2005 PLP 859 (MLD)

This suit for recovery of Rs.10,00,000 (one million only) filed under the Fatal Accidents Act 1855, (hereinafter referred to as the Act) and the three other connected Suits No.611 for 1994, 264 of 1995 and 298 of 1995, which have been already decreed by separate judgments dated 20-12-2004, are outcome of a tragic accident which occurred at main Shahra-e-Faisal. Karachi, on 10-6-1994 at 17-00 hours and resulted in the loss of precious life of five persons, including, one Ejazur Rehman son of Fazlur Rahim aged 25 years, (hereinafter referred to as the deceased).

2. In the present suit claim of pecuniary damages made by the father of the deceased is exclusively covered by section 1-A of the Act, and admittedly he is the only surviving beneficiary of the deceased within the scope of this provision of the Act.

3. During the pendency of the suit, the plaintiff has expired on 20-2-2001. This fact was not brought to the notice of this Court till 15-4-2004 when an application under Order 22, rule 3 read with section 151, C.P.C. was moved by his legal heirs to be joined as party to this suit. This application was allowed by the Court in a routine manner, vide its order dated 6-12-2004, whereafter amended title of the plaint arraying three sisters and two brothers of the deceased, Aijazur Raheem as plaintiffs, has been filed.

4. In view of the above developments an important question of law has arisen in this suit for consideration that whether after the death of the plaintiff (father of deceased Aijazur Raheem), who was the only beneficiary within the scope of section 1-A of the Act, the cause of action has survived in favour of his children (the sisters and brothers of the deceased Aijazur Raheem, now joined as plaintiffs), who are otherwise not the beneficiaries under section 1-A, to claim any pecuniary compensation under the Act. Learned counsel for the plaintiffs when called upon to satisfy the Court on this legal aspect, has placed reliance upon section 306 of the Succession Act 1925, which reads as under:-- "

306. Demands and rights of action of or against deceased survive to and against executor or administrator. All demands whatsoever and all rights to prosecute or defend any action or special proceedings exiting in favour of or against a person at the time of his death, survive to and against his executors or administrator; except causes of action for defamation, assault; as defined in the Pakistan Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."

5. A careful reading of above referred provision of law together with section 1-A of the Act and Order 22, rule 3 , C.P.C. goes to show that the above referred provision of Succession Act, relied by the learned counsel is of no help to the case of the plaintiffs as it does not impede or undo the effect of section 1-A of the Act, which categorizes only some specified legal heirs of the deceased, namely, wife, husband, parents and child to be entitled to claim pecuniary compensation through a suit for compensation under section 1-A of the Act.

6. In the facts and circumstances discussed above, after the death of plaintiff Fazal Raheem, the father of the deceased, no cause of action has survived in favour of his legal heirs to be joined as plaintiffs in the suit as the benefit to claim pecuniary compensation under section 1-A of the Act was personal to him and it has abated on his death. This view is based on the Maxim "Actio personalis moritur cum persona (personal actions die with the person) and fortified with the case of Sadar Muhammad Ali and others v. Pakistan (PLD 1961 (W.P.) Karachi 88).

7. This being the position, that none of the newly joined plaintiffs is beneficiary within the meaning of section 1-A of the Act and cause of action, being personal to the deceased plaintiff Fazal Raheem, has also not survived in their favour to pursue this suit, the suit has abated/become infructuous and the same is accordingly dismissed with no order as to costs. H.B.T./F-20/K Suit dismissed.