(1) These two appeals arise out of proceedings under the Fatal Accidents Act and are filed on behalf of the claimants. The accident which gave rise to this occurred on November, 18, 1959 between 4.50 and 5.00 P. M. opposite Sacred Heart Boy's High School, Andheri, on the Ghodbunder Road. At this time, defendant No. 2 Lakir Ali was driving a truck belonging to defendant No. 1. Even though the traffic was stopped defendant No. 2 drove the truck and while overtaking a bus from the left without any warning knocked down two ladies, as a result of which they died. The names of the deceased are Hayatibai and Rukhanbai. Appeal No. 160 of 1962 arises out of proceedings commenced by Hayatibai's husband Abdulkadar Ebrahim Sura and her mother Amanbai Mulla Esmailji Gleetwalla. Appeal No. 161 of 1962 arises out of proceedings commenced by the husband Abdulabhai and children of Rukyabai.
(2) In the first case, the applicants claimed a sum of Rs. 5, 860 in respect of medical expenses, funeral and obsequies expenses and other expenses. They also claimed Rs. 35,000 for the loss of expectation of life, loss to them and loss to the estate, alleging that the lady died due to the negligent act of defendant No. 2.
(3) In the other case, the claimants claimed a sum of Rs. 4, 417.50 p. on the first count and Rs. 35,000 on the other head, alleging negligence to defendant No. 2.
(4) Curiously enough, to this action the Insurance Company was made a party and was allowed to appear in the case. The defendants contested the proceedings, contending that defendant No. 2 was not negligent in driving the truck. They also contended that the damages claimed were excessive.
(5) The first case, the learned trial Judge assessed damages as follows:- Rupees 2,000 for pain and suffering to the deceased who lived for 19 days after the accident, a sum of Rs. 1,000 for loss of expectation of life and a sum of Rs. 2,650 on the first head of medical and other expenses. After assessing Rs. 2,000 as damages for pain and suffering to the deceased and Rs. 1,000 for loss of expectation of life, in Para 11, he reduced this amount to Rs. 2,800 as general damages. On this footing, he awarded Rs. 5,450 only in favour of applicant No. 1. He did not award the claim to funeral expenses and for obsequies ceremonies. He directed that the parties bear their own costs on the ground that the applicants had failed substantially. In the second case, as she died on the 4th day, the learned Judge assessed damages at Rs. 1,000 on the ground of pain and suffering of the deceased, Rupees 1,000 for loss of expectation of life, and Rs. 700 for medical and other expenses. After saying this, he fixed general damages and pain and suffering and shortened expectation of life at Rs. 1,850 on this basis, he awarded Rs. 4,100 as total damages in the second case.
(6) Mr. Shah has argued that the damages awarded are totally and wholly inadequate. We are not concerned in either of the cases with the question of damages under the first head i.e. for medical and other expenses incurred by the applicants for the deceased, as the learned Judge has awarded such damages as were proved before him by sufficient evidence. Mr. Shah has not pressed his contention in respect of the same.
(7) He, however, contends that the learned Judge erred in awarding only Rs. 2,000 for pain and suffering to the deceased Rs. 1,000 for shortened expectation of life and no amount towards pecuniary loss to the family. He also argued that the learned Judge ought to have allowed damages for loss of consortium. The last contention that he made was regarding the order of costs. Same contentions are raised in the second case.
(8) The present action is under the Fatal Accidents Act of 1855 which modified the common law and gave a right of action in a case of death caused by the torturous act of another. By Section 1 (sic),* it provides
'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'....................
With the rest of the section, we are not concerned. Sub-section (2) (sic) S. 2(?) provides that not more than one action or suit shall be brought in respect of the same subject matter of complaint and further provides,
'in any such action or suit, the executor administrator 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 part of the estate of the deceased'.
*(The reference to S. 1 appeared to be a mistake for S.1-A-Ed.)
(9) In Gobald Motor Service Ltd. v. R. M. K. Veluswami, : 1SCR929 , the content of these two sections has been summarised thus:
** The cause of action under S. 1 and that under S. 2 are different. While under S. 1 damages are recoverable for the benefit of the persons mentioned therein, under S. 2 compensation goes to the benefit of the estate, whereas under S. 1 damages are payable in respect of loss sustained by the persons mentioned therein, under S. 2 damages can be claimed inter alia for loss of expectation of life. Though in some cases parties that are entitled to compensation under both the sections may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under S. 1 may be different from those claiming under Section 2. Prima facie as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads. If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss. In awarding damages under both the heads, there shall not be duplication of the same claim, that is if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under S. 1, that portion shall be excluded in giving compensation under S. 2 and vice versa'.
** (The reference to S. 1 in the above quotation is to the Act as it stood prior to amendment in 1951-Ed.)
(10) Claim under each section may be under different heads. In this case under Section 1 the only claim made in for loss of services and companionship. As to this, Mr. Shah's contention was that the learned Judge ought to have awarded damages for loss of services of the deceased to the applicants and also to applicant No. 1 in each case for loss of consortium because of the death of the deceased. Now, the applicant in the first case comes forward to say that he was spending about Rs. 50 or 60 on clothes of the deceased and about Rs. 100 for her food. Because of her death, he had lost the service rendered by her and he had to employ servants to do the service. It appears, however, from his evidence that it is difficult to assess damages on this ground. No doubt, money value for the services which she rendered and in order to obtain which he had to engage servants, has to be fixed. But then cases also show that if there is any benefit by the death, then that also must be considered in computing the damages. Having regard to the fact that now he should be required to spend for the expenses of his wife, the Court below declined to give him any damages on this ground. We think, the learned Judge was right in refusing to award him damages under this head. The same applied to the applicant in the other case.
(11) The next question is whether applicants No. 1 in both the cases are entitled to damages on the ground of loss of Consortium. Under common law, a husband can always bring an action for compensation for loss of consortium for physical injury caused to his wife and also the wife could. The husband could sue the wrong doer for the loss of her society and service, that is, consortium-et servitium. However, in the case of death, no claim on this ground could be made and, therefore, if death ensued, the husband's claim for loss of consortium-et seriatim is limited to the interval between her injury and her death. But then by the Fatal Accidents Act, the common law itself was modified and actions came to be permitted even where a person died by the wrongful act of another. The section as worded clearly entitles all those for whose benefit the action is brought to an award of damages for the injury suffered by any one of the claimants. The word 'injury' is a word of large import and cannot be restricted to mean monetary injury only. If this is so, apart from claiming monetary damages that the claimant has suffered, the claimant would also be entitled to compensation in respect of any other injury suffered, and one of the heads of such injury would be the loss of society of the deceased. Mr. Pagnis contended that there is no decision which has recognised this right under the Fatal Accidents Act. It may be that because of the position obtaining in common law, a specific claim may not have been made in England. It may be that it may have been made and allowed and the cases have not been noticed. No case has defined and limited the heads under which under Section 1 of the said Act such claim could lie. In Berry v. Humm and Co., 1915 1 KB 627 Scrutton J. negatived a contention that under Section 1 compensation only for pecuniary loss was available to the relatives. The learned Judge said:-
' I can see no reason in particular why such pecuniary loss should be limited to the value of money lost, or the money value of things lost, as contributions of food or clothing and why I should be bound to include the monetary loss incurred by replacing services rendered gratuitously by a relative, if there was a reasonable prospect of their being rendered freely in future but for the death'.
Inasmuch as the section does not limit the claim only to pecuniary losses, but enables the claimant to make the claim in respect of the injury sustained by the claimant, it seems to us that the applicants are entitled to make a claim on this ground also.
(12) The applicants say that they have loss the company of their wives. The applicants are fairly old and having regard to the benefit that they would have got from the association of their wives, it would not be out of place to assess damages on this ground at Rs. 500 to each of the claimant No. 1. The decrees of the Courts below will have, therefore, to be modified in the light of the findings.
(13) One of the claims under Section 2 is on the ground of loss of expectation of life. In England on this ground Judges awarded widely differing amounts some times as little as pound 75 and some times as much as pound 1200. In this chaos, the case Benham v. Gambling, (1941) AC 157 was decided by house of Lords. In Benham's case 1941 AC 157 Lord Simon formulated several propositions for assessing damages. These are: (1) 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 plans, 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 separate head), and (6) damages should not be increased because the social position or prospects of worldly possessions are greater in one case than in the other. In that case having regard to the fact that House of Lords were assessing damages for shortened expectation of life of a young boy of 2 1/2 years, they gave pound 200 only, observing.
'The main reason, I think, why the appropriate figure of damages should be reduced in the case of 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 case of 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.'
(14) We do not read this decision to mean that in every case the amount of damages should be nominal or negligible. The general principles stated by the learned Lord are unexceptional. However with great respect it is difficult to appreciate how the social position of the deceased can be disregarded. If that was so it would mean that the measure of damages must be uniform in all cases for premature end of life irrespective of the chances of the person of a happy life and yet says the Lord Chancellor that the prospect of a happy life must be considered which undoubtedly must vary according to the social environment of the person. The decision has been to some extent criticised in the Law Quarterly Review Vol. 57, page 154, and to some extent not without justification. No particular principle is formulated for reducing the damages from pound 1200 to pound 200. In H. West and Son. Ltd. v. Shephard, (1932) 2 WLR 1359, referring to this decision Lord Pearce said (1386).
'Into this unseemly chaos 1941 AC 157 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 lowered than that at which many of us would have set the value of human living.'
(15) Though, therefore, the amount need not be small or uniform there are good reasons for holding that it should be moderate. Damages are not to be awarded for sentimental reasons or as punishment for negligence. The money that is awarded is not enjoyed as compensation by the deceased but those who take the estate and there could be no reason why they should be unduly enriched at the expense of another. In our view, therefore, the objective test of happy life is a correct test to be applied and in doing so all relevant circumstances must be considered in estimating the reasonable amount of damages under this head. The amount should be moderate for the reasons already stated. In assessing damages, the present value of the rupee ought also to be considered as has been decided in Hart v. Griffiths Jones (1948) 2 All E. R. 729 and in Glasgow Corporation v. Kelly (1951) WN 111.
(16) It may be mentioned that the applicants in both the cases are living together as Abdul-Kadar Ebrahim Sura and Abdulbai are brothers. The evidence shows that they are five brothers and they are all living together under one roof and there are about 40 members in the family, including children's children. The two ladies were doing house-hold work and as things go in the Society today, there can be no doubt that they must be deriving great amount of joy in their life surrounded as they were by all their progeny and very close relations. The evidence of the applicant shows that there was harmony amongst the members of the family and that the husbands took care of their wives. There is no reason to doubt this evidence. In the first case, the deceased Hayatibai was about 45 years of age, and the evidence is that she was enjoying good health. It is more than reasonably possible, there, that she would have lived up to at least about the age of 60 and lived, if the evidence is right, a happy life. In the other case, the deceased was about 60 years. She was also enjoying good health and would have normally lived 10 years more, again a happy life. Having regard to these facts, it would appear that the assessment of damages on this count by the learned Judge is too low.
(17) Mr. Pagnis says that ordinarily in a household of forty where the women had to work, there was no much chance of having a happy life. He also says that the court of appeal should not interfere with the assessment of damages by the trial court. As to first, it is difficult to say that merely because the ladies were living in a large household and they were attending to their wifely duties, they would not derive any happiness in life. Constituted as women are, unless there was some bitterness in the relationship between the husband and the wife or between the mother and the child, a woman would naturally enjoy large family around her and in the present case, there is no reason to doubt the evidence led before us. As to the second, it is no doubt true that normally the Court of appeal does not interfere with the assessment of damages by the learned trial Judge, but where damages assessed appear to be wholly inadequate, then the appellate Court must do its duty of determining of what should be the correct amount of damages. In the present case, having regard to all the facts in the first case, we assess Rs. 7,000/- as damages for the shortened expectation of life and in the second case due to the shorter period, we assess Rs. 5,000/- on this ground.
(18) It is then contended that in the first case, the learned Judge erred in awarding only Rs. 2,000/- for pain and suffering which also must fall under Section 2. Now, the evidence shows that the deceased Hayatibai lived for 19 days after the accident. She had serious injuries and according to Dr. Vora, the injuries were very painful. The learned Judge has found that she had undergone prolonged suffering both mental and physical from the injuries. In the book 'The Quantum of Damages' by Keep and Kemp, the authors say (at page 296).:-
'If the deceased suffered a long and painful illness due to his injuries, before he died, the damages under this head could be substantial'
Decided case show that often in cases where a person lived for 4 days after the injury and continued to be in a state of coma, the damages under this head were assessed at pound 20. In Roughead v. Railway Executive, (1949) 65 TLR 435, the deceased lived for a day and during that time he was unconscious and the Judge added pound 250 under this head. This was in 1949. Having regard to these circumstances, therefore, it seems to us that Rs. 2,000/- awarded by the Court is comparatively on the low side. We would assess the same at Rs. 3,000/-. In this connection, same contentions are raised that we should not interfere with the amount awarded by the lower Court in the second case. As we are of the view that it is substantially low, we have interfered with damages fixed under this head. In the second case as the deceased only lived four days. We do not think any ground is made out for interference with the assessment made by the learned Judge.
(19) It is then contended that the learned Judge was in error in not awarding costs. It is true that where a claim is far too exaggerated, there may be proper occasion for disallowing a part of the costs. We do not see any reason for not allowing costs in these cases. As the applicants have succeeded in a large measure, we must modify the order of the costs made by the learned trial Judge. We direct that the applicants will get the cost on the claims decreed to them and as to the rest, the parties will bear their own costs.
(20) Mr. Shah on behalf of his clients has brought to our attention the decision in Vinayak Raghunath v. The Great Indian Peninsula Railway Co. (1870) 7 Bom HC (OC) 113, where on the original side, the learned Judge allowed the costs as between Attorney and client on the ground that it was the duty of the Court to see that the amount of compensation was not wiped out by the costs incurred by the party. The principles of assessing costs on the original side do not apply in other courts where duel system does not operate. Under the Motor Vehicles Act, there is no direct provision which enables the Tribunal to award costs. But the whole procedure is left to be governed by the Rules framed by the Government under the Act and one of the rules says that the Tribunal shall exercise the same powers as a Civil Court. Under the circumstances, therefore, it would not be proper and reasonable to allow costs as they are taxed in suits in the City Civil Court, so far as Bombay City is concerned. Costs should be taxed as in the City Civil Court in the trial Court and in High Court as in regular appeal on the appellate Side.
(21) We cannot part with this case without making a few observations regarding joining the Insurance Company as a party. Section 96 of the Motor Vehicles Act provides in clear terms that in an application for damages under the Motor Vehicles Act, the insurance company need not be made party by the claimant. Under sub-section (2) it is the duty of the Court to issue a notice of the proceeding to the insurance company and on such notice being issued to it, the insurer is entitled to be made a party and defend the action only on the ground that the policy stood cancelled on grounds stated in the sub-section. It is only on the limited grounds that the insurer is entitled to contest the proceeding. (See the decision in British India General Insurance Co. Ltd. v. Captain Itbar Singh, : 1SCR168 ). The office of the Motor Vehicles Tribunal was, therefore, wrong in insisting upon the applicants that they make the Insurance Company party to the proceedings. The learned Judge was equally wrong in permitting the Insurance Company to take part in the proceedings which had no relation to any of the defences which it could have taken under S. 96 (2). In our view, the learned Judge ought not to have allowed the counsel for Insurance Company to cross-examine the witnesses on the merits of the dispute between the insured and the applicants. We hop the tribunal will in future observe the requirements of the law in this respect.
(22) Decree modified.