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High Court Appeal No. 100 of 1986, decided on 10th November, 1986.

‑‑‑S. 1‑‑Fatal accident‑‑Claim for compensation by heirs of deceased‑ Compromise between parties‑‑Compromise on behalf of minor heirs of deceased‑‑Legality of‑‑Plea of estoppel‑‑Validity of‑‑No compromise between heirs of deceased and party causing accident, held, would be effective on behalf of minor heirs of deceased without permission of Court‑‑No estoppel could be pleaded against a suit brought on behalf of minor in circumstances.

‑‑‑S. 1‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art. 114‑‑Fatal accident‑‑Claim for compensation‑‑ Compromise‑‑Estoppel‑‑Plaintiff/heir of deceased, held, would not be estopped from filing suit for compensation within prescribed period where defendant causing accident had failed to honour his part of compromise having been entered between parties prior to filing suit by plaintiff‑‑Such compromise, even if proved, would not be binding on minor survivor of deceased if same was made on his behalf without permission of Court and defendant would not be discharged from liability to compensate such minor.

M. Umar Qureshi for Appellant.

Muhammad Maqsood for Respondent.

Date of hearing: 10th November, 1986.

Suit No. 580 of 1984 was filed by the respondent for recovery of Rs.15,50,000 under the Fatal Accidents Act, 1855. His son Kalimullah Baig had died in a traffic accident on 20‑3‑1983. The truck, which caused the accident, belonged to Pakistan Navy, the appellant. The suit was filed by respondent Khalilullah Baig on his behalf and on behalf of his wife, (mother of the deceased), widow and a minor daughter of the deceased. By judgment, dated 27‑5‑1986, the learned Single Judge decreed the suit in the sum of Rs.1,69,200 and this amount was apportioned as follows:‑

Father (Plaintiff) and mother of the

deceased . Rs. 50,000

Shumaila, minor daughter of the

deceased . Rs.1,19,200

No amount was awarded for the widow on the ground that the widow had received Rs.40,000 from Pakistan Navy and the evidence had shown that she had re‑married and she did not seem to be interested in pursuing her claim. The judgment has been challenged in the present High Court Appeal. We have heard Mr. M. Umar Qureshi, learned counsel for appellant, and Mr. Muhammad Maqsood, learned counsel for the respondent.

2. The only point urged on behalf of the appellant by Mr. M Umar Qureshi, learned Advocate, is that the plaintiff was estopped from filing the suit, as admittedly a sum of Rs.40,000 had been paid by Pakistan Navy to the widow of the deceased. In any case, it was submitted that this amount of Rs.40,000 should have been taken into consideration by the learned Single Judge while determining the compensation payable on account of the death of deceased Kalimullah Baig.

In support of the submission that the respondent was estopped from making any claim in the suit, it was submitted by the learned counsel for the appellant that in the evidence of respondent Khalilullah Baig there is an admission that there was a compromise. On a question from the Court, Mr. M. Umar Qureshi states that no documents relating to the alleged compromise have been brought on record. He only relies upon the statement made by respondent Khalilullah Baig in his cross‑examination that there was a compromise. According to Mr. M. Umar Qureshi, the compromise was made on 19‑6‑1983, whereby Pakistan Navy had agreed to pay a sum of Rs.50,000 out of which Rs.40,000 were for the widow and Rs.10,000 were for the father respondent Khalilullah Baig. Here certain relevant dates may be noted, the deceased died in the accident on 20‑3‑1983, the compromise is alleged to have been made on 19‑6‑1983, the suit was filed on 19‑3‑1984 and payment to the widow was made on 9‑9‑1985 i.e. nearly 11/2 years after the filing of the suit and more than two years after the alleged compromise.

In so far as the minor is concerned, there can be no question of any estoppel. No compromise on behalf of a minor could have lagaoy been brought about without permission of the Court. Mr. M. Umar Qureshi, learned counsel for the appellant, very frankly conceded this position and stated that he was not pressing this appeal in so far as the award of Rs.1,19,200 to minor Shumaila was concerned. There is no admission on the part of the mother. Mother is also not alleged to have been a party to any compromise. In this view of the matter, estoppel can also not be pleaded against the mother of the deceased. In so far as the widow is concerned, the learned Single Judge has not awarded any amount to her on the grounds noted earlier.

Coming now to the father i.e. respondent Khalilullah Baig, the argument of the learned counsel for the appellant is that the compromise was entered into on 19‑6‑1983. As observed earlier, no document of the compromise has been brought on record. There is only a statement in his cross‑examination by the respondent that he had afraid to accept Rs.10,000 but this amount was not paid and ultimately he had to file a suit on 19‑3‑1984. It is also noted earlier that according to the learned counsel for the appellant, the amount of Rs.50,000 was paid to the widow on 9‑9‑1985. Out of this amount, a sum of Rs.40, 000 was paid to the widow and an amount of Rs.10,000 was returned to the Pakistan Navy.

In his evidence respondent stated that he was not ready to accept Rs.10,000 then. If at all the respondent had agreed to accept Rs.10,000 in June 1983, and no time was fixed for payment of this amount it will be assumed that the agreement was that the amount will be paid within a reasonable time and in any case, before the filing of the suit This admittedly was not done and the suit had to be filed on 19‑3_l9A4, one day prior to the expiry of the limitation period. Then written statement was filed and after nearly two years and three months of the alleged date of compromise, payment was made to the widow, which included an amount of Rs.10,000 meant for the respondent. The compromise if any, between Pakistan Navy and respondent fell through on account of passage of time and the respondent was not estopped from filing the suit and claiming compensation. We may reproduce here that part of the judgment, dated 27‑5‑1986 of the learned Single Judge, which deals with the question of estoppel:‑

"Before assessing the amount of compensation, the objection of the learned counsel for the defendant that the plaintiff is estopped from making claim against the defendant has to be considered. It is an admitted position that soon after the death of the deceased the defendant No. 1 contacted the plaintiff and the widow who agreed to accept Rs.50,000 as compensation. The defendant No. 1, however, did not pay this amount and ultimately the plaintiffs filed the suit on the last day of the period of limitation. After the suit was filed the defendant No. 1 paid Rs.40,000 to the widow but did not pay any amount to the plaintiff. D . W . 1 has stated that the defendant No. 1 paid Rs.50,000 to the widow out of which Rs.40,000 was appropriated by her and Rs.10,000 was returned to defendant No. 1 but it was never paid to the plaintiff. In these circumstances in my view the plaintiff is not bound by the settlement made by him. The defendant No.l did not honour his part of the agreement which was made before filing the suit. Furthermore, there is nothing on record to show that this settlement was also for the claim made by on behalf of the minor daughter of the deceased.

After the suit was filed the payment made to the plaintiff or the widow will not discharge the defendant No. 1 from the liability to compensate the minor unless such settlement has been made with the permission of the Court. The widow has received Rs.40,000 from the defendant No. 1 and as according to the evidence she has remarried she does not seem to be interested in pursuing her claim. In these circumstances the plaintiff is not estopped from making the claim."

We entirely agree with the reasoning of the learned Single Judge in holding that the respondent was not estopped from making the claim in the suit.

As a result, we find no merit in this appeal. High Court Appeal No. 100 of 1986 is dismissed. There will be no order as to costs.

H.B.T./5137/K Appeal dismissed.

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