RASHEED AHMAD RAJA, J.- This case is fixed for hearing of the office objections. On 27-2-1995, following order was passed by the Additional Registrar (O.S.) of this Court:- "Notice of Application under Article 17(vi) Schedule II of Court Fee Act CMA 85/95 not issued as costs, copy of Application and copy of plaint not supplied. On 29-1-1995 one week's time was allowed to pay costs but no compliance has been made so far. None present. Nor costs paid. Appl.
Struck off U/R 128 SCCR (OS). Let the matter be placed in Court for rejection of plaint U/O 7 Rule 11 CPC on 19.3.1995."
2. In the title of the above suit, the plaintiffs have disclosed this suit as "suit for damages/compensation". Nowhere it is mentioned that this suit is filed under the Fatal Accidents Act, 1855. It appears from the case filed that the previous counsel of plaintiffs sought time from the Court to pay the Court fees and since no Court fees was paid within the extended time, as such, it resulted in passing of the order (dated 27-2-1995) as quoted hereinabove. Now, Mr. Mohammad Zahiruddin Khan. Advocate had appeared for the plaintiffs and vehemently argued that this suit be treated as a suit for damages filed under Fatal Accidents Act, 1855, and therefore, the plaintiffs are not liable, at present, to pay Court fees. He has also relied upon the case of Dr. Laxman Balkrishan Joshi V. Dr. Trimbak Bapu Godbole (AIR 1969 SC 128) in support of his plea that the cases of medical negligence also fail within the scope of the Fatal Accidents Act, 1855 (hereinafter referred to as Act 1855).
3. The plaintiffs in the above suit are the widow and two daughters of deceased Najibullah Khan, Advocate, who died on 14-11-1993 at Aga Khan University Hospital Karachi, after receiving stab wounds (on 17-1-1993) in his abdomen from two hired assassins. The case of the plaintiffs, as set up in the plaint, is that deceased Najibullah Khan died due to negligence of the Doctors, Surgeons and of the other staff members of the defendant who are all guilty of negligence and medical malpractices. The plaintiffs have prayed for the following reliefs.
20:(a) Rs. Fifty lac as compensation.
(b) Refund of Rs. 6 lac already taken by the Defendants.
(c) writing off of Rs. 11 lac now billed by the Defendants.
(d) interest at 4% per annum from 14-11 -993 till full and final payment.
4. The Fatal Accidents Act, 1855. Is one of the oldest law available on the statute books. It was enacted for the benefit of wife, husband, parents, children (including grandparents and grandchildren) of a deceased to bring a claim for damages who may have died as a result of wrongful act, negligence or default of any person including bodies politics or corporates. It is pertinent to note that section I of the Act 1855 entitles a plaintiff to bring a cause for damages before a Court of Law, if the cause of death is a result of negligence, wrongful act or default of the defendant., irrespective of the fact whether such death may have been caused due to "Felony or other Crime".
5. The terms "Felony" and "Crime" have been defined in different Law dictionaries as follows: BALLENTINE'S LAW DICTIONARY: "FELONY: A generic term for certain high crimes, such as murder, treason, robbery, and larceny, for the purpose of distinguishing them from minor offences known as misdemeanours. An offence punishable by death, or by the imprisonment in a state prison or penitentiary."
"CRIME: An offence against sovereignty, an act committed, or omitted, in violation of the public law which forbids or commands it. In some contexts, the term "crime" means any offence against the law. Not excluding misdemeanours. On the other hand, the word is sometimes used in a more limited sense to embrace only the more serious offences."
BLACK'S LAW DICTIONARY: "FELONY: A crime of a graver or more serious nature than those designated as misdemeanours, e.g. Aggravated assault (felony) as contrasted with simple assault (misdemeanour). Under federal law, and many state statutes, any offence punishable by death or imprisonment for a term exceeding one year."
"CRIME: A crime may be defined to be any act done in violation of those duties which an individual owes to the community, and for the breach of which the law has provided that the offender shall make satisfaction to the public. A crime or public offence is an act committed or omitted in violation of a law forbidding or commanding it. And to which is annexed, upon conviction, either, or a combination, of the following punishments: (I) death. (2) imprisonment, (3) fine, (4) removal from office, or (5) disqualification to hold and enjoy any office of honor, trust, or profit."
6. Mr. Zahiruddin Khan has placed reliance on the case of Dr. Laxmun Balkrjshan Joshi V. Dr. Trimbuk Bupu Gotibole And Another (AIR 1969 SC 28) to support his contention that the provisions of Act 855 will attract even in those cases wherein the death caused was result of a negligence and wrongful act of a medical practitioner. In this reported case, the Indian Supreme Court has discussed the duties of a medical practitioner towards his/her patients in reference to the Fatal Accidents Act, in the following words:- "II. The duties which a doctor owes, to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Halsbury's Laws of England, 3rd Ed. Vol.26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.
"17. In our view, there is no reason to think that the High Court was wrong in its conclusion that death was due to shock resulting from reduction of the fracture attempted by the appellant without taking the elementary caution of giving anaesthetic to the patient. The trial court and the High Court were, therefore, right in holding that the appellant was guilty of negligence and wrongful acts towards the patient and was liable for damages."
7. The question whether a plaintiff is entitled for damages under the Act 1855 on a cause arising from a crirninal! Act of the defendants of whether the Act 1855 contemplates only those cases necessarily flowing from fatal accidents, came up for consideration before this Court in the case of MOHAMMAD YAR KHAN & ANOTHER v. GOVERNMENT OF SINDH & 2 others (Suit NO. 330 of 1980). In this unreported case, the plaintiffs were parents of the deceased who was killed by the two policemen (defendants No. 2 & 3) when the deceased who was a taxi driver, refused to give a lift to these defendants/police constables. The plaintiffs claimed Rs. 6,25.000/- as compensation under the Act 1855 against all the three defendants, jointly and severally. A learned single Judge of this Court Mr. Haziqul Khairi, J. (as he then was) granted Decree for Rs, 5,26,000/- with cost against defendants No. 2 and 3 vide judgment dated 18-11-1990. After Considering the case law reported as MOHAMMAD v. MST. MARYAM (AIR 932 Lahore 146), SARDARA SINGH v. CHANAN SINGH (AIR 1933 Lahore 770) and the case of JASAMNATH SINGH & ANOTHER v. PRAGI KUMAR & OTHERS (AIR 1949 All.
448), it was held by this Court as follows:- "Side by side another question crept in for consideration during the course of the proceedings as to whether the beneficiaries of deceased under Section I of the Fatal Accident Act. 1855 are competent to sue for damages under the act on a cause of action arising from a criminal act of the defendants or the act contemplates only those cases necessary flowing from fatal accidents, which reflect in the title of the statute itself.
For all the foregoing reasons, it is clear that the plaintiff is required to first establish that the employee had acted within the scope of his master's authority so as to render the later vicariously liable to him. The ordinary or ostensible authority of a police constable inter-alia is to' protect and safeguard the life, property and honour of citizens and to take such steps in that direction as are permitted by law. But where he acts contrary to his duties and commitments and indulges himself in crime, the concept of various liability is not the least attracted. Te mere fact that the defendants No. 2 and 3 were in police uniform and on duty will not give them free licence to kill the people nor the Govemment can be held liable for their action. I, however, agree with the learned counsel for the plaintiff that the Fatal Accident Act, 1855 makes no distinction between actionable wrongs based on negligence or default and those caused by deliberate or wilful criminal acts including murder. The word "accident" appearing in the title of "Fatal Accident Act, 1855" is misleading and cases thereunder are not confined to accident cases involving negligence or default only."
8. In view of the law as discussed hereinabove, it is pertinent to observe that all such cases where death is the direct cause of the negligence, wrongful act or default of a medical practitioner during performance of his/her duty, shall fall within the scope of the Fatal Accidents Act, 1855. Accordingly and keeping in view the allegations levelled in paras 8 to I6 of the plaint wherein it is alleged that the death of Najibullah, Advocate was caused due to "medical, surgical negligence and malpractices", it is held that the prayer clause 20(a) of the suit falls within the purview of the Act, 1855 and the plaintiffs, at present, are not liable to pay the Court fee (for reference see the case of Adam Husain And Another V. Muhammad Ayub (1983 CLC 2054). However, the matter does not end here as there are other prayers in the suit such as repayment of Rs. 6 lac paid by the plaintiff to the defendants, probably as medical charges and prayers for write off for Rs. I lac billed by the defendant. The plaintiffs have joined several prayers in one and the same suit to take advantage of Order II Rule 2 CPC. The other prayers/reliefs, other than the relief prayed in para 20(a) of the plaint, are not covered by the provisions of the Act. 1855 and therefore, the plaintiffs are liable to pay the Court fee as provided by law. Unless they for go, abandon or waive their claim as prayed in paras 20(b) and (c) of the plaint. With these observations, office objection dated 27-2-1995 stands disposed of.