JUDGMENT R. Prasad, J.
1. This is a plaintiff's first appeal directed against the judgment and decree of the Additional Civil Judge, Muzaffarnagar dated 2nd April 1955 in suit No. 45 of 1953.
2. The plaintiff filed this suit for recovery of a sum of Rs. 20,000 from the defendant with costs of the suit on the facts disclosed in the plaint. The plaintiff alleged that the defendant-respondent carried on business of running contract carriage buses and that in that connection he owned Chevrolette Public Stage Carriage Bus USL 1818, which used to run between Muzaffarnagar and Bhopa and to carry passengers. The bus was insured against third party risk with some Insurance Company. The plaintiff himself was an Assistant Engineer (Tube Well Division) and belonged to respectable family Plaintiff's elder brother Janki Prasad was a retired Executive Engineer. Public Works Department. Uttar Pradesh, and one of the sons of the plaintiff, Sri Chandra Mohan Gupta was a Lieutenant in the Army, having Commissioned Rank. Shri Jag Mohan Gupta aged about 18 years was one of the sons of the plaintiff, and at the relevant time, he was a student of the IInd year, D.A V. College. Muzaffarnagar.
According to the plaintiff, he was brilliant and promising and possessed good physique. Consequently, plaintiff entertained high hopes from him On the 3rd October 1952, Sri Jag Mohan Gupta was going in a rickshaw to a place known as New Mandi, Muzaffarnagar from the Railway Station-He had crossed the Bhopa Railway crossing at Muzaffarnagar. The rickshaw driver had stopped the rickshaw in front of the cycle repair shop of Sri Munshi Lal about 100 paces away from the Railway crossing towards Bhopa side The rickshaw was on the kuchcha portion of the land in front of the aforesaid shop about twenty feet away from the pucca Gola of the road The rickshaw driver was getting down from his rickshaw to get rickshaw wheels inflated. Shri Jagmohan Gupta remained fitting thereon At that moment, the above noted passenger bus driven by Zahpor Ahmad driver, came from Bhopa side with passengers, but without using the horn, it came rashly on the wrons side, namely on the right side on the kuchcha portion of the road. In this process, the rickshaw was so violently struck that the rickshaw driver fell down to his left and got hurt, while Jag Mohan fell towards his back side. His head got crushed by the said bus and he died instantaneously. The death of the deceased was, therefore, brought about by gross negligence of the defendant's servant, for which the defendant was liable. It was also alleged that the bus was not in a perfect order. The brakes both foot and hand were not functioning. The condition of the bus, therefore, also subscribed the incident.
3. Criminal proceedings had to be shelved on account of the fact that the driver absconded and went to Pakistan.
4. The plaintiff and his family were greatly shocked by the death of Jag Mohan. The plaintiff had very great love and affection for him and he was very obedient to the members of the family. The plaintiff was deprived of the affection and services of the deceased and had suffered loss. Although a sum of Rs. 20,000 would not be adequate compensation, the plaintiff contented himself by claiming damages to that extent.
5. Defendant filed a written statement to contest the suit. His case was that the death of Sri Jagmohan Gupta was not caused on account of any negligent act of the defendant or his driver. Nor was the bus in a defective condition. The driver was running the bus at a low speed when the rickshaw running at a high speed reached near the bus and that there was a bullock cart also in front of the bus on the side of the Railway crossing on the main road. With a view to avert an accident, the driver of the bus diverted it from the left to the right side and at that moment the rickshaw appeared from behind the bullock cart suddenly. This was how the accident took place. It was alleged that the death was caused on account of the negligence of the rickshaw driver himself. It was further averred that the Insurance Company was a necessary party to the suit. The defendant in any case was not liable to pay damages but if the plaintiff could claim any, it was from Zahoor Ahmed the driver or from the Insurance Company. It was also said that the damages claimed by the plaintiff were excessive and that the accrue to the dependants
6. Necessary issues were framed by the court below and the material findings returned by that court are that the suit was not bad for non-joinder of the Insurance Company, and that the defendant was liable to pay damages on account of the negligent conduct of his driver Zahoor Ahmad The court further came to the conclusion that the accident took olace while rickshaw of the plaintiff's son stopped in front of Munshi Ram's shop and not in the manner as alleged by the defendant It was also found that the driver was guilty of negligence and rash driving. After recording all these findings in favour of the plaintiff the court below considered certain circumstances and some case law and camp to the conclusion that the plaintiff was not entitled in law to any damages. As a result of the last finding, court below dismissed the plaintiff's suit in its entirety.
7. We have gone through the reasoning accepted by the court below in deciding the various issues in favour of the plaintiff, and there does not appear to be any vaild reason for interfering with those findings. We, therefore, confirm the findings of the court below recorded in favour of the plaintiff.
8. So far as the finding of the trial court on the question of damages is concerned, we are of the view that the court below fell into error in coming to the conclusion that the plaintiff was not entitled to any damages at all.
9. The suit has been filed under Section 1A of the Fatal Accidents Act. Under this Act, the Court has been given a discretion to allow such damages as it thinks proportionate to the loss resulting from such death, to the parties for whom and for whose benefit such action has been brought. The court has to determine the pecuniary loss resulting from the death to the parties beneficially entitled. The damages that are allowed under such a claim are for the loss of the pecuniary benefits, which the plaintiff would have got from the deceased, if the latter had not died. In estimating such loss, the age of the deceased, his expectation of life, the consideration of his health, his habits and other matters which go to show his earning capacity, have to be considered. Sympathetic damages by way of solatium cannot be allowed. The assessment of damages in such a case must necessarily be rough and approximate, and the investigation has to be more or less a guess work.
10. It appears that for sometime, the notion was that no damages could be award ed in case, where the deceased was not shown to have been earning wages at the time of his death By decisions both under the English and Indian Law that notion was dispelled and the view which appears to be settled now is that in order to entitle the, plaintiff to damages on account of the death of his relation, it is not necessary that the deceased should have been an earning member on the date of his death.
11. Charlesworth in his well-known book on Negligence, Third Edition at page 559, states :--
"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 accure to the dependants.
The fact of past contribution may be important in strengthening the probability of future pecuniary advantage but it cannot be a condition precedent to the existence of such a probability."
The provision of Indian Fatal Accidents Act in India are similar to those of the Fatal Accidents Act, 1846 (9 and 10 vict. C 93) of England, popularly known as Lord Camp-bell's Act. In the case of Taff Vale Rail Co. v. Jenkins, 1913 AC 1, it was observed :--
"It is not a condition precedent to the maintenance of an action under the 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 the death, provided that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life." In the above authority, Viscount Haldane, Lord Chancellor also observed:--
"The basis is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss. But that 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 case of Hira Lal v. State of Punjab, AIR 1961 Punj 236, the view taken as that in order to succeed in such an action, it was not necessary for the plaintiff to prove that the deceased was actually earning some income, the whole or part of which was spent towards the maintenance or support of his parent. There has not to be specific evidence of pecuniary advantage actually derived from the deceased prior to his death. Under this Act even prospective loss can be taken into account. Parents can legitimately recover for the loss of the probability that their son would some day earn and contribute towards their maintenance.
12. Applying these principles to the facts of the present case, the question of damages has to be fixed by considering the circumstances of the family, the position which the deceased occupied in his family, the mental and physical equipment of the deceased, his age, also the age of the plaintiff and the standard of living of the particular family. It is not in dispute that the deceased was about 18 years of age and that there was nothing particularly wrong with his health. He was a student of Intermediate class and one of the subiects offered by him was Biology. The evidence disclosed that it was proposed to send the deceased into medical profession. Court below has given undue attention to the question whether the boy was really a brilliant student. That is only a matter of degrees. So far as the standard of the family of the plaintiff is concerned, it appears that the plaintiff himself was an engineer and in Government service. One of his sons was in the Army as a Lieutenant and other members of his family were also well employed and fairly educated. There is no reason to doubt why the deceased would not have been brought up and educated on the same standard. On a consideration of the relevant circumstances, we are of the opinion that the deceased had a fair prospect in life and would certainly have made himself useful to the family. If the proposal about his studies and going into the medical profession had gone as scheduled, it would be fair to expect that he would have been earned at least Rs. 300 or Rs. 400 per month.
13. In fixing damages, we are not oblivious of the fact that it would have been necessary for the plaintiff to incur expenditure on the further studies of the deceased till he was duly qualified. Nor are we oblivious of the fact that within a course of few years, the deceased would have been married and then he would have to support his own family out of his earnings. After taking notice of the aforesaid consideration, we have come to the conclusion that in due course, the deceased would have started contributing a sum of Rs. 100 per month to his father's fund. The plaintiff was about 53 years of age when the death of his son took place and relying on the average Indian span of life, plaintiff would be expected to be alive upto the age of 70 years. The deceased himself was 18 years of age when his death took place and he would have started earning from the age of 25 years. The age of the plaintiff would have been 60 years by the time the deceased attained the age of 25 years. The plaintiff would, therefore, have obtained pecuniary assistance from the deceased at the rate of Rs. 100 per month for a period of ten years. By the death of his son, the plaintiff has been deprived of the prospect of getting pecuniary assistance at the rate of Rs. 100 per month for a period of ten years. The total amount of damages, therefore, to which the plaintiff can be entitled must be fixed at Rs 12,000.
14. We allow the appeal, set aside the decision of the court below and decree the plaintiff's suit for recovery of Rs. 12,000 only with proportionate costs against the person and property of the defendant. The rest of the plaintiff's claim is dismissed.