(1) This appeal arises out of an application by the parents of a boy of six, by name Arthur Beter, 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. 1000/- for loss of services 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. The opponent No.1 as also the Insurance Company have appealed.
(3) 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 16th December 1958. The Tribunal was constituted on the 1st of December 1949 and the present application was made on the 14th of December 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 no 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 Appeal No. 484 of 1960 Dayasingh Tejasingh v. Shantabai, Appeal No. 484 of 1960, D/- 17-8-1061 (Bom). The accident in that case occurred on 22nd March 1959 and the Tribunal came into existence on 1st December 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, 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.
(4) Mr. Patel relies on the decision in Mulak Rai v. Northern India Goods Transport Corporation Ltd., , 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 cause 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 section 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-section (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.
(5) 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. 1000/- and at Rs. 5200/- on the count of loss of expectation of life are excessive.
(6) 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 a punishment for negligence of the person causing the accident. It is expressly admitted before me that under the provisions of Secs. 1 and 2 of the Fatal Accidents Act, damages on both these counts are awarded by the Tribunal. The question, therefore, does not arise for my decision. The only question is whether the ward by the learned judge is excessive.
(7) As to the first item of Rs. 1000/- Mr. Patel relied upon the decision of Barnett v. Cohen, (1921) 2 KB 461, where MaCardie J. at p 470 said :
'........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.'
He contends that the evidence is not sufficient to enable the Court to award Rs. 1000/-. 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 in 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 employees 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 practically nil. But then as has been observed in Taff Vale Railway v. Jenkins (1913) AC 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 the 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 comparatively elder child are more than in the case of young child. A growing child is susceptible to several uncertainties of life such as disease, illness and accidental death; 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 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. 1000/- can be regarded as excessive.
(8) The next question is whether the learned judge was justified in awarding Rs. 5200/- 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 the award of ....90 and at another ....1200. 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 AC 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 each 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 worldly possession 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 :
'The main reason, I think, why the appropriate 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'.
The House of Lords reduced the amount from ...1200 to ....200. The observations would show that there is not much scope for variation in the award of damages.
(9) 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 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 Lords 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 AC 826, in which the rule laid down in Flint v. Lovell (1935) 1 KB 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'.
While reducing the damages in that very case from .....1200 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 and Son. Ltd v. Shephard (1963) 2 WLR 1359, where while commenting on 1941 AC 157, Lord Pearce observed (p. 1387):
'Into this unseemly chaos 1941 AC 157 brought consistency at the inevitable expenses 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'.
As a result of the decision, in England the amount of damages awarded is almost fixed within narrow limits and would appear to be too low. Since the objectives test of a probable happy life is to be applied all relevant circumstances must be 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.
(10) In this connection I may point out that Courts have often taken into account the money value of the Pound while estimating the amount of damages. In Hart v. Griffiths-Jones (1948) 2 All ER 729, the learned judge observed that some addition must be made in respect of the alteration in the value of the Pound. Similarly in Glasgow Corporation v. Kelly (1951) WN 111, where the amount of damages awarded by the trial Court were raised by the Division Court of Sessions on this ground amongst others and the award was confirmed by the House of Lords.
(11) The learned Judge took the amount awarded in 1941 AC 157 as the standard and assessed the damages at ...... 400 in 1960 having regard to the fall in to purchasing power of the Pound and held that in terms of Indian coins it would come to Rs. 5200/- . 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.
(12) It seems to me that in all such cases the 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.
(13) In this connection it must be observed that the appellants had offered Rs. 4000/- in the trial court before the case started. The total damages awarded by the learned judge comes to Rs. 6000/- . The question is can I regard this award as excessive? In connection with the first head where only Rs. 1000/- 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.
(14) 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.
(15) Appeal dismissed.