P L D 1950 Sind 109 (PLP)

CONSTANTINE, J.‑

The appellant sued to recover damages from defendants 2 to 5 on the allegation that their negligence had cause the death of his wife and had thus damnified him and from the defendant Municipality as the employer of defendants 2 to

5. The learned judge held that there was negligence, but that the death of the appellant's wife as not due to that negligence : he dismissed the suit. Among the issues in the case were: "What damages, if any, the plaintiff entitled o, and if so, against which of the defendants ?" and also "Has the plaintiff as husband of the deceased, Chandravati, learned judge held that the plaintiff‑appellant had a cause of action, but considered that it RBIs not necessary to give any finding as to damages, having dismissed the suit owing to plaintiff's failure to prove that his wife's death was due to the negligence of the defendants 2 to

5. It appears to us, however, that this appeal may be dismissed upon the short point that the plaintiff has proved no loss, and thus had no cause of action. The plaintiff claimed Rs. 250 for death bed and funeral expenses and Rs. 4,750 as loss of service and company of the deceased. The only evidence as to damages is two passages in the plaintiff's evidence :‑ " I spent about Rs. 400 on funeral expenses. It was more or less what ;I was expected to spend according to our custom. My wife was 18 years old. The child was a female, died on 13th December 1936. This child was born healthy and "I married again in 1937, about 10 months after the death of Chandravat" " Lord Campbell's Act has been reproduced with no material variation in the Indian Fatal Accidents, Act. The English authorities are thus relevant. Willies, J. delivering the judgment of the Court in 114 Revised Reports 726 (1858) said :‑ " As to the expenses of the funeral we think they ought not to be allowed ". In 1906 2 KCB 648, Alverstone, C. J. sitting with two other Judges was of the opinion that the decision of Lord Phillimore in Bedwell v. Golding 18 Times Law Reports 46, could not be sustained. The reason is that there s no obligation upon a relative even a father or a husband, to bury the deceased. Mr. Murlidar has argued that in India a husband is under a legal obligation to .bury his wife. No authority was cited for this proposition and we consider that though in a Maintenance award provision is often made for the payment of funeral expenses, no inference can be drawn from this fact that a Hindu husband is legally obliged to bear the expenses of his wife's funeral. In A I R 1935 Mad. 322, there is a dictum that in most case: the damages are the expenses incurred in the medical and funeral expenses of the deceased, but no authority is quoted for this proposition. It is equally established that the loss resulting to a parent father or child does not include any sentimental loss and hence nothing call be given for solatium (Blake v. midland Railway 18 Q B 93). In 27 Born. L R 410, B. J. Wadia, J. stated that the plaintiff is entitled to the reasonable expectation of the value of the services of the deceased, and this agrees with the careful judgment in Barnet v. Cohen (1921) 2 K B 461, of Mc. Cardie, J., who stated that under Lord Campbell's Act all that can be assessed is pecuniary loss. Loss may be prospective the question to be decided in these cases is way there reasonable expectation of pecuniary advantage, not a mere probability ? Consistently with this in 59 Mad. 402, a claim was dismissed on the ground .that there was no evidence to establish pecuniary loss caused by the death of the son. In the English cases, where damages were given, there was evidence of pecuniary loss. In 1930 A C 1, the deceased was a girl of sixteen and was just about to end her apparenticeship. It was thus held that there was evidence on which the jury could hold that there was a reasonable expectation. Similarly in (1915) 1 K B 627, evidence was led that the plaintiff, a workman, after the death of his wife was obliged to employ a housekeeper and adopt a more costly mode of life than he would have maintained if his wife had not died and there was express evidence as to this extra cost. Similarly in an Irish case it was held that the evidence had shown that the deceased a daughter, was of such value in the house as to save the cost of a servant. The cases of (1939) 1 A E R 104 (Ellis v. Raine) and (1938) 2 A E R 587 (Shepherd v. Hunter) are cases under the Law Reforms Act and are not concerned with Lord Campbell's Act. Mr. Murlidhar then founded an ingenious argument upon section 306 of the Indian Succession Act. The section reproduces the previous statutory provisions of law. The material part reads:‑‑"All rights to prosecute any action existing in favour of a person at the time of his decease survive to his executors and administrators ; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of his party". Mr. Murlidhar argues that by expression not causing the death of the party" the Legislature meant to give the executor continuance of a right to prosecute an action where death has been caused. This, however, is untenable for at common law the death of a person gives rise to no cause of action, vide (1906) 2 K B

648. The Legislature was merely stating what was the existing law a deceased person cannot sue in respect of his own death, and the excepted cases are al' instances where the deceased had a cause of action, but death has ensued. We consider that the evidence quoted above does not show that the plaintiff had any reasonable expectation of pecuniary advantage from the continuance of his wife's life. Mr. Murlidhar argued that for a cleric in the Telegraph Office it is cheaper to live with a wife than without, but we do nut think that any such presumption can be drawn. He also argued that the child e, survived its mother by three months, but here again there is no evidence to show that the maintenance of the child cost him snore owing to his wife's death. The cause of action is given by the statute alone, and according to the wording and tenor of the statute damages must be proved as part of, and to sustain, the cause of action this is not one of those actions where mere proof of a right infringed imports damages. The result is that the appeal is dismissed with costs. THADANI, J.‑

I agree. K.M.A. Appeal dismissed.