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Report No. 111

4.2. Suit dependent on maintainability of conditions.-

With reference to the first paragraph, it is to be noted that two conditions are necessary before the suit can be maintained under the section:-

(i) the death must have been "caused by wrongful act, neglect or default"; and

(ii) the act, neglect or default must be such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof. These conditions, when read together, postulate that, but for the rule prohibiting recovery for death, the act which caused the death would have been actionable. The right of action under the section, however, is a new one, and not a survival of the cause of action of the deceased, it is "derivative", only to the extent that the conditions precedent applicable to the deceased must exist.1

1. See Williams Some Reforms in the Law of Torts, (1961) 24 Modern Law Review, 100, 106.

4.3. As to the words "wrongful act, neglect or default" it may be stated that in most cases under the Act, the cause of action is in tort. In England, it has been held (with reference to the Act of 1946) that breach of con tract will suffice.1 The language of the English provision2 and the Indian provision being substantially the same in this respect, our courts may be expected to take the same view on the above point. In fact, the rule in Baker v. Bolton (which the Fatal Accidents Act in intended to supersede)3 itself did not apply to breach of contract4.

1. Grein v. Imperial Airways Ltd., (1936) 2 All ER 1258.

2. See now section 1(1), Act of 1976.

3. Paras. 1.3 and 1.7, supra.

4. Frost v. Aidesbury Dairy Co., (1915) 1 KB 608.

The Fatal Accidents Act, 1855 Back

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