(His lordship after stating the facts and discussing the evidence reached the conclusion that the plaintiffs had established actionable negligence on the part of the second defendant. The judgment then proceeds as follows:) There remains the specific and independent point of the vicarious liability of the first defendant for the negligence of the second defendant. It will be convenient to come to the law of it before I scrutinise the evidence on the point. The law has often been discussed, but perhaps it is just as well to state it. A person may be liable for another's wrong as standing to the other person in a relation making him answerable for wrongs committed by that person in virtue of their relation, though not specifically authorised. The general rule was expressed by Willis J. in Barwick v. English Joint Stock Bank, ((1867) 2 Ex 259) (A), in a judgment accepted as a classical authority:

“The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved.”

2. Learned Counsel for the first defendant laid great stress on the element of “the master's benefit.” Indeed an attempt was made to have an additional issue raised on the averment in the plaint that the second defendant was driving the motor cycle for the benefit and use of the first defendant. In another part of the plaint, it is alleged that the motor cycle was being driven by the second defendant with the knowledge and consent of and as an agent of the first defendant. I did not add any issue as suggested by Mr. Joshi, because, I was of the opinion that the issue as raised by me was sufficiently comprehensive and comprised the necessary elements of this aspect of actionable negligence. Of course, if the wrong of the servant is outside the scope of his employment, it would not make the master liable. But the element of “the master's benefit” went by the board when in England the House of Lords decided the well known case of Lloyd v. Grace Smith & Co., (1912 AC 716) (B). And since that decision the same legal position has been accepted in India. The accent is on the factum of the employment and the scope of the employment and not on “the master's benefit”. The rule is now firmly established that the master is jointly and severally liable for any tort committed by his servant while acting in the course of his employment

3. Who is a servant was the question repeated in the course of the arguments urged by Mr. Joshi on behalf of the first defendant and sought to be answered by reference to some decisions of Courts in England. There are numerous decisions, some of them very recent, where the modern rule has been discussed.

“A servant” as stated by Salmond “may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and direction of his employer in respect of the manner in which his work is to be done”.

4. In Hewitt v. Bonvin, 1940-1 KB 188 at p. 191(C), MacKinnon L.J said that this definition can “hardly be bettered”. Able argument was advanced by Mr. R.J Joshi, learned Counsel for the first defendant, on this essential element of control and in the course of it he drew my attention to some recent decisions. I have also been referred to some other decisions by Mr. Chogle, learned Counsel for the plaintiffs. I shall refer only to the most recent of the decisions cited at the Bar. There is a summation of the other cases in the latest edition of Sir John Salmond's Standard work on Torts at pages 101, 102:

“One person may be the servant of another although employed not continuously, but for a single transaction only, and even if his service is gratuitous or de facto merely. The relationship of master and servant is commonly a continuing engagement in consideration of wages paid; but this is not essential. One person may be the servant of another on a single occasion and for an individual transaction, provided that the element of control and supervision is present. Moreover, the service may be merely gratuitous, as when a child acts de facto as the servant of his father or the owner of a carriage asks a friend to drive it for him. So in Pratt v. Patrick, (1924-1 KB 488) (D), the defendant took two friends, A and B, for a drive in his motor-car. A drove the car, and by his negligence B was killed. It was held that B's widow had a right of action against the defendant. In Parker v. Miller, ((1926) 42 TLR 408) (E), the Court of Appeal held the owner of the car liable, though the accident happened when he was not himself present, and his friend had left the car standing outside his own house. The test of service is not physical control, but the right to control”.

5. Now, the question whether there existed or not ‘the right to control’ must also involve an enquiry into the question whether the driver was acting for the purposes of the owner of the car. If a person were to lend his car to a friend for the sole purpose of the friend, the owner cannot be held responsible for any tort of that friend for obviously the friend in such a case is not in any sense an agent or servant of the owner but a bailee using the car for his own purposes and not for any purpose in which the owner is interested or concerned. Here the element of control is necessarily absent. There can be no control where a journey is the journey of the friend and not of the owner or not partly of the owner and the friend. In a very recent decision of the Court of Appeal in England, Ormrod v. Crosville Motor Services Ltd., in 1953-1 WLR 1120 (F), Singleton L.J observed:

“It has been said more than once that a driver of a motor car must be doing something for the owner of the car in order to become an agent of the owner. The mere fact of consent by the owner to the use of a chattel is not proof of agency”.

6. And in the same case Denning L.J observed:

“The law puts an especial responsibility on the owner of a vehicle who allows it out on to the road in charge of someone else, no matter whether it is his servant, his friend, or anyone else. If it is being used wholly or partly on the owner's business or for the owner's purposes, then the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it out or hires it out to a third person to be used for purposes in which the owner has no interest or concern”.

7. Now, what happened in that case was that as a result of a collision, between a motor car and an omnibus owing (partly) to the negligent driving of the driver of the car, he and his wife, who was a passenger therein (the plaintiffs) were both seriously injured and damage was done to both vehicles. The male plaintiff, a friend of the owner of the car, was driving it from Birkenhead to Monte Carlo to meet the owner, who was taking part in a motor rally, and the intention was that after the completion of the rally the owner and the plaintiffs should go for a holiday together, in Switzerland. It was agreed that before meeting the owner of the car the plaintiffs should visit a friend in Normandy, and with that object they left a few days earlier than they would otherwise have done. The accident occurred while the plaintiffs were on the way to Dover for the purpose of crossing to France. In third-party proceedings by the first defendants (the owners of the omnibus) against the owner of the car for the damage done to the omnibus, it was held that the owner of the car was vicariously responsible for the damage done to the omnibus since at the time of the accident the male plaintiff was driving the car in the joint interest of the owner and himself, and was accordingly the agent for the owner who was responsible for the negligence.

8. It is not possible to draw any hard-and-fast line between the class of cases which are within and without the relation of master and servant. But it is easy enough to apply the test of the essential element of control which is necessarily incidental to the relation. Mere consent or permission given by the owner to use his car cannot be regarded as resulting in agency even in the generic sense in which that expression is here understood. Permission simpliciter cannot create employment as servant or agent. On the other hand a friend or a relative of the owner of a car can be said to have been employed as an agent to drive it even when the employment is the result of a request by the owner, is pro tempore and the service is rendered gratuitously or even to confer an obligation social or moral on the owner. Request by the owner of the car in any such case and compliance with that request makes the other person the agent of the owner because the owner is interested in the request being complied with. The test here is not of physical control but the right to control. It is in this context that the purpose of the journey becomes a cognate matter of inquiry. The owner of a car who requests a friend or a relative to drive the car for some specific purpose is obviously interested or concerned in the journey and responsible for the negligence of the driver. And the position does not become altered when in any such case he is partly interested in the purpose. He cannot say that no liability can be imposed on him for the negligent driving of the car simply because the driver also was partly interested in the journey. He cannot say that the journey was not his journey. Although very little may have been said at the time of the request the element of control is implicit in such cases. The extent and nature of control in cases of this category must obviously be one of degree. (After discussing the evidence His Lordship held that the first defendant was jointly and severally liable with the second defendant for the loss caused to the plaintiffs. The judgment then proceeded:—)

9. I now turn to the question of the quantum of damages. It was argued by learned Counsel for the plaintiffs that their claim was under the Fatal Accidents Act, which provides for damages under two heads. Section 1 provides for damages proportionate to the loss to the claimants themselves, while the proviso to S. 2 provides for the recovery of the loss caused to the estate of the deceased. Founded on this provisions of the Act, the contention was that the Court while it will not permit any duplication, must take into consideration the two rules which are stated in these two provisions of the Act and are similar to those in England under the Fatal Accidents Act, and the Law Reforms (Miscellaneous Provisions) Act, 1934. It was said that the plaintiffs have based their claim in the plaint under both the heads. The argument proceeded that such being the nature of the claim, regard must not be had solely to the ordinary principle that damages proportionate to the loss suffered by the claimants resulting from the death are the actual or apprehended pecuniary loss which depend on the resasonable expectation of the pecuniary benefit by the claimants from the deceased if he would have been alive; but regard must also be had to the principle underlying the proviso to S. 2 of the Act. The rule is now well settled under the analogous law in England where the Court does take into consideration the doctrine of loss caused to the estate of the deceased by loss of expectation of life. Reliance was placed in this connection on the decision of the House of Lords in England in Rose v. Ford. (1937) AC 826 (G). Now, that decision did suggest that what was to be valued under the second head was the loss of certain years of life to the victim. I shall point out later on that the rule which was understood by the Courts in England as having been laid down in the case of Rose v. Ford has subsequently been clarified by the House of Lords in the case of Benham v. Gambling, (1941) AC 157 (H).

10. Briefly stated, the argument for the plaintiffs on the merits of the question of damages was that the earning capacity of the deceased should be taken at Rs. 300/- to Rs. 350/- per month and the pecuniary benefit to his family from his earning which would be taken as the basis of the assessment should be accepted as Rs. 250/- to Rs. 300/- per month. It was said that after 1952 when the deceased left service with Whiteway Laid Law & Co. where he was paid Rs. 250/- per month, he started the work of an insurance agent, in which naturally his income in the beginning could not be large. But it was said that his income would have been a growing income and would have considerably increased if his life had not been prematurely cut short. It was lastly urged that on this basis the claim of Rs. 40,000/- made by the plaintiffs was really undervalued or in any event was extremely reasonable and particularly in view of the fact that the claimants were solely dependent on the deceased and the age of the minor children, 1 daughter and 3 sons at the time of his death was only 10½, 9½, 3½ and 2½ years. It was added that the family was left absolutely destitute and was after the loss of the deceased maintained by relatives.

11. On the other hand, it was argued by learned Counsel on behalf of the first defendant, that although the deceased was getting a salary of Rs. 250/- per month in 1952, there was no reliable evidence of his income in the years 1953 and 1954 and 6 months of 1955. It was urged that the deceased was a speculator, who squandered the whole amount of the legacy of Rs. 50,000/- received by him in 1954 within a short period of one year prior to his death. It was also emphasised that the deceased used to attend races. Therefore, so it was submitted on behalf of the first defendant, the pecuniary benefit that the plaintiffs would have derived from him if the deceased had lived longer must be assessed as nil and the damage that the plaintiffs should be awarded must be assessed at Rs. 681/- only, that being the amount proved to have been spent by the first plaintiff in giving medical treatment to her husband after the accident Mr. Chogle has informed me that when the suit came up for hearing as a short cause, the first defendant did not appear, but the Insurance Company with which the motor cycle was insured did appear and make some submission. The attitude of the Insurance Company was adverted to by learned Counsel for the plaintiffs in the course of his argument. But even if the Insurance Company is interested in this litigation, I must proceed to quantify damages by ignoring that circumstance and found my decision on the general principles governing the measure of reparation or damages for the loss of a breadwinner to his dependents.

12. The argument on behalf of the first defendant that the pecuniary loss to the claimants by the death of the deceased, who was the sole support of the family, should be assessed as nil, is startling. I make this observation after making the fullest allowance for the fact that the first defendant is a person of very moderate means, as Mr. Joshi informs me. On the other hand the submission made on behalf of the plaintiffs that the basis of assessment for ascertaining the pecuniary loss to the plaintiff should at least be Rs. 250/- per month, does not appear to be quite sound.

13. Estimating the amount of damages in case of actionable negligence resulting in death is always a difficult task for the Court. The standard must not be a subjective standard but an objective standard. Hypothetical considerations should not, as far as possible be permitted to augment or reduce the quantum of damages. All speculation and conjecture and considerations of sympathy and solatium have to be eschewed. Even so, certain amount of guess work is liable to creep in. Mere speculative possibility of pecuniary benefit is not sufficient; the assessment must be based on a reasonable probability of pecuniary benefit. In cases of higher incomes this would also be affected by income-tax that the deceased would have paid on his income, if his life had not been cut short. Some uncertain values of reduction resulting from considerations of the widow remarrying and other matters of doubt of an allied nature would have also to be borne in mind in arriving at the summation. The Court has some discretion in fixing the measure of reparation and the important consideration would be the probable earning of the deceased and what is more important what amount the deceased would have probably spent for the support of his wife and children. Expectation of life of the deceased having regard to his age, bodily health and habits and the possibility of premature death is one of the other relevant considerations. The assessment cannot obviously be a mere matter of multiplication of the datum or basic figure of what the deceased would probably have spent for the maintenance of the claimants by the number of years of expectation of his life although this would have to be done in the first instance. The amount so calculated would have to be discounted to arrive at an equivalent in the sum to be decreed as immediately payable instead of yearly payments spread over a number of years. Where the deceased has left property which goes to the claimants the resulting acceleration of interest in that property would also be a factor of reduction in the final assessment.

14. The facts of cases that arise under this head are bound to be dissimilar and equating damages to be awarded in one case with those awarded by Courts in other matters of a similar nature is never a safe line of approach. Nevertheless, considerable instruction and help is to be derived from the principles enunciated in two decisions of the House of Lords and the Privy Council. In Devies v. Powell Duffryn Associated Collieries Ltd., (1942) AC 601 at p. 617(I), Lord Wright observed:

“It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend upon 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 certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt”. Then the observations of Lord Simon in the very recent decision of the Privy Council in Nance v. British Columbia Electric Rly. Co., Ltd., (1951) AC 601 at p. 614(J), et seq give some valuable guidance:

“The claim to 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?

Secondly, in addition to any sum arrived at under the first head, the case has been argued on the assumption, common to both parties, that according to the law of British Columbia it would be proper to award a sum representing such portion of any additional savings which he would or might have accumulated during the period for which, but for his accident, he would have lived, as on his death at the end of this period would probably have accrued to his wife and family by devolution either on his intestacy or under his will, if he made a will.

A figure having been arrived at under first head, there should be added to it a figure arrived at under the second head. The question there is what additional amount he would probably have saved during the….years if he had so long endured, and what part, if any, of these additional saving his family would have been likely to inherit”.

15. It is in the light of all this that I must turn to the facts of this case on the question of reparation. There is the evidence of the widow that the deceased was earning a salary of Rs. 250/- in 1952. In 1953 and 1954 and part of 1955 he was only working as an insurance agent and in about the middle of 1954, he got a legacy of Rs. 50,000/- and he started on the adventure of speculation. That adventure, as has happened to many others, resulted in a disaster. It is true that he lost the whole patrimony he received within one year. It is also true that the deceased might or might not have succeeded in his business of insurance agent. But I do not know how it is possible for the Court to say that the deceased who was a young man of 32 with good habits and possessed of a good constitution would not have been able even to secure employment at a reasonable salary as was suggested on behalf of the first defendant. It seems to me that it would be safe to infer that even if the deceased had to seek service he would have on an average earned Rs. 250/- every month, as he was doing in 1952. I am not accepting as a basis the salary of Rs. 300/- or Rs. 350/- which according to Mr. Chogle the deceased was earning. It is on that Basis Mr. Chogle says that damages to be computed should be on the footing of an income of Rs. 250/- or Rs. 300/- per month, that is after deducting Rs. 50/- for the expenses of the deceased himself. The basis that I am inclined to accept as the safe one and within the bounds of probability — and I can only proceed on probabilities in this case — is that the pecuniary benefit which the claimants might have received must be Rs. 200/- per month, that is after deducting Rs. 50/- from Rs. 250/- per month. Before I proceed to determine the quantum of damages calculated on the basis of this amount of Rs. 250/- per month, I have to ascertain the expectation of life of the deceased. I have already pointed out that he was a young man of 32, of sober habits and had a good constitution. There is force in the argument advanced on behalf of the plaintiffs that the normal expectation of life of the deceased should be considered by me at 60 years. I prefer to take the view, perhaps more conservative than required by the facts of the case, that his normal expectation should be taken by me as 55 years. Learned Counsel for the plaintiffs and the first defendant are agreed that if I am right in fixing the basis at Rs. 200/- per month, the amount of reparation to be arrived at solely on that basis would be Rs. 32,563-8-0. I am thankful to learned Counsel for working out the figures and handing me a statement of the calculations. This amount of Rs. 32,563-8-0 takes into account 55 years as the normal expectation of life of the deceased. This statement is on the footing that the eldest daughter would not have received any pecuniary benefit from the deceased after she reached the age of 18. It is also on the footing that the eldest son and the two younger sons who were 3½ and 2½ years old at the time of the death of their father would not have received any pecuniary benefit from him after they attained the age of 18. It is prepared by arriving at an equivalent as immediately payable Instead of being spread over a number of years; and the amount is properly discounted before making up the total sum which each of the claimant would have received after taking into account the interest that might be earned on the immediate payment in lump being made to them. There are besides other factors to be taken into consideration in making this assessment of reparation. The possibility of the remarriage of the widow should not make any real difference to the quantification of damages in this case. But I do not intend to ignore that possibility; nor the possibility off the shortening of life of the claimants. The statement, it may be observed, does not take into account the second head covered by the proviso to S. 2 of the Fatal Accidents Act. Now the assessment of damages under the first head although it requires various factors to be taken into consideration does not present any problems of perplexity. But the second head which introduces into the task the assessment of damages for loss to the estate of the deceased due to diminution of expectation of life has, under the analogous provisions of English Law, given rise to some perplexing and confusing methods adopted in some decisions. The difficulties that presented themselves were apparently eased by laying down the rule that damages under this head are in respect of loss of life and not loss of future pecuniary prospects: See (1941) AC 157 (H). The House of Lords emphasised in this case that the standard of measurement under this second head did not depend solely or even mainly on the basis of the length of life which had been lost.

“The question is not whether the deceased had the capacity or ability to appreciate that his future life on earth would bring him happiness; the test is not subjective and the right sum to award depends on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not”.

16. It would seem that the more recent tendency of Courts in England is to chose very moderate figures for loss of expectation of life under this head of damages. It may, however, be observed that at the same time the Court does take into account the depreciation in the value of money since Benham's case.

17. After taking into consideration all the relevant factors which I have to bear in mind and which I have already stated, the quantum of damages should in my judgment be assessed at Rs. 30,000/-. To this must be added the amount of Rs. 681/- to which claim there has been no challenge. The aggregate amount seems to me to be one based on a conservative way of assessing damages. (The rest of the judgment is not material for the purposes of this report).

K.S.B

Suit decreed.