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D. Balakrishna Vs. Sadasivaraju and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberRegular Appeal No. 5 of 1954 with Cross-objections
Judge
Reported inAIR1960Kant105; AIR1960Mys105
AppellantD. Balakrishna
RespondentSadasivaraju and ors.
Excerpt:
- limitation act (36 of 1963)article 110: [k.ramanna,j] partition - suit by a person excluded from joint family property limitation partition of joint family property took place 50 years back father of plaintiff remained excluded from said partition - no suit filed by him in his lifetime challenging said exclusion, although he had objected same and demanded fresh partition by convening panchayat held, since no suit was filed within 12 years in spite of being aware of exclusion, suit by plaintiff is barred by limitation. [k. ramanna, j.] (a) code of civil procedure, 1908 - section 100 -regular second appeal - suit for partition and separate possession - decretal of - appeal against - dismissal of so as jarred by limitation - pleaded against . second appeal, he ld, courts below.....somnath iyer, j.(1) on the night of may 5, 1950, at a point, on what is described in the evidence as the platform mad near a railway underbridge, in bangalore city a lorry bearing no. my 2799 z was involved in an accident in which one eswararaju and two others were killed. this eswararaju was, it appears, at that time, 52 years old and was a government servant serving as an overseer in the city improvement trust board in the city, of bangalore.(2) the suit out of which this appeal arise was instituted by his son the first plaintiff and by his three unmarried daughters, plaintiffs 2 to 4 for the recovery from defendant 1, who according to them was the owner of that lorry, a sum of rs. 15,000/- which as claimed by them, represented the loss of pecuniary benefit which they would have derived.....
Judgment:

Somnath Iyer, J.

(1) On the night of May 5, 1950, at a point, on what is described in the evidence as the platform mad near a railway underbridge, in Bangalore City a lorry bearing No. MY 2799 Z was involved in an accident in which one Eswararaju and two others were killed. This Eswararaju was, it appears, at that time, 52 years old and was a Government servant serving as an overseer in the City Improvement Trust Board in the City, of Bangalore.

(2) The suit out of which this appeal arise was instituted by his son the first plaintiff and by his three unmarried daughters, plaintiffs 2 to 4 for the recovery from defendant 1, who according to them was the owner of that lorry, a sum of Rs. 15,000/- which as claimed by them, represented the loss of pecuniary benefit which they would have derived according to reasonable expections, had not Eswararaju been killed in that way.

The case for the plaintiffs was that defendant 2, a driver employed by defendant 1 was driving the lorry on that date at high speed and that it was on account of his rash and negligent driving that Eswararaju was killed. The case for the plaintiffs also was that defendant 2 was, when he drove that lorry on that night, acting in the course of his employment under defendant 1.

(3) Defendant 1 admitted that the lorry bearing number MY 2799 Z belonged to him and that defendant 2 was his driver. But in his written statement he denied that the lorry had been proceeding that night along the platform road on the business of defendant 1. It is clear that what defendant 1 intended to contend by making such a statement was that defendant 2 was not acting in the course of his employment when he drove the lorry on that night.

Defendant 1, however, did not deny in his written statement the averment contained in paragraph 4 of the plaint that the lorry was being driven at high speed when it knocked down Eswararajan, although in paragraph 2 of the written statement defendant 1 put the plaintiff to strict proof of the allegations relating to rashness and negligence on the part of defendant 2 when he was driving the lorry on that night.

(4) The learned District Judge made a decree in favour of the plaintiffs for Rs. 5,045/- in which was included a sum of Rs. 5/- which represented the costs of the notice which Eswararaju's widow had got issued to defendant 1 before this suit was instituted. The plaintiffs have taken a cross-objection to that part of the decree which disallowed the rest of their claim.

(5) There is indisputable evidence that Eswararaju was involved in an accident on the night of May 5, 1950 and died as a result of shock due to multiple injuries which he sustained on that night. P.W. 4 Dr. Suryanarayana Rao, who is an Assistant Surgeon, has given evidence in this case that he conducted the post mortem examination on the dead body of Eswararaju and made a certificate (Ex. C) in that regard. He found on the body of Eswararaju five fractures one of which was a compound fracture, and a lacerated wound 6' x 6' on the left thigh.

He also found that the skull bones of Eswararaju had been crushed to pieces and that all his ribs had been fractured on both sides. He gave his opinion that death was due to shock as a result of the aforesaid multiple injuries sustained by Eswararaju and that it was possible that he died on account of being run over by a lorry.

(6) P.W. 2 Mr. Raghavendra Rao, an Advocate of this Court, was on that night travelling in a bus belonging to the Bangalore Transport Company which was proceeding in the direction opposite to the direction from which the lorry was being driven on that night.. It appears from his evidence that Mr. Raghavendra Rao was on that night travelling in that bus towards Malleswaran from which direction the first defendant's lorry was coming. Mr. Raghavendra Rao's evidence is that near the under-bridge of the railway station where he was travelling had passed a distance of about half a furlong, he heard a terrific noise whereupon the bus was stopped and that all the passengers got down.

There Mr. Raghavendra Rao saw three persons lying down on the mad with injuries. A lorry according to him had, just then passed near the underbridge having collided against it. Three bodies were lying at a distance of about 25 or 30 years from each of them. The owner of the lorry was not to be found there and could not be traced. Then, when a military truck arrived there, Mr. Raghavendra Rao requested the person who was driving the truck to transport the three injured persons who were then taken to the Victoria Hospital.

Near the dead body of one of those persons, he found a money purse from the documents in which he discovered that the dead man was Eswararaju. He immediately went to the house of Eswararaju but formed it locked. Then, he went to the Victoria Hospital the next morning, at 9-30, and learnt that Eswararaju had died on the previous night. He handed over the purse to the Police Sergeant.

(7) P. W. 3 Ponnuswamy Mudaliar has given evidence that he was on that right returning to his house from the Vegetable Oil Product Company at about 9-30 P.M. He was coming by the side of the railway gang quarters near the underbridge along the left side of the road on his bicycle. He has given evidence that a lorry came and knocked him down. He fell down and his bicycle was damaged. His evidence is that he became unconscious, whereupon someone removed him to the Victoria Hospital where he regained consciousness.

P. W. 3 was not cross-examined by defendant 1 and I may mention here that defendant 2, according to the evidence having absconded from the scene of the accident immediately after it happened, remained ex parte and defendant I alone contested the suit.

(8) P. W. 1, the Sub Inspector of Public, who was in charge of the Seshadripuram traffic police station, ahs given evidence that the received a telephone message at about 10 P. M. from one Sergeant James about the accident on the platform road. He went to the scene of occurrence. He did not find the lorry driver there on the spot but on learning that the injured persons had been removed to the Hospital, he went to the Hospital and saw the injured persons who by then had died.

(9) It is not disputed by Mr. Ullal that the lorry which collided against the underbridge on that night at about 9-30 P.M. was the lorry belonging to defendant 1. But his contention is that there is no evidence that Eswararaju was killed as a result of that lorry having run over him. It is also not disputed by Mr. Ullal that defendant 2, was, on the day on which the accident occurred, a driver serving under defendant 1, although he disputes the fact that on that night when the lorry collided against the underbridge, defendant 2 was driving it.

(10) The learned District Judge found that defendant 1's lorry which was standing near the underbridge having collided against it, was the lorry which ran over Eswararaju. We must, I think, agree with that finding that it was defendant 1's lorry that ran over Eswararaju and killed him. It is, I think, very difficult for Mr. Ullal to persuade us to hold that although it was defendant 1's lorry that was standing near the underbridge having collided against it and although Eswararaju was killed at or about the same time when the collision occurred, it was not defendant 1's lorry that ran over Eswararaju or that Eswararaju met with his death in some other way which has not been explained to us.

The injuries spoken to by the Doctor P.W. 4 who is an Assistant Surgeon and also the evidence of P.W. 3 who has not been cross-examined on behalf of defendant 1, read with the evidence of P.W. 2 Mr. Raghavendra Rao, leads to the irresistible inference that the lorry which collided against the underbridge on that day which was admittedly that of defendant 1, was the lorry which was involved in the accident in which Eswararaju died.

(11) The next question is, whether at the time the lorry ran over Eswararaju, defendant 2 was driving it. It is no denied by defendant 1 that defendant 2 was the person who was driving his lorry on the date of the accident. But it is sought to be established on behalf of defendant 1 that on that date, defendant 2 did not drive the lorry of defendant 1 after 5-30 in the evening.

(12) D.W. 1, a servant of the first defendant, has given evidence that at about 5-30 P.M. on that day, defendant 2 represented to defendant 1 that he had to take the lorry which he used to drive, on an urgent fuel trip, but that defendant 1 forbade him from taking the lorry for that purpose. D.W. 1, besides being an interested witness, gives evidence that after this happened and after defendant 2 parked the lorry at the backyard of defendant 1's house, D.W. 1 went away to the market and does not obviously know what happened afterwards.

(13) D. W. 2 Shamanna gives evidence that he was supervising the lorries of defendant 1 and that defendant 2 was the driver who used to drive the lorry MY 2799 Z. But his evidence is that on May 5, 1950, defendant 2 returned to the house of defendant 1 at about 3-30 p.m. and that on that day defendant 2 was driving the lorry. Defendant 2 reported to defendant 1 that he had transported four loads of bricks and that D.W. 2 thereupon gave him diesel oil four more trips.

It appears defendant 2 and defendant 1 had a conversation between each other at about 6-15 P.M. and D.W. 2 gave diesel oil and went away. At that time D.W. 2, and the cleaner who has given evidence in this case as D.W. 5, were both present. D.W. 2 does not know what happened after he went away. But he has made an important admission which I think, is highly prejudicial to the case of defendant 1. He has admitted that in the factory of which defendant 1 is the Managing Director, there are references maintained, to show how many trips are made by defendant 1's lorry each day.

He has also admitted that there are such references to show how many trips were made by this particular lorry after 3-30 P.M. on that day. Those references are not produced in this case and Mr. Ullal ahs not been able to give us any acceptable explanation for their non-production. If those references which must obviously be, what are generally known as trip sheets had been produced in the case, they would have shown how many trips the lorry had made on May 5, 1950 and whether it was not making a trip being driven by defendant 2 at the time the accident happened for the purpose for which it was generally being made.

(14) D.W.S. Muniswamy Reddy, does not give any useful evidence in the case. He is the owner of a brick kiln and all that he states is than on May 5, 1950, he gave four loads of bricks to be transported to defendant 1 and that the last trip so made, was at about 5 P.M. In his cross-examination he stated that even 'fuel might be taken to the factory' in that lorry, meaning thereby that the lorry was being used by defendant 2 even for the transportation of fuel for which purpose defendant 2, according to D.W. 1 wanted to make an urgent trip on the evening of the day on which the accident occurred.

(15) The next witness examined is D.W. 4 one Govindraj. He has given evidence, which, to my mind, is extremely artificial. Although he admits that he did not know defendant 1 at any time before, he states that he saw at about 8-30 P.M. on May 5, 1950, defendant 1's lorry being driven towards the railway station by one Pillappa. It appears, he stopped the lorry and asked him about some promise which had been made by Pillappa to let out a house to him. It appears that D.W. 4 know that that lorry used to be generally driven by defendant 2, but on that particular day Pillappa was according to him driving it and he therefore asked Pillappa why defendant 2 was not driving it and Pillappa appears to have explained to him that defendant 2 was not well and therefore he was driving it.

The story that he stopped the lorry on that night having seen Pillappa drive the lorry of defendant 1, is, to my mind, utterly incredible. It is impossible to believe his story that he was able to recognise that it was Pillappa that was driving the lorry on that night especially when according the lorry on that night especially when according to him when he discovered Pillappa driving it, it was 8-30 in the night. It is equally improbable that for the purpose of asking him about the house which Pillappa had promised to give him, he took it into his head to stop the lorry at that part of the night when Pillappa was driving it.

(16) D.W. 5 Kuttanna is the cleaner who was working under defendant 1. His evidence is of very little use to defendant 1 in this case. All that he says is, that on that day, defendant 2 who was driving defendant 1's lorry returned at about half past five in the evening and that on that day one. Pillappa who met defendant 2 somewhere near the Malleswaram circle requested the use of defendant's lorry in order to make two trips for some purpose of his own. Defendant 2, it appears declined the loan of the lorry in that way and Pillappa thereupon told defendant 2 and D.W. 5 that he would go to the house of defendant 1 and take the lorry.

Thereafter, it appears, according to the evidence of D.W. 5, D.W. 2 gave diesel oil which he poured into the tank of the lorry. If this story of DEW. 5 has to be believed that defendant 2 declined to give the lorry, to Pillappa the story of D.W. 4 becomes all the more improbable. How Pillappa was able to obtain possession of the lorry in order that he might be able to drive it at 8-30 P.M. on that night as spoken to by D.W. 4, is not explained by the production of any evidence in the case.

(17) The last witness examined is D.W. 6, the first defendant in the case. His evidence is that after defendant in the case. His evidence is that after defendant 2 came to his house at about 5-30 P.M. he reported to him that the lorry had made four trips for the transportation of bricks and that therefore D.W. 6 asked him not to take the lorry anywhere else from the premises. It appears defendant 2 told him then that one Pillappa had asked him to transport fuel and that he refused permission for him to do so.

The lorry, it appears, was parked in its usual place and that thereafter defendant 1 went to his club. When he returned from his club he did not see the lorry in its place.

(18) Defendant 1 has also admitted that there are references with him to show what material was transported every day to his factory in his lorry. He also admitted that his lorry was being plied for hire. He also admitted that Ex. B-1 was a copy of one of the letters which he had addressed to an Insurance Company called the Indian Mercantile Insurance Company on 7-5-1950 in which he stated that his lorry, viz., lorry bearing No. MY 2799Z met with an accident on 5-5-1950 near the Bangalore City Railway Station underbridge and that three persons had died and two persons injured in the accident.

(19) It is very remarkable that although a few months after this accident happened, Eswararaju's widow Puttamma caused the lawyer's notice (EX. 1) to be issued to defendant 1 claiming a sum of Rs. 20,000 as damages for the loss occasioned to her and the members of her family as a result of the death of her husband caused by the rash and negligent driving by defendant 2 who was driving defendant 1's lorry on that date on behalf of defendant 1 as stated in Ex. 1, defendant 1 never sent any reply to it.

He never repudiated the allegations contained in the notice that defendant 2 was driving the lorry on that night or that he was so driving the lorry in the course of his employment with him.

(20) It is, I think clear from the evidence adduced in this case that defendant 2 was driving the lorry of defendant 1 at the time the accident occurred and that when he was so driving the lorry, he was acting within the sphere of his employment with defendant 1.

(21) In London County Council v. Cattermoles (Garages), Ltd., (1953) 2 All ER 582, Sir Raymond Evershed, referring to what Lord Justice Romer said in Beard v. London General Omnibus Co., (1900) 2 QB 530 said this :

'I also cite a few words from the judgment of Romer L. K., in (1900) 2 QB 530.....as indicating what I have ventured to call the common sense of the matter. He said (1900) 2 QB 530 at p. 534 : 'If one sees in the streets of London an omnibus admittedly belonging to the defendant company driven in the ordinary way by a person who appears to be a driver, the presumption is that he is authorised by the company.'

In this case, it is not even necessary to raise any presumption that defendant 2 was acting in the course of his employment with defendant 1. If we find as we must, that defendant 2 was the person who was driving the lorry, it being extremely difficult to accept the evidence of any of the witnesses for the defendants that defendant 2 was not driving the lorry at that time, then it follows and especially having regard to the fact that the records which were maintained in regard to the trips that this lorry was making every day were withheld by defendant 1 and particularly having regard to the evidence of D.W. 1 Nambiar that defendant 2 did tell defendant 1 at 5-30 p.m. that he had to take out the lorry for making an urgent to hold that defendant 2 was acting outside the sphere of his employment.

Even assuming for a moment that defendant 2 was forbidden by defendant 1 from taking out the lorry for making the fuel trip and he took it out for that purpose, the act of defendant 2 would only amount to an authorised act which was within the sphere of his business, performed in an unauthorised way. In my opinion, we cannot properly differ from the finding of the District Judge that defendant 2 was driving the lorry at the time of the accident and that he was so driving it in the course of his employment with defendant 1.

(22) It was next contended by Mr. Ullal that assuming that defendant 2 was driving defendant 1's lorry as we have found which was involved in the accident which led to the death of Eswararaju, the plaintiffs have not established that the death of Eswararaju was caused by any act of negligence on the part of defendant 2. His contention was that it was for the plaintiffs not merely to establish that Eswararaju died as a result of the accident in which the lorry of defendant 1 was involved but that the death was also attributable to some act of negligence on the part of defendant 2 or to the omission on his part to take the degree of care which the law expected of him to take when he was driving his master's lorry. Mr. Ullal has urged that there is no evidence in this case which establishes any such negligence on the part of defendant 2.

(23) In this case, the evidence that in available in regard to how the accident happened is the evidence of Mr. Raghavendra Rao, P.W. 2 and Ponnuswamy Naidu, P. W. 3. According to their evidence, defendant 1's lorry---as I have found it was---went and collided against the underbridge at the scene of the accident and when the accident happened it produced a noise which attracted the attention of Mr. Raghavendra Rao. He got down the bus along with the order passengers who were travelling in that bus and rushed to the scene of the accident and found that Eswararaju was one of those persons who was lying seriously injured very near defendant 1's lorry and the driver of that lorry who, as we have found was defendant 2, had decamped from that place.

The evidence of P. W. 3 is that when he was proceeding towards his house near the underbridge along the platform mad on that night, a lorry as we have found was the lorry belonging to defendant 1, knocked him down. His evidence was that he was riding his bicycle on the left side of his road which according to the traffic regulations which are so well known, is the correct side on which pedestrians, motorists and those who use the public highway have to use.

It was stated in the plaint by the plaintiffs that Eswararaju was coming on his bicycle at the time on the proper side of the road, which was obviously its left side, when the lorry of defendant 1 came at a high speed and knocked him down. P. W. 3 was not cross-examined by defendant 1 and the allegations in the plaint to the effect that Eswararaju was proceeding on the left side of the road which was the proper side for him to use and that the lorry knocked him down was not traversed in the written statement filed by defendant 1.

It is therefore clear that it is established beyond any doubt by the evidence adduced by the plaintiffs and also by the omission on the part of defendant 1 to traverse the material allegations contained in the plant produced by the plaintiffs in the case that not only was defendant 1's lorry being driven at an excessive speed by defendant 2 but that the lorry knocked down both Eswararaju and P.W. 3 who were using the left side of the high road which they were entitled to use and which defendant 2 should not have used.

If on the top of all this it is found that immediately after the accident the lorry was found having collided against the underbridge where P. W. 2 found it and where it is not disputed the lorry was at the time of the accident, the inference that should necessarily be drawn is that defendant 2 was driving the lorry with such speed and with such rashness and negligence that he paid no regard to the safety or security of the order persons who were also entitled to use the highway. In Ex. 1, although it was mentioned by Eswararaju's widow that it was the rash and negligent driving on the part of defendant 2 that caused the accident, that allegation was not denied by defendant 1.

(24) As was stated by Earl. C. J. In Scott v. London Dock Co., (1865) SH. and C. 596 at p. 601:

'Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happens if those who have the management use proper case, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' This observations of Earl, C. J. was, as pointed out in Barkway v. South Wales Transport Co., (1950) 1 All E. R. 392, lays down the law correctly in such cases. That was also the view taken by the High Court of Madras in Gobald Motor Service Ltd. V. Velusami, : AIR1953Mad981 and the High Court of Calcutta in Baijnath v. Corporation of Calcutta, : AIR1933Cal178 .

(25) In this case, while it is established that defendant 2 did drive the lorry on that day with such rashness and negligence as would make defendant 1 his master responsible for the consequences of such act, defendant 1 has adduced no evidence whatsoever justifying a finding that the accident did not arise from want of care on the part of defendant 2. In my opinion, there is no reason at all to disturb the finding of the learned District Judge that the plaintiffs have established that degree of negligence on the part of defendant 2 which would make defendant 1 bear the consequences of the negligent act which caused damage to them.

(26) In that view of the matter, the plaintiffs are undoubtedly entitled to recover compensation from defendant 1 for the loss of the pecuniary benefit which they would otherwise have derived but for the accident in which Eswararaju was killed.

(27) The learned District Judge made a decree in favour of the plaintiffs as I have said, for a sum of Rs. 5040/- and he arrived at that figure by calculating what salary Eswararaju would have drawn before he retired if he had been alive. Eswararaju was, it appears, 52 years old when he was killed, having been born in the year 1998 as shown by Ex. D his Service Register produced by P. W. 6, a Superintendent of the Pension Branch of the Accountant General's Office. He accepted the evidence of P. W. 6, which is also corroborated by the entries in Ex. D-1 that Eswararaju was, when he died, drawing a salary of Rs. 140/- per month, which he would have continued to draw until he retired which would have happened three years later if he had not been killed. He therefore capitalised the salary which Eswararaju would have drawn and that amounted to Rs. 5040/-. To this sum of money, he added Rs. 5/- which he awarded as costs of Ex. 1, the notice issued by Eswararaju's widow to defendant 1 and made a decree for the aggregate sum of Rs. 5,045/-.

(28) Mr. Ullal has contended that in making that computation, the learned district Judge has disregarded the principles which he had to apply in estimating the loss caused to the family of the deceased as a result of the accident. Mr. Ullal has contended before us that Eswararaju was an old man of 52 years and that having regard to the normal longevity of the lives of persons in our country, it was not permissible to the learned District Judge to presume that Eswararaju would have lived until he retired. He has also pointed out to us that Eswararaju, before he died, had insured his life for Rs. 2,000/- and that that must be regarded as a correct estimate of the loss to which his family would be exposed if he died suddenly. According to his submission, the learned District Judge's estimate of the pecuniary loss caused to the members of Eswararaju's family was excessive.

(29) It is too well and too long established that the compensation to be awarded to the members of the family of a person injuriously affected by an accident such as the one which has happened in this case, must be proportioned to the loss resulting to the plaintiffs from the death of that person which means the loss of the pecuniary benefit to them according to reasonable expectations. This assessment of the reasonable future probabilities. It is not the compensation which is in the nature of and which sometimes is described as sentimental damage caused by bereavement, pain or suffering, an action in such cases being an action which is purely compensatory in nature:

(30) That being so, as pointed out by Lord Watson in the leading case the Grand Trunk Rly. Co. V. Jennings, (1888) 13 A. C. 800, the extent of the loss in such cases must depend upon data which cannot be ascertained with certainty, and must necessarily be a matter of estimate, and, it may be, partly of conjecture. But in this case, the learned district Judge had before him sufficiently definite data on which he could estimate the compensation payable to the plaintiffs.

(31) Eswararaju was a person who was in normal health as shown by Ex. C., the post mortem certificate prepared by P. W. 4 the Asst. Surgeon. P. W. 7 his son has also spoken to the fact that Eswararaju was keeping normal health and did not require any medical treatment at the relevant point of time. He was holding a regular employment with the City Improvement Trust Board of the State of Mysore, drawing a salary of Rs. 140/- per month. P. W. 7 has given evidence that his father was drawing a dearness allowance of Rs. 24/- and also a conveyance allowance of Rs. 15/-. He has also given evidence that Eswararaju was intending to take up other employment after his retirement which would have happened in the normal course, three years after the date of the accident. As was pointed out by Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd., (1942) A. C. 601, in cases like the present one.

'.. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable further probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase.....'

That this is a proper way of measuring damages in cases of this kind is not disputed by Mr. Ullal. The learned District Judge, in this case, as I have mentioned, adopted a three years' purchase rule for capitalising the salary of Eswararaju. But he forgot to deduct from his salary the personal and living expenses of Eswararaju which he had to do. But there does not appear to be any ground for altering the computation made by him for that reason on account of the fact that in the capitalisation which the District Judge made, he forgot to include also the dearness allowance and the conveyance allowance which Eswararaju was also drawing according to P. W. 7, whose evidence we see no reason to disbelieve.

(32) Eswararaju's family at the time of the accident, consisted of himself, his son the first plaintiff, his three unmarried daughters and his widow Puttamma. Even if a proper deduction was made towards the personal living expenses of Eswararaju from out of the total sum which he was drawing every month as an Overseer of the City Improvement Trust Board, it could not be said that a sum of Rs. 140/- per month would not be the extent of the pecuniary loss suffered by the plaintiffs as a result of Eswararaju's death. Even otherwise, it will be seen that in the capitalisation of Eswararaju's earnings, the adoption of the 3 year rule by the learned quate. Eswararaju even after he retired from Government service would have nevertheless been entitled to draw a pension which ordinarily would be, according to the pension which ordinarily would be, according to the pension rules which are so well known, equal to a half of the salary which he was continuously drawing for a period of about three years before he retired. Even assuming that it would be something less than Rs. 70/- which he would have been entitled to by way of pension, that pension which Eswararaju would have, being a man of normal health, drawn for some considerable number of years would have also had to be capitalised by the learned District Judge in arriving at the amount of compensation payable to the plaintiffs. The omission therefore on the part of the District Judge to make a deduction expressly towards the personal living expenses of Eswararaju does not, to my mind, entitle defendant 1 to suggest that the computation made by the learned District Judge should be disturbed. In my opinion, the sum of Rs. 5,040/- awarded by the learned District Judge as compensation to the plaintiffs, far from being excessive as suggested on behalf of defendant 1, errs on the side of moderation.

(33) In my opinion, there is no substance in this appeal which must be, and is dismissed with costs.

(34) Mr. Ranga Iyengar, appearing for the plaintiffs, who had taken a cross-objection to that part of the decree of the Court below which disallowed the rest of the plaintiffs' claim, has urged that the plaintiffs are entitled to larger sum by way of compensations. In their memorandum of cross-objections the plaintiff's have claimed a further sum of Rs. 2,520/- by way of compensation, in addition to what has been awarded by the District Judge. Mr. Ranga Iyengar has urged that his client is entitled to ask for this additional sum of money on the ground that the computation by the District Judge of the pecuniary benefit caused to the plaintiffs was not a proper measure of the compensation as a result of the omission on his part to capitalise also for some years the pension to which Eswararaju would have been entitled if he had been alive. In my opinion, there are no grounds justifying the enhancement of the compensation awarded by the District Judge, who, as I have pointed out, in estimating the compensation payable to the plaintiffs at Rs. 5,040/- omitted to deduct from the salary of Eswararaju his personal and living expenses which he had to do under the law.

Since in my opinion the decree made by the learned District Judge awarding a sum of Rs. 5,040/- by way of compensation did not require to be disturbed on that ground by reason of the fact that the learned District Judge forgot also to capitalise the pension of Eswararaju for some years at least, it would not be open for Mr. Ranga Iyengar to urge that in addition to the sum of Rs. 5,040/- given to the plaintiffs by the learned District Judge, some more amount should be awarded to them on the same ground.

(35) In my opinion, the memorandum of cross-objections is also without substance and is dismissed with costs.

(36) Mr. Ullal prays that his client should be given four months' time from now to pay the amount decreed and we grant him the time prayed for.

Malimath, J.

(37) I agree.

(38) Appeal and cross objection dismissed.


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