Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MANMATHA NATH KURI VS Respondent: MUHAMMAD MOKHLESUR RAHMAN AND ANOTHER
P L D 1963 Dacca 290
P L D 1963 Dacca 290
Before Chowdhury, C. J. and Idris, J
MANMATHA NATH KURI‑--Appellant
versus
MUHAMMAD MOKHLESUR RAHMAN
AND ANOTHER‑--Respondent
First Appeal No. 88 of 1958, decided on 21st July 1961.
(a) Fatal Accidents Act (XIII of 1855), S. I‑Death of girl aged 6 years‑Parents claiming damages‑Girl having no earnings in past, no certainty of earning in future "Pecuniary advantage to beneficiaries" includes rendering of service in past or future Damages on sentimental grounds cannot be allowed Assessing damages Normal expectation, reasonable probability, prospective loss Matters of inference Damages Accurate estimation impossible Factors to be considered Normal age assessed as 60 years ‑ Shares of beneficiaries divided by appellate Court though required to be apportioned by lower Court.
Mohammad Ibrahim v. Latif P L D 1957 Kar. 352 disting uished,
(b) Decree‑Against master and servant for negligent act of servant in master's employment‑Decree can be altered where only master is party in appeal.
(c) Civil Procedure Code (V of 1908), O. VII, r. I ‑Plaint Not stating requirement of Fatal Accidents Act, 1850‑Other state ments along with evidence led, held, sufficient compliance in the circumstances.
Maksumul Hakim and A. M. Chowdhury for Appellant.
M. A. Rouf for Respondents.
JUDGMENT
CHOWDHURY, C. J.‑I had the advantage of going through the judgment proposed to be delivered by my learned brother in this appeal. I entirely agree with the same. I like to add only a few words.
2. The only case relied on by the learned Advocate for the appellant is that of Khan Sahib Mohammad Ibrahim and another v. Latif and others (P L D 1958 Kar. 34), in support of his contention that in a case for damages under the Fatal Accidents Act a distinction has to be made between a speculative possibility of pecuniary benefit and a reasonable possibility of pecuniary advantage from the continuance of the life of the victim of the accident, and that in the present case at least the judgment of the learned Subordinate Judge is based on speculative possibility of pecuniary benefit.
3. It is not necessary that the victim must be shown to have been earning something. What is necessary is the reasonable expectation of the claimant. If that is not so, an impossible situation will arise in that in case of fatal accident of an earning person there will be a liability under the Act and in the case of non‑earning person there will be none and the person guilty under the Act will be immune in that case. This is far from the intention of the framer of the Act.
4. What then constitutes reasonable expectation?
It is not possible to give a general definition or to lay down a general rule. It is a matter of inference, an inference of fact to be drawn from the facts and circumstances proved in each case. In ascertaining the prospective loss there must be some amount of guess‑work as meticulous accuracy is impossible, as observed by Page, J. in the case of Nani Bala Sen v. Auckland Jute Co. Ltd. (I L R 52 Cal. 602 at 613).
5. That the child might not have earned at all, if alive, or would have been way ward child or might have died at an early age or if alive and if earned something might not have supported the parents or the claimants, are besides consideration, because that are not the expectation of the parents or the claimants.
6. What then are speculative possibility of pecuniary benefit and reasonable pecuniary advantage? What is the difference between the two? The difference is of evidence. In one case, it is complete absence of reliable evidence to justify an inference of fact, and in the other, existence of some evidence to justify the inference. In the case reported in P L D 1958 Kar. 34 from the judgment of the learned Judge it appears that it was a case of want of evidence. Therefore, the learned Judge after considering the affidavit and the supplementary affidavit filed in the case observed "All that the plaintiffs have, in my opinion, able to prove on the facts alleged by them is a mere speculative possibility of pecuniary benefit and not a reasonable probability of pecuniary advantage."
7. If this distinction is not kept in view, the judgment and the principle laid down therein are apt to be misconstrued and misunderstood. Therefore, in each case under the Fatal Accidents Act in ascertaining damages on the basis of reasonable probability of pecuniary advantage there is and must be some amount of guess‑work which is distinct from speculation‑as one must have some basis for the guess‑work and in the other there is want of that basis i.e. want of reliable evidence.
8. Therefore, the present case, where there is evidence for the basis of possibility, is distinguishable from the case reported in P L D 1957 Kar. 352.
IDRIS, J.‑---This appeal at the instance of defendant No. 1, is directed against the decision of the Subordinate Judge, Jessore, in a suit for damages under the Fatal Accidents Act (Act XIII of 1855). The case of the plaintiffs, shortly, is this:
10. Plaintiff No. 1 is the Principal of the Magura College, and plaintiff No. 2 is his wife. They had a daughter, namely, Sohel Akter Begum alias Lucky. She was healthy, handsome, and a very intelligent girl and was reading in class III in January, 1955. In the morning of the 18th January 1955 at about 10 a.m. while Lucky was playing with some other girls on the un-metalled western portion of the metalled road in front of the residence of the plaintiffs at Magura town, she was run over by the Bus E. B. K. No. 138 belonging to defendant No. 1, being rashly and negligently driven by its driver‑defendant No. 2 and she died instantaneously on the spot. Since the death of Lucky, plaintiffs have lost all encouragement and inspiration in their worldly affairs. The plaintiff No. 1 has a cloth shop known as "Lucky Store" at Magura town and he has also landed properties. After the death of Lucky, he has not been able to look after these properly. Due to the shock caused by the death of the girl, plaintiff No. 2 cannot do her household works. Her father has not given her any property as she has become childless, while he gave some properties to her sister who has got children. Plaintiffs have suffered great lots due to the death of their daughter, Luckly. Plaintiffs claimed Rs. 15,000 as compensation for the loss.
11. The bus in question was insured with the Asian Mutual Insurance Co. Ltd. for Rs. 20,000. As the said Insurance Company refused to pay the amount in spite of claim by plaintiff No. 1, it was made proforma defendant No. 3 to the suit.
12. The defendants Nos. 1 and 2 contested the suit. The proforma defendant No. 3 also filed a written statement, but the suit was not contested by it.
13. The fact that Lucky died on the 18th day of January, 1955 due to a motor accident on the road in front of the residence of the plaintiffs at Magura town, was not challenged. The case of defendant Nos. 1 and 2 is that the driver, defendant No. 2 did not drive the bus rashly or negligently and that: while the defen dant No. 2 was slowly proceeding with the bus by the road to the bus‑stand, the girl Lucky, suddenly tried to go home crossing the road without notice of defendant No. 2, and that at that time the accident took place. It was further alleged that plaintiffs were not entitled to any damage as they did not suffer any loss‑physical, mental or financial due to the death of their minor child Lucky.
14. The learned Subordinate Judge held that the child died due to the rash and negligent driving of the bus by defendant No. 2 and that as the only child of plaintiffs was thus killed, the defendant No. 1 was liable for damages. The learned Subordinate Judge was also of opinion that it was not ".`unlikely" that the income of plaintiff No. 1 from the cloth shop, namely, "Lucky Stores" and from his landed properties suffered for some time on account of his indifference after the death of Lucky. The learned Subordinate Judge was not convinced about the truth of plaintiffs' case that plaintiff No. 2 did not get any property from her father because of the tragedy. The suit was decreed for Rs. 10,000 as damages with proportionate costs against defendants Nos. 1 and 2 with the direction that defendant No. 1 would be liable for the amount decreed as damages. The suit was dismissed against the proforma defendant No. 3, the Insurance Company, on the ground that there was no privity of contract between it and the plaintiffs.
15. The defendant No. 1 only has preferred this appeal. The defendant No. 2 and proforma defendant No. 3 are not parties to this appeal.
16. The fact that Lucky died due to a motor accident has not been challenged in this appeal. The findings of the learned Subordinate Judge that the child died due to the rash and negligent driving of the bus by defendant No. 2 while in the employment of defendant No. 1 have also not been challenged.
17. Mr. Maksumul Hakim, the learned counsel for the appellant, has raised two points in support of the appeal, namely, (i) The plaintiffs are not entitled to any damage V they did not suffer any pecuniary loss due to the death of their child, Lucky, and as there was no reasonable expectation of any pecuniary advantage from the deceased Lucky (2) the decree for damages cannot be upheld as the learned Subordinate Judge did not give the basis for assessment of Rs. 10,000 as damages.
18. The suit for damages is under section 1 of the Fatal Accidents Act (Act XIII of 1855), henceforth to be called the Act, which runs as follows
"(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 ensured 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."
19. Under section 1 of the Act, the designated beneficiaries are entitled to damages for pecuniary loss resulting from the death of a person from whom there was a reasonable expectation of pecuniary advantage and not a mere speculative probability of such an advantage. It is not necessary that the pecuniary advantage should be in the form of cash or goods, as services rendered by the deceased will also be deemed to have monetary value. Earning of money by the deceased before the date of his or her death, is not the foundation of an action under the Act. In an action for damages for the death of a child, the parents cannot be deprived, of damages on the ground that the child did not earn anything in the past and that there was no certainty of its earning in future. In such a case prospective loss can be taken into account and parents are entitled to recover damages for the loss of reasonable probability that the child would in future earn and contribute to the family. But damages on sentimental grounds or as solation for the mental anguish due to the death of daughter, son, husband or a wife, cannot be allowed. These views find support in several authorities.
20. In Halsubry's Laws of England, second edition, volume XXIII at page 696, it has been stated:
"In order to recover compensation there must be a pecuniary loss sustained by the persons claiming, either actual or expected. Such pecuniary loss is not limited to the value of money lost, or to the money value of things lost, but includes the monetary loss incurred by replacing services rendered gratui tously by the deceased, if there was a reasonable prospect of their being rendered freely in the future but for the death of the deceased."
"The plaintiff must show that he has lost a reasonable pro bability of pecuniary advantage. As to what constitutes a reasonable expectation of pecuniary benefit sufficient to ground claim for damages, it is not possible to lay down any general rule. It is an inference which a jury are entitled to draw only where the facts proved to their satisfaction afford them reason able grounds for drawing such a conclusion. They at all events have to be satisfied on proper materials that the position of those claiming would have been less precarious but for the loss of the deceased. The loss of educational prospects and personal comfort which, but for the death of a person, might fairly have been expected to have been secured to the plaintiff, is sufficient to sustain a claim. So, also, services rendered or assistance given by the deceased, even if a child, can be taken into account if a reasonable expectation can be proved of pecuniary benefit if the deceased had lived."
These observations appear in connection with the question of civil responsibility under Lord Campbell's Fatal Accidents Act, 1846. The Act of 1855 is a replacement of Lord Campbell's Fatal Accidents Act, 1846, only with the difference that in section 2 of the Act "loss" is used in place of "injury".
21. In the case of Taff Vale Railway Company v. Jenkins (L R 1913 A C I 4), the following observations were made by Viscount Haldans, L. C.
"The action is brought under Lord Campbell's Act by the father on behalf of himself and the mother for damages for the loss of the daughter. Now we have heard a good deal of authority cited as to what the foundation of such an action is, but I do not think there is much difficulty in coming to a conclusion as to the principle which underlines those authorities. The basis is not what has been called solatium, that is to say, damages given for injured feelings or on the grounds of senti ment, but damages based on compensation for a pecuniary loss. But then loss may be prospective, and it is quite clear that prospective loss may be taken into account. It has been said that this is qualified by the proposition that the child must be shown to have been earning something before any damages can be assessed. I know of no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable; nor do I think it is really established by the authorities when you examine them."
In the same case, at page 7, Lord Atkinson observed
"I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person which sues. It is quite true that the existence of this expectation is an inference of fact there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think be drawn from circumstances other than and different from them."
Lord Moulton in the same case at page 10 observed
"The fact of past contribution may be important in strengthen ing the probability of future pecuniary advantage, but it cannot be a condition precedent to the existence of such a probability."
22. In the case of Mst. Manjulrgoari and others v. Gowardhandas Harjiwandas Raval and others (A I R 1956 Nag. 86, .88), a Division Bench of that High Court held as follows :‑
" it is not a condition precedent to the maintenance of an action under the Act that the deceased should have been actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of death, provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the fife."
23. In the Law of Negligence by J. Charlesworth, Second Edition, page 553, the following observations have been made:
"It is not necessary that the deceased should have been actually earning wages at the death, if there is a reasonable expectation that wages will be earned in the future, with the result that financial benefit will accrue to the defendants."
24. In the case of Narayan Jethe v. The Municipal Commis sioners and the Municipal Corporation of Bombay (I L R 16 Bom. 254), plaintiffs daughter, a child aged about six years fell into an open manhole of a swear in a lane in Bombay. In a suit by the mother, against the Municipal Commissioners and the Municipal Corporation of Bombay, the Court held that in a case of such nature distinct evidence of loss sustained or benefit expected was not necessary and that the jury might look at the circumstances of the case and especially at the position of the parents and age of the child, and call in aid their own experience m arriving at their conclusions for awarding damages. The principle was followed in the case of The East Indian Railway Company v. Kally Dass Mookerjee (I L R 26 Cal. 465, 492).
25. In the case of Biralal and another v. State of Punjab (A I R 1961 Pb. 236), the deceased was a student of fifth primary class and was eleven to twelve years of age at the time of his accidental death, and was of good physique. The suit by the parents under the Act for damages was dismissed by the trial Court. The High Court set aside the judgment of dismissal and decreed damages. The following observations were made by P. C. Pandit, J:
"In my opinion, in order to succeed, it was not necessary for the plaintiffs to prove that the deceased was actually earning some income, the whole or a part of which was spent towards the maintenance or support of his parents. There has not to be specific evidence of pecuniary advantage actually derived from the deceased prior to his death: Under this Act, even pro spective loss can be taken into account. Parents can legiti mately recover for the loss of the probability that their son would some day earn and contribute towards their maintenance.
It cannot be disputed that even when the deceased was only 12 or 14 years of age, he would be of some assistance to his parents in their day‑to‑day life and the parents could legiti mately hope that when he comes of age and starts earning he would be of some financial help to them in their old age. Under the Act the money value of such an assistance has to be assessed . . . . . "
In the same case, Tek Chand, J., made the following observa tions:
"The pecuniary advantage need not be in the form of cash or goods, as service rendered by the deceased, will be deemed of equal value."
26. In the present case for the fact that the child, Lucky did not earn money prior to her death, it cannot be held that the case for damages is not maintainable. It has been established by the evidence of the mother, P. W. 1 Begum Fatima Khatun that the deceased would help her in the household works. The statement of P. W. 1 that the child would assist her in the household works was not challenged in her cross‑examination, and was not‑ denied by any of the D. Ws. As the deceased would render assistance to her mother as early as at the age of six, it can be inferred the such assistance would increase with the advance in her age, and continue in future. Rendering of such services having a monetary value, it can be held that due to the accidental death of the child, the parents have been deprived of past and prospective pecuniary advantage. There are also other circumstances in this case which go to show that by the death of Lucky, plaintiffs have lost a reasonable probability of pecuniary advantage. The evidence of the father of the deceased (P. W. 9) regarding the child is as follows:
"Her health and appearance were incomparable . . . . . She was promoted to Class III and was an intelligent student. She learnt music and dancing in school. She attended public func tions for garlanding guests etc . . . . . .
The evidence of the mother P. W. 1 regarding Lucky is as follows:
"At the time of death, my daughter's age was 6 years months, but she was looked like a girl of 8/9 years old. She had sound health. My daughter was reading in class ill then. She was very intelligent. Such a girl is of rare birth . . . My said daughter used to attend in all public and private functions at Magura everybody called her to attend. In the occasions of arrival of any honour-able guests at Magura they used to call my said daughter to garland the guests."
27. D. W. 1 Kanti Chandra Biswas, a member of Magura Bar, admitted that "Lucky was a beautiful and healthy girl." From such a girl, the parents could reasonably expect that in future she would earn money and would be of financial help to them. Thus, by the death of Lucky, the plaintiffs have lost reasonable prob ability of pecuniary advantage and are entitled to damages.
28. Mr. Maksumul Hakim, the learned counsel for the appellant has referred to the case of Khan Sahib Muhammad Ibrahim Khan and another v. Latif and others, in support of his contention that the plaintiffs cannot be allowed damages under the Act. In that case, the father of the deceased child was traveling with his son who was aged about eight years at the time of the accident, by a taxi‑car. Driver of the car tried to overtake the other car running ahead of it with the result that the two pars collided with each other and the boy received injuries and died. The father brought a suit for damages under the Act against the driver of the car by which he and the deceased were traveling, and also against the driver and owner of the car with which it collided. The suit was dismissed on the ground that only a speculative possibility of pecuniary benefit and not a reasonable probability of pecuniary advantage was proved. In dismissing the suit, the learned Judge relied on the principle laid down by McCardie, J. in the case of Carnatt v. Cohen and others (2 K B (1921) 461). In that case, a boy just under 4 years of age, while walking along the pavement in a road, died as a result of the fall of a pole, while the defendants' servants were carrying it negligently. The suit brought by the father of the deceased for damages under Lord Campbell's Fatal Accidents Act, 1846, was dismissed on the ground that by the death of the child, there was no loss of reasonable probability of pecuniary advantage but only a loss of speculative probability of pecuniary benefit.
29. The facts of the above two cases are distinguishable from the facts of the present case. In (1951) 2 K B page 461, the deceased child could not aid and was not expected to aid in domestic service and he was scarcely expected to contribute to his father's income. In the case of P L D 1957 Kar.352, the boy would not help his mother in domestic works. Damage, either actual or prospective, was not established in the above-mentioned two cases, and the suits were accordingly dismissed. In the instant case, the deceased Lucky would help, her mother in household works. She knew dancing and music. At the early age of six, she would be invited to all public and private functions at Magura town. In the circumstances the parents had a reasonable probability of pecuniary advantage from her.
30. The learned counsel also made reference to the case of Ester Virginia Penheiro v. Maurice Minney (I L R 61 Cal. 460). That was also a suit for damages. That suit for damages under the Act was dismissed on the ground that the accident was due to the contributory negligence on the part of the deceased. That case has no application to the facts of the present case, as in this case it is not proved that there was contributory negligence on the part of the deceased.
31. In that case, it was also observed that a plaint in a suit under the Act should give full particular or particulars of the person or persons for whom or on whose behalf the action was brought and of the nature of the loss in respect of which damages were sought to be recovered.
32. The learned counsel for the appellant has contended that plaintiffs have not claimed damages on the ground of loss of prospective earning of the deceased but on the ground of loss of income from the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.