P L D 1957 (W (PLP)

INAMULLAH, J.--‑This is a suit for damages amounting to Rs. 87,200 under the Fatal Accidents Act (XIII of 1855), and arises under the following circumstances :‑ The plaintiff 1, who was at the time of the accident, Divisional Engineer (Telegraphs), Government of Pakistan, had gone on inspection tour towards Tatta, in a taxi‑car, driven by defendant 1, his son Muhammad Ismail deceased was also with him in the same taxi‑car. While the plaintiff was returning to Karachi he sighted a car which was driven by defendant 3, and owned by defendant

4. The defendant 1 wanted to overtake the other car, driven by defendant 3, who first gave side to defendant 1 to pass, but later on changed his mind, with the result that the two cars collided with each other. The boy Muhammad Ismail received injuries and died as a result of this accident. He was 8 years of age at that time. The relevant paragraph of the plaint in which the basis of the damages is disclosed is paragraph 15 (a) which runs as under :‑ "The said deceased who was a very bright and intelligent boy was only about 8 years of age when he died at Karachi on 29th May 1949, and he was reasonably expected to become an earning member of the family at the age of 18 years, i,e. after 10 years, from the date of his death, and it is expected that he would have lived upto an age of 70 years at least". No other basis is disclosed in the plaint to assess the pecuniary advantage that the plaintiff may have derived had the boy lived. When the matter came before me on 7th November 1956, the defendants and their advocates were called, but they were absent, and the matter proceeded ex‑parte. Mr. Munawwar Abbas, the learned advocate for the appellants, prayed for time to file an affidavit in ex‑parte proof, which he did on 8th November 1957. After going through the affidavit and the plaint, I asked the learned advocate for the plaintiffs to address me how his clients were entitled to the damages claimed, or to any damages. The learned advocate prayed for some more time, which I allowed, and the matter has again come up before me today. The learned advocate today again filed a supplementary affidavit, which I have taken on the file. I have given my best consideration to the facts and circumstances of this case, and I have come to the conclusion that the plaintiffs have not been able to make out a case for damages. I would presently consider the law under the Fatal Accidents Act (XIII of 1855) regarding damages in some detail. The Fatal Accidents Act, 1855, comprises only of four sections. Under section 1 of the Act, a suit for damages can be brought against a person who by his wrongful Act, neglect or default, may have caused the death of another person. Section 2 lays down that only one action can be instituted against the wrong‑doer. The claim for damages can be under two heads , (a) Damages can be claimed by the wife, husband, parent and child, if any, of the person whose death may have been caused. (b) 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. Section 3 states that a full particular of the persons on whose behalf the damages are claimed will be disclosed, and also for the nature of the claim in respect of the damages sought will be disclosed. Section 4 is the interpretation clause. I may at the outset mention that in the present case no damages has been claimed on the expectation of life by any representative of the deceased child for the benefit of the estate of the deceased ; the claim is only by the parents of the deceased child for their own benefit. The Fatal Accidents Act (XIII of 1855) is based on the English Act known as Lord Campbell's Act (Fatal Accidents Act). Most of the Indian authorities have followed the principle laid down by the judges under Lord Campbell's Act. Prior to 1912 the basis of damages was the actual earning of the deceased, or some help which could be assessed in terms of money. The case of Taff Vale Railway Company v. Jenkins ((1913) A C 1) before the House of Lords is a well known case, as it brought about a change in the interpretation put by the judges as to the condition precedent to the main?tenance of an action under the Fatal Accidents Act. It was held in that case :‑ "It is not a condition precedent to the maintenance of an action under the Fatal Accidents Act, 1846, that the deceased should have been 'actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of death, provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life". Another thing of importance to note is that the basis is not what has been called "solatium', that is to say, 'damages given for injured feelings or on the ground of sentiment'. The reasonable expectation of pecuniary benefit is a question of fact, which has to be determined on the facts proved. In the present case, as I have already said, the only fact that is alleged in the plaint or has been brought out in the affidavit filed by the plaintiff on 8th February 1956, is that the boy, if he had lived, would have started life at an income of Rs. 500 per month and therefrom he would have given Rs. 300 for the support and maintenance of his parents, the plaintiffs. No ground, however, has been given as to how the child was reasonably expected to start life at an income of Rs. 500 per month. An attempt, however, has been made in the affidavit that has been filed today by the plaintiff to improve upon the facts disclosed in the plaint, or in the previous affidavit filed by the plaintiffs. In the affidavit filed today it is mentioned that the child was getting education in standard II in St. Patrick's School Karachi and that he also used to help his mother, plaintiff 2 in her household work. These two facts do not find place either in the plaint or in the affidavit filed on 8th November 1956, in ex‑pane proof of the claim. The facts disclosed in the affidavit filed to‑day appear to be an attempt to make out some case for the claim in question. I do not accept the facts disclosed to‑day regarding the child who was studying in Standard II, that he was helping his mother in her household work. It is rather fantastic to allege that the child used to help his mother in her household work. In my opinion, the facts alleged that the father was in a position to give good education to the child, and that the child was expected to have started life well, could not be sufficient proof to show that the plaintiffs have, lost all reasonable probability of pecuniary advantage. All that the plaintiffs have, in my opinion, been able to prove on the facts alleged by their is a mere speculative possibility of pecuniary benefit,' and not a reasonable probability of pecuniary advantage. The case of Taff Vale Railway Company v: Jenkins, referred to above, held that under the Fatal Accidents Act, damages could be claimed not only on the basis of the actual earning of the deceased but on reasonable expectation of pecuniary benefit from the continuance of the life of the deceased. The case of Barentt v. Cohen and others (L R (1921) 2 K B 461) is of importance, as McCardie, J. in that case after considering several authorities, has laid down as to what should be the proof of damages required under Lord Campbell's Act (Fatal Accidents Act). While considering the question of damages, McCardie, J. found the following facts: "The deceased child was a bright and healthy boy. He had gone to school when only two years of age. The plaintiff (his father) has two other children, both boys, aged 9 and

13. The plaintiff is a retail and wholesale trading Engineer. He has a good business. He makes about ?. 1,999 a year. His age is

40. His health is not good ; he suffers from nerves and dilated heart. His wife is 33 ; her health is defective. The plaintiff meant to give the deceased child a good education; to send him to an ordinary school till about 14 years old, then to a secondary school, and then, perhaps, to a University". The plaintiff in that case had claimed damages for the loss of pecuniary benefit that he might have derived from the deceased. The observations made by McCardie,. J. in that case apply with equal force to the circumstances and facts of the present case. McCardie, J. observed "The boy was subject to all the risks of illness disease, accident and death. His education and upkeep would have been a substantial burden to the plaintiff for many years if he had lived. He might or might not have turned out a useful young man. He would have earned nothing till about 16 years of age. He might never have aided his father at all. He might have proved a mere expense. I cannot adequately speculate one way or the other . . . . . The whole matter is be set with doubts, contingencies and ' uncertainties". After considering a number of cases, McCardie, J. observed that the only way to distinguish between the cases where the plaintiff has failed, from the cases where he has succeeded, is to say that in the former there is a mere speculative possibility of benefit, whereas in the latter there is a reasonable probability of pecuniary advantage. He observed that the latter was assessable while the former was not. The cases reviewed by McCardie, J. in which damages were given were those where the child was either giving some help to its parents or where the child was about to earn. These facts turn a mere speculative possibility to a reasonable probability. The decision in Baker v. Dalgleish Steam Shipping Company ((1922) 1 K B 361) was approved by Bankes L. J. he observed :‑ "In the very recent case of Barnett v. Cohen ((1921) 2 K B 461, 471) McCardie, J. after reviewing all the authorities, draws the line between what may and what may not be taken into account by saying that in an action under Lord Campbell's Act it is not sufficient for the plaintiff to prove that he has lost by the death of the deceased 'a mere speculative possibility of benefit ; in order to succeed, it is necessary for him to show that he has lost 'a reasonable probability of pecuniary advantage,". A passage in Halsbury's Laws of England Vol. 23 p. 692 (2nd Ed.) is also noteworthy. It runs as under: "The expectation of pecuniary advantage must not be too remote. A mere speculative possibility of such advantage is not sufficient and if it is doubtful whether any profit would have ensued to the deceased if he had continued to live, or whether, if that profit were made, the plaintiff would have shared in it either as of right or from the bounty of the deceased, the plaintiff cannot succeed". In view of the principle enunciated in the' case of Barnett v. Cohen by McCardie, J. I have no doubt that, on the facts disclosed by the plaintiffs in the present case, they have made out only a case of speculative possibility of pecuniary benefit. Mr. Munawwar Abbas, the learned advocate for the plaintiff has conceded the principle of law, laid down by McCardie, J., and he has not been able to show any authority contrary to that view which might affect the facts and circumstances of the present case. Mr. Munawwar Abbas lastly contended that the defen?dants are not to lose anything if a decree were passed, as it is the Insurance Company that would pay the damages that may be awarded by this Court. He also urged that the deceased was an only son of the plaintiffs. These conside?rations are beside the point in view of the principle regarding the proof of damage which J have mentioned above. The suit is dismissed. I make no order as to costs as the defendants are not before me. At any rate, even if they had been before me, I do not consider this is a fit case where costs should be awarded to the defendant. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????? Suit dismissed.