Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
First Appeal No. 88 of 1958, decided on 21st July 1961.
S. I‑Death of girl aged 6 years‑Parents claiming damages‑Girl having no earnings in past, no certainty of earning in future "Pecuniary advantage to beneficiaries" includes rendering of service in past or future Damages on sentimental grounds cannot be allowed Assessing damages Normal expectation, reasonable probability, prospective loss Matters of inference Damages Accurate estimation impossible Factors to be considered Normal age assessed as 60 years ‑ Shares of beneficiaries divided by appellate Court though required to be apportioned by lower Court.
Mohammad Ibrahim v. Latif P L D 1957 Kar. 352 disting uished,
Against master and servant for negligent act of servant in master's employment‑Decree can be altered where only master is party in appeal.
O. VII, r. I ‑Plaint Not stating requirement of Fatal Accidents Act, 1850‑Other state ments along with evidence led, held, sufficient compliance in the circumstances.
Maksumul Hakim and A. M. Chowdhury for Appellant.
M. A. Rouf for Respondents.
‑I had the advantage of going through the judgment proposed to be delivered by my learned brother in this appeal. I entirely agree with the same. I like to add only a few words.
2. The only case relied on by the learned Advocate for the appellant is that of Khan Sahib Mohammad Ibrahim and another v. Latif and others (P L D 1958 Kar. 34), in support of his contention that in a case for damages under the Fatal Accidents Act a distinction has to be made between a speculative possibility of pecuniary benefit and a reasonable possibility of pecuniary advantage from the continuance of the life of the victim of the accident, and that in the present case at least the judgment of the learned Subordinate Judge is based on speculative possibility of pecuniary benefit.
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 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 way ward 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 an inference of fact, and in the other, existence of some evidence to justify the inference. In the case reported in P L D 1958 Kar. 34 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, 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 guess‑work 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.
8. Therefore, the present case, where there is evidence for the basis of possibility, is distinguishable from the case reported in P L D 1957 Kar. 352.
This appeal at the instance of defendant No. 1, is directed against the decision of the Subordinate Judge, Jessore, in a suit for damages under the Fatal Accidents Act (Act XIII of 1855). The case of the plaintiffs, shortly, is this:
10. Plaintiff No. 1 is the Principal of the Magura College, and plaintiff No. 2 is his wife. They had a daughter, namely, Sohel Akter 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 about 10 a.m. while Lucky was playing with some other girls on the un-metalled 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 have lost all encouragement and inspiration in their worldly affairs. The plaintiff No. 1 has a cloth shop known as "Lucky Store" at Magura town and he has also landed properties. After the death of Lucky, he has not been able to look after these properly. Due to the shock caused by the death of the girl, plaintiff No. 2 cannot do her household works. Her father has not given her any property as she has become childless, while he gave some properties to her sister who has got children. Plaintiffs have suffered great lots due to the death of their daughter, Luckly. Plaintiffs claimed Rs. 15,000 as compensation for the loss.
11. The bus in question was insured with the Asian Mutual Insurance Co. Ltd. for Rs. 20,000. As the said Insurance Company refused to pay the amount in spite of claim by plaintiff No. 1, it was made proforma defendant No. 3 to the suit.
12. The defendants Nos. 1 and 2 contested the suit. The proforma defendant No. 3 also filed a written statement, but the suit was not contested by it.
13. The fact that Lucky died on the 18th day of January, 1955 due to a motor accident on the road in front of the residence of the plaintiffs at Magura town, was not challenged. The case of defendant Nos. 1 and 2 is that the driver, defendant No. 2 did not drive the bus rashly or negligently and that: while the defen dant No. 2 was slowly proceeding with the bus by the road to the bus‑stand, the girl Lucky, suddenly tried to go home crossing the road without notice of defendant No. 2, and that at that time the accident took place. It was further alleged that plaintiffs were not entitled to any damage as they did not suffer any loss‑physical, mental or financial due to the death of their minor child Lucky.
14. The learned Subordinate Judge held that the child died due to the rash and negligent driving of the bus by defendant No. 2 and that as the only child of plaintiffs was thus killed, the defendant No. 1 was liable for damages. The learned Subordinate Judge was also of opinion that it was not ". unlikely" that the income of plaintiff No. 1 from the cloth shop, namely, "Lucky Stores" and from his landed properties suffered for some time on account of his indifference after the death of Lucky. The learned Subordinate Judge was not convinced about the truth of plaintiffs' case that plaintiff No. 2 did not get any property from her father because of the tragedy. The suit was decreed for Rs. 10,000 as damages with proportionate costs against defendants Nos. 1 and 2 with the direction that defendant No. 1 would be liable for the amount decreed as damages. The suit was dismissed against the proforma defendant No. 3, the Insurance Company, on the ground that there was no privity of contract between it and the plaintiffs.
15. The defendant No. 1 only has preferred this appeal. The defendant No. 2 and proforma defendant No. 3 are not parties to this appeal.
16. The fact that Lucky died due to a motor accident has not been challenged in this appeal. The findings of the learned Subordinate Judge that the child died due to the rash and negligent driving of the bus by defendant No. 2 while in the employment of defendant No. 1 have also not been challenged.
17. Mr. Maksumul Hakim, the learned counsel for the appellant, has raised two points in support of the appeal, namely, (i) The plaintiffs are not entitled to any damage V they did not suffer any pecuniary loss due to the death of their child, Lucky, and as there was no reasonable expectation of any pecuniary advantage from the deceased Lucky (2) the decree for damages cannot be upheld as the learned Subordinate Judge did not give the basis for assessment of Rs. 10,000 as damages.
18. The suit for damages is under section 1 of the Fatal Accidents Act (Act XIII of 1855), henceforth to be called the Act, which runs as follows
"(1) Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensured shall be liable to an action or suit for damages, not withstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;
and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought ; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before‑mentioned parties, or any of them in such shares as the Court by its judgment or decree shall direct."
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 advantage and not a mere speculative probability of such an advantage. It is not necessary that the pecuniary advantage should be in the form of cash or goods, as services 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 solation 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.
20. In Halsubry's Laws of England, second edition, volume XXIII at page 696, it has been stated:
"In order to recover compensation there must be a pecuniary loss sustained by the persons claiming, either actual or expected. Such pecuniary loss is not limited to the value of money lost, or to the money value of things lost, but includes the monetary loss incurred by replacing services rendered gratui tously by the deceased, if there was a reasonable prospect of their being rendered freely in the future but for the death of the deceased."
"The plaintiff must show that he has lost a reasonable pro bability of pecuniary advantage. As to what constitutes a reasonable expectation of pecuniary benefit sufficient to ground claim for damages, it is not possible to lay down any general rule. It is an inference which a jury are entitled to draw only where the facts proved to their satisfaction afford them reason able grounds for drawing such a conclusion. They at all events have to be satisfied on proper materials that the position of those claiming would have been less precarious but for the loss of the deceased. The loss of educational prospects and personal comfort which, but for the death of a person, might fairly have been expected to have been secured to the plaintiff, is sufficient to sustain a claim. So, also, services rendered or assistance given by the deceased, even if a child, can be taken into account if a reasonable expectation can be proved of pecuniary benefit if the deceased had lived."
These observations appear in connection with the question of civil responsibility under Lord Campbell's Fatal Accidents Act, 1846. The Act of 1855 is a replacement of Lord Campbell's Fatal Accidents Act, 1846, only with the difference that in section 2 of the Act "loss" is used in place of "injury".
21. In the case of Taff Vale Railway Company v. Jenkins (L R 1913 A C I 4), the following observations were made by Viscount Haldans, L. C.
"The action is brought under Lord Campbell's Act by the father on behalf of himself and the mother for damages for the loss of the daughter. Now we have heard a good deal of authority cited as to what the foundation of such an action is, but I do not think there is much difficulty in coming to a conclusion as to the principle which underlines those authorities. The basis is not what has been called solatium, that is to say, damages given for injured feelings or on the grounds of senti ment, but damages based on compensation for a pecuniary loss. But then 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 same case, at page 7, Lord Atkinson observed
"I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person which sues. It is quite true that the existence of this expectation is an inference of fact there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think be drawn from circumstances other than and different from them."
Lord Moulton in the same case at page 10 observed
"The fact of past contribution may be important in strengthen ing the probability of future pecuniary advantage, but it cannot be a condition precedent to the existence of such a probability."
22. In the case of Mst. Manjulrgoari and others v. Gowardhandas Harjiwandas Raval and others (A I R 1956 Nag. 86, .88), a Division Bench of that High Court held as follows :‑
" it is not a condition precedent to the maintenance of an action under the Act 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 fife."
23. In the Law of Negligence by J. Charlesworth, Second Edition, page 553, the following observations have been made:
"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 accrue to the defendants."
24. In the case of Narayan Jethe v. The Municipal Commis sioners and the Municipal Corporation of Bombay (I L R 16 Bom. 254), plaintiffs daughter, a child aged about six years fell into an open manhole of a swear in a lane in Bombay. In a suit by the mother, against the Municipal Commissioners and the Municipal Corporation of Bombay, the Court held that in a case of such nature distinct evidence of loss sustained or benefit expected was not necessary and that the jury might look at the circumstances of the case and especially at the position of the parents and age of the child, and call in aid their own experience m arriving at their conclusions for awarding damages. The principle was followed in the case of The East Indian Railway Company v. Kally Dass Mookerjee (I L R 26 Cal. 465, 492).
25. In the case of Biralal and another v. State of Punjab (A I R 1961 Pb. 236), the deceased was a student of fifth primary class and was eleven to twelve years of age at the time of his accidental death, and was of good physique. The suit by the parents under the Act for damages was dismissed by the trial Court. The High Court set aside the judgment of dismissal and decreed damages. The following observations were made by P. C. Pandit, J:
"In my opinion, in order to succeed, it was not necessary for the plaintiffs to prove that the deceased was actually earning some income, the whole or a part of which was spent towards the maintenance or support of his parents. There has not to be specific evidence of pecuniary advantage actually derived from the deceased prior to his death: Under this Act, even pro spective loss can be taken into account. Parents can legiti mately recover for the loss of the probability that their son would some day earn and contribute towards their maintenance.
It cannot be disputed that even when the deceased was only 12 or 14 years of age, he would be of some assistance to his parents in their day‑to‑day life and the parents could legiti mately hope that when he comes of age and starts earning he would be of some financial help to them in their old age. Under the Act the money value of such an assistance has to be assessed . . . . . "
In the same case, Tek Chand, J., made the following observa tions:
"The pecuniary advantage need not be in the form of cash or goods, as service rendered by the deceased, will be deemed of equal value."
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 the 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 circumstances in this case which go to show that by the death of Lucky, plaintiffs 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 func tions for garlanding guests etc . . . . . .
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 months, but she was looked like a girl of 8/9 years old. She had sound health. My daughter was reading in class ill then. She was very intelligent. Such a girl is of rare birth . . . My said daughter used to attend in all public and private functions at Magura everybody called her to attend. In the occasions of arrival of any honour-able guests at Magura they used to call my said daughter to garland 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 prob ability of pecuniary advantage and are entitled to damages.
28. Mr. Maksumul Hakim, the learned counsel for the appellant has referred to the case of Khan Sahib Muhammad Ibrahim Khan and another v. Latif and others, in support of his contention that the plaintiffs cannot be allowed damages under the Act. In that case, the father of the deceased child was traveling with his son who was aged about eight years at the time of the accident, by a taxi‑car. Driver of the car tried to overtake the other car running ahead of it with the result that the two pars collided with each other and the boy received injuries and died. The father brought a suit for damages under the Act against the driver of the car by which he and the deceased were traveling, and also against the driver and owner of the car with which it collided. The suit was dismissed on the ground that only a speculative possibility of pecuniary benefit and not a reasonable probability of pecuniary advantage was proved. In dismissing the suit, the learned Judge relied on the principle laid down by McCardie, J. in the case of Carnatt v. Cohen and others (2 K B (1921) 461). In that case, a boy just under 4 years of age, while walking along the pavement in a road, died as a result of the fall of a pole, while the defendants' servants were carrying it negligently. The suit brought by the father of the deceased for damages under Lord Campbell's Fatal Accidents Act, 1846, was dismissed on the ground that by the death of the child, there was no loss of reasonable probability of pecuniary advantage but only a loss of speculative probability of pecuniary benefit.
29. The facts of the above two cases are distinguishable from the facts of the present case. In (1951) 2 K B page 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 P L D 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.
30. The learned counsel also made reference to the case of Ester Virginia Penheiro v. Maurice Minney (I L R 61 Cal. 460). That was also a suit for damages. That suit for damages under the Act was dismissed on the ground that the accident was due to the contributory negligence on the part of the deceased. That case has no application to the facts of the present case, as in this case it is not proved that there was contributory negligence on the part of the deceased.
31. In that case, it was also observed that a plaint in a suit under the Act should give full particular or particulars of the person or persons for whom or on whose behalf the action was brought and of the nature of the loss in respect of which damages were sought to be recovered.
32. The learned counsel for the appellant has contended that plaintiffs have not claimed damages on the ground of loss of prospective earning of the deceased but on the ground of loss of income from the business and properties of plaintiff No. 1 for his indifference to these after the death of Lucky, and also for the loss suffered by plaintiff No. 2 as she has not been given any property by her father, because she leas become childless since the death of Lucky. Although it has not been specifically stated in the plaint that Lucky was expected to earn money in future and contribute to her father's income and that plaintiffs have been deprived of her pecuniary aid to the parents from her prospective income, there is the statement in it that plaintiffs, who are parents of the deceased, suffered loss due to the death of Lucky and that M "the loss of the plaintiffs . . . cannot be compensated by a lac of rupees". They also led evidence of the loss of the reasonable probability of pecuniary advantage by her death. In the circumstances, it can be held that there has been substantial compliance with requirement of the statute in the plaint in such a suit, contention that plaintiffs, are not entitled to any damage cannot be accepted.
33. The learned Subordinate Judge held that the plaintiffs are entitled to damages, because the only daughter of plaintiffs Nos. 1 and 2 was lost due to the accident. The learned Subordinate Judge observes in his judgment
"To me it does not seem that what they say is mere sentimentalism; their only child has been killed and, in my opinion, they are entitled to damages if they can prove negligence or rashness against the wrong-doer or doers . . . . . . .
It does not seem that damages have been claimed for only injuring feelings or on the ground of sentiments. Loss of a child is something greater."
But damages cannot be allowed for mere loss of a child. In the case of Nani Bala Sen v. Auckland Jute Co. Ltd. the following observations have been made
"It is certain, however, that the Court ought not to give G sympathetic damages, or damages by way of consolation."
34. In the case of Devi Singh v. Mangathemmal (A I R 1935 Mad. 322), it was held that sentimental damages cannot be awarded nor can damages be awarded merely for the loss of a son, daughter, a wife or a husband.
35. In the case of Sm. Jeet Kumari Poddar and others v. The Chittagong Engineering and Electric Supply Co. Ltd. and another (A I R 1947 Cal. 195
) it has been held that sympathetic damages or solatium for loss of companionship, etc. are not relevant for awarding damages in a suit under the Act. The plaintiffs are entitled to damages not on the ground of mere loss of the child but on the ground of loss of reasonable expectation of pecuniary advantage by her death.
36. The question of the amount of damages is now to be considered. The learned Subordinate Judge allowed Rs. 10,000 as damages, but he did not give the basis of this assessment on the ground that he was not aware of any principle for assessing the quantity of damages in a case of this nature. The learned counsel appearing on behalf of the appellant has contended that the case should be sent back on remand so that the basis for assessment of the damages can be ascertained and then damages, if there be any, can be allowed. It does not appear that there is any necessity for sending back the case on remand, as we can look to the evidence and circumstances of the case and consider what would be the proper amount of damages and on what basis.
37. Mr. Rouf, the learned Advocate for the respondent has contended that after the death of the child, plaintiff No. 1 has suffered loss as he cannot look after the cloth shop, namely, "Luckey Store", and his landed properties with the same zeal as he would do prior to the death of the child. It has been also contended that the plaintiff No. 2 has suffered loss as she was not given property by her father because she has become childless while her sister, who has been given property by her father. But, these are not matters for consideration for assess ment of damages under the Act. Under section 1 of the Act the Court can give such damages as it may think proportioned to the loss resulting from the death to the parties respectively, for whom and for whose benefit such action is brought. It is not possible nor it is necessary in a case of this nature to calculate damages with meticulous accuracy. There must be a certain amount of guess‑work in assessment of damages, because it is impossible to estimate accurately the loss which has been sustained by the death of a daughter, a son, husband, wife, father or mother. In such a case, the Court is to take into consideration all the circumstances which are material for considering the pecuniary loss resulting from the death of the deceased. The prospective earnings of the deceased, the extent of life expectancy not only of the deceased, but also of the beneficiaries and the standard of living of the H family of the deceased, are to be taken into consideration. In estimating the prospective earnings of the deceased, the age, health, ability, habits and prospects with the advancement of the age of the deceased are to be considered. Beneficiaries are not entitled to the entire prospective earnings of the deceased but only to that extent that they could expect to receive from the deceased. In the case of the deceased being a child, the amount to be spent for the maintenance of the child is also to be taken into account. In considering about the likely loss of contribution from the child the age, the sex, the health, ability, intelligence and reasonable expectation of earning and the status of the family of the deceased are also to be taken into account. These views are supported by the cases reported in I L R 52 Cal. 602, A I R 1927 All. 684, A I R 1947 Cal. 195, A I R 1956 Nag. 88 and A I R 1961 Pb. 236.
38. In the case of Nani Bala Sen v. Auckland Jute Co. Ltd. in connection with the assessment of damages, it was observed that there must be always more or less guess‑work in estimating damages and that the Court after taking into account all the material circumstances award the amount considered as fair and reasonable.
39. In the case of Nathu Ram v. Mst. Chand Kuar (A I R 1927 All. 684), while allowing damages under the Act, it has been held: " . . . it is not necessary in a case of this nature to calculate the damages with meticulous accuracy."
40. In the case of Sm. Jeef Kumar Poddar and others v. The Chittagong Engineering and Electric Supply Co. Ltd. in connection with the principle to be followed in calculating damages under the Act, it has been observed:
"There must be a pecuniary loss sustained by the persons claiming either actual or expected. Such pecuniary loss is evidenced by proof of a reasonable expectation of pecuniary benefit. There must be a certain amount of guess work, in estimating such expectation as various factors have to be considered which cannot be expressed arithmetically. The main criterion is the loss of reasonably expected pecuniary benefit. At the same time the probable earnings and future prospects of the deceased himself are taken into consideration because the extent to which a person can benefit others depends largely on his earning capacity."
In the case of Mst. Monjulagoari and others v. Gowardhandas Harjiwandas Raval and others it has been held that to be precise in assessing damages in a case of this nature is by no means easy. "While speculation has to be avoided, an estimate of damages has to be made. When one is making an estimate, one cannot be dogmatic. The Court has to arrive at fair figures after giving due consideration to all the material factors. The result reached may at best be described as a quasi‑scientific guess."
41. In the case of Hira Lal and others v. State of Punjab (A I R 1961 Pb. 236) the following observations were made by Tek Chand, J:
"The matter gets still more complicated, when estimate has to be made of the expected earnings of a person who died while still a child. In estimating the parents pecuniary losses, account has also to be taken of the expenses which are to be incurred‑‑by them for the child's support. Even if the child has not earned anything in the past, the parents cannot be deprived of damages on the ground of the uncertainty of his earning capacity.
In making an assessment as to the likely loss of contributions‑‑from the child, the child's health, earning capacity, or a reason able expectation of it, industry, and inclination to help his parents, as also, the health, life expectancy and the circumstances of the parents, deserve consideration.
No less important, in the estimation of value of assistance, which a deceased child might have rendered had death not intervened, are the age, sex, physical and mental condition of the child, not forgetting, of course, the position in life, occupa tion and the state of health of the parents . . . ."
42. In the present case, deceased Lucky was six years old at the time of the accident on the 18th January, 1955, was reading in class III, was healthy, handsome and "very intelligent". She learned music and dancing. She would be invited to all private and public functions at Magura town and she would be deputed to garland the honour-able guests at that town. Her father is highly educated and the Principal of Magura College. It could be expected of such a girl that she would have started earning about Rs. 1 0 to Rs. 200 per month from the age of twelve to fourteen. She would reach that age six to eight years after the accident. It is expected that her earning capacity would increase with the advancement of her age. It might be that in course of time, she would earn Rs. 400 to Rs. 500 per month, in view of the fact that now a days various avenues are open to educated and qualified girls. So, her income may be taken at the average rate of Rs. 170 per month from the age of twelve, out of which she could have spared about Rs. 100 per month for her parents.
43. Plaintiffs, father (P. W. 9) and mother (P. W. 1) of the deceased, deposed on 15‑3‑1958 and 1‑2‑1958, respectively. At that time, plaintiff Nos. 1 and 2 were aged 47 and 32, respectively. Accordingly the age of plaintiff Nos. 1 and 2 on the day of accident was about 44 and 29 years, respectively. It can be expected that the parents and the girl would live up to the age of sixty years each considering the normal age of living in this i country. The father and the mother, therefore, would have derived the pecuniary benefit for ten years and twenty‑five years respectively. At this rate, her contribution to her parents would be far more than Rs. 10,000.
44. We are not forgetful of the fact that during this period, her marriage might have taken place and her pecuniary assistance to her parents would stop. Taking that her marriage would take place at the age of twenty, her contribution to her parents up to that would be Rs. 10,800. Allowance is also to be made for costs incurred by her parents for her maintenance and education till she would attend the age of earning at the age of twelve years. But during this period she would be rendering services to her mother in her household works and such services have a monetary value to the parents. It will, therefore, be proper to equate these two items on the debit and credit side. In the above circumstances, plaintiffs would continue to benefit from the deceased to an extent far more than Rs. 10,000, if her marriage had not taken place. In case, her marriage had taken place, they would be benefited to the extent of Rs. 10,800. In any view of the case the decree passed by the learned Subordinate Judge for a sum of Rs. 10,000 cannot be regarded as excessive.
45. Mr. Rouf, the learned Advocate for the respondent has contended that as the driver (defendant No. 2), against whom also the decree was passed, has not been made a party to the appeal there cannot be any alteration in the amount decreed as damages. It is now well‑settled that a master is liable for the wrongful act or negligence of his servant when the wrongful act or negligence of the servant occurs of his master's employment. For the fact that the driver has not been made a party to this appeal, it cannot be held that there cannot be any alteration in the amount decreed. This view finds support in several cases. In the case of Sardar Nand Singh and another v. Abhyabala Debi and others (1), a man was run over by a motor truck and killed. A suit for damages under the Act was decreed against the two owners of the truck and the driver and another person. Against the decree, there was an appeal by the owners, to which plaintiff‑claimants only were made respondents. Although the driver was not made a party to the appeal, as in the present case, the decree passed by the trial Court was affirmed.
46. In the case of Devi Singh v. Mangathayammal a boy aged about 13 years was knocked down and killed by a motor omnibus belonging to the appellant of that case, being rashly and negligently driven by his driver. The suit was decreed against the owner though the driver was not made a party to the suit.
47. In the case of Stanes Motors, Ltd. v. Vincent Peter and another (A I R 1936 Mad. 247), also the suit for damages by the son and widow of the deceased, whose death was caused by the alleged negligence of the driver, was brought against the owner, and the driver was not made a party. It was held that the owner was liable for the negligent act of the servant.
48. Mr. Rouf has also contended that the appellate Court cannot interfere with the amount allowed by the trial‑ Court as damages under the Act. In support of his contention, he has referred to the case of Lim Joo Chiang v. Lim Siewe Choo and another (P L D 1957 P C 223). In that case, it was held by their Lordships of the Privy Council that the appellate Court is not to interfere with the amount of damages awarded by the trial Court under the Act for the fact that the amount is greater or less than that which the appellate Court itself would have awarded. In the present case, the question of application of the above principle does not arise, as, in our opinion, the amount awarded as damages is fair, and not excessive.
49. Mr. Rouf, has further contended that the decree should not be disturbed as the defendant No. 1, that is, the owner of the bus, is not to pay anything from his pocket, because the bus was insured with the defendant No. 3, namely, the Asian Mutual Insurance Co. Ltd., for the period from 16th February, 1954, to 15th February; 1955 and as there was an agreement in the insu rance policy that if the said car of defendant No. 1 caused death to anybody by accident, the Company would be liable to compen sate to the extent of Rs. 20,000. These are not matters for consideration in awarding damages under the Act. The learned Subordinate Judge dismissed the suit against the Insurance Company on the ground that there was no privity of contract between it and the plaintiffs with the opinion that defendant No. 2 could enforce‑ his claim under the Policy against the defendant No. 3.
50. Under the Act, it is generally required that the share of each of the beneficiaries should be apportioned. But in the instant case, there has not been any such apportionment and the amount of Rs. 10,000 has been decreed in favour of both the plaintiffs. The learned counsel for the appellant has contended that the learned Subordinate Judge committed an error as he did not apportion the decretal dues between the two plaintiffs.
51. This defect in the decree can be removed by this Court. Plaintiffs are husband and wife and they have been living jointly at Magura town. Plaintiff No. 2, who is the second wife of plaintiff No. 1 is younger to him by about 15 years. While plaintiff No. 1 would attain the age of 60 years, 16 years after the accident, plaintiff No. 2, would reach that age 31 years after the date of accident. There is also evidence that plaintiff No. 2 has no chance of conceiving again. In view of these facts out of the amount decreed, the plaintiff will get Rs. 4,000 with proportionate costs, and the balance Rs. 6,000 will go to plaintiff No. 2 with proportionate costs, in both the Courts.
52. In the result, the appeal is dismissed with costs. The judgment and decree passed by the learned Subordinate Judge are affirmed but with apportionment of the amount decreed that the plaintiffs Nos. 1 and 2 will get Rs. 4,000 and Rs. 6,000 respectively with proportionate costs in both the Courts.
In view of the order passed in the appeal, the connected Rule is discharged without any order as to costs.
S. B./A. H.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer