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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Patel, J.
Acts
  • provisions of ss. 1 and 2 of the Fatal Accidents Act,
  • s. 110-A of the Motor Vehicles Act.
  • FATAL ACCIDENTS ACT
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Patel, J.
Acts
  • provisions of ss. 1 and 2 of the Fatal Accidents Act,
  • s. 110-A of the Motor Vehicles Act.
  • FATAL ACCIDENTS ACT
See more information ...
Smart Summary

Concise Analytical Summary of the Opinion (Patel, J.)

Factual and Procedural Background

This appeal arises from an application by the parents of Arthur Peter, a six‑year‑old boy, for compensation for his death, which was alleged to have been caused by the rash and negligent driving of opponent No. 1. The learned Tribunal computed compensation on three heads: (i) Rs. 250 for pain and suffering, (ii) Rs. 1,000 for loss of service, and (iii) Rs. 5,200 for loss of expectation of life, and rounded the total to Rs. 6,000 with costs. The application was filed jointly by the father and mother. Opponent No. 1 and the Insurance Company appealed.

A principal procedural contention was raised about the Tribunal's jurisdiction: the accident occurred on 16 December 1958; the Tribunal was constituted on 1 December 1959; and the present application was made on 14 December 1959. It was argued that because the application was not made within 60 days of the accident, and because the Tribunal did not exist within that 60‑day period, the Tribunal had no jurisdiction to entertain the application.

Legal Issues Presented

  1. Whether the Tribunal had jurisdiction to entertain the application where the accident occurred more than 60 days before the Tribunal came into existence (i.e., whether non‑existence of the Tribunal within the 60‑day period ousts jurisdiction or whether the Tribunal may condone delay under the proviso to the relevant provision).
  2. Whether the amounts awarded by the Tribunal — specifically Rs. 1,000 for loss of service and Rs. 5,200 for loss of expectation of life — were excessive.

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

  • Jurisdiction: The Tribunal had no jurisdiction because the application was not made within 60 days of the accident and the Tribunal did not exist within that 60‑day period. Reliance was placed on the contention that the proviso permitting condonation of delay could not operate where the Tribunal itself had not existed within the statutory 60‑day period.
  • Damages: The awards of Rs. 1,000 for loss of service and Rs. 5,200 for loss of expectation of life were excessive. Specific complaint was made about the method and quantum of the award, including the trial Judge's apparent reliance on English awards and conversion to Indian currency.

Other Parties

The opinion does not contain a detailed account of the other parties' legal arguments beyond the fact of the appeal by opponent No. 1 and the Insurance Company and the factual presentation of the parents' claim heard by the Tribunal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dayasingh Tejasingh v. Shantabai, First Appeal No. 484 of 1960 (decided 17 Aug 1961, unreported) The mere non‑existence of the Tribunal within the statutory 60 days does not oust jurisdiction; the Tribunal may condone delay where sufficient cause exists (for example, because the Tribunal did not exist). The court relied on this decision to hold that non‑formation of the Tribunal within 60 days would not oust jurisdiction and that the Tribunal could exercise its discretion to condone delay when the Tribunal itself did not exist.
Mulak Raj v. N.I.G.T. Corpn. Ltd., [1962] A.I.R. Punj. 307 Held (in that case) that because the Tribunal was non‑existent within the prescribed time the proviso could not apply and thus the Tribunal had no jurisdiction. The court contrasted this decision with Dayasingh and rejected the reasoning that the proviso could not apply; the court found it difficult to appreciate why non‑existence of the Tribunal would prevent the proviso's operation and treated Dayasingh as correctly decided.
Barnett v. Cohen, [1921] 2 K.B. 461 Establishes that a plaintiff must adduce evidence sufficient to give the judge a reasonable basis to infer pecuniary damage. The court relied on this statement to examine the adequacy of the father's evidence to support the Rs. 1,000 award for loss of service and concluded the evidence was sufficient in the circumstances.
Taff Vale Railway v. Jenkins, [1913] A.C. 1 Holds that actual earning at the time of death is not a condition precedent; what is required is a reasonable expectation of pecuniary benefit from the continuance of life. The court applied this principle to accept that, although the deceased was six and not earning, the parents could have a reasonable expectation of future pecuniary benefit.
Benham v. Gambling, [1941] A.C. 157 Formulated principles for assessing damages for shortened life: consider prospects of a predominantly happy life, age as relevant, circumstances calculated to lead to happiness, not relying on actuarial test alone, excluding financial gains/losses in that head, and avoiding inflation for social position. The court treated Benham as the guiding standard for assessing damages for loss of expectation of life, and noted that the trial Judge used Benham's standard and adjusted the English figure to account for the purchasing power of the £.
Rose v. Ford, [1937] A.C. 826 and Flint v. Lovell, [1935] 1 K.B. 354 These cases were cited as establishing that some damages can be awarded for loss of expectation of life (Rose v. Ford affirming the rule in Flint v. Lovell). The court referenced these cases as part of the chain of authority that requires courts to award some damages for loss of expectation of life rather than none.
H. West & Son Ltd. v. Shephard, [1963] 2 W.L.R. 1359 Commentary noting that Benham brought consistency but at the expense of restricting judicial discretion; Benham imposed a conventional small figure within narrow limits. The court cited this commentary to illustrate criticisms of Benham and to contextualize the observed narrowness of awards in England.
Hart v. Griffiths‑Jones, [1948] 2 All E.R. 729 Noted that some addition must be made for alteration in the value of the £ when considering English awards across time. The court cited this authority to justify consideration of changes in the purchasing power of the £ when comparing or adapting English awards to a later date or different currency.
Glasgow Corporation v. Kelly, [1951] Weekly No. 111 Illustrates a case where an award was raised by a Court of Session on grounds including change in the value of the £ and was confirmed by the House of Lords. The court relied on this to show that courts have adjusted awards to reflect changes in currency value and that such adjustments have been judicially affirmed.

Court's Reasoning and Analysis

Jurisdiction:

  1. The court first addressed the contention that the Tribunal lacked jurisdiction because the application was not made within 60 days of the accident and because the Tribunal did not exist within that 60‑day period.
  2. The court observed a concession that if an accident occurred within 60 days of constitution of the Tribunal (or after constitution) but the application was made beyond 60 days, the Tribunal could still entertain the application if it condoned the delay. The court extended that logic to the scenario where the Tribunal did not exist within the 60 days: non‑existence of the Tribunal within the 60 days did not oust jurisdiction.
  3. The court relied on its own earlier decision in Dayasingh Tejasingh v. Shantabai to hold that the mere non‑existence of the Tribunal would not oust jurisdiction if the claim was otherwise within time according to normal law, because the Tribunal can exercise its discretion under the proviso to condone delay for sufficient cause (the Tribunal's non‑existence being such a cause).
  4. The court considered Mulak Raj v. N.I.G.T. Corpn. Ltd., which reached the opposite conclusion, but rejected its reasoning and stated that it was difficult to appreciate why the proviso could not apply simply because the Tribunal had not existed in the 60‑day period.
  5. The court also noted that its earlier judgment had considered the relevant statutory provision (s.110‑A of the Motor Vehicles Act, sub‑s. (3)) and the discretion vested in the Tribunal to entertain applications after 60 days.

Damages:

  1. The court reiterated the general legal principle that damages are not awarded for sentiment or to punish the defendant, and accepted that under sections 1 and 2 of the Fatal Accidents Act damages for loss of service and loss of expectation of life are awardable.
  2. On Rs. 1,000 for loss of service: the court examined the evidence of the father (Peter D'mello), who ran a catering business in which his children could assist and who employed several persons. The court applied Barnett v. Cohen (necessity of evidence to infer pecuniary damage) and Taff Vale Railway v. Jenkins (requirement is reasonable expectation of pecuniary benefit rather than actual earnings at death) and held that, although the child was only six and not actually rendering substantial service, the father's testimony provided a sufficient basis and the Rs. 1,000 award could not be regarded as excessive.
  3. On Rs. 5,200 for loss of expectation of life: the court discussed the difficulty and variability in awards for shortened life, reviewed Benham v. Gambling and the principles articulated there (including focus on prospects of a predominantly happy life rather than actuarial tables, relevance of age, and not increasing damages for social position), and noted that the House of Lords in Benham reduced a larger award to £200, reflecting the narrow range of awards in England.
  4. The trial Judge had taken Benham as a standard, assessed damages at £400 in 1960 to account for fall in the purchasing power of the £, and converted that to Rs. 5,200. The appellants objected to borrowing English figures and converting them to Indian currency because conditions in the two countries differ.
  5. The court agreed that adopting English figures mechanically is not ideal, but held that even if the trial Judge's method was imperfect, the resultant figure was not extravagant or incorrect in the circumstances. The court noted the father's evidence showing reasonably good family circumstances and a fair chance of a happy life for the child.
  6. The court suggested a pragmatic approach: consider the aggregate award on all heads and then assess whether the total is excessive; this aggregate method tends to produce fairer results.
  7. The court also noted that the appellants had offered Rs. 4,000 before trial, the Tribunal awarded Rs. 6,000 in total, and on balance the court could not say the award was immoderate.

Holding and Implications

Holding:

APPEAL DISMISSED. The court dismissed the appeal with costs and directed that the amount deposited in the trial Court should be paid over to the plaintiffs (the parents).

Implications:

  • Direct effect: The Tribunal's award of Rs. 6,000 (aggregated across the heads of pain and suffering, loss of service and loss of expectation of life) stands; the appeal fails and the deposit in the trial Court is to be released to the plaintiffs.
  • On jurisdiction: The court affirmed the view (following Dayasingh Tejasingh) that the non‑existence of the Tribunal within the statutory 60‑day period is a sufficient cause to permit the Tribunal to exercise its discretion to condone delay and entertain the application. The contrary view in Mulak Raj was rejected for the reasons stated in this opinion.
  • On damages: The court confirmed that awards for loss of expectation of life are difficult and must be moderate, applying the Benham principles, and accepted a pragmatic aggregate assessment. The court did not disturb the trial Judge's quantified award on the facts before it.
  • Broader precedent: The opinion applies and discusses existing authorities but does not purport to lay down a novel rule beyond its application of those precedents; the immediate consequence is limited to the parties to the appeal (the award is upheld and the appeal dismissed).

Disposition: Appeal dismissed with costs; deposit in trial Court to be paid to plaintiffs.

Show full summary ...

    Abdul Mahomed v. Peter Leo D'Mello

    Patel, J.:— This appeal arises out of an application by the parents of a boy of six, by name Arthur Peter, for compensation on account of the death of that boy alleged to have been caused by the rash and negligent driving of opponent No. 1.

    2. The learned Tribunal computed the claim on three heads: (i) Rs. 250 for pain and suffering, (ii) Rs. 1,000 for loss of service and (iii) Rs. 5,200 for loss of expectation of life and rounded up the total by awarding Rs. 6,000 with costs. The application was filed by the father and mother together. Opponent No. 1 as also the Insurance Company have appealed. The first point that is raised before me is that the Tribunal had no jurisdiction to entertain the application. It arises under the following circumstances: The accident occurred at about 10.45 a.m on December 16, 1958. The Tribunal was constituted on December 1, 1959 and the present application was made on December 14, 1959. It is argued that since the application was not made within 60 days and could not have been made within 60 days, the Tribunal had no jurisdiction to entertain the application. It is conceded that if the accident had occurred within 60 days of the constitution of the Tribunal or after the constitution of the Tribunal, but if the application had been made beyond the period of 60 days the Tribunal would have still jurisdiction to entertain the application if it had condoned the delay in the making of the application. In my view, the non-existence of the Tribunal or the non-formation of the Tribunal within a period of 60 days of the accident will not make any difference to the jurisdiction of the Tribunal to entertain the application. A similar case was dealt with by me sitting with my brother Chandrachud, J. in Dayasingh Tejasingh v. Shantabai . 1961 First Appeal No. 484 of 1960, decided by Patel and Chandrachud, JJ., on August 17, 1961 Unrep... The accident in that case occurred on March 22, 1959 and the Tribunal came into existence on December 1, 1959 and we held that the mere fact of non-existence of the Tribunal would not oust its jurisdiction if the claim which the applicants made was within time according to the normal law, since if a suit had been filed in a Civil Court before the constitution of the Tribunal, bar of limitation on the ground that 60 days had expired from the date of accident could not possibly have been urged before the Court. In that case also, so far as I am able to ascertain, the Tribunal while entertaining the application condoned the delay on the ground that sufficient cause was made out in not making the application within 60 days because the Tribunal itself did not exist.

    3. Mr. Patel relies on the decision in Mulak Raj v. N.I.G.T Corpn. Ltd. . [1962] A.I.R Punj. 307., where though it was conceded that even if the accident had occurred prior to the constitution of the Tribunal, the Tribunal would have jurisdiction to entertain the application, it was held that as the Tribunal itself was non-existent within the time prescribed the proviso could not apply and, therefore, the Tribunal had no jurisdiction to entertain the application. It was a reverse case inasmuch as after the constitution of the Tribunal a suit was instituted by the representatives of the deceased for recovering damages and the Civil Court held that it had no jurisdiction to try the suit. It is difficult to appreciate the reason why the proviso cannot apply which simply requires sufficient cause for not making the application within 60 days. If the Tribunal itself does not exist, that would be a very good ground for not making the application within 60 days provided by the law. The learned counsel attempted to argue that our judgment was in curiam inasmuch as we had not taken into account the terms of s. 110-A of the Motor Vehicles Act. In my view, it is wrong to say that we, had not considered the section. As the judgment shows, we have clearly indicated the provisions of sub-s. (3) prescribing the period of 60 days and also the discretion which is conferred on the Tribunal to entertain the application made after the period of 60 days. The case is correctly decided and in my view the non-existence of the Tribunal would be a sufficient cause for the exercise by the Tribunal of the discretion which is vested in it under the proviso in condoning the delay in the making of the application.

    4. It is then contended by Mr. Patel that the amount of damages awarded on two counts i.e on the count of loss of service at Rs. 1,000 and at Rs. 5,200 on the count of loss of expectation of life are excessive.

    5. The question of damages is at all times a difficult one since the amount can never be assessed with exactitude; it always varies from Judge to Judge. It has to be borne in mind that damages are not awarded for sentimental reasons nor as punishment for negligence of the person causing the accident. It is expressly admitted before me that under the provisions of ss. 1 and 2 of the Fatal Accidents Act, damages on both these counts is award able by the Tribunal. That question, therefore, does not arise for my decision. The only question is whether the award by the learned Judge is excessive.

    6. As to the first item of Rs. 1,000, Mr. Patel, relied upon the decision of Barnett v. Cohen . [1921] 2 K.B 461. where MaCardie, J. said (p. 470):

    “…I think that the plaintiff must adduce such evidence as affords the judge a reasonable basis on which to infer that pecuniary damage has been inflicted on the plaintiff.”

    7. He contends that the evidence is not sufficient to enable the Court to award him Rs. 1,000. He has drawn my attention to cases in England where varying amounts have been given. In the present case only the evidence of Peter D'mello, the father of the boy, has to be considered. His evidence shows that he is doing catering business in the name of his elder son and also in the name of the boy who died, that he lives on Sussex Road, that in his business even a young boy of 11 can help him and in fact his eldest son, who is 11 years old, is attending to his business and assists him. He employs about 10 or 12 persons in his catering business. In his cross-examination he gave what his expectations of the future were. This boy, when he died, was actually attending in II Standard. No doubt the actual service which the boy rendered him at this age was practically nil. But then as has been observed in Taff Vale Railway v. Jenkins . [1913] A.C 1. actual earning of money or money's worth by the deceased or his contribution to the support of the plaintiff at or about the time of death is not a condition precedent to the maintenance of an action under the Fatal Accidents Act of 1846; what is required is that plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life. It is true that the chances of this expectation of the parents fructifying in the case of a comparatively elder child are more than in the case of a young child. A growing child is susceptible to several uncertainties of life such as disease, illness and accidental deaths; it involves also an amount of element of speculation as to the actual earning capacity the child may develop in future. However, so far as the latter element is concerned, looking to the nature of the business which the, father was doing, it could not be required to be very high. The father of the boy says that the eldest son, who is aged 11, does to some extent help him in his business. In view of the fact that large number of uncertainties enter into the question of determining the actual loss suffered by the parents when a young boy of six dies, the amount of damages must be in a measure conjectural. In view of the evidence I do not think that the amount of Rs. 1,000 can be regarded as excessive.

    8. The next question is whether the learned Judge was justified in awarding Rs. 5,200 for the loss of expectation of life. In England damages on this count became available only after 1934. The question of what damages to award for shortened life is always a difficult one and different Judges have awarded different amounts. At one extreme is that award of £ 90 and at another £ 1,200 and the Courts of appeal have confirmed the award in each case holding that neither the one was too low nor the other too high. It is under such circumstances that Benham v. Gambling . [1941] A.C 157. went to the House of Lords. Even thereafter amounts awarded on this count varied from case to case. In that case Viscount Simon L.C formulated the following propositions: (1) A right conclusion cannot be reached by applying the actuarial test observing that the, thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life. (2) Age of the individual may be a relevant factor. (3) The Court must be satisfied that the circumstances of the individual life were calculated to lead, on balance, to a positive measure of happiness, of which the victim has been deprived by the defendant's negligence. (4) The test is not whether the deceased has the capacity to appreciate that his further life on earth would bring him happiness. (5) The financial losses or gains are not to be considered (probably because that is a separate head). (6) Damages should not be increased because the social position or prospects of wordly possessions are greater in one case than in the other. In that case the child who died was aged two and a half years. Lord Chancellor also observed (p. 167):

    “The main reason, I think, why the apppropriate figure of damages should be reduced in the case of a very young child is that there is necessarily so much uncertainty about the child's future that no confident estimate of prospective happiness can be made….I would add that, in the case of a child, as in the case of an adult, I see no reason why the proper sum to be awarded should be greater because the social position or prospects of worldly possessions are greater in one case than another.”

    9. The House of Lords reduced the amount from 1,200£ to 200£. The observations would show that there is not much scope for variation in the award of damages.

    10. Though I agree with respect that the same principles should be applied here in determining damages on this count, I do not read the decision to mean that the amount of damages must be nominal or negligible. With great respect, if the social position of the child has not to be taken into account while assessing damages for shortened life, it must mean that there must be a uniform standard for assessing the measure of damages for premature end of life in all cases irrespective of the chances of the person and yet the Lord Chancellor says that the prospects of happy life must be considered, which must vary with the social environment of the person. This decision has been criticised and to some extent rightly. In the Law Quarterly Review, Vol. 57, the writer has said (p. 154):

    “…It would perhaps have been more logical if they had reached the conclusion that the uncertainty was so great that no damages at all should be awarded, but they were precluded from taking this course owing to the decision in Rose v. Ford . [1937] A.C 826. in which the rule laid down in Flint v. Lovell . [1935] 1 K.B 354. was affirmed. But once the principle is accepted that some damages can be awarded for loss of expectation, of life then it is difficult to see why, with all respect, the estimate formed by Asquith, J. should not be as correct as that reached by their Lordships.”

    11. While reducing the damages in that very case from £1,200 to £200, no particular principle has been formulated. Of course, it does introduce some uniformity in the award of damages. It has sometimes been said, because of the practical fixity of damages at comparatively a small figure, that in England it is profitable to kill than injure. I may in this connection refer to H. West & Son Ltd. v. Shephard . [1963] 2 W.L.R 1359. where while commenting on Benham v. Gambling Lord Pearce observed (p. 1386):

    “…Into this unseemly chaos Benham v. Gambling brought consistency at the inevitable expense of withdrawing the consideration of such damages, in effect, from the judge or jury. It imposed a small conventional figure within narrow limits. This figure was a great deal lower than that at which many of us would have set the value of human living.”

    12. As a result of this decision, in England the amount of damages awarded is almost fixed within narrow limits and would appear to be low. Since the objective test of a probable happy life is to be applied all relevant circumstances must lie considered in estimating the reasonable amount of damages on this head, though the amounts should indeed be very moderate remembering that what is awarded is not for pain and suffering to the injured nor for reimbursing him in respect of future handicaps but goes as benefit to the estate.

    13. In this connection I may point out that Courts have often taken into account the money value of the £ while estimating the amount of damages. In Hart v. Griffiths-Jones . [1948] 2 All E.R 729. the learned Judge observed that some addition must be made in respect of the alteration in the value of the £. Similarly, in Glasgow Corporation v. Kelly . [1951] Weekly No. 111., where the amount of damages awarded by the trial Court was raised by the Division Court of Sessions on this ground amongst others and the award was confirmed by the House of Lords.

    14. The learned Judge took the amount awarded in Benham v. Gambling as the standard and assessed the damages at £400 in 1960 having regard to the fall in the purchasing power of the £ and held that in terms of Indian coins it would come to Rs. 5,200. Strong objection is taken by Mr. Patel to this mode of assessing damages. It is contended that the conditions of living in England and in this country are not the same and, therefore, the manner of assessing damages is unwarranted. There is justification in the comment. We would be justified in adopting a principle enunciated by the House of Lords if applicable to conditions in this country but certainly not in the manner done by the learned trial Judge. However, though the learned Judge may have adopted a wrong method, if he has not arrived at any extravagant figure or incorrect amount, I would not be justified in interfering with his assessment of damages. The evidence of the father shows that the circumstances of the family and the standard of life are reasonably good. The parents took interest in their child and the child had a fair chance of having a happy life.

    15. It seems to me that in all such cases reasonable approach would be to take the aggregate of the damages on all counts and then consider whether the award is excessive or not, since this in my view would bring about fairer results.

    16. In this connection it must be observed that the appellants had offered Rs. 4,000 in the trial Court before the case started. The total damages awarded by the learned Judge comes to Rs. 6,000. The question is can I regard this award as excessive? In connection with the first head where only Rs. 1,000 has been awarded there is scope for increase as future expectation of the parents has to be taken into account while as to the second head there may be some scope for reduction. On the whole I cannot say that the amount awarded is immoderate. Under the circumstances the appeal must fail and is dismissed with costs. The amount deposited in the trial Court should be paid over to the plaintiffs.

    17. Appeal dismissed.

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    Comments

    Abdul Mahomed v. Peter Leo D'Mello
    (Jan 31, 1964)