C. K. Subramonia Iyer & Ors Vs. T.
Kunhikuttan Nair And 6 Ors [1969] INSC 273 (8 October 1969)
08/10/1969 HEGDE, K.S.
HEGDE, K.S.
SHAH, J.C.
CITATION: 1970 AIR 376 1970 SCR (2) 688 1970
SCC (3) 64
ACT:
Fatal Accidents Act (13 of 1855), ss. 1A and
2-Assessment of damages-Principles for.
HEADNOTE:
The appellants filed a suit claiming a sum of
Rs. 30,000 as damages under ss. 1A and 2 of the Fatal Accidents Act, 1855 for
the death of their son aged 8 years. The boy had stood first in Standard III
and his future was claimed to be bright. The trial court computed the damages
under ss. 1A and 2 at Rs. 5,000. In appeal the High Court determined the
damages under s. 1A at Rs. 5,000 and under s. 2 at Rs.
1,000. In appeal by certificate before this
Court..
HELD : Compulsory damages under s. IA of the
Act for wrongful death must be limited strictly to the pecuniary loss to the
beneficiaries and under s. 2 the measure of damages is the economic loss
sustained by the estate. There can be no exact uniform rule for measuring the
value of human life and the measure of damages cannot be arrived at by precise
mathematical calculations but the amount recoverable depends on the particular
facts and circumstances of each case. The life expectancy of the deceased or of
the beneficiaries whichever is shorter is an important factor, Since the
elements which go to make up the value of the life of the deceased to' the
designated beneficiaries are necessarily personal to each case in the very
nature of things, there can be no exact or uniform rule for measuring the value
of human life. In assessing the damages the court must exclude all
considerations of matter which rest in speculations or fancy though conjecture
to some extent is inevitable. As a general rule parents are entitled to recover
the present cash value of the prospective service of the deceased minor child.
In addition they may receive compensation for loss of pecuniary benefits
reasonably to be expected after the child attains majority.
In the matter of ascertainment of damages,
the appellate court should be slow in disturbing the findings reached by the
courts below, if they have taken all the relevant facts into consideration.
[695 F-696 A] Davies and Anr. v. Powell Dufleryn Associated Collieries Ltd.
[1942] A.C. 601, Franklin v. South East Railway Company, 157 E.R. 3 H. & N.
448, Taff Vale Railway Company v. Jenkins, [1913] A.C. 1, Bartlett V. Cohen
& Ors. [1921] 2 K.B. 461, Nance v. British Columbia Electric Rly. Co. Ltd.
[1951] A.C. 601 and Gobald Motor Service Ltd.
& Anr. v. R.M.K. Veluswami & Ors. [1962] 1 S.C.R. 929, applied.
(ii) In the present case although the
deceased was a bright child, it was uncertain how much assistance he would have
given after growing up to his parents. The father was a prosperous business man
and hardly needed assistance. There was no material on record as to the age of
the parents and their state of health. On the basis of the evidence on record
it could not be said that the damages ordered by the High Court were
inadequate. [696 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2227 of 1966.
689 Appeal from the judgment and decree dated
December 10, 1963 of the Kerala High Court in Appeal Suit No. 1094 of 1959.
S. V. Gupta and Lily Thomas, for the
appellants.
Rameshwar Nath, for respondent No. 2.
Sardar Bahadur, Vishnu Bahadur Saharya and
Yougindra Khushalani, for respondent No. 3.
The Judgment of the Court was delivered by
Hegde, J. The question for decision in this appeal by certificate is short but
important and that question is what are the principles governing the assessment
of damages under ss. 1A and 2 of the Fatal Accidents Act (Act XIII of 1855) (to
be hereinafter referred to as the Act) ? One Krishnamoorthy son of plaintiffs 1
and 2 aged about 8 years was hit by a bus owned by the 1st defendant (who died
during the pendency of this suit) and driven by the second defendant on
February 26, 1956. As a result of that accident Krishnamoorthy sustained very
severe injuries. He became unconscious almost immediately after the accident
and died in the hospital on the early morning of February 28, 1956.
Krishnamoorthy was the eldest son of plaintiffs 1 and
2. Both the courts have come to the
conclusion that he was a bright boy and was at the top of his class in his
school.
At the time of his death he was in Standard
III. His parents are affluent. They could have afforded to give him good
education. Hence there was a bright future for him.
The plaintiffs claimed a sum of Rs. '30,000
as damages under ss. IA and 2 of the Act. The District Judge computed the
damages under ss. IA and 2 at Rs. 5,000. In appeal the High Court determined
the damages under s. 1A at Rs. 5,000 and under s. 2 at Rs. 1,000. Aggrieved by that
decision, the plaintiffs have brought this appeal.
We shall first read s. 1A and 2 for the
purpose of ascertaining the principles governing the assessment of the damages
under those sections. Section IA 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 it 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 to
felony or other crime.
Every such action or suit shall be for
benefit of the wife, husband, parent and child, if any, of the person 690 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;" Section
2 reads thus :
"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." The
rights under the two provisions are quite distinct and independent. Under the
former section the damages are made payable to one or the other relations
enumerated therein whereas the latter section provides for the recoupment of
any pecuniary loss to the estate of the deceased occasioned by the wrongful act
complained of. Sometimes, the beneficiaries under the twoprovisions may be the
same.
Section IA is in substance a reproduction of
the English Fatal Accidents Acts 9 and 10 Vict. ch. 93 known as the Lord
Campbell's Acts. Section 2 corresponds to one of the provisions in the English
Law Reform (Miscellaneous Provisions) Act, 1934.
The scope of s. 1 of the Campbell's Acts was
considered by the House of Lords in Davies and Anr. v. Powell Dufferyn
Associated Collieries Ltd.(1), Dealing with the mode of asse ssment of damages
under that section Lord Russel of Killowen observed "The general rule
which has always prevailed in regard to the assessment of damages under the Fatal
Accidents Act is well-settled, namely, that any benefit accruing to a dependant
by reason of the relevant death must be taken into account. Under those Acts
the balance of loss and gain to a dependant by the death must be ascertained,
the position of each dependant being considered separately." Lord Wright
stated the law on the point thus "The general nature of the remedy under
the Fatal Accidents general Acts has often been explained. These Acts provided
a new "cause of action and did not merely regulate or enlarge an old
one", as Lord Summer observed in Admiralty Commissioners v. S. S.
(1) [1942] A. C. 601 691 America(1). The
claim is, in the words of Bowen L.J., in The Vera Cruz (No. 2)(2) for
injuriously affecting the family of the deceased. It is not a claim which the
deceased could have pursued in his own life time, because it is for damages
suffered not by himself, but by his family after his death.
The Act of 1846, s. 2 provides that the
action is to be for the benefit of the wife or other member of the family, and
the jury (or judge) are to give such damages as may be thought proportioned to
the injury resulting to such parties from the death. The damages are to be
based on the reasonable expectation of pecuniary benefit or benefit reducible,
to money value. In assessing the damages all circumstances which may be
legitimately pleaded in diminution of the damages must be considered : Grand
Trunk Ry. Co. of Canada v. Jennings(4). The actual pecuniary loss of each
individual entitled to sue can only be ascertained by balancing, on the one
hand, 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." In ascertaining pecuniary loss caused to the relations mentioned
in s. IA, it must be borne in mind that these damages are not to be given as
solatium but are to be given with reference to a pecuniary loss. The damages
should be calculated with reference to a r easonable expectation of pecuniary
benefit from the continuance of the life of the deceased-see Franklin v. The
South East Railway Company (4 In that case Pollock, C.B. observed :
"We do not say that it was necessary
that actual benefit should have been derived, a reasonable expectation is enough
and such reasonable expectation might well exist, though from the father, not
being in need, the son had never done anything for him. On the other hand a
jury certainly ought not to make a guess in the matter, but ought to be
satisfied that there has been a loss of sensible and appreciable pecuniary
benefit, which might have been reasonably expected from the continuance of the
life." In Taff Vale Railway Company v. Jenkins(5), the Judicial Committee
observed that it is not a condition precedent to the maintenance of an action
under the Fatal Accidents Act, 1846, (1) [1917] A. C. 38,52 (3) 13 Appeal
Cases.800, 804.
(4) 157, English Reports 3 H & N.T. 448.
(5) [1913] A. C. 1.
(2) (1884) 9 P. D. 96, 101:
692 that the deceased should have been
actually earning money or money's worth or contributing to the support of the
plaintiff at or before the date of the death provided that the plaintiff had a
reasonable expectation of pecuniary benefit from the continuance of the life.
Therein Lord Atkinson stated the law thus :
"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 who 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 dr awn from
circumstances other than and different from them." in an action under the
Act, it is not sufficient for the plaintiff to prove that he lost by the death
of the deceased a mere speculative possibility of pecuniary benefit.
In order to succeed, it is necessary for him
to show that he has lost a reasonable probability of pecuniary advantage. In
Barnett v. Cohen and ors.(1), McCardie J. speaking for the Court quoted with
approval the following observations of Lord Haldane in his judgment in Taff
Vale Ry. Co. v. Jenkins(2) :
" "The basis is not what has been
called solatium, that is to say, damages given for injured feelings or on the
ground of sentiment, but damages based on compensation for a pecuniary loss.
But 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.............. I have already indicated that in my view the real
question is that which Willes, J. defines in one of the cases quoted to us,
Dalton v. South (1) [1921] 2 K.B. 461 (2) [1913] A.C. 1.
693 Eastern Rv. Co.(1) 'Aye or No, was there
a reasonable expectation of pecuniary advantage ?" Proceeding further the
learned judge referred to the observations of Pollock, C. B. in Taff Vale Ry.
Co. v. Jenkins(2) :
" "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, and so punish those
who are guilty of negligence by making them pay costs." " Dealing
with the facts of the case before him McCardie, J. observed :
"In the present action the plaintiff has
not satisfied me that he had a reasonable expectation of pecuniary benefit. Ms
child was under four years old. The boy was subject to all risks. of illness,
disease, accident and death. His education and upkeep would have been a
substantial burden to the plaintiff for many years if he had lived. He might or
might not have turned out a useful young man. He would have earned nothing till
about sixteen years of age. He might never have aided his father at all. He
might have proved a mere expense. I cannot adequately speculate one way or the
other. In any event he would scarcely have been expected to contribute to the
father's income, for the plaintiff even now possesses 1,0001, a year by his
business and may increase it further, nor could the son have been expected to
aid in domestic service. The whole matter is beset with doubts, contingencies
and uncertainties.
Equally uncertain, too, is the life of the
plaintiff himself in view of his poor health.
He might or might not have survived his son.
That is a point for consideration, for, as
was pointed out by Bray J., when sitting in the Court of Appeal in Price v.
Glynea and Castle Coal Co.(3): "Where a claim is made under Lord
Campbell's Acts, as it is here, it is not only a question of the expectation of
the life of the claimant". Upon the facts of this case the plaintiff has
not proved damage either actual or prospective. His claim is pressed to
extinction by the weight or ht or multiplied contingencies. The action
therefore fails." The mode of assessment of damages is not free from
doubt. It is beset with certain difficulties. It depends on many imponderables.
The English courts have formulated certain basis for (1) (1858) 4, C. B. (N.S.)
296.
(2) [1913] A. C. 1.
(3) 9 B. W. C. C. 188, 198.
694 calculating damages under Lord Campbell's
Acts. The rules ascertained by the English courts are set out in Winfield on
Torts 7th Edn. at pp. 135 and 136 as follows :
"The starting point is the amount of
wages which the deceased was earning, the ascertainment of which to some ex
tent may depend on the regularity of his employment.
Then there is an estimate of how much was
required or expended for his own personal and living expenses. The balance will
give a datum or basic figure which will generally be turned into a lump sum by
taking a number of years' purchase. That sum, however, has to be taxed down by
having regard to the uncertainties, for instance, that the widow might have
again married and thus ceased to be dependent, and other like matters of
speculation and doubt". The number of years' purchase is left flud, from
twelve to fifteen has been quite a common multiple in the case of a healthy
man, and the number should not be materially reduced by reason of the hazardous
nature of the occupation of the deceased man.
These principles are, however, only
appropriate where the deceased was the breadwinner of the family. Obviously
they cannot be applied, for example, where the claim is in respect of a mere
expectation of pecuniary benefit from the deceased or where the decased's
contribution to the family was in kind and not in cash. In truth, each case
must depend upon its own facts. In Dolbey v.
Godwin(1), the plaintiff was the widowed
mother of the deceased, an unmarried man 29 years of age, and he had
contributed substantially to her upkeep. The Court of Appeal held that it would
be wrong to assess the damages on the same basis as if the plaintiff were the
widow of the deceased, principally on the ground that it was likely that he
would have married in due course and that then his contributions to his mother
would have been reduced." The mode and manner of ascertainment of damages
in fatal accidents cases came up for consideration in Nance v.
British Columbia Electric Rly. Co. Ltd.(2).
In that case Viscount Simon, formulated the following tests for ascertaining
the damages : (1) First estimate what was the deceased man's expectation of
life if he had not been killed when he was; and (2) What sums during those
years, he would have probably applied to the support of the dependant. In
fixing the expectation of life of the deceased regard must be had not only to
his age and bodily (1) [1955] 1, W. L. R. 553, 1103.
(2) [1951], A. C. 601:
695 health but premature termination of his
life by a later accident. In estimating future provision for his dependant the
amounts he usually applied in this way before his death are obviously relevant,
and often the best evidence available though not conclusive, since if he had
survived, his means might have expanded or shrunk, and his liberality might
have grown or wilted. After making the calculations on the basis of the two
tests, his Lordship observed that deduction must further be made for the
benefit accruing to the dependant from the acceleration of his interest in his
estate and further allowance must be made for the possibility that the
dependant himself might have died before he died.
In Gobald Motor Service Ltd. and anr. v. R.
M. K. Veluswami and ors.(1), this Court held that the actual extent of the
pecuniary loss to the aggrieved party may depend on a 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.
Therein it was further observed that where the courts below have on relevant
material placed before them ascertained the amount of damages under the head of
pecuniary loss to the dependants of the deceased, such findings cannot be
disturbed, in second appeal except for compelling reasons.
The law on the point arising for decision may
be summed up thus : Compulsory damages under s. IA of the Act for wrongful
death must be limited strictly to the pecuniary loss to the beneficiaries and
that under s. 2, the measure of damages is the economic loss sustained by the
estate.
There can be no exact uniform rule for
measuring the value of the human life and the measure of damages cannot be
arrived at by precise mathematical calculations but the amount recoverable
depends on the particular facts and circumstances of each case. The life
expectancy of the deceased or of the beneficiaries whichever is shorter is an
important factor. Since the elements which go to make up the value of the life
of the deceased to the designated beneficiaries are necessarily personal to
each case, in the very nature of things, there can be no exact or uniform rule
for measuring the value of human life. In assessing damages, the court must
exclude all considerations of matter which rest in speculation or fancy though
conjecture to some extent is inevitable. As a general rule parents are entitled
to recover the present cash value of the prospective service of the deceased
minor child. In addition they may receive (1) [1962] 1 S.C.R. 929 696
compensation for loss of pecuniary benefits reasonably to be expected after the
child attains majority. In the matter of ascertainment of damages, the
appellate court should be slow in disturbing the findings reached by the courts
below, if they have taken all the relevant facts into consideration.
Now applying the above rules to the facts of
the present case, it is seen that the deceased child was only 8 years old at
the time of his death. How he would have turned out in life later is at best a
guess. But there was a reasonable probability of his becoming a successful man
in life as he was a bright boy in the school and his parents could have
afforded him a good education. It is not likely that he would have given any
financial assistance to his parents till he was at least 20 years old. As seen
from the evidence on record, his father was a substantial person. He was in
business and his business was a prosperous one. As things stood he needed no
assistance from his son. There is no material on record to find out as to how
old were the parents of the deceased at the time of his death. Nor is there any
evidence about their state of health. On the basis of the evidence on record,
we are unable to come to the conclusion that the damages ordered by the High
Court are inadequate.
In the result this appeal fails and the same
is dismissed.
But in the circumstances of the case we make
no order as to costs.
G.C. Appeal dismissed.
Back
