JUDGMENT
Venkatarama Ayyar, J.
1. This appeal arises out of an action instituted by the respondents for compensation under the provisions of the Fatal Accidents Act, 13 of 1855. The appellant is a company engaged in the business of transporting passengers by bus between Dharapuram and Palani, among other places. On 20-9-1047 one of their buses MDC. 2414, while running from Dharapuram to Palani with passengers, met with an accident at a place called Puliampatti about 3 miles from Palani, as a result of which some of the passengers sustained injuries and one of them Rajaratnam died on 23-9-1947. Plaintiff 1 is his father, plaintiff 2 is his widow and plaintiffs 3 to 7 are his sons. They alleged in the plaint that the driver who was in charge of the bus was incompetent and inexperienced; that he was guilty of rash and negligent conduct In the driving of the bus; and that the accident was the result of his incompetence and negligence. Compensation was claimed under Section 1 of the Act for the Joss of pecuniary benefit sustained by the plaintiffs personally, and under Section 2 for the loss sustained by the estate, by reason of the death of Rajaratnam.
The defendants contested the claim. They denied the allegations that the driver was incompetent and inexperienced or that the driving was rash and negligent. They further pleaded that the accident was the result of the rear centre bolt suddenly giving way and that no negligence could be attributed to them. They also pleaded that the damages claimed were excessive. The Subordinate Judge ‘of Diudigul held that there was no proof that the bus was driven at a reckless speed at the scene of accident, but that the fact of its occurring on the off-side of the road was itself evidence of negligence and that it had not been rebutted by the defendants. He also held that Joseph, the driver, was not proved to be competent. He, therefore, held that the defendants were liable for the negligence of their servant. On the question of damages, he awarded a sum of Rs. 3600 to plaintiff 1 and a sum of Rs. 25,200 to plaintiffs 2 to 7 under Section 1, Fatal Accidents Act and a sum of Rs. 6000 to plaintiffs 2 to 7 under Section 2 of the Act. Against this decree, the defendants preferred the present appeal. The points that arise for decision in this appeal are: (1) Was the accident due to the negligence of driver Joseph? (2) If so, to what damages the plaintiffs are entitled?
2. The facts are as follows: On 20-9-1947 bus No. MDC 2414 started on its journey from Dharapuram to Palani and Ex. A-19 which is the copy of the entry in the Police Register shows that the bus left the police station at 3 p.m. with 16 passengers and wtth one Sherifuddin (D.W. 3) as its driver. The bus then came to the stand and picked up the other passengers and actually left Dharapuram at 3-5 p.m. with 26 passengers. Just when it was about to start the cashier of the company put one Joseph in the place of Sherifuddin for driving the bus and asked the latter to help him as he was new to the road. Then Joseph took up the driving with Sherifuddin seated by his side. At Thumbslapatti just about 16 miles from Dharapuram, Rajaratnam, his brother P.W. 6 and one Thirumalai Goundan got into the bus. Three miles further down to wards Palani there is a place called Puliampatti and that is where the accident took place. There, the road passes over a culvert and then there is a sharp bend with a downward gradient. East of the road is a drain and that is marked off by 5 stones 2 feet high. The bus after crossing the culvert crashed against the 5th stone with so much force that the latter was uprooted and broken. It next attacked a tamarind tree which is stated to be at a distance of 20 or 25 feet from the stone and its bark was peeled off and it travelled some more distance before it finally came to vest. Some of the passengers were knocked and thrown within the bus itself and sustained injuries. Rajaratnam was thrown out of the bus into the ditch at a place 161 feet south of the tamarind tree. Vide plan filed with the plaint. The bus is stated to have stopped 5 or 6 feet away from this place.
At this time a bus belonging to the appellants which was coming from Palani was stopped and Rajaratnam and the other injured passengers were placed therein and sent to the Palant hospital. M.D.C. 2414 was then driven by D.W. 3 to the Palani bus stand. Rajaratnam was admitted in the hospital at about 5 p.m. Ex. A-1 is the first certificate issued by the doctor; and therein he reserved his opinion about the case. By 5-45 p.m. he considered the case sufficiently serious and sent the memo Ex. A 2 to the Sub-Magistrate, Palani, for recording the dying declaration. Ex. A. 3 the dying declaration was recorded at about 7 p.m. Meantime, Sherifuddin, Joseph and the manager of the appellant company, (D.W. 4), who was then at Palani, all of them, went to the hospital and saw Rajaratnam. After they left the hospital, a statement was prepared by the Manager mentioning the circumstances under which the accident took place. That was presented to the Police at about 8-15 p.m. (Ex. B. 2). In that statement which was signed by D. w. 3 it is stated that Joseph who had accompanied them to the Hospital had in the meantime disappeared. The condition of Rajaratnam became serious. He was sent for treatment to Madurai Hospital on 22-9-1947 and there he expired in the early hours of the 23rd September.
3. The first question for determination is whether the accident was due to any negligence on the part of the driver Joseph. The contention of the plaintiffs is firstly that the car was driven at a reckless speed, secondly that the driver was Inexperienced and incompetent and thirdly that the very fact of the accident occurring on the side of the road and the bus crashing against the stone and the tamarind tree is proof of negligence. On the question of speed, there is considerable body of oral evidence that the bus was feeing driven at high speed. P.W. 3 was a passenger in the bus and he also sustained some injuries for which he was treated. He stated that the feus was coming at & great speed and that that was so from the start. P.W. 4 was another passenger who deposes that the bus came at uniformly great speed, that It was about to collide with a cart at Dharapuram and that it was running at great speed when it dashed against the stone and the tree P.W. 5 runs a tea and coffee stall at the place of the accident. He picked up Rajaratnam after the accident, made him sit and gave him water. He deposes that the bus came at great speed. He was also examined by the Police during the Investigation. P.W. 6 is the brother of Rajaratnam who got into the bus along with him at Thumbalapatti and he deposed that the bus ran at an unusually great speed and that his brother cautioned the driver to drive slowly. P.W. 7 is the Sub-Inspector who held an enquiry after the accident and he states that the witnesses told him that the bus was driven at great speed. On the side of the defendants, there is D.W. 2 who claims to have travelled by this bus. The suggestion of the plaintiffs is that this is not true and that derives considerable support from the answers given by the witness in the course of cross-examination. He stated that the bus came at the “usual speed”, D.W. 3 is Sherifuddin who was sitting by the side of Joseph during the time. He is an old employee of the appellants and he is even now in their service. He stated that the bus ran at a speed of 20 miles per hour and that at the place of accident the speed was 15 miles.
In weighing this evidence there are certain facts which have to be taken into account. The distance from Dharapuram to Palani is about 22 or 23 miles and the time fixed by the Transport authorities for covering this distance is U hours (vide Ex. B 7). There are 4 stops in this route Which, starting from Dharapuram, i.e., Dhasanaikenpatti, Velanpatti, Thoppanpatti and Thumbalapatti. The accident occurred at a place beyond Thumbalapatti, the last of the stopping places. D.W. 3 admitted in his examination in chief that the bus stopped at Thoppanpatti and at Thumbalanpatti, though in cross-examination he stated that he could not say whether that day the bus stopped at Dasanaickenpatti, Velanpatti and Thoppanpatti. P.W. 4 stated that the bus stopped at Velampatti and picked up passengers and that is corroborated by Ex. B. 4. Thus, there is clear proof that the bus stopped at least at 3 places between Dharapuram and the place of accident. Though there is some conflict of evidence as to the precise time at which the accident took place, the Statement of D.W. 3 that it took place at 5 minutes to 4 might be taken as correct. The result then is that the bus which left Dharapuram at 3-5 p.m. came to the scene of occurrence At 3-55 p.m. Making the necessary allowance for the 3 stoppages, it may be taken that the running time between Dharapuram and the place of accident was about 42 minutes and the distance covered was 19 miles. The speed, therefore, works out at an average of about 25 miles per hour. The argument on behalf of the appellants is that a Speed of 30 miles per hour is permitted under the licence and that, therefore, the speed of 25 miles at which the bus ran was not excessive. That, however, is not the correct approach. Whether in a particular instance the speed was excessive or cot must depend on a number of circumstances such as-the condition of the road, the nature of the locality, the time and so forth. A speed which would be reasonable on a fine concrete road would be excessive on a road which is full of ruts and in a state of repair. What might be regarded as a safe speed in an uninhabited area might become dangerous in a congested one. A speed which might be harmless during the restful hours of the night might be reckless during the business hours of the day. Whether in a given case the speed was excessive or not must be determined on a consideration of all the circumstances.
In — ‘Laurie v. Raglan Building Co.’, (1942) 1 KB 152 at pp. 154-155 (A), a lerry which was driven at a speed of 10 to 12 ‘miles skidded and killed a person standing on the pavement. At that time the road was in a dangerous condition due to heavy snow fall. The question was whether the driver was negligent in driving the lorry at that speed which under normal conditions would have been quite reasonable. In holding that the speed was unreasonable under the circumstances. Lord Greene M.B. observed:
“I am quite unable to accept the proposition that, when a road is in that condition, a lorry of this kind, loaded in the way in which it was loaded, is entitled to proceed at such a speed. If roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver of the motor car to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot’s pace. The evidence here shows clearly that the road was in such a condition that a prudent driver, even if he did not find it necessary to stop, would have proceeded at a very much slower speed. I therefore, think that, not only did the fact that part of the lorry swept across the pavement raise a ‘prima facie’ case to be answered, but also that the evidence was sufficient to call for an answer even if there had been no such ‘prima facie’ case of negligence.”
4. The question for determination, therefore, is whether the speed at which the bus ran at the place was reasonable having regard to the condition of the locality. The material facts to be noted are that the road passes over a culvert, that it takes a sharp baud with a downward gradient, that adjoining it is a ditch, that with a view to prevent vehicles from running into it 5 stones 2 feet high are planted and that the road proper has a space of lands on either side and at their extremity there are trees standing. At such a place prudence requires that a bus must be driven with great caution and with much less speed than on a straight road. Was that done? Mr. T.V. Muthukrishna Ayyar, the learned advocate for the appellants argued that it was and he referred to the statements made by P.W. 6 in the course of cross-examination. He deposed that Rajaratnam and himself boarded the bus at 3-30 p.m. at Thumbalapatti, that the bus stopped only for one minute and that the dashing of the bus against the tree was at 3-45 pm. The distance between Thumbalapatti and the place of accident being 3 miles; it is argued that the bus ran at a speed Of less than 15 miles an hour and that, therefore, the accident could not have resulted from the speed. That, however, is to assume that the time given by the witness is accurate. D.W. 3, on the other hand, deposed that Thumbalapatti was reached at 3-45 p.m. and the accident occurred 5 minutes to 4. Making allowance for the stoppage time at Thumb’alapatti this works out at 20 miles per hour and this speed must be considered excessive having regard to the stature of the ground.
5. It was argued that if the bus ran at an uncontrollable speed, it would have toppled over into the channel and the fact that it was steered athwart the road shows that the speed was not excessive. But it is one thing to say that the speed was not uncontrollable and quite a different thing to say that it was not reckless or excessive. In this connection, the following facts should be remembered. When the bus crashed against the stone the impact was so violent that the latter was uprooted and broken. Notwithstanding all the attempts in applying the brake, the bus travelled 25 feet to the tamarind tree and dashed against it. In view of the fact that the steering and brake were in good order, as appears from the certificate issued by P.W. 2 on 22-9-1947 it should have been possible to stop the bus even before it reached the tamarind tree if the speed had not been excessive. Then again after the dashing against the tamarind tree, the bus travelled a further distance of about 18£ feet and it was at this stage that Rajaratnam was thrown off. This again could not have happened if the bus was driven at reasonable speed, especially as the two’ impacts must have reduced its speed. In Ex. A. 3, the dying declaration by Rajanatnam, he stated “the bus came at a very high speed. The driver turned the bus at a certain place, I was telling him to drive the bus slowly. I do not remember in which place the bus was turned. I did not know as to what happened thereafter.” Rajaratnam himself owned a car and knew driving and held the licenses therefor (vide Exs, A-7 and A-8). The statement given by him in Ex. A-3 is, therefore, entitled to great weight, especially as it is part of a dying declaration. The statement therein that he warned the driver to proceed slowly is confirmed by the evidence of P.W. 6. On the broad probabilities, we hold that the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened and that, therefore, there was negligence on the part of the driver and the appellants are liable therefor.
6. It was also argued for the plaintiffs that Joseph was not a competent driver and that the appellants acted negligently in having engaged him to drive the bus. Exs. B. 19 and B-20 are driving licences issued to Joseph and they show that he served in the Military as a car driver from 1942. D.W. 1 is a respectable witness on whose recommendation D.W. 4 made the appointment. It was argued that Exs. E- 19 and B- 20 are not sufficient in themselves to prove that the driver had the requisite skill, that Joseph himself had not been examined and that the evidence of D.Ws. 1 and 4 did not establish that he had sufficient competence. Stress is also laid on the fact that originally the bus was intended to have been driven by D.W. 3 as seen in Ex. A- 19, that Joseph was put in later on at the instance of the cashier, that that was the first trip undertaken by him and that as it was known that he was new to, the road, it was negligence on the part of the appellants to have entrusted the running of the bus to him.
But as Exs. B- 19 and B- 20 are licences issued by the authorities whose duty it was to satisfy themselves about the competence of the driver, it cannot be held that the appellants acted with negligence in acting upon them. Joseph had absconded and. no inference can be drawn against the appellants by reason of his non-examination. No doubt, Joseph was new to the route. But the appellants had taken the precaution of putting D.W. 3 by his side for the purpose cf guiding him. Jt is, therefore, impossible to find any negligence on the part of the appellants either in employing Joseph or in allowing him to drive with the assistance of D.W. 3. That the driver acted negligently, we have no doubt. As observed by Best C. J. “The coachman must have competent skill, and must use that skill with diligence; he must be well acquainted with the road he undertakes to drive.” Vide ‘Crofts v. Water house’, (1825) 3 Bing. 319 (B). It was by reason of his unfamiliarity with the road that Joseph drove at a speed which was excessive and rash for the place of occurrence. But, the liability of the appellants arises by reason of negligence of their servant and not of their own.
7. Jt was argued for the respondents that even apart from the positive evidence of negligence adduced both in the matter of the speed at which the bus was driven and the incompetence of the driver, there was the further fact that the accident occurred not on the road proper, but on the off-side and that it was itself sufficient to establish negligence. The reason for this rule which is well established, was thus stated by Earle C.J. in Scoot v. London Dock Co; (1865) 3 H and C. 596, at P. 601 (C):
“Where the thing is shown to be under the management of the defendant or his servants. and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords a reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
8. In — ‘Barkway v. South Wales Transport Co.’, (1946) 2-A11 EB 460 (D), the facts were that there was tyre burst
“and the omnibus then went over to the offside of the road, mounted the payment, crashed into some railings and fell on its side down an embankment on to some railway trucks, killing four of the passengers and injuring others,”
It was held that
“the fact that the omnibus left the road and felt down the embankment raised a presumption of negligence against the defendants, requiring them to prove affirmatively thai: they had exercised all reasonable care.”
9. The principles applicable were thus summed up by Asquith L. J.;
“The position as to onus of proof in this case-seems to me to be fairly summarised in the following short propositions: (i) If the defendants” ombinus leaves the road and falls down an embankment, and this without more is proved, then ‘res ipsa loquitur’, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this presumption, (ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyreburst, since a tyre burst ‘per se’ is a neutral event consistent, and equally consistent, with, negligence or due diligence on the part of the defendants. When a balance has been tilted one, way, you cannot redress it by adding an equal weight to each scale. The de-pressed scale will remain down. There is the effect of the decision in — ‘(1942) 1 KB 152 (A)’, where not a tyre burst but a skid was involved, (iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its absence as more probable, or (b) If they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres.”
It may be mentioned that in the actual application of the above principles there was a difference of opinion among the Judges, the majority holding that the inference of negligence had been displaced on the facts, while Bucknill L. J. held otherwise. The case was taken on appeal to the House of Lords who differed on the facts from the decision of the majority. On the principles applicable, however, there was no disagreement (vide — ‘Barkway v. South Wales Transport Co.’, (1950) 1 All E R 392 (E)).
In Halsbury’s Laws of England, Vol. 23 at page 671, paragraph 956, the law is thus stated:
“An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant’s negligence, or where the event charged as negligence ‘tells its own story’ of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim ‘res ipsa loquitur’ applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part. Where, therefore, there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability. In such a case, if the injurious agency itself & the surrounding circumstances are all entirely within the defendant’s control, the inference is that the defendant is liable, and this inference is strengthened if the injurious agency is inanimate.”
10. On the same principle it has been held that if a bus knocks against a stationary object on the road, that would itself be evidence of negligence. Thus, in — ‘Isaack Walton & Co- v. Vangaurd Motor Bus Co.’, (1909) 25 TLR 13 (F), the omnibus had skidded and dashed against a lamp post on the pavement. That was itself held to be ‘prima facie’ evidence of negligence. Vide also — ‘Barnes U.P.C. v. London General Omnibus Co.’, (1909) 100 L T 115 (G) and –‘Ellor v. Selfridge & Co. Ltd.’, (1929) 46 TLB 236 (H). It is argued for the respondents that on these principles the fact of the accident occurring on the off-side of the road and of the bus crashing against the stone and the tamarind tree are themselves, without more sufficient to establish negligence on the part of the servants of the appellants. Mr. T.V. Muthukrishna Aiyar, while not disputing the principles laid down in these cases, argues that the ‘prima facie’ inference of negligence has in fact been rebutted by proof that the accident was due to the rear central bolt of the bus suddenly giving way and that, the presumption of negligence had been negatived. The point for consideration is whether the accident was caused by the centre bolt suddendly giving way. (After considering the evidence, the judgment proceeded:) The accident must, therefore, be held to be due not to the break of the bolt, but to the reckless speed at which the bus was driven.
11. On behalf of the plaintiff, it was argued that even if the possibility of the defendants themselves having broken the bolt after the bus reached Palani is ruled out, there are still two hypotheses possible with reference to the break of the bolt. One is that it might have occurred even before the journey commenced at Dharapuram in which case it would undoubtedly have been negligence on the part of the defendants io have put such a vehicle on the road; and the other is that the breaking of the bolt might have resulted from the impact of the bus with the stone and the tamarind tree,” in which case that would be the result and not the cause of the accident. (Evidence referred:) Thus, the evidence is inconclusive and it is impossible to say therefrom how and when the breaking of the bolt occurred. Even on that footing, the defendants on whom lies the burden of rebutting the inference of negligence arising by reason of the accident taking place on the oft-side of the road, and the bus crashing against the stone and the tamarind tree, have failed to discharge the same. To sum up, the evidence establishes that the driver was unfamiliar with the route and drove the bus at a speed greatly in excess of what would be reasonable having regard to the conditions of the road and that the accident was the result of such rash and negligent driving. The presumption of negligence arising from the accident happening on the off-side of the road has not been rebutted by any satisfactory explanation on the part of the appellants. The finding of the Subordinate Judge that there was negligence on the part of the appellants servants must, therefore, be affirmed.
12. The next question for determination is, to what damages the plaintiffs are entitled? The claim was made both under Sections 1 and 2, Fatal Accidents Act, 13 of 1855.
13. Section 1 is as follows
“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 au action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law in 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 proportionate 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 end 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.”
This is in substance a reproduction of Sections 1 and 2, English Fatal Accidents Act 9 and 10 Vict. Ch. 93, known as the Lord Campell’s Act and it confers on the persons named therein right to claim damages and the extent of that relief is the pecuniary loss which those persons suffer by reason of the death. Section 2 of the Act is as follows: “Provided always that not more than one action or suit Shall be brought for, and in respect of the same subject-matter of complaint.
Provided that, in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased.”
It is the second proviso that is material for the present purpose. It enacts that any pecuniary loss sustained by the estate by reason of the death might be recovered as part of the estate. This is a claim distinct from and independent of what is provided in Section 1.
14. A similar provision was enacted in England by the Law Reforms. (Miscellaneous Provisions’ Act, 1934. It is important to note that the two heads of claim are different in their legal character and incidents, though they arise out of the same facts. Thus, while damages under Section 1 are recoverable for the benefit of the persons named therein, compensation under Section 2 gees to the benefit of the estate. While the claim under Section 1 is limited to the loss sustained by the dependents mentioned therein, that under Section 2 will include damages claimable by the deceased such as damages for physical suffering and mental agony and for the loss of expectation of life. Thus, the persons who will be entitled to damages under the two sections may be different and the principles on which damages will have to be awarded will also be different.
“The lights of action in the two cases are quite distinct and independent. Under the Law Reforms Act the right of action is for the benefit of the deceased’s estate; under the Fatal Accidents Act the right of action is for the benefit of the deceased’s dependents,”
Per Lord Macmillan in — ‘Davies v. Powell Duffryn Associated Collieries Ltd.’, 1942 AC 601 at p. 610 (I):
“The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate.”
Per Sir Shadi Lal C. J. in — ‘Secretary of State v. Gokul Chand’, AIR 1925 Lah 636 at pp. 635-637 (J).
14a. In the present case, while all the plaintiffs are entitled to relief under Section 1, it is only plaintiffs 2 to 7 who are eligible for relief under Section 2 as the estate of the deceased Rajaratnam has vested in them as his heirs.
14b. The Subordinate Judge has-granted a decree under Section 1 for Rs. 3,600 to plaintiff 1 and for Rs. 25,2007- to plaintiffs 2 to 7 and under Section 2 for Rs. 6000 to plaintiffs 2 to 7. The appellants press three contentions on the question of damages: it was contended (1) that Rs. 25.200 awarded to plaintiffs 2 to 7 was excessive; (2) that the award of Rs. 3600 to plaintiff 1 over and above Rs. 25.200 decreed to plaintiffs 2 to 7 was illegal and (3) that a sum of Rs. 5000 being the damages awarded under S, 2 for loss of expectation of life should go in reduction of the sum of Rs. 25,200 awarded under Section 1 to plaintiffs 2 to 7.
15. The first point for decision is whether the award of Rs. 25,200 to plaintiffs 2 to 7 under Section 1 of the Act was excessive. Mr. T.V. Muthukrishna Ayyar contended that the basis for awarding damages under that section was the loss of pecuniary benefit sustained by the defendants and that it was incumbent on the plaintiffs to furnish by clear evidence the necessary data for determining that loss. He quoted — ‘Duckworth v. Johnson’, (1859) 4 II and N 653 (K); — ‘Baniett v. Cohen’. (1921) 2 K B 461 (L) and — ‘Stanes Motors Ltd. v. Vincent Peter’, AIR 1836 Mad 247 (M) in support of this position.
In — ‘(1859) 4 H and N 653 (K)’, a boy of 14 was killed by the fall of a certain wall. At the time of his death he was without employment. But there was evidence that he had been earning for about a year or two. On that, the jury awarded damages of £20/-. The defendant having applied to set aside the decree on the ground that there was no evidence of any pecuniary loss, Pollock C. B. observed:
“My opinion is that, looking at the Act of Parliament, if there was no damage the action is not maintainable. It appears to me that it was intended by the Act to give compensation for damage sustained and not to enable persons to sue in respect of some imaginary damage.”
But the decree was confirmed on the ground that there was evidence of pecuniary loss. In — ‘(1921) 2KB 461 (L)’, McCardie J. made a distinction between cases where there is a mere speculative possibility of benefit and cases where there is a reasonable probability of pecuniary advantage and held that the plaintiff had not established any pecuniary loss by reason of the death of a four year old boy. This decision was followed in –‘AIR 1933 Mad 247 (M)’, wherein Cornish J. observed:
“The rule is that the damages must be fixed solely with reference to the pecuniary loss sustained by the relatives of the deceased in respect of past contributions or in respect of reasonable expectation of future pecuniary benefit from the deceased. The plaintiff must adduce evidence affording a reasonable basis for the ascertainment of the pecuniary loss so inflicted.”
In — ‘Taff Vale Railway v. Jenkins’. 1913 AC 1 (N), the question came up for consideration before the House of Lords whether damages could be awarded under the Act when the deceased was not in employment at the time of the accident. It was held that the plaintiff would be entitled to damages, provided there was a reasonable expectation of pecuniary benefit from the continuance of the life. Vide also — ‘Jeet Kumari v. Chttta-gong E. and E. Supply Co.’, AIR 1947 Cal 195 (O). The law, therefore, may be taken to be well settled (1) that damages could be awarded under the Act only to the extent that the plaintiff suffers pecuniary loss; (2) that to ascertain that loss, regard must be had not merely to the conditions existing on the date of the accident, but to all reasonable expectation of pecuniary benefit in the future and (3) that the court should not award sympathetic damages or damages by way of consolation.
In the light of these principles, we may examine the evidence, the burden being on the plaintiffs to establish the extent of their loss. (His Lordship considered the evidence and proceeded:) The following passage in Mayne on Damages, 11th Edition at page 565 aptly applies to the facts of this case:
“Children may recover for the loss of the education, comforts, and position in society, which they would have enjoyed if their father had lived and retained the income which died with him, and they had continued to reside with him; and even the probability that the deceased If he had lived would have made provision for his children may be considered.”
In — Fosbroke Hobbes v. Airwork Ltd.’, (1937) I All E R 108 at p. 114 (P), one Mr. Hobbes was killed in an air crash due to the negligence of the defendants’ servants. The widow and three daughters of Hobbes preferred a claim under the Fatal Accidents Act. In decreeing the claim Goddard J. observed:
“The damages necessarily must be heavy, and it lias caused me a good deal of anxiety to come to a conclusion as to the proper amount to award. In losing a husband and a father in the early prims of life, with the further expectation of life of some 30 years, in a good position which had excellent prospects of improvement, the plaintiff and her daughters have suffered a grievous injury. On full consideration, J have come to the conclusion that a fair sum to award is £10,000.”
In — Naui Bala Sen v. Auckland Jute Co. Ltd.’, AIR 1925 Cal E93 (Q) Sashi, a graduate employed on a salary of Rs. 50 per month and of the age of 26 years died in a motor accident leaving behind a widow and 4 children. On a question as la the damages to which the plaintiffs would be entitled, Page J. observed:
“Such an investigation must always be more or less guess work, for it is impossible accurately to estimate the loss which has been sustained by the death of a husband or a father……..In my opinion, in estimating the amount of the decree to be passed in a case of this nature the Court must take into account all the circumstances which are material for considering the pecuniary loss which has been sustained. The Court must view the matter broadly. No doubt, it must take into account the chance of life, the chances of any improved condition in which the family of the deceased might have passed their days; it must take into account the standard of living of the family which was dependent upon the deceased, and having regard to all the material circumstances, it must do the best it can to estimate what is a fair and reasonable sum to be awarded.”
In — ‘Grand Trunk Railway Co. of Canada v. Jennings’, (1888) 13 AC 800 at pp. 803-804 (R) which was a decision on the Fatal Accidents Act, Lord Watson observed:
“The Courts below have Justly held that the right conferred by statute to recover damages In respect of death occasioned by wrongful act, neglect or default, is restricted to the actual pecuniary loss sustained by each individual entitled to sue. In some circumstances, that principle admits of easy application, but in others, the extent of loss depends upon data which cannot be ascertained with certainty, and must necessarily be matter of estimate, and, it may be, partly of conjecture.”
16. Such being the principles, the position is that there is here a man of the age of 34 carrying on business as a doctor, with reasonable prospects of improving in his business. He was living in comfort and by his early death plaintiffs 2 to 7 have lost their prospects of education, position in society and even possible provision in their favour. Under the circumstances – the award of Rs. 25200 as damages must be accepted as quite reasonable.
17. The next contention relates to the award of Rs. 3600 to plaintiff 1 under Section 1 of the Act. It is argued for the appellants that Rs. 25,200 must be taken to represent the total damages payable under that section and that the only right of plaintiff 1 was to recoupe his loss from out of that amount. It is undoubted law that the claim of each of the persons mentioned in Section 1 should be separately assessed because the relief to them is in respect of loss severally sustained by them. It has, therefore, to be examined whether the award of Rs. 25,200 represents damages sustained by plaintiffs 2 to 7 only or whether it also includes the loss sustained by plaintiff 1. A reading of the judgment under appeal clearly shows that the two claims wore considered separately and on their own merits. In paras. 23 to 25 the claim of the plaintiffs 2 to 7 is considered. After discussion of the evidence relating to the earnings of Rajaratnam and taking into account the age at which he lost his life, the Subordinate Judge awarded Rs. 25,200 as damages to plaintiffs 2 to 7. In para. 30 he considered the claims of plaintiff 1 separately end after referring to the loss of free services which Rajaratnam was rendering as Manager of the Vaidyasalai awarded Rs. 3600 as compensation for that loss. There is authority in — ‘Berry v. Humm & Co. (1915) 1 KB 627 (B) that when the deceased was rendering gratuitous service to the plaintiff and that by reason of the death it would become necessary for the plaintiff to pay for similar service he would foe entitled to recover damages under the Act. Rajaratnam was attending to the management of the Vaidysalai without remuneration and the award of Rs. 3600 is by way of compensation for the loss of this service. The validity of this claim as such is not disputed. But the argument of the appellants is that this has been taken into account in awarding Rs. 25,200 to plaintiffs 2 to 7. The basis for this contention is this. When discussing the earning capacity of Rajaratnam, the Subordinate Judge observed that the Vaidyasalai was till 1940 in charge of a manager who was paid Rs. 70 per mensem, that Rajaratnam was doing that service thereafter and that it might require Rs. 100 to engage a manager. But this was mentioned only for assessing how much Rajaratnam could have earned. The Subordinate Judge expressly adds “that gives an idea that that Rajaratnam was doing and can do work which has a pecuniary value”. There is, therefore, no justification for the complaint that the award of damages to plaintiff 1 is a duplication of what has been included in the award to plaintiffs 2 to 7.
18. But, it may be mentioned that the Vaidyasalai is stated to be a joint family concern in which case the loss of service would fall not merely on plaintiff 1 but on the other sons as well. They are, however, not entitled to any relief under Section 1. Plaintiff 1 can get only what is due for his share of the loss. We accordingly reduce the damages on this account to the round figure of Rs. 1000.
19. The last contention relates to a sum of Rs. 5000 awarded to plaintiffs 2 to 7 under Section 2 of the Act by way of damages for loss of expectation of life. The contention of the appellants is that this amount should go in reduction of the sum of Rs. 25,200 awarded under Section 1, as otherwise it would be a duplication of damages in respect of the same wrong. It has been already stated that the nature of the cause of action under Section 1 is different from that under S, 2 and that the persons entitled to benefit under the one section may be different from those entitled under the other. In such cases there can be no overlapping of damages. But it might happen that the same person is entitled to benefit under both the sections. The question then arises whether he can claim damages twice over for the same wrong, once under Section 1 and again under Section 2.
The contention of Mr. T.V. Muthukrishna Aiyar is that what is awarded under one head must be deducted in the other and applying that principle, the sum of Rs. 5,000 awarded under Section 2 for loss of expectation of life should be deducted out of Rs. 25,200 awarded under Section 1 of the Act. The decisions in — ‘Rose v. Fort’, 1937 AC 826 at p. 835 (T); — ‘Feay v. Barnwell”, (1938) 1 All E R 31 (U); — ‘Ellis v. Raine’, (1939) 2 KB 180 (V); — ‘Yelland v. Powell Dufiereign Associated Collieries Ltd.’, (1941) 1 KB 519 (W) and — ‘1942 AC 601 (I)’, were quoted in support of this position. In- — ‘1937 AC 826 (T)’, a young woman called Rose was killed in an accident. Her father sued for damages both under Lord Campbell’s Act and under 1934 Act. There was no dispute about the claim made under Lord Campbell’s Act. The point in controversy was whether damages could be awarded for the loss of expectation of life. It was he!d that they could be. Incidentally the question was raised whether there would cot be overlapping of damages under the two heads. As to this, Lord Atkins observed: “I should add that I see no difficulty as to the alleged duplication of damages under the Act of 1934 and the Fatal Accidents Acts. If those who benefit under the last mentioned Acts also benefit under the will or intestacy of the deceased personally, their damages under those Acts will be affected. If they do not, there seems no reason why an increase in the deceased’s estate in which they take no share should aifect the measure of damages to which they are’ entitled under the Act.” In — ‘(1938) 1 All ER 31 (U)’, Mrs. Feay was killed in an accident and her husband sued for damages both under the fatal Accidents Act and the Law Reforms Act of 1934. Lingleton J. fixed £600, as damages under the 1934 Act and £625 as damages under the Fatal Accidents Act. As the claimant under both the Acts was the same person, the learned Judge following the observations in — ‘1937 AC 826 (T)’, held that the award under the 1934 Act should be taken into account in fixing the amount of damages under the Fatal Accidents Act; that out of £600 awarded under the 1934 Act a sum of £25 would have to go for duty and administration expenses, that what would reach the plaintiff net would be £575 and deducting that amount, a decree for £50 should be awarded under the Fatal Accidents Act. Thus, the question is not one of mere arithmetical deduction but of avoiding duplication of damages. In — ‘(1939) 2 KB 180 (V)’, the parents of an infant who had been negligently killed in an accident claimed damages under both the Acts. The Court of Appeal sent the case down for a fresh hearing on the ground that the jury had not understood the nature of the two claims put forward. The following observations of Goddard L. J. at page 185 bring out the principles applicable ;
“If the parties who will benefit from the damages awarded under the Fatal Accidents Act are the same as those who will benefit from the damages awarded under the Law Reforms Act, the damages under the Fatal Accidents Act must be reduced by the amount which is given as loss under the Law Reforms Act. If the amount given under the Law Reforms Act is equal to or exceeds what the jury may give under the Fatal Accidents Act, they give nothing under the Fatal Accidents Act at alt. If on the other hand, in any particular case a jury (as well may happen) should consider that the damages under the Fatal Accidents Act exceed the damages given under the Law Reforms Act, then it may be necessary to assess both.”
20. ‘(1941) 1 KB 519 (W)’ was again a case in which the plaintiffs claimed damages both under the Fatal Accidents Act of 1816 and the Law Reforms Act 1934. Damages were awarded under both the Acts. But as one of the plaintiffs was a person who derived benefit under the 1934 Act the damages under the 1846 Act were reduced, by the amount by which she would be benefited by award under the 1934 Act. The question was whether such a deduction could be legally made. It was held by the Court of Appeal that it could be. This decision was taken on appeal to the House of Lords and confirmed, the Noble Lords observing that the award under one head should be “taken into account” in assessing damages under the other. Vide ‘1942 AC 601 (I)’,
21. The result of these authorities is that the same claimant cannot recover twice over for the same wrong; that in computing the damages what is awarded under one head should be taken into account in the other; and that it is not a mere rule of arithmetic compelling the deduction of the one from the other, but awarding damages under both heads without duplication of the same claim.
22. Applying these principles, what is that has been awarded to plaintiffs 2 to 7? Rs. 25,200 for the pecuniary loss sustained by them by reason of the death of Rajaratnam under Section 1 and Rs. 1,000 for agony and suffering and Rs. 5,000 for loss of expectation of life under Section 2 of the Act, All these are items of damages which are distinct and separate from each other. In — ‘Eanhan v. Gambling’, 1941 AC 157 (X), it was held that in a claim under the 1934 Act it would not be proper to make a claim for pecuniary loss to the estate. Viscount Simon L. C. observed: “Of course, no regard must be had to the financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not for loss of future pecuniary prospects.”
23. It was evidently in view of these observations that (claim for) damages or, the basis of loss of pecuniary benefit was made only under Section 1, while the claim under Section 2 was limited to damages for mental agony and suffering and loss of expectation of life. There is no duplication of damages and no scope for the application of the decision in. — ‘1942 AC 601 (I)’.
24. In the result, we modify the decree of the
lower Court by reducing the damages payable to
plaintiff J to Rs. 1,000 and confirm the decree in
other respects. Subject to this modification, the
appeal is dismissed with costs.
