is that he has no knowledge of these facts. Such an ambiguous or vague denial is not acceptable under the law. The rules of the pleadings are very clear on this point. The relevant provision with regard to the denial in Written Statement is contained C in Order ‑8, Rules 3, 4 and 5. Rule 5 provides that every allegation of fact 'in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant shall be taken to be admitted. In the present case there was no specific denial or a clear assertion of the contrary facts in the Writ Statement. It is therefore to be presumed that the defendant ha admitted these allegations. Reference in this connection can be use full made to the case of Rah‑e‑Manzil Transport v. Muhammad Ameereported in P L D 1963 (W.P.) ,Karachi 182. Where it was held Qadeeruddin Ahmed, d. that when allegations of rash and negligen driving of vehicle were not denied specifically these will be taken t_, have been' admitted.

9. The plaintiffs have examined Haji Noor Mohammad as‑Exhibit 5 who was the real brother of the deceased and the attorney, of the plaintiffs. He has stated that the deceased used to earn Rs:3,000 to Rs.4,000 per month. His age at the time of death was 50 years. On 8‑3‑1984 he was travelling by bus and was coming for Hyderabad to Karachi via Super Highway when he died in the accident. The plaintiffs, Nos.l and 3 were his daughters and‑plaintiffs Nos. 2 and 4 were his sons. They were‑minors at that time. He has produced the Written Statement filed by defendant No. l before Additional 'Deputy Commissioner and Claims Tribunal under the Motor Vehicles Ordinance wherein the defendant No.l has not denied' the accident and has taken the only defence that Sind , Bus Owners Co‑operative Society had. guaranteed the compensation and, therefore, it should be joined as a party. He had produced special power of attorney. '

The next witness of the plaintiffs is Abdul Shakoor Khan Inspector, F.I.A. who had investigated the case. He has produced photo copy of the original F . I . R as well as the one incorporated in 164 Cr. P. C . He has also produced the site plan, post‑mortem report and the report of the Motor Vehicles Inspector. From the above evidence it is satisfactorily proved that the defendant No.l was owner of the bus in which the deceased was travelling anal the defendant No.2 was driving the bus at that time. It is also proved that the defendant No.2 drove the bus rashly and negligently and a result of which it struck the truck causing injuries‑‑to the deceased D Haji Nizamuddin which resulted in his death. It' is also proved that the deceased was aged 50 years at the time of 'his ' death and was earning about Rs.2,000 per month. ‑The deceased would have spent about Rs.400 on himself and Rs.600 on rest of the members of his family and would have contributed Rs.1,000 per month for the maintenance etc of these 4 minors. The expectancy of life of the deceased would have been upto 60 years i.e. at least 10 years from the time of the accident. All the plaintiffs were minors at that time and even upto the time when this suit was filed they continued to be minors. For all these 10 years they would have required the main tenance and support of the deceased. Hence keeping all these factors in view I grant compensation of Rs.1,20,0004o the 4 plaintiffs. Since all the 4 plaintiffs are libing jointly with their mother I do not. propose to separately apportion their shares. Mr. Mohammad Maqsood, learned counsel for the plaintiffs, states that the amount of compensation of all the 4 plaintiffs be paid to their mother who will distribute it to them. A sum of Rs.2,700 which is the share of the minors in the compensation of Rs.8,000 received by all the heirs of the deceased can be deducted 15y the defendants from this amount.

Hence I decree the plaintiffs' suit against defendants 1 and 2 jointly and serverally for a sum of Rs.1,17,300. The costs of the suit shall be borne by the defendants. I also award interest at the. rate of 6% per annum from the date of filing of the suit till the date of payment of decretal Amount.

A.A./K‑71/K Suit decreed.