Ashworth, J.:— This appeal arises out of a suit brought by the widow of a deceased man against the defendant, a zamindar who caused his death by shooting him. The suit is for damages under the Fatal Accidents Act (XIII of 1855). The zamindar was convicted of an offence under section 304 and sentenced to imprisonment, and to a fine of Rs. 1,000. The fine was realized and was paid over to the present plaintiff. Not being satisfied with the amount, she has brought this suit and has obtained a decree for the further sum of Rs. 1,500. The defendant appeals. The respondent is not represented. The lower court awarded the further sum of Rs. 1,500, taking into consideration the fact that Rs. 1,000 had already been awarded.
The first question that arises in this appeal is whether the Rs. 1,000 fine paid over to the plaintiff should be taken into account in the present suit. No authority, one way or the other, has been cited, but the Act empowers the civil court “to give, such damages as it may think proportionate to the loss resulting from such death to the party for whom and for whose benefit the action shall be brought.”
These words appear to me to require that the fine already realized should be taken into account. The death of the husband was the cause of the fine being realized and given to the plaintiff. Any damages given to the plaintiff by reason of loss must take into account any pecuniary advantage obtained by the plaintiff by reason of the death.
The remaining question is whether the lower court has over-estimated the damages. It is clear and settled by authority that no sentimental considerations are relevant. The plaintiff cannot get higher damages even if, her husband was brutally murdered by the defendant than if the death of her husband had been due merely to an error of judgement such as may on the part of the driver of a vehicle, cause the death of a person.
The method adopted by the trial court for assessing the damages is as follows:—The sole source of income of the deceased appears to have been, the cultivation of an occupancy holding which he cultivated by his own personal labour. The lower appellate court has held that the damages should be assessed according to the sum required to furnish the widow with substituted labour for working the holding. The appellant does not complain as to this method, and the respondent not being present, must also be held to acquiesce in this method. What the appellant complains of is that an error has been committed by the lower court in working out the method. The court has estimated the monthly expenditure required to furnish the labour for working the holding at from Rs. 10 to Rs. 12 a month and has awarded a sum which, if invested in Government securities, will he sufficient to produce Rs. 10 a month. It is objected that the deceased was 50 years old at the time of his death and would not have been capable of working the holding for more than, at the very utmost, ten years. This appears to me to be a just contention. The sum awarded by the lower court, however, not only will enable the widow to hire the necessary labour for ten years but will leave her at the end of that time with a sum of Rs. 1,500, which she would not have possessed at the end of ten years if her husband had survived. This objection is, in my opinion, obviously common sense. The principle underlying the objection has been approved by an English decision under Lord Campbell's Act (which is practically the same as the Indian Act). In Rowley v. London and North-Western Railway it was held that a jury might estimate the damages to an annuitant of the deceased by calculating what sum would buy him an equally good annuity, but it was added that it was material to know the average duration of the life of the annuitant. Similarly, in this case where we know the probable duration of the capacity of the deceased to supply the labour for the occupancy holding, we must take that duration into consideration.
I am not disposed to hold that the method employed by the lower court, if properly applied, was an incorrect method. There is no contention in this appeal before us that it is incorrect. There are no facts clearly set forth in the judgement of the lower appellate court which would enable this Court in appeal to assess the damages under any alternative method. It appears, therefore, that we should accept this method, but correct the application of it. Rupees 12 a month comes to Rs. 144 per year. Assuming that the deceased might have worked for ten years (an exceedingly favourable estimate to the plaintiff), a total sum of Rs. 1,440 would supply that labour. But this sum would not have to be expended at once. It would only be expended at the rate of Rs. 12 per month. All the ten years the widow would be enjoying interest on the diminishing capital sum. If, therefore, we substitute, for a sum required when invested in Government securities to bring in Rs. 12 per month, a capital sum of Rs. 1,440, the decision will err, if at all, in being too generous to the widow. The appellant, however, has not suggested what deduction should be made as a set-off as against this interest, and it is not necessary in a case of this nature to calculate the damages with meticulous accuracy. I am of the opinion that a sum of Rs. 1,500 will be amply sufficient to make the damages proportionate to the loss resulting from the death of the plaintiff's husband. Rupees 1,000, as already stated, must be deducted and this will leave a sum of Rs. 500. I would, therefore, vary the finding of the lower court by reducing the sum of Rs. 1,500 to one of Rs. 500. The parties in both courts will get proportionate costs according to their success and failure.
Mukerji, J.:— I agree.
By the Court:—The appeal is allowed in part. The decree of the court below is modified and the decree in favour of the respondent is reduced to the sum of Rs. 500. The parties will receive and pay their costs in proportion to their respective success and failure throughout.
Decree modified.