Gobald Motor Service Ltd. & ANR Vs.
R. M. K. Veluswami & Ors [1961] INSC 159 (14 April 1961)
SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1962 AIR 1 1962 SCR (1) 929
CITATOR INFO :
R 1970 SC 376 (13) F 1971 SC1624 (6)
ACT:
Fatal Accidents--Negligent act of driver of
bus--Acting in the course of employment--Liability of
owner--Damages--Principles of ascertainment--Pecuniary loss and loss of
expectation of life--If same person could claim under both heads--Fatal Accidents
Act, 1855 (13 of 1855), SS. 1, 2.
HEADNOTE:
A bus run by the appellant met with an
accident as a result of which R died. R's dependents and heirs e.g. the father,
widow and sons, brought a suit for compensation under S. 1 of the Fatal
Accidents Act, 1855, for loss of pecuniary benefit sustained by them personally
and under S. 2 thereof for the loss sustained by the estate on account of the
death of R. The, High Court found that the bus was driven at an excessive speed
and there was negligence on the part of the driver and that the appellants were
liable for the same. On the question of damages, it confirmed the amount of
compensation of RS. 25,000 under S. 1 of the Act for the loss of pecuniary
advantage and of Rs. 6,000 under S. 2 of the Act for loss of expectation of
life. The questions for consideration were (1) whether the accident was due 117
930 to any negligence on the part of the driver; (2) whether the courts below
were right in awarding compensation under s. 1 of the Act for pecuniary loss
sustained by the widow and the sons of the deceased; and (3) whether the sum
awarded as damages under S. 2 of the Act for loss of expectation of life should
go towards the reduction of the compensation awarded for pecuniary loss
sustained under s. 1 of the Act, as otherwise it would be duplication of
damages in respect of the same wrong.
Held, that where on the basis of the evidence
and on broad probabilities it is found that the speed at which the bus was
driven was excessive having regard to the nature of the ground on which the
accident happened, there is a presumption that the accident was caused by the
negligence of the driver. As the driver was acting in the course of his
employment, the master would be liable for such accident, unless the
presumption is rebutted by the master.
In the present case, on account of the
negligence of the driver in the course of his employment the accident happened,
and, therefore, the appellant was liable for the same.
Barkway v. South Wales Transport Co. Ltd.,
[1948] 2 All E.R. 460, Joel v. Morison, (1834) 6 Car. & P. 501 and Storey
v. Ashton, (1869) L.R. 4 Q.B. 476, applied.
That the actual extent of the pecuniary loss
to the aggrieved party may depend upon data which cannot be ascertained
accurately, but must necessarily be an estimate, or even partly a conjecture.
Shortly stated, the general principle is that the pecuniary loss can be
ascertained only by balancing on the one hand the loss to the claimants of the
future pecuniary benefit and on the other any pecuniary advantage which from
whatever sources come to them by reason of the death, that is, the balance of
loss and gain to a dependant by the death must be ascertained.
Davies v. Powell Duffryn Associated
Collieries Ltd., [1942] A.C. 601 and Nance v. British Columbia Electric Railway
Company Ltd., [1951] A.C. 601, followed.
Where the courts below have on relevant
material placed before them ascertained the amount of damages under the head of
pecuniary loss by the dependants of the deceased, such findings cannot be
disturbed in second appeal except for compelling reason.
Held, further, that the rights of action
under ss. 1 and 2 of the Fatal Accidents Act are quite distinct and
independent. If a person taking benefit under both the sections was the same,
he cannot be permitted to recover twice over for the same loss. In awarding
damages under both the heads, there shall not be duplication of the same claim,
that is, if any part of the compensation representing the loss to the estate
goes into the calculation of the personal loss under s. 1 of the Act, that
portion shall be excluded in giving compensation under s. 2 and vice versa.
931 in the instant case, under s. 1 of the
Act the sum of compensation was arrived at by taking into consideration, inter
alia, the reasonable provision the deceased, if alive, would have made for his
widow and sons. Under s. 2 the figure for damages awarded for the loss to the
estate represents the damages for the mental agony, suffering and loss of
expectation of life; thus there was no duplication in awarding damages under
both the heads.
Rose v. Ford, [1937] A.C. 826, Feay v.
Barnwell, [1938] All E.R. 31, Ellis v. Raine, [1939] 2 K.B. 180 and Secretary
of State V. Gokal Chand, (1925) I.L.R. 6 Lah. 451, referred to.
CiVIL APPELLATE JURISDICTION: Civil Appeal
No. 419 of 1957.
Appeal by certificate from the judgment and
decree dated January 16, 1953, of the Madras High Court in A. S. No. 164 of
1949.
M. S. K. Sastri, for the appellants.
Ravindra Narain, for the respondents.
1961. April 14. The Judgment of the Court was
delivered by SUBBA RAO, J.-This appeal by certificate, is directed against the
judgment of the High Court of Judicature at Madras dated January 16, 1953, modifying the decree of the Court of the Subordinate Judge, Dindigul, in 0. S. No.
7 of 1948, a suit filed by the respondents for compensation under the
provisions of the Fatal Accidents Act (XIII of 1855).
The appellant, Gobald Motor Service Ltd.
(hereinafter called the Company), was engaged in the business of transporting
passengers by bus between Dharapuram and Palni, among other places, in the
State of Madras. On September 20, 1947, one of the buses of the Company,
bearing registration number MDC 2414, left Dharapuram for Palni at about 3 p.m. At a place called Thumbalapatti between Dharapuram and Palni, one Rajaratnam, along
with his brother by name Krishnan, boarded the bus. The bus met with an
accident at about 3 miles from Palni, as a result of which some of the
passengers, including Rajaratnam, sustained injuries. Rajaratnam died of 932
the injuries received in the accident on September 23, 1947.
The first plaintiff, his father; the second
plaintiff, his widow; and plaintiffs 3 to 7, his sons, instituted 0. S. No. 7
of 1948 against the Company in the Court of the Subordinate Judge, Dindigul,
for compensation under s. 1 of the Fatal Accidents Act (hereinafter called the
Act) for loss of pecuniary benefit sustained by them personally, and under s. 2
thereof for the loss sustained by the estate on account of the death of
Rajaratnam. 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. The Company in its written-statement
denied the said allegations and leaded that the accident was the result of the
central plea of the left rear spring suddenly giving way, that Rajaratnam was
also guilty of contributory negligence and that in any event the damages
claimed were excessive. The learned Subordinate Judge came to the conclusion that
there was no proof that the bus was driven at a reckless speed at the scene of
the accident, but the fact that the accident occurred on the off-side of the
road was itself evidence of his negligence and it had not been rebutted by the
defendants. He further held that the driver was not proved to be incompetent.
On those findings, he held that the defendants were liable for the negligence
of their servant, and be awarded damages as follows:
(1)Plaintiff 1 ... Rs. 3,600 under s. 1 of
the Act. (2) Plaintiffs 2 to 7... Rs. 25,200 under s. 1 of the Act.
(3) Plaintiffs 2 to 7... Rs. 6,000 under s. 2
of the Act.
Against the said decree, the defendants
preferred an appeal to the High Court and it came to be disposed of by a
division bench of that court. The High Court on a review of the entire evidence
held that the speed at which the bus was driven was excessive, having regard to
the nature of the ground on which the accident happened, that there was
negligence on the part of the 933 driver, and that the appellants were liable
therefore. But the High Court discounted the plea that the appellants, apart
from their being constructively liable for the negligence of the driver, were
also negligent in employing Joseph, who was not a competent driver. Both the
courts, therefore, concurrently held that the accident occurred on account of
the negligence of the driver. On the question of damages, the High Court
confirmed the amount of compensation awarded to the plaintiffs 2 to 7 both
under ss. 1 and 2 of the Act, but in regard to the first plaintiff, it reduced
the compensation awarded to him from Rs. 3,600 to Rs. 1,000;
with this modification, the appeal was
dismissed with costs.
Learned counsel for the appellants raised
before us the following points: (1) The finding of the High Court that the bus
was driven at an excessive speed at the place where the accident occurred,
based on probabilities, was erroneous.
(2) The concurrent finding of the two courts
that respondents 2 to 7 would be entitled to damages in a sum of Rs. 25,200 for
the loss of pecuniary advantage to them was not based upon any acceptable
evidence but only on surmises.
(3) The High Court went wrong in awarding
damages separately for loss of expectation of life under s. 2 of the Act, as
damages under that head had already been taken into consideration in giving
compensation to respondents 2 to 7 for the pecuniary loss sustained by them by
the death of Rajaratnam.
The first question for consideration is
whether the accident was due to any negligence on the part of the driver
Joseph.
A clear picture of the topography and the
physical condition of the locality where the accident took place would, to a
large extent, help us in deciding the said question. The accident took place at
Puliampatti where the road passed over a culvert and then took a sharp bend
with a downward gradient. To the east of the road was a drain and that was
marked off by 5 stones 2 feet high. At a distance of 20 or 25 feet from the
stones, there were trees. The bus after crossing the culvert crashed against
the 5th stone with so much force that the latter 934 was uprooted and broken.
It next attacked a tamarind tree which was 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 rest. The evidence disclosed that some of
the passengers were knocked and thrown down within the bus itself and sustained
injuries, while Rajaratnam was thrown out of the bus into the ditch at a place
161 feet south of the tamarind tree. It must be self-evident from the said
picture of the accident that the bus must have been driven at a high speed.
P.Ws. 3 and 4, two of the passengers in the bus, P.W. 6, a brother of
Rajaratnam, who also travelled in the bus, and P.W. 5, who ran a coffee and tea
stall at the place of the accident, swore in the witness-box that the bus was
being driven at a high speed when the accident happened. Their evidence
reinforces the compelling impression of high speed caused by the objective features
thrown out by the topography of the place of the accident. On the other hand,
on the side of the defendants (appellants herein) D. W. 2, who claimed to have
travelled in the bus, deposed that the bus was travelling at the usual speed,
but his cross-examination discloses that he was an improvised witness. D.W. 3,
who was sitting by the side of the driver, deposed to the same effect, but he
was an employee of the Company and was obviously interested to support their
case. The evidence adduced on the side of the defence is certainly not
convincing. An attempt was made to calculate the speed of the bus on the basis
of the time given by P. W. 6 as to when Rajaratnam boarded the bus and the time
when the bus dashed against the tree, and the mileage covered between the two
points within the said time. On the basis of such a calculation it was
contended that the speed would have been less than 15 miles per hour; but it is
not possible to deduce the speed from such a calculation, as the witnesses were
speaking of the time only approximately and not with reference to any watch.
That apart, it cannot be said that the bus
maintained an even pace throughout. The High Court, on the basis of the
evidence and on broad probabilities, held that 935 the speed at which the bus
was driven was excessive, having regard to the nature of the ground on which
the accident happened; and having gone through the evidence, we are quite
satisfied that the said finding was justified on the material placed before
them. It must, therefore, be held that there was negligence on the part of the
driver.
Apart from the positive evidence, in the
present case the accident took place not on the main road, but on the offside
uprooting the stone at the drain and attacking a tamarind tree 25 feet away
from the said stone with such a velocity that its bark was peeled off and the
bus could stop only after travelling some more distance from the said tree.
The said facts give rise to a presumption
that the accident was caused by the negligence of the driver. Asquith, L. J.,
in Barkway v. South Wales Transport Co. (1) neatly summarizes the principles
applicable as to onus of proof in the following short propositions:
"(i) If the defendants' omnibus leaves
the road and falls down an embankment, and this without more is proved, then
the 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 tyre-burst, 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 depressed scale will
remain down. This is the effect of the decision in Laurie v. Raglan Building
Company Ltd., (2), where not a tyreburst 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 (1) [1948] 2 All ER. 46o, 471.
(2) [1942] 1 K.B. 152.
936 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." The same principles have been
restated in Halsbury's Laws of England, 2nd Edn., Vol. 23, at p. 671, para 956,
thus:
"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
and 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." The said principles
directly apply to the present case.
Here, the events happened tell their own
story and there is a presumption that the accident was caused by negligence on
the part of the appellants. But it is ,said that this presumption was rebutted
by proof that the accident was due to the rear central bolt of the bus 937
suddenly giving way. The High Court, after considering the relevant evidence,
held that it was not possible to hold that the accident was caused by the break
in the bolt. We have gone through the evidence and we do not see any flaw in
that conclusion.
The scope of the liability of a master for
the negligence of his servant has been succinctly stated by Baron Parke in Joel
v. Morison (1) thus:
'The master is only liable where the servant
is acting in the course of his employment. If he was going out of his way,
against his master's implied commands, when driving on his master's business,
he will make his master liable; but if he was going on a frolic of his own,
without being at all on his master's business, the master will not be
liable." Again, in Storey v. Ashton (2) Cockburn, L.C.J., says:
"The true rule is that the master is
only responsible so long as the servant can be said to be doing the act, in the
doing of which he is guilty of negligence, in the course of his employment as
servant." In the same case, Lush, J., said:
"The question in all such cases as the
present is whether the servant was doing that which the master employed him to
do." In the present case, admittedly, on account of the negligence of the
driver in the course of his employment the said accident happened, and,
therefore, the appellants are liable therefore.
The next question is whether the courts below
were right in awarding compensation of Rs. 25,200 for the pecuniary loss
unstained by the respondents 2 to 7 by reason of the death of Rajaratnam, under
s. 1 of the Act. Section 1 of the Act reads:
"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 (1) (1834) 6 Car. & P. 501 ; 172 E.R. 1338.
(2) (1869) L.R. 4 Q.B. 476.
118 938 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 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." This section
is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10
Vict. ch. 93, known as the Lord Campbell's Acts. The scope of the corresponding
provisions of the English Fatal Accidents Acts has been discussed by the House
of Lords in Davies v. Powell Duffryn Associated Collieries Ltd.(1). There, Lord
Russell of Killowen stated the general rule at p. 606 thus:
"The general rule which has always
prevailed in regard to the assessment of damages under the, Fatal Accidents
Acts is well settled, namely, that any benefit accruing to a dependent by
reason of the relevant death must be taken into account. Under those Acts the
balance of loss and gain to a dependent by the death must be ascertained, the
position of each dependent being considered separately." Lord Wright
elaborated the theme further thus at p. 611:
"The damages are to be based on the
reasonable expectation of pecuniary benefit or benefit reducible (1) [1942]
A.C. 601.
939 to money value. In assessing the damages
all circumstances which may be legitimately Pleaded in diminution of the
damages must be considered...... The actual pecuniary loss of each individual
entitled to sue can only be ascertained by balancing, on the one band, the loss
to him of the future pecuniary benefit, and, on the other, any pecuniary
advantage which from whatever source comes to him by reason of the death."
The same principle was restated with force and clarity by Viscount Simon in
Nance v. British Columbia Electric Railway Company Ltd. (1). There, the learned
Lord was considering the analogous provisions of the British Columbia legislation,
and he put the principle thus at p. 614:
"The claim for damages in the present
case falls under two separate heads. First, if the deceased had not been
killed, but had eked out the full span of life to which in the absence of the
accident he could reasonably have looked forward, what sums during that period
would he probably have applied out of his income to the maintenance of his wife
and family?" Viscount Simon then proceeded to lay down the mode of
estimating the damages under the first head. According to him, at first the
deceased man's expectation of life has to be estimated having regard to his
age, bodily health and the possibility of premature determination of his life
by later accidents; secondly, the amount required for the future provision of
his wife shall be estimated having regard to the amounts he used to spend on
her during his lifetime, and other circumstances; thirdly, the estimated annual
sum is multiplied by the number of years of the man's estimated span of life.,
and the said amount must be discounted so as to arrive at the equivalent in the
form of a lump sum payable on his death; fourthly, further deductions must be
made for the benefit accruing to the widow from the acceleration of her
interest in his estate; and, fifthly, further amounts have to be deducted for
the possibility of the (1) [1951] A.C. 601.
940 wife dying earlier if the husband had
lived the full span of life; and it should also be taken into account that
there is the possibility of the widow remarrying much to the improvement of her
financial position. It would be seen from the said mode of estimation that many
imponderable enter into the calculation. Therefore, the actual extent of the
pecuniary loss to the respondents may depend upon data which cannot be ascertained
accurately, but must necessarily be an estimate, or even partly a conjecture.
Shortly stated, the general principle is that the pecuniary loss can be
ascertained only by balancing on the one hand the loss to the claimants of the
future pecuniary benefit and on the other any pecuniary advantage which from
whatever source comes to them by reason of the death, that is, the balance of
loss and gain to a dependent by the death must be ascertained.
The burden is certainly on the plaintiffs to
establish the extent of their loss. Both the courts below found, on the
evidence the following facts: (1) The family owned a building worth Rs.
2,00,000 at Palni, and 120 acres of nanja land worth about Rs. 1,000 per acre.
(2) It was engaged in the business of manufacturing Indian patent medicines
from drugs and had been running a Siddha Vaidyasalai at Palni for a period of
30 years and had also branches in Colombo and Madras. (3) Rajaratnam studied in
the Indian School of Medicine for two years and thereafter set up his own
practice as a doctor, having registered himself as a practitioner in 1940. (4)
He took over the management of the family Vaidyasalai at Palni. (5) Rajaratnam
was earning in addition Rs. 200 to Rs. 250 per month in his private practice.
(6) He had a status in life, being Municipal Councillor of Palni and sometimes
its Vice-Chairman, and was maintaining a fairly good standard of life and owned
motor cars. (7) He was aged 34 years at the time of his death and, therefore
had a reasonably long span of life before him, if the accident had not taken
place. On the said findings, the High Court summarized the position thus:
941 age 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 plaintiff,-, 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. 25,000 as damages must be accepted as
quite reasonable." When the courts below have, on relevant material placed
before them, ascertained the said amount as damages under the first head, we
cannot in second appeal disturb the said finding except for compelling reasons.
Assuming that Rajaratnam had not died, he would have spent, having regard to
his means and status in life, a minimum of Rs. 250 on respondents 2 to 7; and
his income, as indicated by the evidence, would certainly be more than that
amount. The yearly expenditure he had to incur on the members of the family
would have been about Rs. 3,000 and the sum of Rs. 25,200 would represent the
said expenditure for just over 8 years.
In the circumstances, the balance of loss and
gain to the dependents by, the death of Rajaratnam, in the sense stated by Lord
Wright and Viscount Simon, could not be less than Rs. 25,200; indeed, having
regard to the circumstances of the case, it is a moderate sum; it is rather a
conservative estimate. We, therefore, accept that figure as representing the
damages for respondents 2 to 7 in respect of their claim under the head of
pecuniary loss to them by the death of Rajaratnam.
The last, contention raises an interesting
point. Under s. 2 of the Act the respondents 2 to 7 were awarded Rs. 5,000 as
damages for loss of expectation of life. It was contended that this amount
should go in reduction of Rs. 25,200 awarded under s. 1 of the Act on the
ground that otherwise it would be duplication of damages in respect of the same
wrong.
The second proviso to s. 2 of the Act reads:
"Provided that in any such action or
suit, the executor, administrator or representative of the deceased may insert
a claim for and recover any 942 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." While
s. 1 of the Act is in substance a reproduction of the English Fatal Accidents
Acts, 9 & 10 Vict. Ch. 93, known as the Lord Campbell's Acts, s. 2 thereof
corresponds to a provision enacted in England by the Law Reform (Miscellaneous
Provision) Act, 1934. The cause of action under s. 1 and that under s. 2 are
different. While under s. 1 damages are recoverable for the benefit of the
persons mentioned therein, under s. 2 compensation goes to the benefit of the
estate; whereas under s. 1 damages are payable in respect of loss sustained by
the persons mentioned therein, under s. 2 damages can be claimed inter alia for
loss of expectation of life. Though in some cases parties that are entitled to
compensation under both the sections may happen to be the same persons, they
need not necessarily be so; persons entitled to benefit under s. 1 may be
different, from those claiming under s. 2. Prima facie as the two claims are to
be based upon different causes of action, the claimants, whether the same or
different, would be entitled to recover compensation separately under both the
heads. But a difficulty may arise where the party claiming compensation under
both the heads is the same and the claims under both the heads synchronize in
respect of a particular sub-head or in respect of the entire head. In that
situation, the question is whether a party would be entitled to recover damages
twice over in respect of the same wrong. In England this question came under
judicial scrutiny in Rose v. Ford (1). There the question was whether and to
what extent deductions would have to be made in giving compensation both under
the English Fatal Accidents Acts and the Law Reform (Miscellaneous Provision)
Act, 1934. A young woman called Rose was killed in an accident. Her father sued
for damages under both the Acts. It was contended that as he got damages for
personal loss, he could not be (1) [1937] A.C. 826, 835.
943 awarded once again compensation for the
loss of expectation of life. Though in that case it was held that the father
was entitled under both the Acts, Lord Atkin made the following observations,
which are appropriate to the present case:
"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, the 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 ,affect the measure of
damages to which they are entitled under the Act." A similar question
arose in Feay v. Barnwell There, Mrs. Feay was killed in an accident and her
husband sued for damages under both the Acts. It was held that, as the husband
was the claimant under both the Acts, credit should be given in assessing the
damages under the Fatal Accidents Acts, for what was given to him under the Law
Reform Act, 1934. So too, in Ellis v. Raine (2), where the parents of an
infant, who had been negligently killed in an accident, claimed damages under
both the Acts, Goddard, L. J., reaffirmed the view that where the parties who
would benefit from the damages awarded under the Fatal Accidents Acts were the
same as those who would benefit from the damages awarded under the Law Reform
Act, the damages under the Fatal Accidents Acts must be reduced by the amount
given as loss under the Law Reform Act. Finally the same view has been
reaffirmed and restated with clarity in Davis v. Powell Duffryn Associated
Collieries Ltd. (3). There Lord Macmillan described the nature of the two heads
thus at p. "The rights of action in the two cases are quite distinct and
independent. Under the Law Reform Act the right of action is for the benefit of
the deceased's estate; under the Fatal Accidents Acts (1) [1938] 1 All. E.R.
31. (2) [1939] 2. K.B. 180 (3) (1942) A.C. 601.
944 the right of action is for the benefit of
the deceased's dependents. But, inasmuch as the basis of both causes of action
may be the same, namely, negligence of a third party which has caused the
deceased's death, it was natural to provide that the rights of action should be
without prejudice the one to the other. It is quite a different thing to read
the provision as meaning that in assessing damages payable to dependents under
the Fatal Accidents Acts no account is to be taken of any benefit which the
dependents may indirectly obtain from an award under the Law Reform Act through
participation in the deceased's estate.............. it is appropriate that any
benefit taken indirectly by a dependent by way of participation in an award
under the Law Reform Act should be taken into account in estimating the damages
awarded to that dependent under the Fatal Accidents Acts." Lord Wright
addressed himself to the same question and answered it at p. 614 thus:
"The injury suffered by the individual
from the death cannot be computed without reference to the benefit also accruing
from the death to the same individual from whatever source." The principle
in its application to the Indian Act has been clearly and succinctly stated by
a division bench of the Lahore High Court in Secretary of State v. Gokal Chand
(1).
In that case, Sir Shadi Lal, C. J., observed
at p. 453 thus:
"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." An illustration may
clarify the position. X is the (1) (1925) I.L.R. 6 Lahore 451.
945 income of the estate of the deceased, Y
is the yearly expenditure incurred by him on his dependents (we will ignore the
other expenditure incurred by him). X-Y, i.e., Z, is the amount he saves every
year. The capitalised value of the income spent on the dependents, subject to
relevant deductions, is the pecuniary loss sustained by the members of his
family through his death. The capitalised value of his income, subject to
relevant deductions, would be the loss caused to the estate by his death. If
the claimants under both the heads are the same, and if they get compensation
for the entire loss caused to the estate, they cannot claim again under the
head of personal loss the capitalised income that might have been spent on them
if the deceased were alive. Conversely, if they got compensation under s. 1,
representing the amount that the deceased would have spent on them, if alive,
to that extent there should be deduction in their claim under s. 2 of the Act
in respect of compensation for the loss caused to the estate. To put it
differently, if under s. 1 they got capitalised value of Y, under s. 2 they
could get only the capitalised value of Z, for the capitalised value of Y+Z,
i.e., X, would be the capitalised value of his entire income.
The law on this branch of the subject may be
briefly stated thus: The rights of action under ss. 1 and 2 of the Act are
quite distinct and independent. If a person taking benefit under both the
sections is the same, he cannot be permitted to recover twice over for the same
loss. In awarding damages under both the heads, there shall not be duplication
of the same claim, that is, if any part of the compensation representing the
loss to the estate goes into the calculation of the personal loss under s. 1 of
the Act, that portion shall be excluded in giving compensation under s. 2 and
vice versa.
In the instant case, under s. 1 of the Act
both the. courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200.
This sum was arrived at by taking into consideration, inter alia, the
reasonable provision the deceased, if alive, would have made for them.
119 946 Under s. 2 both the courts awarded
damages for the loss to the estate in a sum of Rs. 5,000. That figure
represents the damages for the mental agony, suffering and loss of expectation
of life. There was no duplication in awarding, damages under both the heads. No
material has been placed before us to enable us to take a different view in
regard to the amount of compensation under s. 2 of the Act.
The judgment of the High Court is correct and
the appeal fails and is dismissed with costs.
Appeal dismissed.
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