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Suit No. 840 of 1979, decided on 22nd September, 1986.

‑‑‑S. 1‑‑Civil Procedure Code (V of 1908), 0.1, R.9‑‑Fatal accident‑ Suit for damages‑‑Non‑joinder of party‑‑Effect‑‑Plaintiffs neither proved that bus with which accident was caused was insured nor had impleaded Insurance Company in suit‑‑Even if fact of insurance of bus was established, suit for damages, could not be dismissed for non‑joinder of Insurance Company.‑‑[Damages]

‑‑‑S.1‑‑Fatal accident‑‑Liability for damages, determination of‑ Transferee of vehicle in actual possession thereof at time of accident, held, would be liable to compensate plaintiffs for damage suffered by them due to such accident‑‑Non‑registration of vehicle in such transferee's favour would not absolve his liability to compensate plaintiff.‑‑[Compensation].

P L D 1961 Kar. 259; P L D 1971 Kar. 129; P L D 1976 Kar. 131 and P L D 1984 Kar. 38 rel.

‑‑‑Ss. 1 & 2‑‑Fatal accident‑‑Suit for damages‑‑Quantum of compensation‑‑Evidence on record established that deceased being 40 years of age at time of accident enjoying good health was able to earn at least Rs.1,500 p.m. to feed his old mother, widow and six minor children‑‑Court determined expectancy of life of deceased at 65 years‑ Amount of compensation after deduction of personal expenses, claimed by plaintiffs, held, was still far less than the amount which deceased could have earned and spent on his dependants in remaining life of 25 years‑‑Suit decreed for amount claimed for and decretal amount ordered to be divided among heirs of deceased according to measure of damages suffered by and needs of claimants‑‑Damages ordered to be paid to claimants as specified by Court.

A.R. Akhtar for Plaintiffs.

Akhtar Hussain for Defendant No.l.

Azizul Hassan for the Legal Heirs.

Date of hearing: 22nd September, 1986.

On 19‑6‑1978 at about 1400 hours late Rifaqat Hussain riding on his motorcycle was proceeding on Jehangir Road towards Gurumandar. When he reached the crossing of Gurumandar near the Railway Booking Office Bus No. 800‑349 which was being driven by defendant *No.2 in high speed, negligently and carelessely from Tinhatti side to Gurumandar side, dashed him where he died. It is alleged that the defendant No.2 driving the bus in the course of employment with the defendant No. 1 who is the owner of the bus. The deceased has left the plaintiffs who are his legal heirs. Plaintiff No.1 is the widow of the deceased, while the plaintiff No.2 is his mother. Plaintiffs Nos. 3 to 7 are sons and No. 8 is the daughter of the deceased who are minor and at the time of filing suit their age, ranged between 3 years to 10 years. The plaintiffs have claimed Rs.1,50_000 as compensation for the death of Rifaqat Hussain. After the defendants Nos. 1 and 2 were served, they filed their written statement in which defendant No.2 denied having any knowledge or connection with the defendant and the bus. He also denied being in employment with defendant No.l. The defendant No.1 disclosed that the bus was sold to Rafiuddin on 27‑11‑1977 and although the bus was not transferred in the record of the Excise and Taxation Department the said Rafiuddin had taken possession and all the necessary documents had been executed in his favour. The plaintiff, therefore, filed application for joining the defendant No.3 as a party.

The defendant No.3 was represented by an Advocate, who contested the application which was granted on 3‑4‑1983. It is pertinent to note that by that order taking into consideration the provisions of sections 6 and 7 of the Limitation Act the contention of the defendant No.3 that the suit was barred by time was repelled. After the defendant No.3 was joined as a party he did not appear and file the written statement and the suit, therefore, proceeded against the ex partee. The following issues were framed.

(1) Whether the suit is bad for necessary parties viz. the Insurance Company.

(2) Whether the defendant No.1 had sold the bus in question to another person i.e. , defendant No.3 prior to the accident, if so, to what effect

(3) Whether the bus in question was registered in the name of the defendant No.l, at the time of accident, if so, to what effect

(4) Whether the defendant No.2 was driving the bus in question at the time of the accident, if so, whether he was an employer of the owner of the bus

(5) Whether the bus in question was driven recklessly and negligently, resulting in death by accident of the deceased

(6) Whether the defendants Nos. 2 and 3 or any of them are liable to pay compensation to the plaintiffs if so, to what amount

(7) What should be decree be Issue No.1

The plaintiff have not proved that the bus with which the accident was caused was insured with any Insurance Company. Furthermore even if this fact would have been established suit cannot be dismissed A for non‑joinder of the Insurance Company. The finding is in the negative.

The defendant No.1 has produced documents to show that the bus had been sold by him to the defendant No.3. In this regard, he had produced the agreement receipt, notice issued by the Advocate for the defendant No.1 informing about the suit and an attested copy of the letter of the defendant No.3 addressed to the Director Excise and Taxation Department. He has also examined one Allah Bux who is a witness to the agreement for sale of the bus to the defendant No.3 and is also witness of the receipt executed by the defendant No.l for the sale of the bus. The defendent No.l has established the execution of the agreement and the receipt. These documents prove that the defendant No.l had sold the bus to the defendant No.3, before the incident who had taken its possession. My finding is in the affirmative. The consequences for such finding shall be discussed below.

It is an admitted position that although the defendant No.l had sold the bus to the defendant No. 3 it remained registered in the name of the defendant No.l with the Excise and Taxation Authorities. The effect of such finding will be discussed in issue No.6.

No eye‑witness has been produced to show that the defendant No.2 was driving the bus at the time of accident. Maqbool Elahi the Sub‑Inspector Police has produced the F.I.R. He had reached at the place of occurrence, and prepared the plan, but he has not stated anything about the defendant No.2. In the circumstances this issues has not been proved.

The plaintiff No.l is not an eye witness of the incident. P.W.2 reached the scene of accident, but by the time the dead body had been removed to the Civil Hospital. P . W.3 Maqool Elahi reached the scene of occurrence and had seen the dead body of the deceased lying there. According to him the deceased had met with an accident with bus No. 800‑349 which was also at that place. Motorcycle of the deceased was also lying there. He had prepared the plan. He further stated that according to his investigation the bus dashed the deceased who was proceeding from Liaquatabad towards Gurumandar on his motor‑cycle. The bus was also proceeding in the same direction. P.W. 4 Dr. Syed Iqbal Ahmed was also examined. He stated that the deceased had suffered injuries due to accidents which caused his death. From these facts it is clear that the deceased was proceeding in the same direction in which the bus was proceeding which dashed the deceased who received head injuries and died. In such circumstances unless the bus is being driven carelessly, rashly and negligently the question of such accident does not arise. My finding is in the affirmative.

From the above discussion, it crystilises that although the defendant No.l had sold the bus to the defendant No.3 in the records of the Excise and Taxation the defendant No.1 was the record owner In fact the bus was in possession and control of the defendant No.3 who had purchased it, so far defendant No.2 is concerned it has not been established that he was driving the bus in employment of the defendant No.l or 3. Mr. Akhtar Hussain the learned counsel for the defendant No.l has contended that the actual owner who is in possession of the vehicle is liable for damages irrespective of the fact whether the bus stands in the name of any other person, in the official record. In this regard reference has been made to P L D 1961 Kar. 259, P L D 1971Kar. 129, P L D 1976 Kar. 131 and P L D 1984 Kar. 38. In view of these authorities and findings in the aforestated issues, the defendant No. 3 is liable to compensate the plaintiffs for the damage suffered by them. Although the defendant No.3 was bound in law to get his name registered as transferee non‑registration would not in any manner absolve him from liability to compensate the plaintiffs.

The next question arise about the compensation payable to the plaintiffs. The deceased was aged about 40 years at the time of hiss death. He has left an old mother, a widow and six minor children According to P.W.1 he was giving Rs.1,000 to 1,500 to her for household expenses. P.W.2 has stated that the deceased was doing the job of casting and was earning about Rs.1,500 to Rs.2,000. He had a shop at Liaqutabad which was equipped with two lathe machines and one drill machine. He had employed two workers in his shop. From the evidence on record it is established, that the deceased was earning at least Rs.15,000 p.m. So far the expectency of life is concerned P.W.1 has stated that he was enjoying good health, did not suffer from any disease or indulge in bad habits. His mother who is aged about 70 years is alive. In these circumstances, I will determine his expectency of life at 65 years. If the deceased would have been spending Rs.500 ‑on his personal expenses and would have been alive for another 25 years he would have spent provided plaintiffs with more than three lacs of Rupees. The plaintiffs are, therefore, entitled to compensation of, Rs.1,50,000 which the defendant No.3 is liable to compensate.

So far the aportionment of the amount of compensation is concerned it is to be divided according to measure of damages suffered and the needs of the claimants. The plaintiff No. 1 is the widow of the deceased and Was 35 years old at the time of accident in 1985. She has to look after the children who are minors. She is granted Rs.20,000 as compensation. The plaintiff No.2 is an old lady and cannot be expected to live more than few years. Rs.10,000 compensation is granted to her. The remaining amount of Rs.1,20,000 will be divided among plaintiffs Nos. 3 to 8 equally. The suit is decreed for Rs.1,50,000 with cost and interest @ 10% p.a from the date of suit till recovery. The cost and interest if recovered shall be paid to the plaintiff No.l

H.B.T. Suit decreed.

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