P L D 1962 (W (PLP)

ANWARUL HAQ, J.

On the 14th of September 1955, bus No. FPT 190, owned by the Government Transport Services and driven by Muhammad Zaman, met with a serious accident near Garhi Habibullah, resulting in the death of nineteen persons including one Syed Ijaz Hussain, Sales Inspector of the Lipton (Pakistan) Limited Company, Rawalpindi. His widow Mst. Sakina Begum and five minor children served a notice for damages on the Government of West Pakistan as well as the West Pakistan Road Transport Board, Lahore. They were offered Rs. 2,000 only which they refused, and instituted the present suit on the 30th of July 1956, claiming Rs. 50,000 as damages. They alleged that the accident was the result of defective brakes of the vehicle, and of negligent and rash driving on the part of Muhammad Zaman, an employee of the defendants. The suit was filed in forma pauperis.

2. Both the defendants contested the suit and asserted that if there was any liability, it was the personal liability of the driver Muhammad Zaman. The accident was, of course, admitted and also the fact that the deceased Syed Ijaz Hussain lost his life in that accident.

3. The suit was tried by Mr. Muhammad Hamayun Khan, Senior Sub-Judge at Hazara, who held that the death of Syed Ijaz Hussain was the result of culpable negligence and rashness on the part of Muhammad Zaman who was an agent or employee of the defendants, that the defendants were liable for damages, and that Rs. 10,000 would be a reasonable amount of damages in the circumstances of the case. He accord ingly decreed the plaintiffs' suit for Rs. 10,000 and also ordered, under Order XXXIII, rule 10, C. P. C., that the plaintiffs shall pay the court-fee on the actual decretal amount, while the defendants shall pay the court-fee on the remaining sum of Rs. 40,000.

4. In the present appeal Mr. Ghazanfar Ali Shah, the learned Additional Advocate General, appearing for the defendants, has raised the following contentions : (1) The evidence does not establish that Muhammad Zaman, driver of the bus in question, was rash or negligent. (2) Even if it be held that the driver was rash and negligent, his act being a criminal offence punishable under a statute, i e., the Pakistan Penal Code, his employer or master could not be held responsible for such an act. (3) In any case, the Government of West Pakistan could not be made liable, for the reason that the West Pakistan Road Transport Board was a corporation, capable of suing and being sued in its own name. (4) The damages assessed by the trial Court are excessive as ; (a) under section 95 (2) of the Motor Vehicles Act of 1939, only a maximum of Rs.2,000 could be allowed for one passenger, and (b) that even otherwise the damages should have been calculated on the basis that the salary of the deceased was Rs. 130 per mensem as recorded in the evidence of Yusuf . Mirza, Head Clerk of the Lipton Company, and (5) The trial Court has erred in burdening the defendants with the amount of court-fee on that part of the claim regard ing which the plaintiffs' case has failed.

5. Cross-objections have also been filed on behalf of the plaintiffs, praying that the amount of damages be enhanced to Rs. 50,000.

6. A Miscellaneous Application (No. 57 of 1962) has also been filed on behalf of the plaintiffs, praying that a clerical mistake in the evidence of Yusuf Mirza, Head Clerk of the Lipton Tea Company, Rawalpindi, should be corrected so as to show the salary of the deceased as Rs. 230-4-0 per mensem instead of Rs. 130-4-0 as wrongly recorded at present. This application is accompanied by an affidavit of Yusuf Mirza. We shall take up this application when discussing the question of the quantum of damages.

7. The first contention raised by the learned Additional Advocate-General has no substance in view of the fact that before the trial Court the learned Public Prosecutor, who was represent ing the defendant-appellants, conceded "that the accident in which Syed Ijaz Hussain lost his life, was due to the rash and negligent driving of Muhammad Zaman". This position was also conceded by two defence witnesses, namely, Mr. Fazal Haq Khan, Works Manager, and Bashir Ahmad Khan, Motor Vehicles Inspector, Peshawar, in their evidence at the trial. In view of these circumstances, the defendants cannot now be permitted to change their position, and we are bound to hold that the accident resulting in the death of Syed Ijaz Hussain occurred as a result of rashness and negligence on the part of driver Muhammad Zaman It may be mentioned here that the concession made by the learned Public Prosecutor and the two defence witnesses appears to be due to their anxiety to contest the assertion of the plaintiffs that the vehicle was mechanically defective. The trial Court found on that issue that the brakes of the bus were not defective and the accident was not the result of any such defect. That conclusion is not challenged before us by the plaintiffs.

8. For his contention that the master is not liable for an act of the servant which amouats to a criminal offence under the law of the land, the learned Additional Advocate-General relied on certain observations in Rattan Lal's book on the Law of Torts. He was not, however, in a position to cite any direct authority on the point. The only case referred to by him, namely, Nathulal Ramprasad and another v. Balkrishna Jugal kishire and another (A I R 1955 Nag. 269) hardly supports his contention. It was observed in that case that "the master's liability for the un authorised torts of his servant is limited to unauthorised modes of doing authorised acts". The case before their Lordships was one of malicious prosecution, and they observed that "although employers have been held liable for the malicious prosecution committed by their servants, where a servant did not give a false report to the police about an occurrence which led to the pro secution of the plaintiff and there was a reasonable and probable cause for him to do so, the prosecution of the plaintiff is not malicious or wrongful and neither the servant nor his employer is liable for any damages on that account". It will be seen that the principles on which the decision in the case proceeds is not a repudiation of the master's liability, but on the contrary, an acknowledgement of it, although on facts the act complained of was not found to be wrongful.

9. It seems to us, however, that the learned Additional Advocate-General is right to the limited extent that the master would not be held criminally liable for an act of the servant for which the latter is so liable under the law ; but the proposition cannot be extended to the master's liability in tort. On the contrary, the authorities have been consistently of the view that "a master may be liable to a civil action in respect of the criminal act of his servant, and the defence that the act complained of amounted to a felony will not free the master from liability". The principles obtaining in this behalf were summed up by their Lordships of the Privy Council in Canadian Pacific Railway Company v. Leonard Lockhartt (A I R 1943 P C 63) as follows:-- "A master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it. If the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but Is an independent act, the master is not responsible ; for In such a case the servant is not acting in the course of his employment, but has gone outside of it. Each case will depend for decision on its own facts."

10. There are a large number of decided cases in which rash and negligent driving on the part of an employee, resulting in fatal or other accidents, was held to create master's liability for damages. In Olga Hall v. Kingston and Saint Andrew Corpora tion (A I R 1941 P C 103) it was held that a corporation was liable to pay damages for the negligence of its servant, who was a cart man, and had caused injuries to a man's foot while driving a cart belonging to the corporation for collecting rubbish. In Palghat Coimbatore Transport Co. Ltd. 6y liquidator N.Krishnaswami Naldu v. Narayanan and others (A I R 1939 Mad. 261) it was held that "where an accident happens as a result of the drivers of two buses persisting in driving on the metalled portion of the road, each declining to make room for the other to pass-by, both the drivers are guilty of negligence and recklessness so as to make their masters, the owners of the buses, liable for damages claimed by the representatives of the person dying In the accident". It will be seen that in that case the drivers in question were clearly liable under the criminal law for culpable rashness and negligence, yet that fact was not regarded as detracting from the master's liability for damages.

11. In Hyder and another v. Burmah Shell Oil Company of India (P L D 1951 Sind 24) Constantine, J. was dealing with a case where the driver of a truck was forbidden by his master to allow anyone else to drive the truck in the course of his employment, but the driver allowed another to drive, and the truck ran into a carnal cart killing the carnal and injuring the driver of the cart besides damaging the latter. The learned Judge held "that the master was liable for the negligence of his servant inasmuch as though the driver was guilty of a breach of duty to the master, the accident occurred within the scope of his employment. The driver owed a duty both to users of the road and to his master."

12. The same principles were applied in Mukhtar Ahmad v. Ramzan and another (P L D 1956 Sind 124), Ursulina D'lima and others v. Orient Airways Limited and another (P L D 1960 Kar. 712), Mst. Hamida Begum v. Suleman Jan and others (P L D 1961 Kar. 529) and Gobald Motor Service Ltd. by its Managing Directors v. R. M. K. Velusami and others (A I R 1953 Mad. 981). All these cases have proceeded on the general principle that a master is liable to third persons for every such wrong of his servant as is com mitted in the course of his employment, although the master did not authorise, or was not congnizant of, or had even expressly forbidden the act or omission In question ; but a master is not liable for the torts or negligences of his servant in any manner beyond the scope of the employment, unless he has expressly authorised them to be done, or has subsequently adopted them for his own use and benefit. In the case of transport operators, it is clear that when a driver is taking a vehicle on the road in the performance of his duty and for the purpose of his master's business, i.e., carrying passengers or goods from one place to another, he is acting in the course of his employment and for the master's benefit. If during the course of that employment, he acts rashly or negligently and does an unauthorised or wrongful act which is connected with the performance of his duty in the course of his employment, namely, driving the vehicle from one place to another on the master's business, the master must be held responsible in torts for the wrong done by the driver. This responsibility of the master is independent of any criminal liability which may be incurred by the driver by his rash or negligent act. On this view of the matter, it is clear that the employers of Muhammad Zaman driver in the present case would clearly be liable for damages, Irrespective of the fact whether Muhammad Zaman had committed a criminal offence in causing the death of nineteen persons by his rash and negligent driving.

13. The next question to be considered is whether both the defendants are liable or only defendant No. 2, namely, the West Pakistan Road Transport Board, Lahore. It is relevant to mention here that when the fatal accident occurred on the B 14th of September 1955, the West Pakistan Road Transport Board was not in existence, and the bus in question was the property of the Government Transport Service which had been created under the North-West Frontier Province Road Transports (Nationalization) Act (IV of 1951). The West Pakistan Road Transport Board was established in 1958. The Government Transport Service was, however, to be a body corporate, capable of suing and being sued in its own name under section 2 of Act IV of 1951. It seems to us, therefore, that the plaintiffs impleaded the Government of West Pakistan as a defendant by way of abundant caution. After the establishment of the West Pakistan Road Transport Board, the assets and liabilities of the North -West Frontier Province Government Transport Service appear to have been taken over by the Board and it is clear that any decree passed in the present case will primarily be against the Transport Board. We, therefore, agree with the learned Additional Advocate-1 General that the decree in the present case should be only against defendant No. 2, namely, the West Pakistan Road Transport Board, Lahore, and not against the Government of West Pakistan.

14. As regards the quantum of damages, the first point urged by the learned Additional Advocate-General is that the case is governed by clause (b) of subsection (2) of section 95 of the Motor Vehicles Act in accordance with which the maximum liability for the death of an individual passenger would be limited to Rs. 2,

000. One has only to peruse section 95 to see that the contention is without substance. Section 95 is to the following effect "(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorized insurer or by a co-operative society allowed under section 108 to transact the business of an insurer, and (b) insures the person or classes of persons specified in the policy to the extent specified in subsection (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place in the Provinces and the Capital of the Federation or in a reciprocating territory Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of land in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it be a public service vehicle, engaged as a conductor of the vehicle or in examining tickets on the vehicle, or (c) if it be a goods vehicle, being carried in the vehicle, or (ii) except where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, to cover liability in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of the occurrence of the event out of which a claim arises, or (iii) to cover any contractual liability. (2) Subject to the proviso to subsection (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely :- (a) Where the vehicle is a goods vehicle, a limit of twenty thousand rupees in all, the liabilities, if any, arising under the Workmen's Compensation Act, 1923, in respect of the death of, or bodily injury to, employees other than the driver being carried in the vehicle being limited to six such employees ; (b) Where the vehicle Is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, in respect of persons other than passengers carried for hire or reward, a limit of twenty thousand ; and in respect of passengers a limit of twenty thousand rupees in all, and four thousand rupees in respect of an individual passenger, if the vehicle is registered to carry not more than six passengers excluding the driver or two thousand rupees in respect of an individual passenger, if the vehicle is registered to carry more than six passengers excluding the driver ; (c) Where the vehicle is a vehicle of any other class the amount of the liability incurred. (4) A policy shall be of no effect for the purposes of this chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any conditions subject to which the policy is issued and of any other prescribed matters ; and different forms, particulars and matters may be prescribed in different cases. (5) Notwithstanding anything elsewhere contained in any law, a person issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons."

15. It will be seen that section 95 deals with compulsory insurance of vehicles and seeks to limit the liability of the insurance companies in case of accidents etc. The section does not deal with the liability of the transport operators to the passengers carried by them. The learned Additional Advocate-1 General urged that, in any case, the section provided a measure or a yard-stick for assessing damages in case death occurs during an accident. We regret we cannot subscribe to any such view. A reference to clause (b) of subsection (2) of section 95 of the Motor Vehicles Act, 1939, would show that in the case of a vehicle carrying more than six passengers excluding the driver, the maximum liability incurred by the insurance company would be Rs. 2,000 in respect of individual passenger or Rs. 20,000 in the aggregate. Now, in the present case, it is in evidence that at least nineteen persons were killed in the course of one accident. If the limits of liability laid down in clause (b), referred to above, are accepted as a guide or yard-stick for the assessment of damages, this would mean that only about a thousand rupees could be awarded as damages to the heirs of each of the ninteen passengers who lost their lives in this accident. This would be a most arbitrary manner of dealing with the question of damages, as it would ignore completely the earning capacity and the expectation of life of the passenger concerned, or the other circum stances which should have a bearing on the question of damages in each particular case. We are clear that section 95 of the Motor Vehicles Act has no application to the question of damages which may be payable by a transport operator in the case of a D fatal accident. This section deals only with the liability of an insurance company to an operator and it cannot be extended to embrace other situations, which it was not intended to cover.

16. The action in the present case falls under the Fatal Accidents Act (XIII of 1855) (hereinafter referred to as the Act). Sections 1 and 2 are relevant and may be reproduced here for facility of reference :- "Section 1

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 if death had not ensued shall be liable to an action or suit for damages, not withstanding 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. Every such action or suit shall be for the 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 ; 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." "Section 2 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."

17. The learned counsel for the respondents has argued at some length that the damages claimable under section 2 of the Act are distinct from those allowed under section 1 of the Act, and has urged that we should allow at least Rs. 5,000 under section 2 in addition to whatever may be held permissible under section

1. He referred us to Gabald Motor Service Ltd. v. R. M. K. Velusami and others in which, while dealing with sections 1 and 2 of the Act, their Lordships observed as follows :- "The two heads of claim under section 1 and section 2 are different in their legal character and incidents, though they arise out of the same facts. Thus, while damages under section 1 are recoverable for the benefit of the persons named therein, compensation under section 2 goes to the benefit of the estate. While the claim under section 1 is limited to the loss sustained by the dependents mentioned therein, that under section 2 will include damages claimable by the deceased such as damages for physical suffering and mental agony and for the loss of expectation of life. Thus, the person who will be entitled to damages under the two sections may be different and the principles on which damages will have to be awarded will also be different while all the persons mentioned in section 1 are entitled to relief under section 1, it is only those in whom the estate has vested who are eligible for relief under section 2." This decision of the Madras High Court was upheld in appeal by their Lordships of the Supreme Court of India in the case cited at page 17 of the Foreign Rulings Section of the All Pakistan Reporter 1962. Their Lordships, however, added that "if a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim i.e., if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa". The learned Judges of the Supreme Court of India referred with approval to the relevant observations of Sir Shadi Lal, C. J., in Secretary of State v. Gokal Chand and others (A I R 1925 Lah. 636) :-

18. We are in respectful agreement with the observations made in the authorities just cited regarding the distinct legal character of the claims mentioned in sections 1 and 2 of the Act. We find, however, that in the present case no claim was made in the plaint for the loss to the estate of the deceased on account of the fatal accident. The sum of its. 50,000 claimed by the plaintiffs comprised the following items:- (i) Rs. 5,000 on account of shock received by plaintiff No. t who has become a widow due to death of her husband. (ii) Rs. 3,000 on account of shock of becoming orphans sustained by plaintiffs Nos. 2, 4 and 5. (iii) Rs. 42,000 for the maintenance and education of plaintiffs Nos. 2 to

6. It will be seen that all the items of damages relate to the loss sustained by the plaintiffs themselves and not by the estate of the deceased. This is a case, therefore, which has to be decided with reference to section 1 of the Act alone. The result is that we see no force in the contention of the learned counsel for the respondents that Rs. 5,000 should be allowed under section 2 of the Act.

19. As regards damages permissible under section 1 of the Act, Mr. Ghazanfar Ali Shah, the learned Additional Advocate-General, rightly pointed out that the law did not permit any damages on account of personal shock or grief sustained by the plaintiffs. We are in respectful agreement with the following observations made in this behalf by the learned Judges of the Madras High Court in South Indian Industrials Ltd. Madras v. A-lamelue Ammal (A I R 1923 Mad. 565) "Under the Fatal Accidents Act, the widow of the deceased or the person suing is entitled to compensation for the financial loss sustained by the death. She is not entitled to anything for pain or suffering or anything of the kind, but purely for the financial loss sustained."

20. The same view has taken in Secretary of State v.! Rukhminibai, wife of Shripad Dattatraya Godbole (A I R 1937 Nag. 354) when it was observed that "in assessing damages under the Fatal Accidents) Act of 1855, one cannot take into consideration the p mental suffering of the survivors. The fact, therefore, that 'the l widow of the deceased, being a Brahmin, cannot remarry, cannot have children and is thus left at the early age of 16 years a widow for the rest of her life, if for this purpose an irrelevant consideration."

21. We consider, therefore, that the first two items in the claim put forward by the plaintiffs cannot be allowed under the provisions of the Fatal Accidents Act. We would accordingly set aside the judgment and decree of the learned trial Judge allowing Rs. 50 on account of shock sustained by the plaintiffs.

22. We now proceed to examine as to what would be an appropriate and reasonable amount of damages in the circum stances of this case, under section 1 of the Act. The learned Additional Advocate-General urged that sitting as a Court of Appeal we should be slow to interfere with the assessment of damages arrived at by the trial Court. For this proposition, be referred us to the Nagpur case cited above. The rule laid down by the learned Judges in that case is, however, to the following effect :- "An Appellate Court should be slow to interfere with the finding as to the quantum of damages made by the trial Court, unless the trial Court has gone wrong in fixing the basis upon which the figure is founded." In the present case we find that the learned trial Judge has fixed the lump sum of Rs. 10,000 including Rs. 500 on account of shock, on the authority of Palghat Coimbatore Transport Co. Ltd. v. Narayanan and others (A I R 1939 Mad. 261). There is no doubt that that was also a case where the deceased was about 40 years of age at the time of his death, and had a family of seven members to support. The judgment, however, does not disclose the basis of calculation, namely, as to what was the monthly income of the deceased, what was he spending on himself and on the dependents, and so on. All that the learned Judges of the High Court did in that case was to accept the estimate arrived at by the trial Court. It is clear that the amount of damages awarded in that case cannot be adopted straightway as the amount which would be reasonable and appropriate in the circumstances of the instant case, without further analysis. This the learned trial Judge has failed to carry out. It seems to us, therefore, that there is an error in the basis adopted by the learned trial Judge, which needs correction in appeal.

23. Several cases have been cited at the Bar to show as to how damages might be calculated in cases of the present kind. Mrs. Constance Zena Wells v. Governor-General of Indian Council (A I R 1946 Lah. 50) was a case arising under the Employers' Liability Act, 1938. The deceased was about 26 years of age and in robust health. The learned Judges considered that 20 years could be regarded as his expectation of life, and the compensation was calculated for that period on the basis of the income which the deceased would have spent every month on his dependents. A deduction was made on account of the entire amount being paid to the dependents in a lump sum. This case seems to us to provide a workable formula which may usefully be adopted for calculating the amount of damages in the case of a fatal accident. In Iftekhar Hussain and another v. The Karachi Electric Supply Corporation Ltd. (P L D 1959 Kar. 550) the age of the plaintiff was taken into account besides the age of the deceased person. In the case of the deceased himself, who was 45 years of age and was running a shop, the expectancy of life was assumed up to the age of 65 years. Again, in Bashir Begum and others v. Muhammad Ali Premji and another (P L D 1560 Kar. 785), Wahiduddin, J. summed up the relevant considerations as being the following :- (1) The net annual income of the deceased and what were his future prospectus in respect of earning. (2) Whether the claimants have gained financially in the death. (3) The expected amount of maintenance of the deceased. (4) What was the expected life of the deceased and the present worth of the receiving amount lost to the benefi ciaries." In that case the deceased was 35 years of age and the learned Judge assumed that his normal expectation of life, considering the work done by him, was about 20 years and he was expected to continue to earn on the same basis still that age. One-third of his salary was deducted or account of the expenses which the deceased would have incurred on himself. A further deduction was made for the pensionary benefits which had accrued to the plaintiff on account of the death of the deceased. Another deduction was made on account of the sum realised by the sale of the kit of the deceased who was serving in the Pakistan Navy.

24. We are in respectful agreement with the method of calculation outlined by Wahiduddin, J. in Vic case just mentioned and would make it the basis in the present case. Before we embark upon the calculation, we would like to dispose of the Miscellaneous Application (No. 57 of 1962) filed on behalf of the plaintiffs, praying for the correction of the clerical mistake in the evidence of Yusuf Mirza, Head Clerk of the Lipton Tea Company, Rawalpindi. In the plaint and in the evidence of the widow it was stated that the deceased was getting a monthly salary of Rs. 230-4-0 but in the evidence of Yusuf Mirza, as recorded by the trial Court, this figure is given as Rs. 130-4-0. Yusuf Mirza has filed an affidavit with the plaintiffs' application in question that this is a clerical mistake and the figure should have been Rs. 230-4-0. 'The learned Additional Advocate. General has opposed the application on the ground that the correction, if made, would affect the appellants prejudicially. It seems to' us that the stand taken by the learned Additional Advocate-General is not correct. Whether the correction affects one party or the other prejudicially, is not the criterian. The question is whether there is a mistake which should be corrected, if the Court has to arrive at correct findings. Section 153 of the Civil! Procedure Code clearly provides that "the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit ; and all necessary amendments shall be made for the purpose of deter mining the real question or issue raised by or depending on such proceeding". It is not the contention of the learned Additional Advocate-General that the figure of Rs. 130-4-0 per mensem is the correct figure. There is no counter affidavit on the side of the appellants. Yusuf Mirza gave evidence with the help of the records of the company which employed the deceased. We have no doubt in our mind that the evidence of Yusuf Mirza was not correctly recorded in this behalf and the figure given by him at the trial was Rs. 230-4-0 p.m. and not Rs. 130-4-0. We accordingly accept the application and order that the evidence of Yusuf Mirza be corrected, accordingly, The result is that the monthly salary of the deceased at the time of his death must be taken to be Rs. 230-4-0.

25. Yusuf Mirza has stated that the deceased was the Divisional Sales Inspector and was likely to be promoted to the rank of Assistant Manager at a salary of Rs.

450. His evidence does not, however, make it clear as to when the promotion was likely to take place. We are also in agreement with the submission made by the learned Additional Advocate-General that Yusuf Mirza's evidence does not disclose that the employers of the deceased had declared the deceased to be fit for promotion at a specific date in the future. In other words, we are of the view that when calculating the annual income of the deceased and the future prospects of his earnings we cannot positively include the salary of Rs. 450 in the calculations for want of data as to when that salary would have been allowed to the deceased. We would, therefore, base our calculations on the monthly income of Rs. 230-4-0.

26. The deceased was 38 years of age and was in good health. Considering the fact that even in Government depart ments the retiring age has now been raised to 60 years. We are of the view that in the present case the normal expectation of life of the deceased, at the time the accident took place, should be fixed at 20 years. We fix this period in spite of the fact that Yusuf Mirza has stated that the deceased was likely to continue to serve the Lipton Tea Company for another 14 or 15 years. What we are estimating is not the period of service which the deceased would have rendered to his employers, but the period for which he would have been expected to live and to earn a reasonable income, considering his earning capacity at the time of his death.

27. We further consider that it is difficult to include a specific sum on account of the daily allowance which was being paid to the deceased for his travels on the business of his employers. There is no doubt that he was getting Rs. 7 per day for his travelling, but normally the assumption is that the travelling allowance is Intended to meet the expenses incurred on travelling. We would not, therefore, include the travelling allowance in our calculations.

28. There is evidence that the deceased was maintaining his family in a reasonable state of comfort and that his children were getting education in good schools. This leads us to the conclusion that the deceased was spending at least two-thirds of his income on the plaintiffs. We would, therefore, deduct one-third of the income for the personal expanses of the deceased. On the basis indicated above, the damages would work out as follows :- Annual income of the deceased . Rs. 230-4-0 x 12=2.763 Deduct one-third for personal ex- penses ... .... Rs. 2,763/3 =921 Annual income available for the plaintiffs ... R s. 2,763-921= 1,

842. Income for 20 years ... ... Rs. 1,842 x 20=36,840.

30. As this amount will be paid to the plaintiffs in a lump sum, about seven or eight years after the death of the deceased, but about twelve years before the expiry of the entire period, we are of the view that a deduction of Rs. 3,000 shoo-d be made on this account. As the plaintiffs have not in any manner gained financially by the death in question there is no other deduction to be made. The net amount payable to the plaintiffs would, therefore, be Rs. 33,

840. We would accordingly modify the Judgment and decree of the trial Court so as to award to the plaintiffs a decree to Its. 33,8:10 as damages. As already indicated, the decree shall only be as against the West Pakistan Road Transport Board, Lahore, defendant No.

2. The trial Judge has not indicated the share of each of the plaintiff as he was bound to do under rise provisions of the Fatal Accidents Act. We consider that the widow. Mst. Sakina Begum, should get one-fourth of the damages whereas the remaining three-fourth should be divided equally among the five minor children.

31. The last question that remains to be considered is that of the apportionment of Court-fee between the parties. The position is governed by Rules 10 and l l of Order XXXIII of the Civil Procedure Code, whish reads as follows:-- "Rule 10.

Where the plaintiff succeeds in the suit, the Court shall calculate the amount of Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper ; such amount shall be recoverable by the Provincial Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject matter of the suit." "Rule 11.-Where the plaintiff fails in the suit or is dispau pered, or where the suit is withdrawn or dismissed, (a) because the summons for the defendant to appear and answer has not been served upon him in consequence of failure of the plaintiff to pay the Court-fee or postal charges, if any, chargeable for such service, or (b) because the plaintiff does not appear when the suit is called on for hearing. The Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the Court-fee which would have been paid by the plaintiff if he had not been permitted to sue as a pauper."

32. The learned Additional Advocate-General referred us to Ganga Dahal Rai and another v. Mt. Gaure (I R 1916 All. 327) in which the learned Judges observed as follows:- "Under rule 10 of Order XXXIII of the Code of Civil Procedure the Legislature deals with the case of a pauper plaintiff who succeeds in the suit and under rule 11 with the case of a pauper plaintiff who fails in the suit. There is no separate provision for a case like the present in which a pauper plaintiff has partly succeeded and partly failed. The question of the discretion of the Court in dealing with a matter of this sort, i e. with a case in which a pauper plaintiff has partially succeeded and partially failed, Is perhaps one which deserves to be dealt with by a special rule . . . . . . Presumably the Court is intended to deal with such a case by combining the provisions of the two rules. In a case somewhat similar to the present case, Chandrarekha v. Secretary of State 1891 (14) Mad. 163 the learned Judges of the Madras High Court held under the analoguous provisions of the former Civil Procedure Code (Act XIV of 1882) that it was illegal to lay upon the defendant in such a suit a larger proportion of the Court-fees leviable from the plaintiff than would have been payable by the said plaintiff if the claim had been limited originally to that portion which was successful . . . . . . On the provisions of Order XXXIII, rules 10 and 1 I of the Code of Civil Procedure as they stand, it is difficult to arrive at any conclusion other than that laid down by the Madras High Court, without some apparent straining of the language of the rules. With regard to the equities of the case there is this much to be said : in an ordinary litigation the defendant has some pro tection against any extravagent exaggeration of his claim on the part of a plaintiff who knows that he has a good case for some relief, in rue fact that the plaintiff is bound to pay out of his own pocket in the first instance the whole of the Court-fee leviable on the plaint as drafted. It is otherwise in the case of a suit brought by a pauper plaintiff, and it would not be equitable to permit such a plaintiff to penalise the defendant by exaggerating his claim." The same principle was adopted in Badrinath v. Jagdip Sahay and others (A I R 1930 Pat. 353) and (Yanati) Rami Reddi and another v. Tanati Chenchu Polamma (A I R 1930 Mad. 1000). In both these cases it was held that `under Order XXXIII, rules 10 and 11, Civil P. C., Court should direct the defendant to pay as Court-fees the amount which is payable only on that portion of the plaintiff's claim which is successful". In the Patna case, however, it was observed that the Court should also take into account the equities of the case.

33. On behalf of the plaintiff-respondents, Mr. Muhammad Afzal Bangish drew our attention to Rohinikumar Pal v. Kusum Kamini Pal and others (A I R 1928 Cal. 196) In which the case cited as A I R 1916 All. 327 and the earlier Madras case, on which their Lord ships of the Allababad High Court had rested their decision, were specifically noticed and explained. After an elaborate discussion of the two earlier authorities, their Lordships observed as follows :- " the discretion given to the Court under rule 10, Order XXXIII, Civil P. C., is quite sufficient for the pur poses (i.e. of dealing with a case where a pauper plaintiff has partially succeeded and partially failed), and the Court may, in the exercise of its discretion having regard to the circumstances of the case, mould its decree according to what the justice of the case requires with reference to the Court-fees payable. The words in the last portion of the rule run thus such amount shall be recoverable by the Government from any party ordered by the decree to pay the same. This, to my mind, leaves the discretion entirely with the Court to direct which of the parties should pay the Court-fees due to the Government . . . . . . . and the equities of a particular case must be considered by the Court in making the order. No hard and fast rule can be laid down with regard to the equities of such a case as this."

34. Our attention was also drawn to S. Mujawir Hussain v. Mt. Kishwar Jehan Begum and another (A I R 1941 Oudh 66) in which A I R 1928 Cal. 196 was relied upon and A I R 1916 All. 327 was not followed. It was held that "there was nothing improper in the trial Court ordering the defendant to pay the whole of the Court fee leviable upon the plaint if in the circumstances of the case the Court thought that that was a proper order."

35. We find ourselves in respectful agreement with the view expressed in A I R 1928 Cal. 1:6 and A I R 1941 Oudh

66. Rule 10 of Order XXXIII confers a wide discretion on the Court in the matter of apportioning the Court-fee leviable on a pauper plaintiff and no bard and fast rule can be laid down as to the manner in which such discretion should be exercised. As, however, the discretion has to be exercised in a judicial manner, the Court must take into account the circumstances of the parties and the equities of the case. Generally speaking, it may be said that the equities of the case would require that the Court fee should be apportioned between the parties according to the success or failure of the pauper plaintiff, but there may arise cases in which the discretion may have to be exercised differently In view of the peculiar circumstances of the case. If the plaintiff's claim is deliberately exaggerated, it would be a circumstance justifying the Court In exercising its discretion against the plaintiff.

36. In the present case, in view of the substantial amount which is being awarded by us as damages to the plaintiffs, we consider that it is a fit case in which the amount of Court-fee payable by the pauper plaintiffs should be apportioned according to the success and the failure of the parties. In other words, the defendants shall pay the Court-fee on the decretal amount, I.e., Rs. 33,840, whereas the plaintiff shall pay the Court-fee on the remaining amount of Rs. 16,

160. The amount of Court-fee3 payable by the plaintiffs shall be the first charge on the decretal amount as already ordered by the trial Court.

37. In the result, the appeal is dismissed, except to the extent indicated with regard to the payment of the Court-fee by the defendants, and the liability of defendant No.

1. The cross objections filed by the plaintiff-respondents are accepted to the extent that the amount of damages is enhanced from Rs. 10,000 to Rs. 33,

840. The defendant No. 2 shall bear the proportional costs of the plaintiffs throughout. K. B. A. Appeal dismissed with certain modification.