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Suit No. 612 of 1982, heard on 9th February, 1984.

--S.1--Suit for compensation--Rash and negligent driving--Death of minor child due to rash and negligent driving--Parents entitled to compensation for loss of probability that deceased would have contributed towards their maintenance--Basis of assessment being money value of assistance deceased might have given had he lived--Parents expectancy to monetary assistance of Rs.500 per month from age of 20 years found reasonable in circumstances--Compensation allowed for normal span of plaintiff's life being 60 years--Assessed expenses on education and maintenance of deceased upto 20 years age deducted--Compensation of Rs.1,08,800 allowed to both plaintiffs in proportion of 2 to 1--Suit decreed with costs.

Manmatha Nath Kauri v. Mukhlesur Rehman P L D 1963 Dacca 290 and Manmatha Nath Kauri v. Mohammad Mukhlesur Rehman P L D 1969 S C 565 rel.

Khalid Javid for Plaintiffs.

Nemo for Defendant.

Date of hearing: 9th February, 1984.

This suit for compensation under Fatal Accident Act is filed by the plaintiffs who are father and mother respectively of the deceased, Sajid Habib, for recovery of a sum of Rs.1,25,000 as compensation. The defendant was duly served in the case but he remained absent at the hearing of suit.

According to the averments made in the plaint the deceased Sajid Habib died as a result of an accident on 7-4-1982, while moving on the road, near K.M.C. Hospital, S.M.Taufique Road, Liaquatabad, caused by a speedy Oil Tanker bearing No.Q.A.9212, owned by the defendant. It is stated that at the time of accident the oil tanker was driven rashly and negligently by Muhammad Sharif son of Bahawal Khan. The truck driver has not been made a party in the suit but in his evidence before the Court plaintiff No.1 stated on oath that he died during the pendency of criminal proceedings against him.

Both the plaintiffs examined themselves and have also produced in evidence the Duty Police Constable, Muhammad Sabir, who had witnessed the incident. From the evidence it is established that the deceased Sajid Habib was killed in an accident which was caused by the oil tanker owned by the defendant, and the said oil tanker was driven at the time of accident by the driver Mohammad Sharif son of Bahawal Khan who is now dead, in a rash and negligent manner. The deceased at the time of his death, was a student, of Class II, and was aged only about 7 years. The claim for compensation is based on the ground that the deceased after attaining the age of 20 years and taking up employment would have contributed monetary help to the parents.

The plaintiff No.1 was aged about 36 years while the plaintiff No.2 was aged only 23 years at the time of the death of the deceased. A sum of Rs.500 is claimed in the plaint as the monthly contribution which the deceased would have made towards family from the age of 20 years and on this basis the total compensation of Rs.1,25,000 has been claimed. On the abovestated facts a question immediately arises that how the compensation is to be assessed under the Fatal Accident Act in the present case as the deceased was a minor and had no income of his own. The learned counsel for the plaintiff drew my attention to a decision of the erstwhile High Court of East Pakistan Dacca, in the case of Manmatha Nath Kauri v. Mukhlesur Rehman P L D 1963 Dacca 290. In the above-cited case a minor girl was killed in motor accident. In a suit filed under Fatal Accident Act the subordinate Court granted a decree for damage in the sum of Rs.10,000 to the parents of the girl. In appeal before the High Court of Dacca, against the judgment of subordinate Court, a contention was raised by the defendant in suit that no compensation could be awarded to plaintiffs as they did not suffer any pecuniary loss due to the death of minor and as there was no expectation of any pecuniary advantage from the deceased who was a minor. The learned Judges of the Division Bench who decided the above appeal exhaustively reviewed the case-law on the point and recorded the following conclusions at page 294 of the report in paragraph 19 of the judgment:----

"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 advantages and not a mere speculative probability of such an advantage. It is not necessary that the pecuniary service 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 solace 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."

In the above-cited case though the deceased was a minor girl yet the Court did not rule out the reasonable possibility of parents receiving financial help from her in future and even rendering of assistance by the deceased to her mother at an early age was considered by the Court as having a monetary value which the mother lost due to accidental death of the child. The following further observations of the Court in the above case at page 297 of report appearing in paragraphs 26 and 27 may also be reproduced here with advantage:----

"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 that 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 circum stances in this case which got to show that by the death of Lucky, plaintiff's 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 function for garlanding guests "

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 3/4 months, but she was looked like is girl of 8/9 years old.5he had sound health. My daughter was reading in Class III then She was very intelligent. Such a girl is of care Birth .My said daughter used to attend in all public and private functions at Mugura everybody called her to attend, In occasions of arrival of any honourable guests at Magura they used to call my said daughter to gat-land 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 probability of pecuniary advantage and are entitled to damages."

The decision of Dacca High Court in Manmatha Nath Kauri's case was challenged before the Supreme Court but it was upheld and that decision is reported as Manmatha Nath Kauri v. Muhammad Mukhlesur Rehman PLD 1969 S C 565. 1 may quote here with respect the following observa tions of Supreme Court in the above case which appear at pages 576-7 of the report and which has settled the law finally on the point:-

"What is recoverable is pecuniary loss resulting to the estate of the deceased not from his death or as a consequence of his death but from the wrongful act, neglect or default itself and as a consequence of such a default. The action for the former is to be brought by the representatives of the deceased not for the benefit to the state but as trustees for the persons named in the statute. For the latter, namely; the loss caused to the estate, the action may be brought by quite different persons such as creditors, legatees or other beneficiaries although ordinarily the dependents of the deceased will also be the persons interested in the assets of the deceased. In such event both causes of action may well be combined in the same suit.

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 apportion the sum so determined between the beneficiaries proportionately, according 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.

Assessment 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 much can be said that only such damages can be given that 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. These 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 had he continued to live."

From the above discussion it would appear that it is well settled now that in case of accidental death of a minor child the parents are entitled to recover under section 1 of Fatal Accident Act, compensation for the loss of probability that the deceased child would have contributed towards their maintenance and the basis of assessment is the money value of the assistance which the deceased might probably have given had he continued to live. It cannot be denied that in a Society, where we live, a male child in a family is always considered as a source of assistance to the parents and, therefore, his accidental death certainly deprives the parents of a reasonable probability that the deceased would have contributed monetarily towards the well-being of parents had he survived and, therefore, the parents of deceased are entitled to compensation for such losses under section 1 of Fatal Accident Act.

Keeping in view the above legal principle, I am convinced that in the present case the plaintiffs who were parents of the deceased, are undoubtedly entitled to claim compensation for loss of the life of deceased as there was n reasonable expectancy to monetary assistance for both the plaintiffs from the deceased. There is a definite assertion in the plaint by the plaintiffs, which has not been controverted, that the plaintiff would have contributed a sum of Rs.500 per month towards the welfare of family from the age of 20 years. It cannot be said that the above expectations of the plaintiffs from the deceased are either unreasonable or exaggerated. A boy of 20 years of age now a days can easily earn about Rs.1,000 per month in any ordinary employment and out of this amount he could reasonably be expected to contributed to his parents a sum of Rs.500 per month towards their welfare. It has come in evidence that the father was only 36 years of age at the time of accident while mother was aged about 23 years. The monetary assistance expected by the parents from the deceased would have continued normally till their death. Taking normal span of life to be 60 years plaintiff No.1 would have received monetary assistance from the deceased for about 24 years while plaintiff No.2 would have received the same for 37 years. In these circumstances the amount of compensation claimed by the plaintiffs are Rs.1,25,000 does not appears to be unreasonable. However, out of this amount certain amounts have to be deducted which the plaintiffs would have spent on the deceased toward his education and upbringing as he was only seven years of age and was a student of Class 11 then. The plaintiffs would have at least supported the deceased upto the age of 16 years. For these nine years I will assess the expenditure by the plaintiffs for the education and maintenance of deceased at Rs.16,200 at the rate of Rs.150 per month. I, therefore, reduce the compensation claimed by the plaintiffs by a sum of Rs.16,200. The plaintiffs are, therefore, entitled to a decree in the sum of Rs.1,08,800 against the defendant. This amount will be apportioned between the two plaintiffs in proportion of 2 to 1. The plaintiff No.1 will get 2/3 out of the compensation and plaintiff No.2 will get 1/3.

The suit is accordingly decreed in the sum of Rs.1,08,800 (Rupees one lac eight thousand eight. hundred only) with proportionate costs.

M.I. Order accordingly.

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