K.M Krishna Gounder v. P.N Narasingam Pillai And Other

JUDGMENT

This is an appeal against the judgment and decree in O.S No. 103 of 1957, on the file of the Court of the Subordinate Judge, Cuddalore, awarding the second plaintiff a decree for damages in a sum of Rs. 6,000 against defendants 1 and 2, on the ground that the 2nd defendant drove the lorry of the first defendant negligently and ran over and killed the second plaintiff's infant son. The first defendant is the appellant.

The first plaintiff is the husband of the second plaintiff and their son Dakshinamoorthi was run over and killed on 17th November 1955 by the lorry of the first defendant MDF. 802 driven by the second defendant. The third defendant in the suit was the insurer who was impleaded as a party on the plea of the first defendant that the third defendant company was a necessary party.

The plaintiffs alleged that the second defendant was employed to drive the lorry, that he had no licence for driving a heavy transport vehicle, that the second defendant drove the lorry rashly and negligently and caused the death of the boy Dakshinamurthi. They claimed damages under the Fatal Accidents Act to the extent of Rs. 12000 which consisted of (1) Rs. 2000 pecuniary loss to the estate of the deceased; (2) Rs. 5000 for physical suffering and mental agony of the deceased; (3) Rs. 5000 for loss of expectation of life of the deceased.

The defendants resisted the suit contending that the lorry was not driven negligently or rashly, that there was contributory negligence on the part of the deceased Dakshinamoorthy, and that the quantum of damages claimed was excessive.

The learned Subordinate Judge of Cuddalore, who tried the suit found that the lorry was driven by the second defendant without a licence requisite for driving a heavy type vehicle, that the second defendant was guilty of negligence in running over the boy and estimated the amount of damages as Rs. 6000. The second plaintiff was however awarded full costs on the amount sued for in the plaint on the ground that she could not have made a Precise estimate of the damages. The costs of the third defendant, the insurance company, were directed to be paid by the first defendant. Defendants 1 and 2 were also directed to pay the court fee due to the Government as the suit was filed in forma pauperis.

The liability of defendants 1 and 2 to the second plaintiff, who is now held to be the representative of the estate of the deceased Dakshinamoorthy, to pay damages for the death of her son caused by the running over of the lorry has been established fully and completely by the evidence on record. The occurrence took place in the West Street of Villupuram on 17th November 1955. The place of occurrence is shown in Ex. A.1, a photograph taken by P.W 3. The lorry of the first defendant was proceeding from north to south along the road and the spot of the occurrence is marked X in Ex. A.1 It is now clear on the evidence of the witnesses examined in the case that there was an elephant standing in the street at the time of the occurrence and, as is usual, people had gathered round the elephant and were gazing at it. P.Ws 1 and 2 deposed that they witnessed the accident. D.Ws 1, 2, and 4 also spoke about the occurrence. D.W 4 is the second defendant himself, the driver of the lorry. The learned Subordinate Judge has accepted the evidence of P.Ws 1 and 2, who deposed that the boy stood on the eastern side of the road at the time of the occurrence and not on the western side. He disbelieved the version of the defence witnesses that the boy crossed the road from the west to east. I see no reason to differ from his appreciation of evidence in this respect. It is abundantly clear that even on the evidence of the defence witnesses that the second defendant was guilty of incautious driving, not a little perhaps due to the fact that he had no licence to operate a heavy type vehicle like a lorry. D.Ws 1 and 2 do not speak of the sounding of the horn by the driver. The second defendant deposed that he saw the boy crossing the road even when the lorry was 20 feet away ahead of the boy. If that was a correct statement he had enough time to avert the accident by applying the brakes which were found to be at least 50 per cent Efficient by the Motor Vehicles Inspector who inspected the vehicle after the accident. The conclusion of the learned Subordinate Judge that the driver of the vehicle failed to apply the brake in proper time, that he took the chance of getting clear of the boy seems to be warranted by the evidence on the side of the defendants themselves. It cannot be said that it was a mere error of judgment on the part of the driver of the vehicle; it was the result of reckless, indifferent and careless driving. The report of the Motor Vehicles Inspector, Ex. A-23, shows that there was a drag to the left, when brakes were applied. As stated already, he tested the vehicle after the accident. He also found that the hand brakes were out of order and that it was the result of maladjustment of the brakes. The opinion of the Motor Vehicles Inspector was that the accident may be due to the defect in the vehicle, namely, dragging brake on the left side. The second defendant took the lorry, on his own evidence, from Villupuram to Tindivanam and back again to Villupuram. It was only on the return journey that the accident occurred. He must have therefore known of the condition of the brakes, particularly the dragging on the left side, when he was driving the vehicle. The net result of the evidence unmistakably shows that the second defendant, who was not competent to drive the vehicle, was entrusted with the vehicle and he drove it negligently and rashly and thereby ran over the second plaintiff's son.

It was the contention of the first defendant that the second defendant was not his driver. In his evidence before the Court he stated that he did not know who drove the lorry at the time of the occurrence. The second defendant however did not plead that he was not employed under the first defendant to drive the vehicle. The first defendant would have it that one Perumal was the driver employed to drive the lorry. This Perumal has not been examined. The evidence of the first plaintiff as P.W 4 is that the second defendant was in the employment of the first defendant and that he has seen him drive the lorry on several occasions. On the side of the defendants the trip sheets relating to the lorry, were deliberately suppressed. If the trip sheets had been produced they might have disclosed the fact that the second defendant has been operating the vehicle. I have no hesitation in dis-believing the first defendant and holding that the second defendant was a servant employed under him to drive the lorry.

Mr. T.V Balakrishnan, learned Counsel for the appellant, contended that the award of Rs. 6000 by way of damages was very exorbitant and excessive in the circumstances of the case. The claim for damages is based upon the provisions of the Indian Fatal Accidents Act, 1855.

Section 1-A of the Act is as follows:

“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law 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 proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs 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.”

2. “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, admininistrator 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.”

At the time of the trial the plaintiffs gave up their claim for Rs. 2,000 under S. 1 of the Act. Under S. 2 of the Act damages can be granted for physical suffering and mental agony suffered by the deceased as also for the loss of expectation of life of the deceased. See Gobald Motor Service Ltd. v. Velusami (1). The boy died almost instantaneously after he was run over and the evidence was that the boy died within half an hour of the accident. The learned Subordinate Judge has awarded damages in the sum of Rs. 1000 for the mental agony and suffering of the boy at the moment of his death. This award of Rs. 1000 has not been challenged before me as being improper or unwarranted. In respect of the damages for loss of expectation of life the learned Subordinate Judge fixed it at Rs. 5000. He dealt with the matter in these words:

“Regarding the damages for loss of expectation of life, I think the damages of Rs. 5000 claimed is reasonable. The boy was 7 year old when he died and he could have lived at least for 50 or 60 years. I therefore allow the damages on this account at Rs. 5000.”

The learned Subordinate Judge has awarded the damages merely by having regard to the fact that the boy was of tender years when he died. This is not a correct basis of estimate of damages for loss of expectation of life.

Assessment of damages for shortening of life has been a controversial and thorny problem. It is not easy to assess the value of life to a deceased individual by a post-mortem estimate. Life is invaluable or valueless and cannot be equated to the coins of the realm. It is full of unpredictable vicissitudes and it is the very essence of life of any individual that joys and sorrows alternate and mingle. There may be special types of cases like an imbecile or a cripple or a person in hopeless and chronic difficulties where the value of life might be computed in some approximate measure. In cases of children of tender; years who are cut off from life before anything is known about their talents, capacity or intelligence, the assessment of damages suffered by them for the premature termination of their lives cannot be made on any settled principles of, law and must, therefore, to a very large extent, be a matter of conjecture and guesswork.

The House of Lords decided in Rose v. Ford that the damages for loss of expectation of life are recoverable on behalf of the estate of the deceased in an action under the Law Reform (Miscellaneous Provisions) Act, 1934. But there was great divergence of judicial views in the matter of the estimate of damages under this head and the English Court acted and moved like rudder less, ships sailing in unsteady weather, amount of, damages awarded was generally high and was anything upto £. 2000. The matter was however brought into the crucible and received a scientific analysis and treatment in the decision of the House of Lords in Benham v. Gambling (2). Viscount Simon formulated the following principles that should govern the decision of Courts in estimating damages for loss of expectation of life. (1) The thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life. (2) The age of the individual may not always be a relevant factor. In extreme old age the brevity of what life may be left may be relevant. (3) It would be fallacious to assume that all human life is continuously an enjoyable thing so that the shortening of it calls for compensation to be paid on a quantitative basis. “The ups and downs of life, its pains and sorrows as well as its joys and pleasures—all that makes up “life's fitful fever” have to be allowed for in the estimate.” (4) Before damages are awarded in respect of the shortening of life of a given individual it is necessary for the Court to 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. (5) In assessing damages for this purpose, the question is not whether the deceased had the capacity and ability to appreciate that his further life on earth would bring him happiness; the test is not subjective and the right sum to award depends upon an objective estimate of what kind of future on earth the victim might have enjoyed whether he had justly estimated that future or not. (6) The proper sum to be awarded should not depend upon the social position or prospects of worldly possession of the deceased individual. ‘Lawyers and Judges may here join hands with moralists and philosophers and declare that the degree of happiness to be attained by a human being does not depend on wealth or status.” (7) In putting the money value on the prospective balance of happiness in years that the deceased might otherwise have lived, “the Jury or Judge of fact is attempting to equate in commensurables. (8) The estimate of damages should not rest on statistical or actuarial test. (9) In the case of a child or an adult very moderate figures should be chosen. In Benham's case, the victim was a child of 2½ years old and the House of Lords held that the proper measure of damages would be £ 200.

In Garcia v. Harland and Wolf , Atkinson J. observed at p. 485.

“Until Benhnam v. Gambling ; I think all judges found themselves in the greatest difficulty in estimating what were the fair damages in respect of the shortening of expectation of life. That case went, to the House of Lords and gave the House an opportunity of laying down principles for the guidance of Judges who have to deal with these matters ………. In that case it is of course quite clear that the Lords were impressed not with the injustice but with the difficulty of giving damages to A, because B has had his life shortened. It is one thing to give damages to the person injured in an accident, but you cannot give damages to the dead man, and the House of Lords was obviously impressed with the awarding of large damages to one person because another person has had his or her life shortened”

Benham's case set the pattern for estimate of damages for loss of expectation of life and as observed by Kemp in his book on “Quantum of Damages,” Vol. 2, page 282, it is “the most notable example of judicial legislation in recent years.” Singleton, L.J observed in Joyce v. British Electricity Authority (3), that since Benham v. Gambling , “the damages in the case of a grown man or woman who could expect to have a happy life have been assessed often at figures around £ 300 or £ 400.” In Sellers v. Best (4), Pearson J. awarded in the case of an adult married woman what he called the more or less conventional sum of £ 400.” Specimen awards have been selected and put in a tabular statement at pages 284-85 of Kemp's book. A glance at that table shows that in one instance where a child of three was run over and killed, Oliver J. awarded £ 300. In another instance, where the victim was a child of four years old Streatfield J. awarded damages of £ 200.

There is now no difficulty in stating the principles that should weigh with the Court in awarding damages under this head of loss of expectation of life, particularly after the classical pronouncement, of Viscount Simon, in Benham's Case. But the application of the principles to given set of facts is yet not free from difficulty. The balance of prospective happiness of the individual has first to be ascertained and that has to be commuted in money value. Even the best and at least judicial endeavour to discharge this task of ascertainment of damages cannot possibly eliminate some speculation or imaginative thinking.

The secondary evidence that is available on record with regard to the unfortunate victim is that he was seven years old at the time of the occurrence, and that he was studying in the second class in an Elemantary School at Villupuram. According to the father of the boy, P.W 4, the boy was never ill, was always healthy, and was clever and enthusiastic. The bereaved father could only say that, if his son had not met with the accident, he would have earned Rs. 50 or Rs. 60 per month as a clerk. This evidence stands uncontradicted and it will not be too much to assume that the boy would have been spared many more years of life and would have taken his place as a citizen of India and derived all the advantages in life thrown open to the citizens of India under our present Constitution. In these circumstances, I am unable to say that the award of Rs. 5000 given by the learned Subordinate Judge as damages for loss of expectation of life is in any way excessive or extravagant. Though the learned Subordinate Judge fixed the figure without giving good reasons, I find that his conclusion is correct for the reasons set forth above.

It is next urged on behalf of the appellant that the third defendant-Insurance company should not have been awarded costs as against the first defendant. The third defendant was impleaded practically on the invitation of the first defendant. S. 96(2) of the Motor Vehicles Act provides as follows:

“No sum shall be payable by an insurer under Sub-S. (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the Court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the follwing ground, namely……(b) that there has been a breach of a spcified condition of the policy, being one of the following conditiontion namely………(ii) a Condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified, for holding or obtaining a driving licence durinf the period of disqualification.”

One of the terms of the policy Ex. B.1 excluded the liability of the insurer if the driving of the vehicle was by an, unlicensed person. The second defendant had not the necessary licence to drive a heavy vehicle like the motor lorry at the time of the occurrence. The Insurance Company, the third defendant, therefore, rightly came to be impleaded and defended the suit. The finding of the learned Subordinate Judge that the third defendant is not liable to the second plaintiff for the suit claim because of the terms of the policy has not been challenged before me. The contention of the appellant is that he should not have been made liable for the costs of the third defendant. I am unable to agree with this contention. The plaintiffs were not parties to the contract of insurance between the first defendant and the third defendant, and the plaintiffs did not implead the third defendant of their own accord or on their own volition. It was the first defendant who was responsible for bringing in the third defendant as a party to the suit, and the third defendant having succeeded in the defence raised by him, the only proper person that could be called upon to pay his costs will be the first defendant, the appellant.

The learned Subordinate Judge was also right in awarding full costs to the plaintiffs on the amount sued for in the plaint, though actually the plaintiffs succeeded in obtaining the decree only for Rs. 6000. It is too much to expect the plaintiffs to be precise and accurate in the matter of estimate of damages and it cannot be said that their claim was in any way highly inflated so as to make them liable to pay costs to the first defendant for the amount disallowed. In the result, the appeal fails and is dismissed with costs one set to respondents 1 and 4.

V.C.S