P L D 1966 (W (PLP)

QADEERUDDIN AHMED, J.‑

This Letters Patent Appeal has been filed to question the judgment of our learned brother din Wahiduddin Ahmed, J., dated the 9th of May, 1960. By that judgment he has granted a decree for Rs. 29,520.0;) against the appellants by way of damages payable to the respondents under the Fatal Accidents Act, 1855.

2. The relevant facts which form the back ground of this appeal are that Peter D'Lima died on the night of the 14th of March, 1963 when a plane which belonged to appellant No. 1, crashed at Tripura on its flight from Karachi to Dacca. Peter D'Lima was an employee of appellant No. 1 and performed the duties of a Flight Steward. He died along with all those who were on board. There was no survivor. The respondents, therefore, brought a suit for the recovery of Rs. 60,000.00 under the Fatal Accidents Act, 1855 on the allegation that they were his dependants and were entitled to recover the amount from appellant No.

1. As the Liability of appellant No. I had. been transferred to appellant No. 2, they amended the plaint and impleaded appellant No. 2 as a defendant in the suit.

3. The allegation of the respondents was that the plane had crashed‑ (i) as a result of the negligence of appellant No. I in maintaining, running and piloting the aircraft ; and (ii) as a result of the negligence of the crew in piloting the plane. These allegations were contained in paragraph 9 of the plaint. The appellants, in paragraph 9 of their written statement denied the first part of the allegation, but admitted the second part. The admission was as follows :‑-- "It is, however, admitted that there was negligence in piloting .by the navigation and piloting crew of the plane Some instances of negligence were set out by the respondents .in paragraph 10 of their plaint. The paragraph runs as follows :‑ "

10. In particular the negligence was such that on the flight in question, the aircraft had to be repaired twice at Delhi the navigating and piloting crew took off from Delhi without proper or valid route forecast the navigating or piloting crew were tired and strained ; did not follow the correct route did not utilise ground aids to assist in navigation ; flew at altitudes insufficient to clear the terrain ; the pilot of the aircraft, Captain Green, on official enquiry, being found to have flown at incorrect altitudes even previously." All the above allegations were admitted by the appellants in paragraph 10 of their written statement, which is as follows:‑-- "

10. That the allegations contained in paragraph 10 are admitted. It is added that when the plane left Palam Air Port for Dacca, it was mechanically perfect and was fully airworthy. The crash was caused by negligence in piloting by the navigation and piloting crew of the aircraft." It is to be noted that the admission of the allegations made in paragraph 10 of the plaint is unqualified. Only a few additional allegations have been made in reply, with the object of emphasising the stand that the plane was mechanically perfect when it left the Palam Airport of Delhi and was fully airworthy, yet the crash was caused by the negligence of the crew.

4. In order to appreciate the stand of the appellants that the plane was mechanically perfect and fully airworthy when it left Delhi, it should be noted that when the plane landed at Delhi on its way from Karachi to Dacca, the pilot had reported that the plane suffered from a defect in its hydraulic system. The plane had landed at Delhi at 4 a. m. It was under repair for two hours after which the Station Engineer of appellant No. 1, who was at Delhi, certified that the defect had been removed and that the plane was safe for resuming its flight. As a result of those certificates the plane took off from Delhi at 6 a. m.; but returned after half an hour to report that the defect still existed. The Station Engineer found that the plane suffered from the same defect, therefore, repairs were undertaken again, which went on upto about; 10 p.m. Thereafter, certificates of the rectification of the defect and safety were again issued and the plane took off once more from Delhi at 10 p.m. On this flight it crashed at Tripura after flying, according to counsel for the parties, ,'Or about two and a half hours and having done about 700 mile. In view of the repairs which were carried out at the Palam Airport of Delhi, the appellants have taken the stand that the plane was mechanically perfect; therefore, there was no negligence of appellant No. 1 in respect of this accident. It did crash at Tripura, but it was, according to them, the result of the negligence of the crew. Emphasis has been laid on the distinction between the negligence of appellant No. 1 and that of the crew because the stand of the appellate, has been that they are not liable for the negligence of the crew. Paragraphs Nos. 15 and 16 of their written statement need to be noted in this connection. The relevant part of paragraph 15 is as follows:‑-- "That while admitting negligence of the pilot of the plane AP‑AEG it is denied that this negligence amounts constructively or vicariously to negligence of defendant No.

1. It is denied that defendant No. 1 was actually negligent in any way." The relevant part of paragraph 16 is as follows:

" . .the Flight Steward was himself guilty of contributory negligence co‑extensive with the negligence of the pilot, Captain Green, inasmuch as he voluntarily consented to accompany the said pilot from Palam Air Port for Dacca knowing full well that the Pilot was not in a fit condition physically to pilot the plane, as‑is alleged by the plaintiff."

5. Mr. Z. H. Lari, learned counsel for the appellants, has attached no importance to the allegation of contributory negligence and has addressed no arguments in support of it. But he has elaborated the distinction between the negligence of appellant No. 1 and that of the crew including the pilot by referring to the doctrine of common employment. Reliance was specifically placed on that rule in paragraph 18 of the written statement.

6. Another important defence taken by the appellants is contained in paragraph 19 of their written statement. According to it, the respondents were not entitled to bring the suit because their predecessor‑in‑interest, who died in the crash, had agreed to limit his claim to the amount of Rs. 4,000.00, for which he had been insured, and which amount the appellants were prepared to pay on the production of a succession certificate by the respondents, but the latter had failed to produce such a certificate, with the result that they were not entitled to sue the appellants.

7. Thirteen issues were framed by the learned Single Judge of this Court who has tried this suit on the original side. He has decreed the suit of the respondents, as stated above, for Rs. 29,520.00 against the appellants. His material findings, with which Mr. Z. H. Lari, learned counsel for the appellants, is not satisfied are: Firstly, that the doctrine of common employment does not apply to this case; therefore, the appellants cannot, on that ground, the excused of their liability towards the respondents ; Secondly, that the crew, including the pilot, were negligent. Since the precise cause of the crash is not known, appellant No. 1 must also be held, on the basis of the pleadings and the principle known as res ipsa loquitur, to have been negligent ; Thirdly, that the appellants could not take advantage of the agreement of the deceased that he would not claim anything more than Rs. 4,000.00 by way of compensation and damages, because the deceased could not place any such restriction on the respondents for bringing their suit under the Fatal Accidents Act, 1855. Counsel has addressed us on the above findings of the learned Single Judge and has urged that the doctrine of common employment applies to this case that the rule of res ipso loquitur does not apply to it, and that the deceased had actually given up his entire claim with the result that the respondents were not left, at the time of his death, with any cause of action. The decision of this appeal will depend on the view that may be taken of these three contentions. The first contention is examined below in paragraphs 8 to 13, the second in paragraphs 14 to 16 and the third in paragraphs 17 to

20. Paragraph 21 contains the final conclusion.

8. Fair examination of the first contention requires that the doctrine of common employment be stated in the form in which it is claimed by the appellants to be applicable to this case. It is admittedly, and obviously, not applicable in the form in which it was originally conceived by Lord Abinger in 1837 : see Priestley v. Fowler (3M&W1,7) while deciding the claim of a butcher's servant for injury to his leg owing to the breakdown of the butcher's cart and whose view was later strengthened by Baron Alderson in Hutchinson v. York & Newcastle Ry. Co. ((1850) 5 Ex. 343). It was a general doctrine that an employer was not liable for injuries caused to his employee by the negligence of his other employees. As time went on, the Judges have added justifications and explanations to give it the look that it was in accordance with good conscience. Lord Abinger had found it on the obligation of the servant "to exercise (diligence and caution) on behalf of his master to protect him against the misconduct or negligence of others" who served the same master. Baron Alderson added the ground of an implied contract of the servant to accept the natural risks and perils incidental to the performance of an employment in which other employees were also engaged. The basic reason, however, was the inclination of the society to favour the employers against the employees in the prevailing conditions of a developing society. As the conditions improved the unpopular aspect of the doctrine became more and more conspicuous and Judges began to tighten the conditions of its application. Clerk & Lind sell have pointed out in 1947 at pages 125 and 126 of the 10th edition of their work on the Law of Torts that the exemption of the master from liability was subject to the satisfaction of two conditions "first, the servants must be fellow‑servants", and "secondly, they must be engaged on a common employment". But the reproach of favouritism that attached to it continued to make it more and more unpopular. Thus the Employers' Liability Act was passed in 1880, to introduce more exceptions to it. But the Courts leaned still further against its application. Metcalfe v. London Passenger Transport Board, ((1939)2 All E R 542) is an instance in point. In the words of Clerk & Lindsell (12th Ed.) at p. 230 "after working much injustice, and being subjected to a great deal of criticism, over the following century, it was abolished by the Law Reform (Personal Injuries) Act, 1948." Ramaswamy Iyer has quoted the following condemnation of the doctrine by Kenny from "cases on Torts" in the foot‑notes at page 580 of his work on the Law of Torts (4th Edition): "Lord Abinger planted it, Baron Alderson watered it, and the Devil gave it increase." Now there is no such doctrine in England.

9. The question is as to what is the corresponding doctrine that can be applied at present to the employers liability in Pakistan. Stone & Pollock, JJ. of the Nagpur High Court have written learned judgments in Secretary of State v. Rukhminibai (A I R 1937 Nag. 354) in support of their view that a common law doctrine, which at the date of their judgments was regarded in England as not in consonance with justice, equity and good conscience, and "in so far as it has been abrogated by a statute (of 1880) cannot be treated as forming part of the enforceable Common Law of England", because common law was applied in India in the name of Justice, equity and good conscience and was held by the Privy Council to be applicable from this point of view. But in 1938, the Indian Legislature passed the counterpart of the English Employers' Liabaility Act under the same name (Act XXIV of 1938) which created the presumption that the English doctrine of common employment was applicable to India. The doctrine was, therefore, applied in 1946 by the Lahore High Court to the case of Mrs. Wells v. Governor‑General (A I R 1946. Lah. 50) and this part of the decision was upheld by the Privy Council in appeal in 1950 R. K. Kulkarni v. R. S. Kulkarni (AIR 1950 P C 22). At that time the doctrine was not existing in England, but it was applied by the Privy Council to a case which was of an earlier date than the date of its abolition in England. Thus the Privy Council could not have been influenced for the decision of that appeal by the abolition of that doctrine in England, and can be taken to have left unimpaired the view of the learned Judges of the Nagpur High Court that after its abrogation it was an unsafe guide for a country like India or Pakistan. Their Lordships were influenced by the fact that an Employers' Liability Act had been passed in 1938 by the Indian Legislature which, by necessary implication, meant that that the doctrine was to be applied to India. Lord MacDermott has observed in that respect that the Act‑-- " . .was intended not to abolish the doctrine of common employment but rather to reduce its scope." So long as the Act remains in force in our country, it carries with it by necessary implication the reduced applicability of the doctrine.

10. Reverting now to the query stated in the beginning of paragraph 8 above, the answer to it is, that the doctrine of common employment as it was in England is not enforceable in' Pakistan, but that it is enforceable as recognised in and modified by the Employers' Liability Act, 1938, which is now in force in this country. It is important to note here that the English Act of 1880 of the same name, was very different from what our Act of 1938 is because a good deal of the experience that was gained during 58 years from 1880 to 1938 has been utilised for further reducing the scope of the English doctrine both by making the scope of its application wider. The names of the English and of our Acts are the same, but let there be no misunderstanding on that score. To mention but a couple of important differences only, the English Act was by definition applicable only to a railway servant and any person to whom the English Employers and Workmen Act, 1875 was applicable ‑but our Act is applicable to any person‑ "who has entered into, or works under a contract or, apprenticeship with an employer whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied, oral or in writing;" Secondly, a new cut has been applied to the doctrine by section 4 of our Act from which the English doctrine remained free till the end. The section is as follows :‑ "

4. In any such suit for damages, the workmen shall not be C deemed to have undertaken any risk attaching to the employment unless the employer proves that the risk was fully explained to and understood by the workman and that the workman voluntarily undertook the same." The above limitation is so severe that it can be said to have literally reduced the English doctrine in our country to the point of extinction. The English doctrine, it should be noted, took root in the presumption that an employee impliedly agreed with the employer at the time of entering service that he was aware of the risks of his employment and would take care to protect himself against them. The knowledge of the perils of employment was by, fiction of law attached to all entrants of service and the presumption of implied agreement was so strong that an employee could not even lead evidence to disprove it. This fiction assumed such proportions that even when injuries were caused to children, their implied agreement to protect themselves was held to be operative. Clerk & Lindsell have spoken of it at page 127 of the tenth edition of their book as follows :‑ "It does not affect the application of the rule that the injured servant is an infant. It is true that one of the reasons for the rule is that the servant impliedly contracts to take the risks of the employment and an infant may not always fully appreciate these. But the same reasoning would apply to adults of inferior mental capacity, and if it had to be shown in every case that the servant contemplated the particular risk a new limitation would be introduced to the rule, for which there is no authority." By section 4 of our Act the necessity of bringing a risk pointedly to the notice of an employee and making him understand its existence is statutorily imposed on those employers who wish to take advantage of the doctrine of common employment. If theft seed of that doctrine in England was an implied contract to accept the perils of service, than it is not unreasonable to state it has burst in our country before the tree could take root in it.

11. Mr. Lari has argued that the Employers' Liability Act, 1938 does not apply to this case therefore, the unabridged, original English doctrine should be applied to it. He said that the application of the English doctrine has been excluded from those cases only which fall within the scope of section 3 of our Act and not from the others. He pointed out that section 4 also begins with the words :‑-- "In any such suit for damages ; which refer to the suits falling under section

3. We see the correctness of this argument, but find it difficult to appreciate its utility in this case because section 3 refers to cases of personal injury alleged to have been caused by the omission or negligence of the employer or of the fellow employees of the injured person. The section is as follows :‑ "

3. Where personal injury is caused to a workman :‑-- (a) by reason of the omission of the employer to maintain in good and safe condition any way, works, machinery or plant connected with or used in his trade or business, or by reason of any like omission on the part of any person in the service of the employer who has been entrusted by the employer with the duty of seeing that such way, works, machinery or plant are in good and safe condition ; or (b) by reason of the negligence of any person in service of the employer who has any superintendence entrusted to him, whilst in the exercise or such superintendence ; or (c) by reason of the negligence of any person in the service of employer to whose orders or directions the workman at the time of the injury was bound to conform and did conform, where the injury resulted from his having so conformed ; or (d) by reason of any act or omission of any person in the service of the employer done or made in obedience to any rule or bye‑law of the employer (not being rule or bye‑law which is required by or under any law for the time being in force to be approved by any authority and which has been so approved) or in obedience to particular instructions given by any person to whom the employer has delegated authority in that behalf or in the normal performance of his duties ; a suit for damages in respect of the injury instituted by the workman by any person entitled in case of his death shall not fail by reason only of the fact that the workman was at the time of the injury a workman of, or in the service of, or engaged in the work of, the employer." The above section in short provides that where personal injury is caused to a workman by reason of an omission or negligence described in clauses (a) to (d) then a suit instituted' in respect of the injury shall not fail by "reason only of the fact that the injured person was a workman of the employer". Counsel has not denied that the deceased was a workman, nor that he was injured, but has contended that clauses (c) and (d) were not applicable to this case and that the facts which have been alleged to attract clauses (a) and (b) have not been proved. In our opinion, clauses (c) and (d) cannot be said to be in applicable because the fact that the deceased was on board is by itself a proof of the orders or directions and rules or bye‑laws or instructions which required him to be on it. No particular order or direction and no rule or bye‑law or instruction in pursuance of which he joined the flight has been brought on record, but there is no reason to presume that he was at that time in the plane by Chance or by choice. See Millward v. Midland Rail. Co. ((1884) 14 Q B D 68). This circumstantial proof should be sufficient to attract the law which is meant to perform the doctrine. In so far as clause (a) is concerned it applied because the employer and its servants had omitted to maintain the aircraft in good and safe condition. Using tired crew also falls in the same category as using a defective machine. This has been explained at page 771 of Volume 35 of American Jurisprudence as follows :‑ "In a sense workmen are appliances. If a master knowingly employed servants who are incompetent by reason of their habits or otherwise he is liable for an injury occasioned to a fellow servant by their incompetency, just as he would be liable for an injury caused by a defective machine." Mr. Lari spent a good deal of his time in attempting to explain away that clause (c) could not apply because, in counsel's view, the negligence of the Captain could not be considered to be of a fellow servant who had superintendence over any operation in which the deceased was engaged and as a result of the Captain's negligence in the operation the latter suffered the fatal injury. He explained that the Captain had the authority of general superintendence, for purposes of flights, over the entire aircraft including all the fellow servants who were in it but there was nothing common in the duties of the flight steward who was to serve the passengers and the Captain who was responsible for conducting the plane in the air. Their engagements being different, the injury was not caused to the, flight steward by reason of any negligence in the exercise of the Captain's superintendence over him. The distinction is acceptable to us subject to the further inference which follows that their duties were such as to take the case out of the provision of not only clause (c) but also of the English doctrine itself, because pushed to its logical conclusion, it means that the Captain and the flight steward were not engaged in a common employment, see para graph 8 above. If the English doctrine applied to this case then clause (c) also applies to it and then section 4 of our Act would also apply.

12. The said section 4 takes away all protection of the employer in this case because there is no evidence on the record that any attempt was made to explain to the deceased that. he could be required to fly in an aircraft which was badly in need of repairs a short while before the flight began, whose crew could be careless as well as tried and could be unmindful of following the correct route, who could be so negligent as not to utilise the ground aids to assist them in navigation, who could fly at altitudes that were insufficient to clear the terrain, whose Captain could be a man to fly the plane at incorrect altitudes not once but more often than that. The protection is taken away because there is no evidence that on such explanation having been supplied to the deceased he understood the risk and yet agreed to join the service of respondent No. 1.

13. One more aspect of the problem should be kept in mind. That aspect is the risk which is taken by the English doctrine to be impliedly acceptable to an employee of the negligence of his fellow employees who are engaged in the same employment. There is no such implied acceptance in that doctrine of the risk working with incompetent fellow employees. The following) passage from page 132 of Clerk and Lindsell's tenth edition of' Law of Torts is noteworthy: "But although at common law a servant when entering into the service impliedly taken upon himself the risk of the negligence of his fellow‑servants, he does not take on himself the risk of his master's negligence. For his own acts of negligence the master is liable to the servant ; and as it would be t an act of negligence on the part of the master when engaging servants not to take precautions to ascertain whether they were persons of competent skill, in the event of his omitting to take such precautions he will be liable for any injury caused by the unskilfulness of such servant to a fellow‑servant. Hutchinson v. York & Newcastle Ry., Tarrant v. Wabb (1856) 18 C B 797, Fanton v. Denville (1932) 2 K B

301. So ft is a personal negligence on the part of a master to retain in his employ ment a servant who, to his knowledge, is habitually negligent, any if by such servant's negligence a fellow servant be injured, the master will be responsible. Senior v. Ward (1859) 28 L J Q B 139, Butler v. Fife Coal Co. (1912) A C

149. A single instance of forgetfulness may be proof of incompetence: Baster v. London & County Printing Works (1899) 1 Q B 901." The difference between negligence and in competency is often not easy to draw because the net result of both is often the same. No distinction can usually be drawn with the help of one instance between the conduct of a negligent and an incapable employee. The safest method of discovering the difference is to examine several performances of such an employee to ascertain whether he has slipped once or is incapable of working well. Habitual negligence is by itself a trait which can create as much unfitness as physical or mental incapacity. Moreover incompetence is not necessarily the result of physical or mental incapacity. As pointed out at page 776 of Volume 35 of American Jurisprudence, if the acts of an employee " . .are exceptional or occasional he is termed `negligent', whereas, if the same acts have become habitual, he is said to be incompetent.". If we look in the above lig4t at the allegations made by the respondents in paragraph 1 of the plaint and admitted by the appellants in paragraph 10 of the written statement, we can easily conclude that the crew and the Captain were incompetent. In these circumstances the doctrine of common employment provides no defence to the appellants.

14. The above considerations establish the negligence of appellant No. 1 in its capacity of a master who employed and retained in service incompetent servants. This conclusion is reached without invoking the doctrine known as res ipsa loquitur. It is as it ought to be, because the doctrine of res ipsa loquitur does not embody an entirely new and independent principle of law but is derived from the body of considerations that apply to cases of negligence. "This convenient and succinct formula", said Morris L. J. possesses no magic qualities nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin'. It is only a convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific‑act or omission on the part of the defendant." (Page 796 of Clerk & Lindsell, 12th Ed.) The expression res ipsa loquitur means : the things speak for themselves. "the doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, or of some one for .whom he is responsible or whom he has a right to control ; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows, on a balance of probability, IL that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition : (3) there must be no evidence as to why or how, the occurrence took place." (Page 796 of Clerk & Lindsell, 12th Edition) It is not necessary for shifting back the burden of proof or rebutting the presumption that the actual manner and cause of the accident be established by him who is taken to have been negligent That would be asking for an impossibility when the necessary information is lacking. On the contrary, shifts in the burden of proof foil the line of probabilities ; therefore, the presumption can be dislodged by offering any plausible explanation which attributes the accident to some other cause than negligence Woods v. Duncan (1964 A C 401 at 439).

15. In the case before us the cause of the accident is not known but the state of the aircraft, of the crew including the Captain, as well as the conduct of the Station Engineer combined with the habits of the crew including the Captain are facts which overwhelming establish the probability that the accident was a result of the negligence of those who operated the flight. Appellant No. 1 is responsible for it because the negligence was not exceptional of occasional and the appellants have offered no other plausible explanation to shift the burden of proof from their side or to rebut the presumption.

16. Mr. Lari has, of course, argued that particulars of negligence having been pleaded in paragraph 14 of the plaint, the doctrine res ipsa loquitur is not applicable. The respondents were bound to prove them but the burden to do so according to him, has remained undischarged. Moreover, according to counsel: "The present stage of development of aviation would not allow for any conclusion that the accident would not have happened unless there was negligence on the part of the aeroplane operator," particularly because it is "common knowledge that aircrafts do fall without fault of the pilot." The latter two contentions are the actual observations : made at page 276 in Indian Airlines v. Madhuri Chaudhri (A I R 1965 Cal. 252) and the first contention is supported by the observations which appear on page 269 of that judgment, but, they do not materially help the appellants in this case. The first contention with respect to the burden of proving the particulars is not well‑founded in this case because the fact which are mentioned in paragraph 10 of the plaint have been admitted by the appellant in paragraph 10 of their written statement. Moreover, they are particulars of negligence without any particulars of the accident which took place. How that negligence has caused the accident is not known at all there fore, a decision in that respect has to be given on the preponderance of probabilities. To refer to the Calcutta Judgment on which Mr. Lari has relied we may reproduce the following passage from it: "If the plaintiff himself in his plaint pleads particulars of negligence and particulars of the accident then the question is? Can the doctrine of res ipsa loquitur any more apply? In other words, if the plaintiff is not relying on the thing itself to speak and if the plaintiff himself alleges proof of negligence and specific causes of the accident then how far is he disentitled from invoking the doctrine of res ipsa loquitur." The allegations of negligence made in this case merely strengthen the probability that negligence was the cause of the accident and extend the responsibility for that negligence to appellant No.

1. The second and third contentions do strongly suggest that the accident could happen without the negligence of the Captain or crew; but they do not lead to the conclusion that aeroplanes crash whenever they by or that they crash without any reason. If flying was so dangerous as that, then flying passengers for rewards would have been a banned evil. It is common knowledge that planes crash rarely; which means that they crash only when something has gone wrong somewhere. In this case, the management and maintenance of the aircraft was entirely in the hands of appellant No. 1, no details of the crash are known and no explanation as to its cause has been offered by the appellant in these circumstances, the instances of negligence which have been given in paragraph 10 of the plaint and admitted by the appellants add weight to be probability that the fault which caused the disaster was due to the negligence of the Captain and of appellant No.

1. This conclusion can be said to be of the same nature as the conclusion of prima facie negligence drawn from the evidence that a bolting horse ran down person (Haynes v. Harwood, ((1935) 1 K B 146)) or from the evidence that a car which hit a pedestrian in the back had gone on to t he pavement (Ellor v. Sefirage & Co. Ltd. ((1930) 46 T L R 236)).

17. Mr. Lari has lastly contended that the respondents are not entitled to recover any amount of money from the appellants because the deceased had given up his claim with the result that no cause of action was available to the dependants. He referred to the following part of section 1 of the Fatal Accidents Act, 1855 :‑

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime", and relied on the words: "Whenever . . . .neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action." On the basis of these words he argued that if Flight Stewards D'Lima had not died he could not maintain an action for damages against the appellants because he had given up his claim by virtue of an agreement, As he was not entitled to maintain the suit, counsel contended, his wife and children who are the respondent plaintiffs cannot claim anything, in terms of the section, from the appellants. He conceded that, under the above law, the dependants do not inherit the claim from the deceased but urged that the right of the deceased to sue must subsist at the time of his death for otherwise he cannot be said, in terms of the section, to have been entitled to maintain an action for damages in the event of his surviving the injury. The learned Single Judge has held that the decease had not given up his claim, but had only agreed to limit it to Rs. 4,000.00, and that this limit was not binding on the dependants. Mr. Lari agreed with the legal aspect of this finding, but was dissatisfied with the interpretation of the agreement which, according to counsel, amounted. to complete relinquishment of the claim.

18. We pointed out to Mr. Lari that his stand appeared to us to be self‑contradictory because, according to him, an agreement relinquishing the claim was effective, but an agreement curtailing the claim was not. Counsel replied that it was so and referred to the following observation of Scrutton, L. J., reproduced by Greene, L. J.; at page 1276 in Grein v. Imperial Airways Ltd. ((1936) 2 All E R 1258). "I agree that it looks odd that he (the deceased) should be able to bar his dependants entirely, and yet should not be able to bar them in part, but one must be guided by the words of the statute. Greene. L. J. has in the above judgment, explained the effect of the law in three sentences, at page 1276, as follows :‑

"It seems to me quite clear that the deceased man, while retaining his own right to sue for damages, binds his dependants by his contract. They are not prevented from suing in cases in which he has given up his rights, because they are bound by the deceased's contracts, but because by the express words of the statute their right to sue for their damages is subject to the deceased having had a right to sue for his own damages at the date of his death. But an agreement by the deceased to limit his damages is not binding on the dependants." With utmost respect, the first and third sentences appear to us to be inconsistent is regard to the binding effect of the contracts of the deceased on the dependants. The second sentence appears to be meant to reconcile them by pointing out that the words of the statute and not the contracts of the deceased create that effect ; but in reality the existence of such a right has not been left by his Lordship to be judged entirely in the light of statutory provisions, but has been made dependant on the contractual undertaking of the deceased. If the existence of the right was judged purely by the Operation of law on the creation and existence of the liability, then a contract releasing the right to recover damages would have been held to be as ineffective as a contract to limit them. The statute merely requires that the act, neglect or default, which caused the fatal injury should have been such as to have entitled the deceased, at the time of his death to maintain an action to recover damages as if he were alive. It is the quality and circumstances of the fact, neglect or default which caused the injury that in the words of the statute determine the right of the deceased to maintain an action and recover damages, and not his agreements. Such agreements should not determine the right of the dependants because his entitlement to maintain the action is merely a fiction of law which confers no legacy. Under the law he leaves behind no right to his dependants. He, therefore, cannot bargain for them, Swift, J. has observed, at page 717, in Nunan v. Southern Railway Company ((1923) 2 K B 703) that: "A man may clearly bargain as to his own personal claim for his injuries, but it does not follow that because he may bargain as to his own rights, he either does or may do so with regard to the rights of others, and if he had attempted to do so, I do not think he would have been acting within the scope of his powers. The statute has given the right to the beneficiaries provided that the condition upon which they are to have that right is fulfilled, and I do not think that anybody is entitled to interfere with the statutory method of assessing the beneficiaries' compensation except the executors or beneficiaries themselves." Having made the above observations, the learned Judge has proceeded to state: "Had the deceased contracted so as to prevent any right of action from accruing to him, or had he destroyed it before he dies, the widow clearly would have had no claim;"

19. It is difficult for us to see the consistency of the point of view of the learned Judge, but the English Judges have adopted the view consistently. Perhaps, they are irrevocably bound by old and long standing high authorities. Mr. Lari pointed out to us that we are also bound to follow the same view because that is the view of their Lordships of the Privy Council in British Columbia Electric Railway Company Limited v. Violet Gentile (AIR 1914 P C 224). We respectfully adopt it, but in all humility suggest its reconsideration by the Supreme Court if and when the time comes for it, because logically consistent interpretation of the law can be achieved if all agreements of the deceased are ruled out as ineffective for restricting or extinguishing the rights of the dependants because none of them may give or take away the cause of action in terms of the language of the statute. The rights of the dependants to sue for damages may be said to be independent of the law of contracts as well as of inheritance but dependant on that legal right of the deceased which neither recognizes legacies nor contracts.

20. In this case, however, the appellants cannot succeed even according to the view urged by Mr. Lari because the case of the appellants in their written statement was that their agreement with the deceased merely limited the amount of damages. They have expressed their willingness in their pleadings to pay the agreed amount (see paragraph 6 above). They cannot now take the stand that they are not liable to do so.

21. The overall conclusion of the entire foregoing discussion is that the appeal be dismissed. It is hereby dismissed with costs. K.B.A. Appeal dismissed.