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Suit No. 151 of 1959, decided on 18th April 1963.

-- Beneficiaries ; wife ; husband; parents and child‑Person other than beneficiaries living jointly with deceased‑Not entitled to damages ‑ Assessing damages with reference to individual beneficiaries‑"Loss resulting from death to the parties respec tively" to be considered‑Deceased 30 years old at time of accident‑Life expectancy 25 years‑Basis for assessing loss to each beneficiary ‑ Proportionate to period of life expectancy of dependants ‑ Widow 30 years or less at time of death of deceased‑Expected to live for 25 years more‑ Views expressed in English cases‑Not safe guide for determining life expectancy of widows in Pakistan‑Child aged 2 at time of death of deceased --Period for calculating damages held 20 years (i.e. till graduation at 22)‑Liability of defendants for loss suffered by beneficiaries --Commences from date of death of deceased and not from date or dates on which deceased would have made his contribution to beneficiaries‑No deduction can be made from damages on account of any advantage beneficiaries might gain by getting amount in lump sum.

Iftikhar Hussain v. The Karachi Electric Supply Corp. Ltd. P L D 1959 Kar. 550 ; Ursulina D'Lima v. Orient Airways Limited P L D 1960 Kar. 712 ; Bashir Begum v. Muhammad Ali Premji P L D 1960 Kar. 785 ; Mst. Hamida Begum v. Suleman Jan and others P L D 1961 Kar. 529 ; (1942) 1 A E R 55 and Austin v. London Transport Executive "Quantum of Damages" by Kemp and Kemp p. 69 ref.

Suit under section‑For benefit of all beneficiaries irrespective of whether all of them join in suit or not.

Iftikhar Hussain v. The Karachi Electric Supply Corp. Ltd. P L D 1959 Kar. 550 ref.

Suit for damages under Fatal Accidents Act, 1885‑Insurer made defendant‑Not entitled to take defence not specified in S. 96(2), Motor Vehicles Act, 1939 Sind Chief Court Rules (O. S.), Ch. IX, r, 168.

British India General Insurance Co. Ltd. v. Captain Itbar Singh and others A I R 1959 S C 1131 rel.

S. N. Haider for Appellant.

G. Safdar Shah and Riazul Hassan for Respondents.

Dates of hearing : 27th, 28th March, 4th and 18th April 1963.

This is a suit under the Fatal Accidents Act No. XIII of 1885. The plaint filed on 10‑8‑59 disclosed that the deceased Muhammad Ale Raza Ali, son of the plaintiff, was going on cycle when at the crossing of Ingle Road and McLeod Road he was knocked down by defendant No. 1 Truck No. KAP 5640 at about 8‑30 a.m. on 29‑7‑1958, and the driver of the truck absconded after the accident. The deceased died almost immediately. The cycle he was riding was also badly damaged. It has come in evidence subsequently that the truck was coming from the Ingle Road from behind the deceased and struck him from behind. The claim was based on the ground that the defendant driver was driving the truck most rashly and negligently with defective breaks and had caused wrongful and untimely death of the deceased. Expectancy of the life of the deceased was assessed at 25 years. Details of his total monthly income (Rs. 371‑14‑0) were given. It was claimed that the deceased used to pay to the plaintiff Rs. 200 per month. A total amount of Rs. 60,000 was claimed as damages on account of the loss suffered due to the death of the deceased, Rs. 200 as burial expenses and Rs. 200 as damage to cycle (total Rs. 400) in all Rs. 60,400 were claimed.

2. The suit was filed originally against defendant No. 1 and subsequently defendant No. 2 the insurance company was also impleaded by virtue of section 96 of the Motor Vehicles Act. In his written statement dated 7‑10‑1959 and amended written statement dated 25‑4‑60 defendant No. 1 denied the accident having been caused due to negligent and careless driving of the defendant's truck or that the truck was being driven rashly or negligently. The earning capacity of the deceased including any prospect of higher income by getting himself employed with the insurance company were disputed. It was denied that the death of the deceased had caused any damage in law to the plaintiff. The claim with regard to the burial expenses and damage to the cycle was disputed. The contribution of Rs. 200 by the deceased to the plaintiff was disputed. The expectancy of deceased living 25 years more was disputed. Lastly the amount claimed as compensation was disputed. It was added further that as the truck was insured with defendant No. 2 in the sum of Rs. 20,000, decree, if any, to that extent should be passed against defendant No. 2.

2. Defendant No. 2 in his written statement dated 9‑12‑1959 denied the allegations in the plaint. Defendant No. 2 specifically took up the defence that the vehicle at the time of the alleged accident was not roadworthy as it was being driven while its breaks were in defective condition, and that in view of condition No. 5 of the policy of insurance this defendant could not be liable. It was further pleaded that the claim papers and the particulars of damages had not been given. It was further added that the defendant had received no notice from either the plaintiff or defendant No. 1. It was also denied that the plaintiff had no (sic) cause of action against defendant No. 2. On 9‑5‑60 issues were framed, 16 on the main and 4 relating to defendants No. 1 and No. 2. While arguing the case issues. Nos. 3, 4, 5, 9, 10, 11 and 12 were given up by the parties. Issues Nos. 15, and 16 were by consent reconstructed as issue No. 15. The first set of issues therefore for consideration are 1, 2, 6, 7, 8, 13, 14, 15 (Is the plaintiff entitled to Rs. 60,000 as damages for the reason given in para. 4 of his plaint. If not, to what amount of damages, if any, is he entitled ) These issues are as under

"Issue No. 1.‑Whether the accident resulted due to the negligent and careless driving on the part of defendant No. 1's driver

Issue No. 2.‑Whether the vehicle was in defective condition at the time of accident

Issue No. 6.‑Whether the plaintiff is entitled to any burial expenses

Issue No. 7.‑Whether the plaintiff is entitled to any damages for the alleged ruined cycle

Issue No. 8.‑If answer to the preceding issue be that the plaintiff is so entitled then whether the demand of Rs. 200 is excessive

Issue No. 13.‑Whether the deceased used to live with the plaintiff

Issue No. 14‑If answer to issue No. 13 be in affirmative, then whether the deceased was in fact capable of and did contribute the sum of Rs. 200 monthly to the plaintiff

Issue No. 15.‑Is the plaintiff entitled to Rs. 60,000 as damages for the reasons given in para. 4 of his plaint ; if not to what amount of damages, if any, is he entitled

4. My findings for these issues are as under

Issue No. 1.

Issue No. 2.

Issues Nos. 6, 7, 8, 13 and 14 are not contested by Mr. Safdar Shah the learned counsel for defendant No. 1.

Issue No. 15.

5. My reasons for the above findings may be stated briefly as under

Issue No. 1.‑The only witness examined in the case is Mir Badshah, Police Constable, who was on traffic duty at the cross ing that morning. His evidence that the truck driver was driving the truck at a very fast speed and he dashed the cyclist from behind. The cyclist fell down and the wheel of the truck went over his head. He says that he blew the whistle to stop the driver but the driver did not stop until about 40 paces away. He referred to the plan Exh. 27 prepared by the police soon after the incident and has said that the plan correctly depicts the location of the vehicle at the place of the accident. The plan shows that the vehicle had stopped not 40 paces but 90 or more paces away from the place of the accident. It is true that in his cross‑examination be said that he could not give the speed of the truck. That was obviously because he has never driven a truck and for that matter perhaps no idea of the speed in miles of the truck at the time of the accident could be given by him. The fact that the truck stopped 40 paces away does show that it was being driven at a fast speed at a crossing point. This indicates the rashness. The note of my predecessor on record who saw the cycle on which the deceased was driving at the time of the accident has kept a note on record that the rear carrier of the cycle had been badly damaged. The evidence of the police constable is to the effect that the truck was coming from behind the deceased on the same road and that the driver of the truck by his rash and negligent act struck the deceased's cycle from behind and the truck ran over the deceased. No evidence has been examined in defence. I am satisfied that the evidence on record establishes beyond any shadow of doubt the fact that the driver of the truck of defendant No. 1 was driving the truck most rashly and negligently. In a city like Karachi with heavy traffic the very fact that the truck was being driven at a high speed at a crossing is sufficient by itself to prove negligence. The police constable repudiated the suggestion that the deceased had turned suddenly to his right. The import of the question was that it was the deceased's own act which brought about his death. This however stands repudiated by the denial of the constable who is a disinterested and independent witness.

The only evidence on this point is the evidence of Motor Vehicle Inspector Mr. Jordon. He examined the truck on the same day and issued his report Exh. 25. His evidence in the Court is that the hand break of the truck was totally out of order and oil was leaking from the foot break. In his cross‑examination he said that if the foot‑break is violently applied it may cause the condition in which I found the truck at the time of the inspection. There is no evidence led in defence. On Jordon's evidence it cannot be said whether the vehicle was in defective condition at the time of the accident. The learned counsel for the plaintiff argued that according to the argument of the learned counsel for defendant No. 1 the hand break being out of order could not make the truck in defective condition since the foot breaks were in order. As I said the evidence is not sufficient to any finding either way. Under the circumstances defendant No. 1 cannot take advantage of want of evidence on this issue.

Mr. Safdar Shah did not Contest these issues.

‑There is ample evidence that the total earnings of the deceased were Rs. 371‑14‑0 per month. He received Rs. 200 per month from the Karachi Co‑operative Transport Limited serving as a Clerk. It is deposed by Major Sheikh Fakhruddin Operation Manager in the above company that "he would have ultimately got higher salary". He received Rs. 150 per month working on behalf of Kalat Import and Export Agency. He also received a Military Pension of Rs. 21‑14 0. Besides the above the deceased had the prospects of increasing his income as he had taken an agency with that American Life Insurance Company and had obtained a licence for that purpose on 22‑8‑1958 ; but before he could start the work his life was cut short by the accident.

9. The age of the deceased at the time of his death was 30 years. He could be easily expected to live and carry on his employment up to the age of 55 years at least. Three rulings were quoted before me on the question of age of expectancy of the deceased. Iftilchar Hussain v. The Karachi Electric Supply Corp. Ltd. (P L D 1959 Kar. 550); Ursulina D'Lima v. Orient Airways Limited (P L D 1960 Kar. 712) and Bashir Begum v. Muhammad Ali Premji (P L D 1960 Kar. 785). In P L D 1959 Kar. 550 the age of the deceased at the time of his death was 45 years and his age of expectancy was fixed at 65 years. In P L D 1960 Kar. 712, the age of deceased at the time of his death was 38 years and a claim was made that the deceased could live for another 20 years i.e. up to the age of 58 years. This was accepted by the Court. In P L D 1960 Kar. 785, at the time of his death the deceased was 35 years old. The learned Judge accepted 20 years as the expected term of the deceased's life. The common point in all these cases is that although 20 years was fixed as the expectancy of life in each case but the expectancy of life' was put over the age of 55 years in all the three cases. f I think that the expectancy of life of deceased Ale Raza Ali can safely be accepted to be 25 years. The average age of a Pakistani is 55 years. The finding of the expectancy of the life of the deceased by putting it at 25 years means only that the persons entitled to damages under section 1 of the Fatal Accidents Act, namely, wife, parent and child could get the benefit up to the maximum period of 25 years after his death.

10. The assessment of the damages so far the above bene ficiaries are concerned is governed by the last provision of section 1 namely :‑

"and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought ; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct."

Under the section therefore it is the "loss resulting from such death to the parties respectively" for which such damages, limited by directions of the section, are not to be given. It is my duty now to assess the loss of respective beneficiaries, proportion the damage to this loss in the terms of section 1 of the Fatal Accidents Act.

11. The assessment of the gross loss resulting from the death of the deceased is not difficult. Total emoluments of the deceased are calculated to be Rs. 371‑14‑0 per month, but the claim for damages is made and limited by specific allegation that the deceased paid Rs. 200 per month to the plaintiff. I accept the evidence of the plaintiff on the point and hold the aggregate loss of the beneficiaries to be Rs. 200 per month. Defendants have adduced no evidence in rebuttal. Mr. Safdar Shah learned counsel for defendant No. 1 also did not dispute the amount of the aggregate loss as claimed by the plaintiff in the suit.

11‑A. It is in evidence that the deceased and the plaintiff lived jointly. With the family also lived jointly other person besides the beneficiaries under section 1 of the Fatal Accidents Act. C The law will, however, presume that the beneficiaries under the Act alone were entitled and as such received the amount of Rs. 200 per month jointly. In view of the circumstances of this case I would divide Rs. 200 equally between the three benefi ciaries, father, wife and the child. This will give them each about Rs. 66.66 per month. The child was aged 2 years at the time of the deceased's death. The child may require less to start with but would require more and more as he grows up. Therefore Rs. 66.66 per month will not be an excessive amount in his case. Similarly the widow should get Rs. 66.66 per month which could be hardly sufficient for her maintenance. In fact there is no objection from the defendants to the distri buting of the loss in the above proportion between the three beneficiaries.

12. Now I come to the point of considering the respective loss of each beneficiaries. I cannot award the amount to each beneficiary for the expected period of 25 years of the deceased's o life. The plaintiff who was 65 years of age at the time of filing of the suit in 1959 cannot be expected to live for 25 years more. He himself has made no such claim of his longivity. It is admitted that he is a heart patient. His evidence was taken on commission for that very reason. He could not also come to Court on account of his illness and therefore his evidence taken on commission was read and recorded as evidence in the cage on that ground. I agree with the contention of Mr. Safdar Shah learned counsel for defendant No. 1 that the plaintiff may be expected to live for 2 years more from today i.e. 7 years after the death of the deceased. He will be entitled to his loss for 7 years at the rate of Rs. 66.66 per month.

(66.66 x 12 x 7= Rs. 5,599.44).

13. It was contended on behalf of the plaintiff as well as the defendants that the wife should not be entitled to any damages on the ground that she had not joined in the suit in spite of the n9licps to her as is mentioned in para. 6 of the plaint.

There is no force in this contention. Under section 1 of the Fatal Accidents Act

"Every such action or suit shall be for benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased ;"

The plaintiff in his plaint claimed to be the representative of the deceased. The suit under the law shall be for the benefit of the wife etc. It is thus unnecessary for the wife or any other beneficiary being joined as long as the suit has been filed by the representative of the deceased. The benefit shall be given to E the widow as required by law although she is not a party and although the allegation in the plaint (without going into the truth of the allegation) is that she has not joined in the suit. It appears to me that the widow's entitlement is being disputed by the plaintiff with a view to appropriate it and by defendant No. 1 with a view to escape his liability to that extent. In this connection I was referred to the remarks of Qadeeruddin Ahmed, J. in P L D 1959 Kar. 550 at p. 555 to the effect

"As to the question of fact whether the rights of any children have been neglected, I think that Mr. Muhammad Nasim, Advocate who is in charge of the case as the next friend of the plaintiffs would not have omitted to sue for the benefit of his other step‑brothers and sister if they were interested, at the time of the institution of the suit, in claiming damages. Counsel has stated at the bar that they were not so interested, and I accept his statement."

I do not agree with the above observations which do not justify the inference that benefits could be refused to a beneficiary not joined in the suit. If, however, the observations were meant to give that inference I respectfully but emphatically disagree with any such view. In this connection a reference to section 2 of the Fatal Accidents Act may be made which reads

"Provided always that not more than one action or suit shall be brought for, and in respect of the same subject‑matter of complaint Provided that, in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased."

Section 2 further supports my view that there cannot be more than one suit brought under this Act, and as such that one Suit shall be for the benefit of the beneficiaries mentioned under the Act whether all of them join in the suit or not.

14. The age of the widow Mst. Hasnain Fatima at the time of the death of the deceased is not on the record. Ordinarily she should be expected to be of the same age or of a lower age than that of the deceased i.e. about 30 years or less. In my opinion she could well be expected to live up to the age of 55 years at least i.e. 25 years more after the death of the deceased. In Mst. Hamida Bagum v. Suleman Jan and others (P L D 1961 Kar. 529) the mother of the deceased was expected to live up to the age of 65 years. Mst. Hasnain Fatima will be entitled to receive Rs. 66.66 per mouth for the period of 25 years (66.6 x 12 x 25= Rs. 19,998.00).

15. Mr. Safdar Shah was of the view that 20 and not 25 years should be the period for the widow to get the benefit on the analogy of English Law as there was a prospect of her re‑marriage. Mr. Riazul Hassan the learned counsel for defendant No. 2 quoted (1942) 1 A E R 55 where cases of two widows Mrs. Williams and Mrs. Davies are considered. Ultimately the question of the expectancy of the life of the widow was not a point for consideration on which the damages were awarded. I was referred to the cases of Austin v. London Transport Executive mentioned at page 69 of the Quantum of Damages by Kemp and Kemp. This case shows that 20 years expectancy was allowed in a case where the deceased left a widow aged 23 years ; he himself being aged 25 years. In my view English cases are not a safe guide for determining the expectancy of age of a widow. The habits and social conditions of our country and those prevailing in England are quite different.

16. The age of the child was 2 years at the time of the death of the deceased. The child had to depend on big father had he been alive, at least up to the age of 22 years, i.e. till, his graduation if he entered college. Mr. Safdar Shah had no objection to this period of expectancy for the child being calculated on 20 years. On this basis the claim of the child will be (66.66 x 12 x 20) Rs. 15,998.40.

17. I have assessed the damages on the basis of the particulars of damages claimed by the plaintiff in paras. 4 of his plaint, i.e., on the basis of the expected contribution of Rs. 200 per month which the deceased would have continued to make if he had not met with the accident. It is therefore not necessary in this case for me to consider the other basis on which the loss resulting from such a death to the beneficiaries could also be based. However, I have no doubt that the considerations found applicable in paragraph 32 of his judgment by Justice Qadeer uddin Ahmad in P L D 1959 Kar. 550 will also be the correct and true basis for assessing the loss.

18. Both the learned Advocates for the defendants argued that from the amount of damages that may be awarded 1/7th should be deducted on account of advantage which the bene ficiaries stand to gain by getting the amount in lump sum under the decree. It was pleaded that the expected contribu tions from the deceased would have spread themselves through out the period of his life. I was referred to P L D 1959 Kar. 550 at p. 567. I respectfully disagree with the view taken by Justice Qadeeruddin Abmad allowing the deductions in P L D 1959 Kar. 550. It is true that the dependants would have received the support from the deceased spread out for a period of 20 or 25 years but under the Fatal Accidents Act the liability of the defendants for the loss suffered by the beneficiaries commences and is effective from the date of the death of the deceased and not on or from the date or dates on which the deceased would have made his contributions to the beneficiaries. There may have been some justification for deductions if the claim was not contested and the amount deposited in Court. Such deductions, however, would be allowed on different considerations altogether.

In the present suit the claim has been hotly contested. The suit has taken already over 5 years. It may take a few years more in case an appeal is filed. The plaintiff has incurred expenses of litigation and of engaging a counsel, not to speak of the amount of constrained circumstances, worry and loss of support for this period suffered by the beneficiaries and other incidental expenses of coming to Court on hearings and spending time and money in these proceedings.

19. Defendant No. 2 was joined on the application of defendant No. 1 dated 7‑10‑59 under section 96 of the Motor Vehicles Act IV of 1939 read with section 168 of Chief Court Rules (O. S.). On the defence set up by the defendant No. 2 the Court framed the following issues between the defendant No. 1 and defendant No. 2

"(1) Whether the vehicle was not roadworthy at the time of accident

(2) Whether defendant No. 2 is not liable in view of the terms and conditions of the policy of assurrance and to what effect

(3) Whether defendant No. 1 did not inform defendant No. 2 of the factum of accident in terms of conditions of Policy of Insurance and to what effect

(4) Whether defendant No. 2 is liable to indemnify defen dant No. 1 "

20. At the time of the argument it was contended on behalf of the plaintiff and defendant No. 1 that the defence set up by defendant No. 2 is not covered by the grounds given in sub‑clause 2 of section 96. It was contended that it was not open to defendant No. 2 to contest the suit on the grounds raised by him in his written statement. The learned counsel for defendant No. 2 conceded that so far as plaintiff was concerned he could not raise any pleas other than those allowed in sub‑clause 2 of section 96 but it was urged by him that he was not at issue with the plaintiff at all. He was at issue with defendant No. I and therefore he could raise all the objections under law without any restrictions or limitations set out in section 96 (2). The learned counsel for defendant No. 2 contended that the very application of defendant No. 1 was described as being under rule 168 of the Sind Chief Court Rules. This Rule reads

"(1) Where in a suit a defendant claims as against any person nor already a party to the suit (hereinafter in this Chapter called the third party) that he is entitled to contribution or indemnity, he may make an application to the Court for leave to have a notice (hereinafter in this Chapter called the third party notice) issued to that effect to the third party. The Court may give such leave on an ex parte application.

(2) The application shall state the nature and grounds of the claim and shall be supported by an affidavit.

(3) The third party notice shall be in Form No. 9 in Appendix A and shall be served together with a copy of the aforesaid application and a copy of the plaint in the manner provided for service of summons."

It was therefore contended that defendant No. 2 could validly raise the pleas that have been raised by him and the Court having also framed issues on such pleadings. It is however conceded by me that the defence set up by him and the issues framed by the Court on his defence are not covered by the grounds mentioned in section 96 (2) which reads :‑

"No sum shall be payable by an insurer under sub section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal ; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :‑

(a) that the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise in the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit stating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the pro visions of section 105 ; or

(b) that there has been a breach of a specified condition of the Policy, being one of the following conditions, namely :‑

(i) a condition excluding the use of the vehicle‑

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organised racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a public service vehicle or a goods vehicle, or

(d) without side‑car being attached where the vehicle is a motor cycle ; or

(ii) a condition excluding driving by a named person or persons or by any person who is duly licenced, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification ; or

(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or

(c) that the Policy is void on the ground that it was obtained by the non‑disclosure of a material fact or by a representation of fact which was false in some material particular."

The sub‑clause allowed the insurer to defend the action on any of the grounds mentioned therein. The language used makes it clear that the insurer cannot defend the suit on any other grounds at all when he has become a party by virtue of section 96, Motor Vehicles Act. Since defendant No. 2 has been joined by statutory provisions of law his rights and liabilities will have to be determined under that very law. The provisions of Chapter IX, rule 168 of the Sind Chief Court Rules and of Rule 13 of Order 8‑A are general. They will apply in all cases of third party proceedings but in proceedings covered by section 96, Motor Vehicles Act the general rules of procedure will not apply against the specific provisions governing the matter as provided under section 96 of the Motor Vehicles Act. I am supported in my view by P L D 1960 Kar. 785 remarks at page 793 where Justice Wahiduddin Ahmed expressed himself on the point in these words :‑

"Mr. Khilnani was perfectly justified in his contention that the scope of the defence open to an insurance company under section 96 (2) of the Motor Vehicles Act is of a very limited character. Section 96 (2) of the Motor Vehicles Act provides that the insurance company is entitled to defend the action firstly on the ground that the policy was cancelled by mutual consent or by virtue of any provision giving rise to the liability or that either before or not later than 14 days after the happening of the accident the insurer has commenced pro ceedings for cancellation of the certificate after compliance with the provision of section 105 ; secondly, that there has been a breach of a specified condition of the Policy about the use of the vehicle and thirdly that the Policy is void on the ground that it was obtained by the non‑disclosure of a material fact or by a representation of fact which was false in some material particular. The plea taken by defendant No. 2 is not covered by any of the conditions stated above. In my opinion therefore on this ground the defence taken by defen dant No. 2 cannot be taken into consideration. I am fortified in my view by the decision of the Supreme Court of India in British India General Insurance Co. Ltd. v. Captain Itbar Singh and others. After careful consideration of the matter I am satisfied that defendant No. 2 is liable to meet the claim of the plaintiff under policy Exh. 12/3 read with Exh. 9/3."

In British India General Insurance Co. Ltd. v. Captain Itbar Singh and others (A I R 1959 S C 1131) held that

"Apart from the statute an insurer has no right to be made a party to the action by injured person against the insured causing the injury. Subsection (2) of section 96 however gives him the right to be made a party to the suit and to defend it. The right therefore is created by statute and its content necessarily depends on the provisions of the statute. Sub section (2) clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it. When the grounds of defence have been specified, they cannot be added to. The only manner of avoiding liability provided for in subsection (2) is through the defences therein mentioned. Therefore when subsection (6) talks of avoiding liability in the manner provided in sub section (2), it necessarily refers to these defences. It cannot be said that in enacting subsection (2) the Legislature was contemplating only those defences which were based on the conditions of the Policy."

I am therefore of the considered view that defendant No. 2 can in the present suit raise only defences open to him under' section 96 (2) Motor Vehicles Act and no other. This was also) the contention of the learned counsel for defendant No. 1 and I accept it, for the reasons mentioned above. One of the clauses of the insurance Policy gives right to defendant No. 2 to file suit against defendant No. 1 to recover the amount which defendant No. 2 may have been ordered to pay by virtue of operation of section 96. 1 would therefore leave defendant No. 2 to enforce the clause if any given to him by the agreement if he is so advised. In view of my finding on the point it is unnecessary to consider the evidence on the issues.

21. Accordingly the suit is decreed for a sum of Rs. 41,995.44 as detailed below

with proportionate costs. Out of the decretal amount it is directed that defendant No. 2 shall pay the amount o, Rs. 20,000 being the amount of the insurance Policy. The remaining amours. of Rs. 21,995.44 shall be paid by defendant No. 1. Interest will run on the amount decreed at the rate of 6 % from the date of decree till realisation.

The amount shall be deposited in Court within 3 months to be paid to the beneficiaries. The amount decreed in favour of minor shall be paid to his legal guardian who obtains such a certificate under Guardianship Act.

Costs to be proportionately borne by the defendants 1 and 2 as between them.

K. B. A.

Suit decreed.

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