' This is a suit under the Fatal Accidents Act, 1855 for recovery of a sum of Rs, 1,31,000 as compensation against the driver of taxi car bearing Registration No, K. A. Z. 891 involved in an accident, and the owner thereof.
2. It is the case of the plaintiffs that deceased Masood lqbal was hit and hnocked down by the taxi car while being driven by defendant 2, very negligently and rashly at an excessive speed on 18-3- 1975 at about 9-00 a.m. At Mahmoodabad, Karachi and as a consequence whereof Masood Iqbal sustained serious injuries which proved fatal and he died in Jinnah Post-Graduate Medical Centre in Karachi on the next day. It is claimed that the deceased was 8 years of age at the time of his death and was in sound health.
3. The plaintiffs have claimed in the suit a sum of Rs, 1,26,000 on account of pecuniary loss and another sum of Rs, 5,000 on account of physical pain, suffering, worries and inconveniences suffered by the entire family.
4. The driver and the owner of the taxi car, have not contested the suit. The driver was declared ex parte by the order dated 4-10-1976. The owner after filing the written statement has remained absent.
5. In the written statement filed by the owner he did not admit the accident for want of knowledge and pleaded that the taxi was insured with the Eastern General Insurance Company which was first joined as a party to the suit but subsequently dropped by the Advocate for the plaintiffs.
6. On the pleadings of the parties the following issues were framed : "(1) Did Masood Iqbal deceased die as a result of accident dated 18-3-1975, on 19-3-1975 caused by Taxi No, KAZ-891 due to rash and negligent driving of defendant No, 2 as alleged in paragraph 1 of the plaint ?
(2) Did plaintiffs on account of the death of said Masood Iqbal suffer losses and damages to the extent of Rs, 1,31,000 as mentioned in paragraph 6 of the plaint ?
(3) To what relief or reliefs are plaintiffs entitled ?
(4) General ?
7. The plaintiffs examined Baboo Khan, a tailor, who has a shop at Mahmoodabad, Karachi where the accident took place. Being an eye-witness he has stated that the taxi-car was being driven rashly and negligently by defendant No, 2 when it knocked down Masood Iqbal. He was not cross- examined. The other witness was the father of the deceased who stated that the age of the boy was 8 years and that he was in good health. He further stated that the defendant driver was prosecuted and during the pendency of the case he was released on bail but subsequently absconded. He claimed that the boy was expected to support him and his mother and was expected to earn Rs, 300 per month on coming of age.
' Issue No, I
8. So far as Issue No, 1 is concerned it stands proved by the evidence . Of Baboo Khan, P. W. 1, (Exh.
5) and the medical certificate showing the cause of death (Exh. 6/1). Baboo Khan who is an eye- witness has stated that the taxi-car was being driven by defendant 2 at a very fast speed and negligently on 18-3-1975 at 9-00 a.m. At Mahmoodabad where he saw the taxi car knocking down the boy. The boy was injured in the accident and removed to the Jinnah Post-graduate Medical Centre. Muhammad Nawaz the father of the boy, P. W. 2 (Exh. 6) stated that the boy was studying in the Third Standard and he wanted to educate him according to his capacity and. He died as a result of injuries received by him in the accident. This issue stands proved by Exh. 6/1 and the deposition of Baboo Khan and Muhammad Nawaz. I, therefore, decide this issue in favour of the plaintiffs.
' Issue No, 2 :
9. This issue requires detailed examination. The plaintiffs have claimed compensation in the sum of Rs, 1,26,000 at the rate of Rs, 300 per month and Rs, 5,000 on account of physical pain, sufferings, worries and inconveniences, etc., caused to the family of the deceased. So far as physical pain, suffering and worries are concerned no case has been brought to my notice where compensation has been awarded for physical pains, sufferings, worries and inconveniences etc. Under the Fatal Accidents Act. On the contrary it was held by A. S. Faruqui, J., in Malik Raza Khan v. Pakistan (I) at p.
250 of the report as follows "The second claim is for Rs, 20,000 as compensation for mental worry of the plaintiff Malik Raza Khan. Such a claim does not lie in a suit under the Fatal Accidents Act and is not even otherwise tenable. I, therefore, reject this claim as well."
' I. Therefore, reject this part of the claim. Mr. Valliani explains that he has claimed damages for 35 years because the boy was of 8 years and he would have started earning at the age of 18 years.
The only evidence as to the earning capacity before me is of the father and that too is based on expectancy.
10. Now, I would examine the case-law on the question whether compensation can be awarded in respect of fatal accident in which teenager without earning anything dies.
11. The first case on the point to be noticed is Khan Sahib Muhammad Ibrahim Khan and another v.
Latif and others (2). In this case facts were that the plaintiff 1, who was at the time of the accident, Divisional Engineer (Telegraphs), Government of Pakistan, had gone on inspection tour towards
(I) PLD 1965 (W. P.) Kar. 244 (2) PLD 1957 (W. P.) Kar. 352 ' Tatta, in a taxi-car, driven by defendant 1, his son Muhammad Ismail deceased was also with him in the same taxi-car. While the plaintiff was returning to Karachi he sighted a car which was driven by defendant 3, and owned by defendant 4. The defendant 1 wanted to overtake the other car, driven by defendant 3, who first gave side to defendant 1 to pass, but later on changed his mind, with the result that the two cars collided with each other. The boy Muhammad Ismail received injuries and died as a result of this accident. It was averred in the plaint that the said deceased who was a very bright and intelligent boy, was only about 8 years of age when he died at Karachi on 29th May, 1949 and that he was reasonably expected to become an earning member of the family at the age of 18 years i,e, after 10 years, from the date of his death, and it was expected that he would have lived upto an age of 70 years at least. On these facts Inamullah, J. (as his Lordship then was) mainly relying on an English decision namely, Barnett v. Cohen and others (1), held that the parents were not entitled to any compensation and dismissed the suit.
' In the case of Barnett v. Cohen and others (supra), the facts were that the deceased child was a bright and healthy boy. He had gone to school when only two years of age. The plaintiff (his father) had two other children, both boys aged 9 and 13. The plaintiff was a retail and wholesale trading Engineer. He had a good business. He made about 1,999 a year. His age was 40. His health was not good, he suffered from nerves and dilated heart. His wife was 33, her health was defective. The plaintiff meant to give the deceased child a good education ; to send him to an ordinary school till about 14 years old, then to a secondary school, and then, perhaps, to a University. On these facts it was observed by McCardie, J. As follows : "The boy was subject to all the risks of illness, disease, accident and death. His education and upkeep would have been a substantial burden to the plaintiff for many years if he had lived. He might or might not have turned out a useful young man. He would have earned nothing till about 16 years of age. He might never have aided his father at all. He might have proved a mere expense. I cannot adequately speculate one way or the other The whole matter is beset with doubts, contingencies and uncertainties."
' After considering a number of cases McCardie, J., further observed that the only way to distinguish between the cases where the plaintiff had failed, from the cases where he had succeeded, was to say that in the former there was a mere speculative possibility of benefit, whereas in the latter there was reasonable probabilities of pecuniary advantage. He also observed : that the latter was assessable while the former was not.
' The cases reviewed by McCardie, J. In which damages were given were those where the child was either giving some help to its parents or where the child was about to earn. These facts turned a mere speculative possibility to a reasonable probability.
' Reliance was also placed on the decision in Baker v. Dalqleish Stearn Shipping Company (2), wherein Court of Appeal approved the decision of Barnett v. Cohen.
' Inamullah, J. Also quoted the following passage from Halsbury's Laws of England, Vol. 23, p. 692 (2nd Ed.) :- "The expectation of pecuniary advantage must not be too remote. A
(1) L R (1921) 2 K B 461 (2) (1922) 1 K B 361 ' mere speculative possibility of such advantage is not sufficient and if it is doubtful whether any profit would have ensured to the deceased if he had continued to live, or whether, if that profit were made, the plaintiff would have shared in it either as of right or from the bounty of the deceased the plaintiff cannot succeed."
' McCardie, J. Laid down the rule, which has been followed by Inamullah, J. That where there is mere speculative possibility compensation should not be awarded but where there was reasonable probability of pecuniary advantage, compensation should be awarded. According to him the point of distinction between two classes of cases was that the latter was assessable while the former was not. He further held that compensation was awarded in those cases where the child was giving help to his parents or where he was about to earn.
12. In my view the distinction between speculative possibility and reasonable probability appears to be very thin for element of speculation would be present in the latter case also, inasmuch as a child which was helpful to its parent at the time of its death may not have remained helpful say, after a year, if it had survived. Again a telented boy say, of 16 or 17 years of age, who was about to earn might have been incapacitated due to some ailment or other natural causes before he had started earning or he might not have got a remunerative employment at all.
' Further, economic and fiscal policies, political and social conditions in a country do vary from time to time and do directly or indirectly affect income or opportunities of employment or nature of service to parents or family. In assessing compensation the normal expectancy of life is also taken into consideration, which again is based on certain amount of guesswork. Lastly, the answer to the question whether the child would have been helpful or useful to his parents or not, would also depend on the social or economical conditions in which it was living, way of life it was following, the religion which it was professing, for in oriental or Muslinal Society service to or maintenance of parents by their children or vice versa is must as it is an article of faith with every member of Muslim family. Here I may quote English translation of three verses from Holy' Qur'an which enjoins every Muslim to be kind and give company to parents, which in my opinion, imply material support and maintenance, "The Lord hath decreed ' That ye worship none but Him, ' And that ye be kind ' To parents. Whether one ' Or both of them attain.
' Old age in thy life, ' Say riot to them a word ' of contempt, nor repel them, ' But address them ' In terms of honour." (S. XVII-23).
"And kind to his parents, And he was not overbearing Or rebelliun". (S. XIX-14)
"We have enjoined on man Kindness to his .Parents : In pain did his mother Bear him, and in pain.
' Did she give him birth.
' The carrying of the (child)
' To his weaning is (A period of) thirty months.
' At length, when he reaches ' The age of full strength ' And attains forty years, ' He says " 0 my Lord!
' Grant me that I may be ' Grateful for Thy favour ' which Thou hast bestowed ' Upon me, and upon both ' My parents, and that I ' May work righteousness ' Such as Thou mayest approve, ' And be gracious to me ' In my issue. Truly ' Have I turned to Thee ' And truly do I bow (To Thee) in Islam." (S. XLVI-15).
Further, it is common experience that in Muslim Society poor parents and other members of the family are normally maintained by their children and parents also maintain their children irrespective of their ages till they (children) start earning. In my opinion, what may be termed in Continental Society under certain conditions a merely speculative possibility may not be so in our society at a given time. Accordingly, where economic conditions in a country and at a given time are such that to obtain an employment is not at all difficult or percentage of unemployed is very low, there again it could not be said that likelihood of child earning in due course was of speculative nature. In my view, in such condition, a child on coming of age working, getting employment and earning would be a reasonable probability. Lastly, assessment of compensation has to be made on normal and usual expectation of course of events and not on exceptional events or happenings. However, exception may be made in that case where the child is invalid and because of physical or mental condition it cannot at all work and earn.
13. Mr. Z. C. Valliani cited Manmatha Nath Kuri v. Muhammad Mokhlesur Rahman and another (1). In this case the facts were that the plaintiff No, 1 was the Principal of the Magura College and plaintiff No, 2 was his wife. They had a daughter namely, Sohel Akhter 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 -:bout 10 a.m. While Lucky was playing with some other girls on the unmetalled 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 lost all encouragement and inspiration in their worldly affairs. The plaintiff No, 1 had a cloth shop known as "Lucky Store" at Magura Town and he had also landed properties.
After the death of Lucky, he had not been able to look after these properties. Plaintiffs claimed Rs, 15,000 as compensation for the loss.
(1) PLD 1963 Dacca 290 ' The Subordinate Judge granted Rs, 10,000. Both the parties went in First Appeal before the Dacca High Court. The case of Khan Sahib Muhammad Ibrahim and another v. Latif and others, and the case of Barnett v. Cohen, were cited in this case and were distinguished as follows : "The facts of the above two cases are distinguishable from the facts of the present case. In (1951) 2 K B 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 PLD 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."
' I may also reproduce herein below certain observations of the Chief Justice who had written very short separate opinion. It was observed by Chowdhury, C. J. In paragraphs 3 to 7 of the report as follows :- "(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 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 wayward 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 and inference of fact, and in the other, existence of some evidence to justify the inference. In the case reported in PLD 1958 Kar. 34 and PLD 1959 Kar. 352 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, been 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 guesswo rk 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."
' The matter was taken in appeal to the Supreme Court of Pakistan, and the judgment is Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman and another (1). Confirming the decree it was observed by Hamoodur Rahman, C. J., as follows "If this distinction is kept in mind, it will not be difficult to appreciate that under section 1 the pecuniary loss will be loss resulting to the parties beneficially entitled as consequence of the death.
The Act itself does not, however, lay down any principle for calculating the measure of such loss but an estimate has still to be made by the Court which has also to apportion the sum so determined between the beneficiaries proportionately, accordingly to the nearness of their relationship and the interest which each of them had in the life of the deceased. Under this head legal liability alone is not the test of the loss. But even the reasonable expectation of pecuniary advantage which might have been derived from the deceased had he remained alive, may be taken into account, and damages given in respect of that expectation.
' Assessm ent of damages in such a case must, therefore, necessarily be to some extent of a rough and approximate nature based more or less on guess-work, for it may well be impossible to accurately determine the loss which has been sustained by the death of a husband, wife, parent or child.
' No definite or hard and fast rule can, as such, be laid down as to the matters which should be taken into account. But this such can be said that only such damages can be given as can be shown to have been financially suffered by those who bring the action. In estimating such damages the Court will, no doubt, take into account the age of the deceased, his or her health, earning capacity and even the chances of advancement. There must, however, be evidence of reasonable expectation of pecuniary advantage and not of a "mere speculative possibility". Thus, parents may recover for the loss of the probability that the deceased child would have contributed towards their maintenance and children may recover for the loss of education, comfort and position in society which they would have enjoyed if the father had lived and maintained the income which had died with him. The basis of the assessment is not the requirement of plaintiff but the money value of the assistance which the deceased might probably have given bad he continued to live."
(1) PLD 1969 S C565
15. I may also here refer to Taff Vale Railway Company v. Jenkins (1), wherein it was held by the House of Lords as follows : "It is not a condition precedent to the maintenance of an action under olt-Fatal Accidents Act, 1846, 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 life."
16. Under our Constitution (1973), Article 2 provides that Islam shall be the State religion of Pakistan.
Chapter 2 which contains the principles of policy, in Article 3 provides that steps shall be taken to enable Muslims of Pakistan individually and collectively to order their lives in accordance with the fundamental principles and basic concept of Islam. Therefore, it appears necessary to follow Quranic principle of compensation contained in Verse 92, Sura IV English translation whereof by Allama Yousuf Ali is reproduced herein below : "Never should a Believer ' Kill a Believer, but (If it so happens) by mistake, (Compensation is due) : ' If one (so) kills a Believer, ' It is ordained that he ' Should free a believing slave, ' And pay compensation ' To the deceased's family ' Unless they remit it freely.
' If the deceased belonged ' To a people at war with you, ' And he was a Believer, ' The freeing of a believing slave (Is enough). If he belonged ' To a people with whom ' Ye have a treaty of mutual ' Alliance, a compensation should ' Be paid to his family, ' And a believing slave be freed.
' For those who find this ' Beyond their means, (is prescribed)
' A fast for two months ' Running : by way of repentance ' To Allah : for Allah hath ' All knowledge and all wisdom."
' Abdullah Yousuf Ali, in his translation and commentary on the Holy Qur'an (1969) Ed. At page 209 Comments : "Life is absolutely sacred in the Islamic Brotherhood. But mistakes will sometimes happen as did happen to the Melee at Uhud, when some Muslims were killed (being mistaken for the enemy) by muslims. There was no guilty intention : therefore, there was no murder. But all the same the family of the deceased was entitled to compensation unless they freely remitted it, and in addition it was provided that the unfortunate man who made the mistake should free a
(1) 1913 A C 1 ' believing slave. Thus, a deplorable mistake was made the occasion for winning the liberty of a slave who was a Believer, for Islam discountenances slavery."
' Now, this Sura ordains payment of compensation without the distinction made in the decisions of the English Courts followed by Inamullah, J.
17. I may also refer to Malik Raza Khan v. Pakistan. In this case Faruqui, J. In spite of the fact that there was no evidence of earning capacity of the deceased had estimated the earnings of the deceased at Rs, 100 per month.
18. I am, therefore, of the opinion that for awarding compensation to the family of a child who has lost his life in an accident it is not necessary that he should have been actually earning.
Reasonable expectation is enough and under the conditions generally prevailing in this country every child is expected to find fruitful employment and earn 'when he comes of age of earning.
Accordingly, the deceased on coming of age, might have easily earned Rs, 200 per month and would have spent at least half of the amount on the parents. Taking the age of parents into consideration, and normal expectency of life, the plaintiffs would be entitled to compensation for a period of 10 years amounting to Rs, 12,000. Accordingly, I pass a decree in favour of the plaintiffs Nos. 1 and 2 for Rs, 12,000 with proportionate costs.