G.K. Govinda Bhat, J.
1. These appeals brought on behalf of the Union of India and the Post Master General, Madras Circle (Defendants Nos. 1 and 2) are directed against the judgment and decrees of the Court of the Principal District Judge, Bangalore in Original Suits Nos. 37 and 38 of 1959. Original Suit No. 37 of 1959 was a suit brought by Respondents in Regular First Appeal No. 149 of 1962 for damages under the Fatal Accidents Act, 1855 and Original Suit No. 38 of 1959 was a suit brought by the Respondent in Regular First Appeal No. 152 of 1962 for damages for personal injuries.
2. The plaintiffs in Original Suit No. 37 of 1959 are the parents of Subhas Alva, hereinafter called Subhas, who died in the accident. The plaintiff in Original Suit No. 38 of 1959 is Jeevaraj Alva, herein--after called Jeevaraj and he is the elder brother of the said Subhas. In July 1958 Subhas and Jeevaraj were students in the Arya Vidya Shala, Sheshadripuram, Bangalore City. The Railway Mail Service office is situated in a private building on the Seshadripuram Main Road opposite to the said Arya Vidya Shala. On the forenoon of the 18th July 1959 at about 10-30 a. m. Subhas and Jeevaraj along with other boys were sitting near the gate of the said R. M. S. Office. At that time, a motor lorry bearing No. MYF 971 belonging to the Bangalore Ex-Servicemen's Transport Co. Ltd., Bangalore (Defendant No. 3 in both suits) employed for the carriage of mails by Defendants 1 and 2 emerged out of the compound of R. M. S. office. As the said lorry was coming out, one of the gate pillars of the R. M. S. Office compound collapsed and the debris fell on Subhas and Jeevaraj. Subhas died on the spot instantaneously. Jeevaraj suffered grievous injuries of fracture to the bones of one of his legs and one of his arms. The parents of Subhas brought Original Suit No. 37 of 1959 for damages under the Fatal Accidents Act, 1855 claiming Rupees 20,700. Jeevaraj brought Original Suit No. 38 of 1959 claiming Rs. 36,225 for personal injuries suffered. The defendants in both the suits are common; the first defendant is the Union of India, the second defendant is the Post Master General, Madras Circle, Defendant No. 3 is the Bangalore Ex-Servicemen's Transport Company Limited (which Company is the owner of the Motor Lorry No. MYF, 971), defendant No. 4 is the driver of the said vehicle and defendant No. 5 is the Mysore Government Insurance Department with which the said motor vehicle was insured for third party risk.
3. The case of the plaintiffs in both the suits was that under an agreement between Defendant No. 1 and Defendant No. 3, the work of conveyance of mails between the Head Post Office and the City's sub-post offices was entrusted to Defendant No. 3; that the contractors (Defendant No. 3) were discharging their work under the control and direction of Defendant No. 2; that Defendant No. 4 was the driver in the employment of Defendant No. 3; that one of the vehicles engaged for the conveyance of the mail was lorry No. MYF 971 belonging to Defendant No. 3; that on 18-7-1958 defendant No. 4 was driving the said vehicle in the course of his employment when the said vehicle dashed against the gate pillar and the compound wall of the R. M. S. Office resulting in the collapse of one of the gate pillars and the debris thereof fell on Subhas and Jeevaraj and consequently Subhas died on the spot and Jeevaraj sustained grievous hurt. The plaintiffs alleged that the accident was caused by the gross negligence of defendant No. 4, and that Defendant No. 3 as employer of defendant No. 4 is vicariously liable for the acts of Defendant No. 4, and that Defendant No. 1 is also liable for the consequences of the acts done in the course of the employment of Defendants 3 and 4. The plaintiffs in Original Suit No. 37 of 1959 alleged that Subhas was a healthy smart boy with a bright future before him and he could have been of considerable comfort and assistance to his parents and that as a result of his death, his parents have been deprived of the assistance and support which they would have otherwise derived from their deceased son. They estimated the damage at Rs. 20.000 on which they claimed Rs. 700 as interest. Jeevaraj claimed Rs. 35,000 as damages and Rs. 1,225 as interest thereon.
4-5. Defendants 1 and 2 filed a common written statement denying their liability. They denied that Defendant No. 4 was in their employment and in the alternative they contended that Defendant No. 4 was not negligent. They further contended that Defendant No. 3 was an independent contractor and that they were not liable for the negligence of Defendant No. 3 or the servants of Defendant No. 3. A legal contention was also raised that defendant No. 1 is not liable to be sued in tort for acts done in exercise of sovereign functions. The quantum of damages was also disputed. Defendant No. 3 denied that Defendant No. 4 was negligent but admitted that Defendant No. 4 was its employee. Defendant No. 4 remained ex parte. It is not necessary for the purpose of these appeals to refer to the written statement of Defendant No. 5.
6. On the pleadings the trial Court framed the following issues:--In Original Suit No. 37 of 1959 :
(1) Was the death of Subhas Alva brought about by acts of gross negligence on the part of defendant 4?
(2) Have the plaintiffs sustained damages to the tune of Rs. 20,000 due to the death of Subhas Alva?
(3) Are the plaintiffs entitled to claim interest at six per cent per annum as further damages?
(4) Is defendant 3 liable for the consequences of the acts of defendant No. 4 as done in the course of employment?
(5) Is defendant 1 liable for the consequences of acts done in the course of employment of defendants 3 and 4 through defendant 22
(6) Is defendant 5 as the insurer of the vehicle liable to satisfy the suit claim?
(7) To what reliefs are the plaintiffs entitled?
7. As the main issues were common, the suits were tried together and common evidence was adduced. The trial Court pronounced a common judgment in which it found all the issues excepting the claim for interest covered by Issue No. 3 in both the suits in favour of the plaintiffs. In Original Suit No. 37 of 1959 the trial Court awarded a sum of Rs. 15,000 under Section 1-A of the Fatal Accidents Act and Rs. 5,000 under Section 2 of the said Act. Thus a sum of Rs. 20.000 was decreed with interest from the date of the decree. In Original Suit No. 38 of 1959, the Court awarded Rs. 25,000 with interest from the date of the decree.
8. Defendants 3 to 5 have not appealed against the said decrees and they are not before us. Defendants Nos. 1 and 2 have appealed.
9. On the contentions urged by the learned counsel on both sides, the points that arise for determination are:
I. Are the suits not maintainable against the Union of India Defendant No. 1?
II. Was the accident caused by the negligent driving of defendant No. 4?
III. Have the plaintiffs In Original Suit No. 37 of 1959 proved that they had
a reasonable expectation of pecuniary benefit from the continuance of the life of Subhas?
IV. Is the amount of compensation decreed for the loss of expectation of life of Subhas arbitrary and excessive?
V. Does the amount of compensation awarded to Jeevaraj for personal injuries call for interference in appeal?
VI Have the plaintiffs established that the relationship of master and servant has been constituted pro hac vice between defendant No. 1 and defendant No. 4?
VII. If point No. VI is found against the plaintiffs, is defendant No. 3 liable for the negligent driving of defendant No. 4?
10. Point No. I: The contention urged by the learned Central Government Pleader on behalf of the appellants was that the exclusive privilege of conveying by post of postal articles vested in the Government of India under the Indian Post Offices Act, 1898, is a sovereign function and consequently no action lies against the Union of India in respect of a tort committed by the servants of the Postal Department in the course of discharge of their duties, even assuming that defendant No. 4 was a servant of the appellants at the time of the accident.
11. Where an act is done in the exercise of the powers usually called sovereign powers, by which is meant powers which cannot be lawfully exercised except by a sovereign or private individual delegated by a sovereign to exercise them, no action will lie against the State in respect of a tort committed by a servant of the State.
12. The leading case on the subject is the Peninsular and Oriental Steam Navigation Co. v. Secy, of State for India. (1868-69) 5 Bom HC App 1 wherein Chief Justice Peacock enunciated the principles governing the suability of the State in regard to its tortious acts. That was a case where the plaintiffs had sued for damages for injury to their horses caused by the negligence of some of the servants employed in the Government Dock Yard in the Hoogly. In allowing the claim for damages, the learned Chief Justice held that the East India Company could have been sued for the torts of its servants committed in the course of transactions like the maintenance of a dock-yard, carrying of persons or goods on a railway or conveying messages by telegraph. The learned Chief Justice explained as to what is meant by the expression 'sovereign powers' thus:
'Where an act is done, or a contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean powers which cannot be lawfully exercised except by a sovereign, or private individual delegated by a sovereign to exercise them, no action will lie.'
The judgment cited cases of exercise of powers not sovereign where the State is not immune from liability for torts of its servants. The case of Electric Telegraph is one such instance; A gentleman returning home on a dark evening was dragged backwards out of the conveyance in which he was driving himself, by the wire of the Electric Telegraph which crossed the public road, and which hung loosely and so low that he was unable to pass under it. The gentleman was seriously injured and lamed for life. Peacock, Chief Justice posed the question and answered that if the accident had occurred at the time of the East India Company by the negligence of their servants, they would have been liable.
13. The decision in Peninsular and Oriental Steam Navigation Companv's case, (1868-69) 5 Bom HC App 1 was approved in Kasturilal v. State of Uttar Pradesh, : (1966)IILLJ583SC and the principles enunciated by Peacock, Chief Justice, were accepted as laying down the correct law. The question therefore is, is the tortious act committed by Defendant No. 4 referable to, and ultimately based on the delegation of the sovereign powers of the State? If the answer is in the affirmative the plaintiffs will be non-suited. If the answer is in the negative, the action will lie.
14. In the Middle Ages, postal services as existed in Great Britain were maintained by the Universities and the Guilds of Merchants and it was only during the reigns of Queen Elizabeth I and James I that the State prohibited private posts maintained by merchants. Rulers in India from time immemorial maintained their own system of communication and in the year 1766 the East India Company established somewhat similar postal services mainly intended for official correspondence. The post was first made available to the public in the year 1774 when a regular organisation was set up but it was not until 1837 that a monopoly was established in favour of the official post. The Departments of Posts and Telegraphs and Railways are under one Ministry in the Government of India. The members of the public for making use of the postal services have to pay for the same. The postal Department is worked on commercial principles. If the telegraph service is a commercial activity not attributable to sovereign powers of the Government, we fail to see how the operation of postal services can be considered as exercise of sovereign functions. In our opinion, the Postal Department is a commercial cum public utility Department of the Government of India and it by no means constitutes a sovereign function of the State. Therefore the contention urged on behalf of the appellants is clearly untenable and is rejected.
15. Point No. II: There is no dispute that a boy named Subhas Alva aged 10 years was killed and his brother Jeevaraj Alva aged 12 years was seriously injured at about 10-30 A. M. on July 18, 1958 in an accident by the fall of the debris of one of the gate pillars of the R. M. S. office at Seshadripuram in Bangalore City. The case of the plaintiff is that the motor vehicle driven by Defendant No. 4 dashed against the gate pillar as it emerged out of the K. M. S. office compound and the top portion of the gate pillar fell on the said two boys sitting near the said pillar resulting in the death of Subhas and serious injury of Jeevaraj. Defendant No. 4, the driver of the Motor vehicle, did not file any written statement and remained ex parte. Defendant No. 3, the owner of the motor vehicle, denied that the Motor Vehicle dashed against the gate pillar; it contended that it had rained heavily on the previous day and at the particular moment when the motor vehicle was corning out of the R. M. S. office compound, the iron gates accidentally turned against the running vehicle, when defendant No. 4 applied his brakes instantaneously and brought the vehicle to a stop within the minimum possible time and in that process the accident was caused, and that the accident was not attributable to any negligence of defendant No. 4. Defendants Nos. 1 and 2 denied that the accident was caused by any negligence of defendant No. 4.
16-17. For the plaintiff four eye-witnesses were examined; they are P. Ws. 1, 3, 4 and 8. (After discussing their evidence his Lordship proceeded). The Court below has accepted the evidence of P. Ws. 1, 3, 4 and 8 and we see no reason to differ from the learned trial Judge. If that finding is correct, it is not disputed by the learned Central Government Pleader that defendant No. 4 was negligent in his driving. Our finding is that defendant No. 4 was negligent when he drove the motor vehicle and his negligence was responsible for the fatal accident to Subhas and the personal injury to Jeevara]'.
18. Point No. III: Section 1-A of the Fatal Accidents Act, 1855, as amended by Act No. III of 1951 is in pari materia with the provisions of Sections 1 and 2 of the Fatal Accidents Act, 1846 (9 and 10 Vict. C. 93) and therefore, the decisions of courts in the United Kingdom under the Fatal Accidents Act will be useful in deciding cases under the Indian Act. The law as settled in England is: Damages are based on the amount of actual pecuniary benefit which the persons mentioned in the section might reasonably have expected to enjoy had the deceased person not been killed. Damages cannot be recovered for the gravity of the injury to the deceased or as a compassionate allowance or solatium for the mental anguish or loss of society due to the death. The pecuniary loss is not limited to the value of money lost, or to the money value of the benefits lost, but includes the monetary loss incurred by replacing services rendered gratuitously by the deceased, if there was a reasonable prospect of their being rendered freely in the future but for the death of the deceased. The pecuniary loss may be evidenced by proof of a reasonable expectation of some future pecuniary benefit. (Vide Halsbury's Laws of England Vol. 28-III Edition, page 100 at paras 110-111).
19. The pecuniary loss may be prospective and that prospective loss may be taken into account. It is not a condition precedent to the maintenance of an action under the Fatal Accidents Act, 1846 that the deceased should have been actually earning money or money's worth or contributing to the support of the plaintiff at or before the date of the death and all that is necessary to sustain an action is that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of the life. It is however, not sufficient for the plaintiff to prove that he has lost by the death of the deceased a mere speculative possibility of pecuniary benefit; in order to succeed, it is necessary for him to show that he has lost a reasonable probability of a pecuniary advantage.
The question of reasonable expectation of pecuniary advantage is a mixed question of fact and law. Mere difficulty in assessing damages should not bar a plaintiff from recovering; but 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 where there is a mere speculative possibility of benefit, the plaintiff has failed, whereas in the cases where there was a reasonable probability of pecuniary advantage, the plaintiff have succeeded.
20. In Taff Vale Railway Co. v. Jenkins, 1913 AC 1 a girl of 16 was killed in an accident and an action was brought by her father for damages under the Fatal Accidents Act, 1846. The facts found were that the girl was learning the business of dress making that she was an Unusually intelligent girl and though she was still an apprentice, she was shortly coming out of the apprenticeship and that she had the prospects of beginning before long to earn a remuneration which might quickly have become substantial. There was further evidence that the girl came to her parents' house at night and that from time to time she gave them some assistance in the house. The father was beginning to fail somewhat in health and there were facts from which the jury may reasonably have taken the view that the amount of assistance which she would have given to the parents would have been considerable and also that she might have carried on her own business and earned some money. Rejecting the contention of the defendants that the deceased should have been actually earning money or contributed to the support of the plaintiff at or before the death of the deceased, Viscount Haldane, L. C. spoke thus:
'The basis is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for a pecuniary loss. But when loss may be prospective, and it is quite clear that prospective loss may be taken into account. It has been said that this is qualified by the proposition that the child must be shown to have been earning something before any damages can be assessed. I know of no foundation in principle for that proposition either in the statute or in any doctrine of law which is applicable; nor do I think it is really established by the authorities when you examine them.'
Lord Atkinson who concurred with the Lord Chancellor spoke thus:
'I think it has been well established by authority that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact: there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them.'
In Barnett v. Cohen, 1921-2 KB 461 a child under four years of age through the negligence of the defendants was killed and his father brought an action under the Fatal Accidents Act, 1846 to recover damages for the death of his son. The facts found by the Court were: the deceased child was a bright and healthy boy. He had gone to school when only two years of age. The plaintiff (his father) had two other children, both boys aged 9 and 13. The plaintiff was retail and wholesale trading engineer and had a good business. He earned about 1000 a year, his age was 40 and his health was not good. His wife was aged 33 years and her health was also not good. The plaintiff meant to give the deceased child good education by sending him to an ordinary school till about 14 years, then to a secondary school, and then, to a University. The question before the Court was whether the plaintiff had proved the pecuniary loss requisite to establish a cause of action. It was held that the plaintiff had not satisfied the Court that he had a reasonable expectation of pecuniary benefit.
Mc. Cardie, J., after referring to the passages in the speech of Lord Haldane in Taff Vale Railway Company's case, 1913 AC 1 stated thus:
'This question of reasonable expectation of pecuniary advantage seems to me to be a mixed question of fact and law, Mere difficulty in assessing damages should not bar a plaintiff from recovering; see the principle involved in Chaplin v. Hicks, 1911-2 KB 786. But, on the other hand, 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. Such a basis was held to exist in Bramall v. Lees, (1857) 29 LT (OS) 111, where the father secured a verdict for 15 before Crompton J. and a jury, although the child was only 12 years old, was earning nothing and was at the time of its death pecuniarily a burden to its parents. Apparently verdict was based on the ground that in the course of a year or two the child would have earned wages at a factory near its father's home. A rule nisi for a new trial was granted by the Exchequer Court, but was not, I gather, further pursued.
In Duckworth v. Johnson, (1859) 4 H & N 653, the father gained a verdict for 20 for the death of his son aged fourteen who had when twelve years old earned 4 s. a week in a painter's shop. In discharging the rule nisi for a new trial Pollock C. B. said, (1859) 4 H & N 653, 657:-- 'My opinion is that, looking at the Act of Parliament, if there was no damage the action is not maintainable. It appears to me that it was intended by the Act to give compensation for damage sustained, and not to enable persons to sue in respect of some imaginary damage, and so punish those who are guilty of negligence by making them pay costs.' The Court, however, felt that there was just enough evidence to support the verdict. The matter was put somewhat vaguely by Watson B. in the course of his judgment when he said 'there must be some evidence of a prospect of benefit.'
'I think that the only way to distinguish between the cases where the plaintiff has failed from the cases where he has succeeded is to say that in the former there is a mere speculative possibility of benefit, whereas in the latter there is a reasonable probability of pecuniary advantage. The latter is assessable. The former is non-assessable. This test, though necessarily loose, seems to be the only one to apply. The plaintiff, a widow, failed in Stimpson v. Wood & Son, (1888) 59 LT (NS) 218 because, as I read the decision of Manisty and Stephen, JJ. there was nothing more than a mere possibility of loss upon the facts of the case. So too in Harrison v. London & North Western Rly. Co.. (1885) Cab & El 540, the plaintiff, a husband, was also defeated because he failed to prove anything more than a possibility of loss through the death of his wife. As Lopes, J. said (ibid 541), 'I must take into account all the circumstances of the case, and all the contingencies and uncertainties that arise'.
'The case which might appear to go nearest in favour of the present plaintiff is Wolfe v. Great Northern Railway Co, of Ireland, (1890) 26 LR Ir 548, where the plaintiff, a telegraph clerk, obtained a verdict for 150 for the death of his daughter, aged ten, who helped her parents in the house and who, moreover, was of such exceptional value in that way as to enable them to dispense with a servant. The Irish Court of Appeal held that there was evidence which justified the jury in the conclusion that the services of the deceased were of a pecuniary value exceeding the cost of bare maintenance and education. The verdict, however, was reduced to 50 L. The facts in that case were exceptional as to the value of the child.
In the present action the plaintiff has not satisfied me that he had a reasonable expectation of pecuniary benefit. His child was under four years old. The boy was subject to all the risks of illness, disease, accident and death. His education and upkeep would have been a substantial burden to the plaintiff for many years if he had lived. He might or might not have turned out a useful young man. He would have earned nothing till about sixteen years of age. He might never have aided his father at all. He might have proved a mere expense. I cannot adequately speculate one way or the other. In any event he would scarcely have been expected to contribute to the father's income, for the plaintiff even now possesses 1000 a year by his business and may increase it further, nor could the son have been expected to aid in domestic service. The whole matter is beset with doubts, contingencies and uncertainties. Equally uncertain, too, is the life of the plaintiff himself in view of his poor health. He might or might not have survived his son. That is a point for consideration, for, as was pointed out by Bray, J. when sitting in the Court of appeal, in Price v. Glynea and Castle Coal and Brick Co., (1915) 9 BWCC 188, 198: 'Where a claim is made under Lord Campbell's Act, as it is here, it is not only a question of the expectation of life of the deceased man, but there is also a question of the expectation of the life of the claimant'. Upon the facts of this case the plaintiff has not proved damage either actual or prospective. His claim is pressed to extinction by the weight of multiplied contingencies. The action therefore, fails.'
21. In Subramanyam v. District Board, Narasapur, AIR 1941 Mad 733, the plaintiffs, a father and his three minor children brought a suit for damages against the District Board of Narasapur under the Fatal Accidents Act on account of an accident alleged to have been caused by the negligence of the defendants which was responsible for the fall of a tree on a cart passing along the Narasapura Nidadavole Road, with the result that the wife and two sons aged three years and one year, were killed. While rejecting the claim for damages for loss of pecuniary benefit alleged to have been suffered on account of the death of the wife and children of plaintiff No. 1, Horwill, J. who delivered the judgment of the Court observed:
'It is quite clear, as the lower Court says, that the only damages for which the defendant can be liable are those arising out of any financial or pecuniary loss which the plaintiffs have suffered on account of the death of the wife and children of plaintiff 1. The ages of the two little boys who were killed were three years and one year respectively; and it would be absurd to argue that any of the plaintiffs suffered any financial loss on account of their death. The possibility that these two little boys would, in some far distant times, be of some help to their father in his declining years is too speculative to be the basis of any calculation for damages.'
22. The question for our determination is whether the plaintiffs have on the evidence on record satisfied the Court that they had a reasonable expectation of pecuniary benefit. They must adduce such evidence as affords the Court a reasonable basis on which to infer that pecuniary damage has been inflicted on them. The trial Court's conclusion on the evidence has been summarised in paragraph 7 of its judgment thus:
'From the evidence of the father it is seen that he was quite well-to-do and was a successful medical practitioner and he was in a position to give the best education to his sons. The deceased boy possessed the capacity spoken to by his teachers, and it is obvious that the education would have helped him to become quite successful in life and that he would have been of great help to his parents, who had helped him to achieve that position. It is not suggested that there has been any advantage to the parents by the death of this boy in the way of any insurance amounts. To a specific enquiry in this behalf it has been stated on behalf of the plaintiffs that there has been no such advantages from any such sources. From the evidence noticed above, it is clear that there was reasonable prospect of Subhas Alva completing his educational career very successfully and being able to get a good position in life. The difficulty in a case of this type is that it cannot be stated that the plaintiffs are the defendants, but the contrary was the case. Subhas Alva was a dependant of the plaintiffs. But what is claimed by way of damage is that the family had lost the prospect of getting support from Subhas Alva on his completing his educational career and getting a good position in life. It is not made out that a claim of this type is not tenable in law.'
It was urged before us by the learned Central Government Pleader that that there was no reasonable basis from the evidence on record on which the Court below could have come to the conclusion that there was reasonable expectation of pecuniary benefit which has been lost on account of the death of Subhas.
In order to appreciate the said contention, we will examine the pleadings and the relevant evidence. The relevant pleadings are contained in plaint paragraphs 8, 9, 10 and 11.
'8. Plaintiffs have sustained grievous loss as a result of the death of their son Subhas Alva under tragic circumstances as narrated above. This boy went to school as usual on that morning and while waiting for the school bell to ring he was on the road side when he met with violent death. Apart from the distress, sorrow and mental pain which the parents have been subjected to, plaintiffs have sustained substantial damage as a consequence of the death of their son in the circumstances set forth above.
9. The boy was healthy, smart, and good at his studies and had a bright future before him. He could have been of considerable comfort and assistance to his parents. As a result of his sudden death, plaintiffs have been deprived of the assistance and support which they would otherwise have derived from their son.
10. The damage so sustained is estimated at a sum of Rs. 20,000. This includes the amount spent for funeral expenses.
11. Plaintiffs are entitled to the reliefs claimed herein by virtue of the provisions of the Fatal Accidents Act read with the Indian Succession Act (Sections 42 and 306).
23. There is no specific averment in the plaint to the effect that there was a reasonable expectation of pecuniary benefit. All that is stated is that the boy had a bright future before him and he could have been of considerable comfort and assistance to his parents and as a result of his death, they have been deprived of the assistance and support which they would otherwise have derived from their son. The pleadings, in our opinion, are vague and lack essential averments.
24. Turning to the evidence, the only material evidence on the question is that of plaintiff No. 2, Dr. Nagappa Alva, the father of the deceased boy. Plaintiff No. 1 is the mother of the deceased. Dr. Nagappa Alva. examined as P. W. 18, stated that he had four sons and one daughter; that the deceased Subhas was the youngest son and was aged about 10 years. He is a medical practitioner aged 53 years when he was examined on 12-1-1962. He was practising in Mangalore until June 1958 when he shifted to Bangalore with his family. On coming to Bangalore he got his sons admitted to Arya Vidya Shala. Subhas who was studying in Class IV in Mangalore was promoted to Class V; he was studying in the V Class at the time of the accident. P. W. 13 a teacher of Subhas in Mangalore, stated that Subhas was a brilliant boy. P. W. 14 a private tutor of Subhas in Mangalore stated that Subhas was brilliant boy. P. W. 18 had a lucrative practice in Mangalore; after he shifted to Bangalore he continued to have a good practice in medicine. The deceased boy was not rendering any service to his parents. The evidence of P. W. 18 in support of his claim concerning reasonable expectation of pecuniary benefit is as follows:--
'I have claimed damages regarding Subhas on the basis that if he had lived a normal life he would have been of monetary assistance to his parents. The family would have benefited much more. Considering his talents and personality he would have come up very well in life. I have claimed only a token.
****** 'At the time of this accident the two boys Jeevarai and Subhas were not actually rendering any help to the family as they were too young.'
****** The 20,000 Rs. I have claimed is a token of the loss we have suffered by the death of Subhas. If he were alive he would have been of far greater help to the family. 'On account of his talents and personality he would have earned a great deal and he would have been of much greater help to us than 20,000 Rs. and I have taken into account mainly the bright future the boy had, my status and my income.''
(Underlining (here in ' ') is ours).
From the above evidence, what is established is that the father of the deceased boy is a medical practitioner having a lucrative practice and that he is in affluent circumstances. The deceased boy was not rendering any domestic or other service to his parents. The boy was aged about 10 years studying in the V class. His parents were in a position to give him higher education. Subhas being a brilliant boy, it may be reasonably expected that his father might have sent him for medicine. By the time Subhas completed his education and was in a position to earn, his father would have been past 65 years. The boy was subjected to all the risks of illness, accidents and death. There was possibility that his parents might or might not have survived their son. The education and maintenance of the boy for about 15 years would have been a substantial burden. Though Subhas, was a brilliant boy, one cannot be certain that he would continue to be a brilliant boy throughout his academic career. He may or may not have turned out to be a useful young man. He may never have aided his parents even if he had earned. When the parents are well-to-do, the boy could scarcely have been expected to contribute for the maintenance of his parents. As observed by Mc. Cardie, J. in (1921) 2 KB 461: 'The whole matter is beset with doubts, contingencies and uncertainties' and what has been established from the evidence on record is that there was a mere speculative possibility of benefit but not a reasonable probability of pecuniary advantage. The former is non-assessable while the latter is assessable. Therefore, the Court below, in our opinion, was in error in awarding damages to the plaintiffs under Section 1-A of the Fatal Accidents Act. On point No. III, we hold against the plaintiffs in Original Suit No. 37 of 1959 and in favour of the appellants.
25. Point No. IV: The Court below has decreed a sum of Es. 5.000 for loss of expectation of the life of Subhas. The learned Special Central Government Pleader urged that the Court below acted on wrong principles in arriving at the amount of damages and that the amount awarded is extravagantly large. He also urged that the plaint has laid no basis for a claim under Section 2 of the Fatal Accidents Act for the loss of expectation of life.
26. The material pleadings regarding the entire claim made in Original Suit No. 37 of 1959 are contained in plaint paragraphs 8 to 11 which we have set out earlier while dealing with Point No. III. The plaintiffs have claimed damages for the loss of future assistance to them. There is no averment made in the plaint that any damages are claimed for loss of expectation of life of Subhas. The Court below has held that since paragraph 11 of the plaint states that a claim is made under the Fatal Accidents Act read with the Indian Succession Act, that can be construed as a claim made under Section 2 also. The claims arising under Sections 1-A and 2 of the Act are founded on two distinct causes of action. Odgers in his Principles of Pleading and Practice, 18th Edition at page 474 has given a precedent for a claim arising from death by accident. The practice is to make a specific claim for loss of expectation of life. The plaintiffs have claimed a consolidated sum of Rs. 20,000 as damages; they have not stated separately the amount claimed in respect of the two distinct causes of action. The pleadings, in our opinion, are defective; when the plaint clearly states that the damage claimed is the loss suffered by the plaintiffs, that pleading cannot be construed as a claim for damages suffered by the estate of the deceased.
27. Assuming that the plaint can be construed as one laying a claim for damages under Section 2 of the Act, we proceed to consider whether the Court below acted on any wrong principle in assessing the amount of damages in order to entitle the appellate Court to interfere.
28. The Court below has dealt with the question of the quantum of damages under Section 2 in paragraph 8 of its judgment. It has fixed a sum of Rupees 5,000 for loss of expectation of life taking into consideration of the fact that Subhas was not an infant and was already showing definite signs of coming up well in life. This is what the Court has stated:
'Taking note of the fact that Subhas Alva was not an infant and was more than about 14 years old and he was already showing definite and certain signs of coming up well in life, I would fix the damages at Rs. 5,000 for loss of expectation of life. In this case there is no question of recovering any specific amount by way of special damages for treatment of injuries etc. suffered by Subhas Alva as he died an instantaneous death. No evidence is available as to how much was spent for his funeral obsequies.'
29. The statement that Subhas was more than about 14 years is factually incorrect. According to the evidence which we have discussed under Point No. III, he was about 10 years of age and was studying in V class. His father had a lucrative medical practice; the deceased was an intelligent boy and he could have expected his father to give him good education,
30. The main considerations to be borne in mind in assessing the damages for loss of expectation of life cannot be stated better than in the following passages in the speech of Viscount Simon L. C. in Benham v. Gambling, 1941 AC 157.
'The house is now set the difficult task of indicating what are the main considerations to be borne in mind in assessing damages under this head, and, in the event of its differing from the view taken in the Courts below, of deciding whether this difference is of a kind which would justify interfering with the figure of 1200 fixed by the learned Judge.
In the first place, I am of opinion that the right conclusion is not to be reached by applying what may be called the statistical or actuarial test. Figures calculated to represent the expectation of human life at various ages are averages arrived at from a vast mass of vital statistics; the figure is not necessarily one which can be properly attributed to a given individual. And in any case the thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life. The age of the individual may, in some cases, be a relevant factor. For example, in extreme old age the brevity of what life may be left may be relevant, but, as it seems to me, arithmetical calculations are to be avoided, if only for the reason that it is of no assistance to know how many years may have been lost, unless one knows how to put a value on the years. It would be fallacious to assume, for this purpose, that all human life is continuously an enjoyable thing, so that the shortening of it calls for compensation, to be paid to the deceased's estate, 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. In assessing damages for shortening of life, therefore, such damages should not be calculated solely, or even mainly, on the basis of the length of life that is lost. Asquith, J. appreciated this view, as his judgment shows. But I think that, in the light of the large amounts awarded in some previous cases in respect of quite young children, the figure he arrived at vas unduly swollen by the consideration that the child might otherwise have had many years of life before it.
The question thus resolves itself into that of fixing a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness. Such a problem might seem more suitable for discussion in an essay or Aristotelian ethics than in the judgment of a Court of law, but in view of the earlier authorities, we must do our best to contribute to its solution. The learned Judge observed that the earlier decisions quoted to him assumed 'that human life is, on the whole, good'. I would rather say that, before damages are awarded in respect of the shortened life of a given individual under this head, 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. If the character or habits of the individual were calculated to lead him to a future of happiness or despondency that would be a circumstance justifying a smaller award.
It is significant that, at any rate in one case of which we were informed, the jury refused to award any damages under this head at all. As Lord Wright said in Rose v. Ford, 1937 AC 826, special cases suggest themselves where the termination of a life of constant pain and suffering cannot be regarded as inflicting injury, or at any rate as inflicting the same injury as in more normal cases. I would further lay it down that, in assessing damages for this purpose, the question is not whether the deceased had the capacity or 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 on an objective estimate of what kind of future on earth the victim might have enjoyed, whether he had justly estimated that future or not. Of course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not loss of future pecuniary prospects.
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. When an individual has reached an age to have settled prospects--having passed the risks and uncertainties of child-hood and having in some degree attained to an established character and to firmer hopes--his or her future becomes more definite and the extent to which good fortune may probably attend him at any rate becomes less incalculable. 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 wordly possessions are greater in one case than another. 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.
It remains to observe, as Goddard, L. J. pointed out, that, stripped of technicalities, the compensation is not being given to the person who was injured at all, for the person who was injured is dead. The truth of course is that in putting a 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 incom-mensurables. Damages which would be proper for a disabling injury may well be much greater than for deprivation of life. These considerations lead me to the conclusion that in assessing damages under this head, whether in the case of a child or an adult, very moderate figures should be chosen. My noble and learned friend Lord Roche was well advised when he pointed out in 1937 AC 826 the danger of this head of claim becoming unduly prominent and leading to inflation of damages in cases which do not really justify a large award.
My Lords, I believe that we are all agreed in thinking that the proper figure in this case would be 200 and that even this amount would be excessive if it were not that the circumstances of the infant were most favourable. In reaching this conclusion, we are in substance correcting the methods of estimating this head of loss, whether in the case of children or adult, which have grown up in a series of earlier cases, and which Asquith J. naturally followed, and are approving a standard of measurement which, had it been applied in those cases, would have led, at any rate in many of them, to reduced awards. I trust that the views of this House, expressed in dealing with the present appeal, may help to set a lower standard of measurement than has hitherto prevailed for what is in fact incapable of being measured in coin of the realm with any approach to real accuracy.'
31. The correct principles governing the assessment of the damages for loss of expectation of life to be deduced from the above decision are:
(1) The thing to be valued is not the prospect of length of days, but the prospect of predominantly happy life. The age of the individual may in some cases be a relevant factor but such damages should not be calculated solely or even mainly |on the basis of the length of life that is lost.
(2) It is necessary for the Court to be satisfied before damages are awarded in respect of the shortened life of the given individual, that the circumstances of the individual's 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. If the character or habits of the individual were calculated to lead him to future unhappiness or despondency, that would be a circumstance justifying a smaller award.
(3) No regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not of loss of future pecuniary prospects.
(4) In the case of a very young child there is necessarily so much of uncertainty about the child's future that no confident estimate of prospective happiness can be made and therefore, the appropriate figure of damages should be reduced.
(5) When an individual has reached an age to have settled prospects--having passed the risks and uncertainties of childhood and having in some degree attained to an established character and to firmer hopes--his or her future becomes more definite and the extent to which good fortune may probably attend him at any rate becomes less incalculable.
(6) In assessing damages whether in the case of a child or an adult very moderate figures should be chosen.
32. The Court below in assessing the damages has not taken into consideration the fact that Subhas was yet a young boy of 10 years and there is necessarily so much uncertainty about his future that no confident estimate of prospective happiness can be made.
33. In the case of Gobald Motor Service Ltd. v. Veluswarni, : 1SCR929 , a sum of Rs. 5,000 was awarded for loss of expectation of life of one Rajarathnam aged 34 years. The deceased Rajaratnam died three days after the accident and for the mental suffering and loss of expectation of life, a sum of Rs. 5.000 was awarded. That case went to the Supreme Court on appeal from the High Court of Madras in Gobald Motor Service Ltd v. Veluswarni, : AIR1953Mad981 . It is seen from paragraph 16 of the judgment of the High Court that Rajarathnam, was a man of the age of 34 years carrying on business as a doctor with reasonable prospects of improving in his business and that he was living in comfort. Rajarathnam had reached an age to have settled prospects, having passed the risks and uncertainties of child-hood, and in such a case the proper figure of damages should have been more than in the case of a boy of 10 years who has not reached the age to have settled prospects. According to the evidence in the present case, the death of Subhas was almost instantaneous and therefore, no damages could be awarded for mental agony and suffering. The appropriate figure of damages in the instant case could not have been the same as that was awarded in Gobald Motor Service's case, : 1SCR929 . If we were sitting as the Court of first instance, the proper sum to be awarded could have been fixed at Rs. 3.000. The sum awarded by the Court below however, cannot be considered as extravagantly large and therefore, we will not be justified in interfering with the amount assessed by the trial Court. On Point No. IV. we hold that the sum awarded under Section 2, though excessive, is not extravagantly large, and we affirm the finding of the Court below fixing the damage at Rs. 5,000.
34. Point No. V: The question is whether the quantum of damages awarded to Jeevaraj in Original Suit No. 38 of 1959 is extravagantly excessive and calls for interference. That Jeevaraj is entitled to damages for personal injuries in the event of appellants being held liable, was not disputed before us. The learned Central Government Pleader urged that the assessment of damages by the trial Court is not based on any principles and that it is extravagantly excessive. That Jeevaraj sustained grievous injuries and consequently he was an in patient in the hospital from 18-7-1958 to 22-10-1958, that the bones of his right forearm and left leg were fractured, are facts that are not disputed, p. W. 10. Dr. Authikeshavalu, the Dean of the Medical College, Bangalore and Superintendent and Surgeon of Victoria Hospital, Bangalore, has stated that he attended on Jeevaraj who had suffered a compound fracture of lower end of his right forearm, a fracture on the upper part of. ulna, a lacerated wound in the same region with bone fragments protruding out of the wound, fractures of both bones of left leg at the middle with overriding deformity and lacerated injury over the lateral part of the upper portion of the right forearm. He has further stated that as a result of the injuries, Jeevaraj had a little difficulty in the movement of the right hand and right elbow and weakness of the left leg and that it would be correct to say that they were handicaps for the boy, that the boy could not act freely and he had to be careful in using the fractured leg and arm while playing games. His further evidence was that it is not easy to say that as the boy grows older, his handicaps will be set right and that the tendency as he grows older is for the bones to get deformed as further growth is arrested.
35. P. W. 11 Dr. David, Assistant Surgeon, Victoria Hospital, Bangalore, who was on duty when Jeevaraj was admitted to the hospital, has given the description of injuries found on his body. P. W. 17 is Jeevaraj. He has stated that the shape of his right elbow has changed and there are four deep and long scars there, that after the fracture he is not able to use his right elbow and arm as before and that even in 1962 when he gave evidence, he was not able to write fast and that he could not lift any book or article in his right hand without causing pain.
36. The learned trial Judge has summarised the material evidence in paragraph 19 of his judgment and has rightly arrived at the conclusion that Jeevaraj has become handicapped physically and to some extent mentally also. In regard to the principles governing the assessment of damages for personal injuries, the learned trial Judge referred to the principles laid down by this Court in Ganapathy Bhatta v. State of Mysore, AIR 1960 Mys 222. In the said decision, Somnath lyer J. has succinctly stated the principles for the guidance of the courts in the matter of assessment of the damages for personal injuries. This is what the learned Judge has stated:
'In an action for damages for personal injuries caused to the plaintiff in an accident the plaintiff is entitled to be compensated for the pain and suffering undergone by him as a result of the accident as also in respect of the general impairment of his health, if there has been any such impairment, and reduced capacity for work, if there has been lowering of his endurance of stamina in that regard, besides the special damages awardable to him for the expenses which he had to incur for his treatment during the period he was an in-patient in the hospital.........
In an action for personal injuries it is impossible, in view of the difference in the facts of individual cases, to standardise the amounts of damages which should be awarded; damages should be assessed so as. while bearing in mind the special facts of the case under consideration, to accord with the general run of assessments made by the Courts over a substantial time in comparable cases.'
37. The learned trial Judge referred to several cases of this court and other courts and on a consideration of the awards made in the said cases: fixed a sum of Rs. 25,000/- to be awarded to Jeevaraj for personal injuries on account of general damages. Since no evidence was placed before the Court regarding the medical expenses, no special damages were awarded.
38. What principles should be observed by an appellate Court in deciding whether it is just in disturbing the findings of the Court of first instance have been laid down by the Judicial Committee of the Privy Council in Nance v. British Columbia Electric Rly. Co. Ltd. 1951 AC 601. At page 613, Viscount Simon stated:
'The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate Court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the Tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, It must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. (Flint v. Lovell, 1935-1 KB 354, approved bv the House of Lords in Davies v. Powell Duffryin Associated Colleries Ltd., 1942 AC 601).'
38-A. The basis of assessment of damages in actions for personal injuries is stated in Winfield on Tort (7th Edition) at pages 779 to 781:
Summing up, this is what the learned author says at page 781: ''Unsatisfactory though it may be, all that can be said is that the damages awarded should be fair and reasonable compensation for the injury, bearing in mind all the relevant heads of damage, and that, so far as is possible, the sums awarded should bear a reasonable relationship to one another. The need for consistency is now fully recognised by the courts, and if judges can be persuaded to apportion the total sum awarded between the various heads of damage and to set out the factors which they take into account there is no reason why that consistency should not be achieved to a substantial extent. But it remains true that every case must ultimately be decided on its own facts and that 'the choice of the right order of figure is empirical and in practice results from a general consensus of opinion of damage awarding tribunals-juries, judges and appellate courts' '.
The Court below has referred to the correct principles governing the assessment of damages for personal injuries and after referring to the previous judgments of different High Courts, has assessed the damage at Rs. 25,000/- which we do not consider as extravagantly high and therefore we confirm the finding ol the Court below on Issue No. 2 in Original Suit No. 38 of 1959.
39. Point No. VI: The question whether Defendants 1 and 2 are vicariously liable for the negligence of Defendant No. 4 is the most important question presented for decision in these appeals. From the plaintiffs' pleadings which are vague, it is not possible to infer the exact legal basis of the liability sought against Defendants 1 and 2. Defendants 1 and 2 contended that Defendant No. 3 was an independent contractor and that they are not liable for the negligence of the contractor's servants. The trial Judge has not given any clear finding on the contentions raised by the defendants; he seems to have accepted the contention that Defendant No. 3 was an independent contractor but held defendants 1 and 2 liable relying on a passage in Ramaswami Iyer's Law of Torts (6th Edition) page 496 which states:
'An employer of an independent contractor is not liable for the faults of the latter or his servants. The Rule would not apply if the employer reserves for himself a right of control or actually exercises it.'
On a consideration of the agreement Exhibit D-5 entered into between Defendant No. 1 and Defendant No. 3, the trial Judge came to the conclusion that the Postal Department exercises sufficient control over the drivers and therefore, the case falls within the exception to the rule.
40. In this Court, Sri Sundaraswamy, the learned counsel for the Respondents submitted that the plaintiffs seek to make defendants 1 and 2 liable on the basis that Defendant No. 3 was a general employer of Defendant No. 4 but by virtue of Exhibit D-5 he became the temporary employee under Defendant No. 1 when he transported mail; in the alternative, the learned counsel submitted that under the Indian Post Offices Act, Defendant No. 1, enjoyed the exclusive monopoly of the right to convey the mail and the conveyance of mail being a statutory duty, the Union of India is liable even if Defendant No. 3 is an independent contractor. The material pleadings on this issue are found in paragraphs 2, 3, 7 and 12 of the plaint in Original Suit No. 37 of 1959 and in paragraphs 2, 3 and 10 of Original Suit No. 38 of 1959. Since the pleadings are identical it is enough if we refer to the pleadings in Original Suit No. 37 of 1959. They read :
'2. Defendant No. 1 is impleaded as the Posts and Telegraphs Department is one of their establishments. Defendant 2 is the head of the Department of the Madras Circle which includes Bangalore. The R. M. S. Office at Bangalore is within the jurisdiction of Defendant No. 2, Defendant No. 3 was in charge of the conveyance of mails on behalf of Defendants 1 and 2, during the relevant period; Defendant 4 was in their employment as driver of their lorry which carried the mails. Defendant 5 appears to have insured the lorry MYF 971 and therefore, they have been impleaded here.
'3. bY arrangement between defendants 1, 2 and 3 the exclusive conveyance of mails between Bangalore Head Office and town Sub Post Offices was entrusted to Defendant 3 during the relevant period. Defendant 3 was discharging this work under the control and direction of Defendant 2. Defendant 4 was the driver in the employment of Defendant 3. One of the vehicles engaged for the conveyance of mails is lorry No. MYF 971 belonging to Defendant 3.
7. The death of Subhas Alva and the injuries caused to Jeevaraj Alva were brought about by acts of gross negligence on the part of defendant 4 and as a direct consequence of his negligent acts. Defendant 4 was prosecuted by the State and
***** 12. Defendant 4 Is liable to pay the damages claimed herein. The death of the boy was brought about by the acts of gross negligence on his part, and he is responsible for the consequence of his actions.
Defendant 3 as the employer of Defendant 4, is liable in law for the consequences of the acts of Defendant 3, done in the course of his employment.
Defendant 1 is liable in law for the consequence of acts done in the course of employment of Defendant 3 and 4 through Defendant 2.
Defendant 2 is the Head of the local Circle of Defendant 1's establishment and the work of Defendants 3 and 4 is under his direction and control. He is both a necessary and proper party to the suit.
Defendant 5 as the Insurer of the vehicle is also liable to satisfy the plaintiffs' claim in this suit.
The liability of defendants is joint and several.'
From the above pleadings. It is not possible to read that the plaintiffs' case is that Defendant 3 was a general employer of Defendant 4 and that under the agreement Exhibit D-5. Deft. No. 1 became the temporary employer of Defendant 4. In 'paragraph 12 set out above, the plaintiffs have clearly alleged that Deft. No. 3 was the employer of Deft. No. 4 and therefore. Defendant No. 3 was liable for the torts committed by its servants. It is nowhere alleged that Defendant 4 became a temporary employee of Defendant 1. Defendant 1 is sought to be made liable on the ground that the work of Defendants 3 and 4 was under the direction and control of Defendant 2. Defendants 1 and 2 in paragraphs 2 and 3 of their written statement contended that Defendant 3 was an independent contractor, that Defendant 4 was not in their employment, and that Defendant 4 was an employee under Defendant 3 and controlled by the said Defendant No. 3. In paragraphs 14 and 15 of their written statement. Defendants 1 and 2 denied that they have employed Defendant 3 as their servant. In paragraph 15 of the written statement, they denied that the work of Defendants 3 and 4 was under the direction and control of Defendant 2. Defendant 3 in paragraph 2 of its written statement submitted that it was an independent contractor and Defendant No. 4 was an employee of Defendant 3. D. W. 4. Sri K. N. Shetty was the Senior Superintendent of Post Offices in the year 1958. He stated that the dally transit, conveyance and delivery of all postal articles, mail bags and postmen were entrusted to the third defendant as a contractor, that it was the contractor's responsibility to safely convey them, that the transport vehicles were owned and maintained by the contractor and that the contractor employed its drivers and the said drivers are not the servants of the Postal Department. In cross-examination, he stated that the Postal Department does not pay the drivers' salary and the remuneration paid to Defendant 3 includes the drivers' salaries. In re-examination, he stated that the Department did not give any direction to the drivers regarding the speed and the way in which the vehicles were to be driven. Defendant No. 4 as D. W. No. 6 stated that he was the driver under Defendant No. 3 on 18-7-1958 when he drove the vehicle. In cross-examination he stated that Defendant No. 3 had employed him, paying his salaries and giving him directions. This is all the oral evidence.
41. When accident occurs by reason of the negligent driving of a vehicle hired out with its driver to another person, difficult questions may arise whether the owner or the hirer is responsible. The facts of one case can never rule another case and are only useful so far as similarity affects and are a help and guide to decision. The general employer of servants is normally liable, as being their master, for all torts committed by them in the course of their employment and within the scope of their authority, and his liability is not affected by the existence of a contract between him and some other person for the temporary employment of the servants in work for that person or for the hiring of the servants to that person. Where however, the relationship of master and servant has been constituted pro hac vice (for the turn of the occasion) between the temporary employer and the contractors' servant, the temporary employer or the hirer is vicariously liable for the acts of the contractor's servant committed in the course of his employment and within the scope of his authority. There being a presumption against such a transfer of a servant as to make the hirer or the person on whose behalf the servant is temporarily working responsible, a heavy burden rests upon the party seeking to establish that the relationship of master and servant has been constituted pro hac vice between the temporary employer and the contractor's servant. To succeed in discharging the burden, it must be shown that pro hac vice the temporary employer was in the position of a Master; i.e. he not only could give directions as to what work the servant had to perform but had the right to control how the work should be done. Whether or not the temporary employer had such a right in any particular case is a question of fact.
42. Where under a contract a vehicle is hired out with its driver to another person, the owner of the vehicle exercises his authority by delegating to his driver the discretion in regard to the manner of driving. Ordinarily when a vehicle with its driver is hired, the driver continues to exercise his own discretion which had been vested in him by his regular employer when he was sent out with the vehicle. If however, the hirers intervene to give directions as to how to drive for which they have no authority to give, and the driver pro hac vice complies with them, with the result that a third party is negligently damaged, the hirers may be liable as joint tort-feasors.
43. Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd., 1947 AC 1 is the leading case where the House of Lords clarified a particularly difficult branch of the Law of Torts. The appellant Harbour Board, the owner of a mobile crane driven by a workman whom it had engaged and paid, hired it to the respondents, a firm of stevedores who were unloading a ship. Owing to the negligence of the driver of the crane a man was injured, and the question for decision was whether the driver was the servant of the Harbour Board or of the stevedores. The House of Lords, in affirming the judgment of the Court of appeal, unanimously reached the conclusion that the driver was the servant of the Harbour Board. In his speech. Viscount Simon, the Lord Chancellor, emphasised that the burden of proof in his case rests on the general or the permanent employer to shift the prima facie responsibility for the negligence of servants engaged and paid by him on to the hirer. 'This burden' he said 'is a heavy one' and it can only be discharged in quite exceptional cases. The Harbour Board paid the driver's wages; it alone had the power to dismiss him, and it alone had power to direct him how he should work the crane. The only power which the stevedores had was to direct the operations to be executed by the crane driver'. Lord Simonds summed up the law by saying that the hirer does not assume the responsibilities of an employer unless he Van direct not only what the workman has to do, but also how he is to do if.
44. The law as established In 1947 AC 1 closely resembles the law as stated in the American Law Institute's Restatement of the Law of Agency. Section 227 therein says:
'A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. He may become the other's servant as to some acts and not as to others.'
In the comment, it is said:
'Since the question of liability is always raised because of some specific act done, the important question is not whether or not he remains the servant of the general employer as to matters generally, but whether or not, as to the act in question, he is acting in the business of and under the direction of one or the other. It is not conclusive that in practice he would be likely to obey the directions of the general employer in case of conflict of orders. The question is whether it is understood between him and his employers that he is to remain in the allegiance of the first as to a specific act, or is to be employed in the business of and subject to the direction of the temporary employer as to the details of such act This is a question of fact in each case'.
The Restatement points out that there is always the inference that the original service continues and then it adds:
'A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value. Normally, the general employer expects the employee to protect his interests in the use of the instrumentality, and these may be opposed to the interests of the temporary employer. If the servant is expected only to give results called for by the temporary employer and to use the instrumentality as the servant would expect his general employer would desire, the original service continues, upon this question, the fact that the general employer is in the business of renting machines and men is relevant, since in such case there is more likely to be an intent to retain control over the instrumentality. A person who is not in such business and who, gratuitously or not. as a matter not within his general business enterprise, permits his servant and instrumentality to assist another, is more apt to intend to surrender control.'
The following illustrations given at pages 502 and 503 of the Restatement of the Law in the American Law Institute's book are useful:
'Illustration 1: P. a taxicab company, rents a cab and driver to B for a day, upon the understanding that the driver is to take B anywhere that B wishes to go and is to obey all reasonable commands of B. In the absence of evidence that B is to control the details as to the management of the cab, the driver is P's servant while driving the cab.
Illustration 5: P. who operates a trucking business, rents to B, an express company, a truck and driver to deliver goods and to do such incidental work as the express company may require in its transportation, for which B is to pay P at the rate of five dollars an hour. B specifies that, if available, A, an employee of P, is to be sent. A is sent. While driving the truck, the inference is that A remains in P's employment, and in the absence of further facts A is P's servant during such time. If loading and unloading is part of the service which P agreed to render, A remains in P's employment, unless B assumes control over the manner of loading and A submits thereto.
Illustration 6: P rents to B for a week a truck and a driver A, at five dollars per hour, to do general express work, but not to load or unload the truck. A, however. at B's request and under his directions, loads the truck. In this, A is the servant of B.
Illustration 7: Same facts as in Illustration 6, except that B directs A to put chains upon the truck to keep it from slipping. In putting on the chains A is not B's servant.
Illustration 8: Same facts as in illustration 6, except that B directs A to drive rapidly and in excess of the speed limit. Because of the rapid driving, A runs into T. P, as the master of A, is subject to liability to T. B is also subject to liability to T since he directed the negligent act.'
45. The facts in Mersey Docks and Harbour Board's case, 1947 AC 1 were almost identical with those in Donovan v. Laing. 1893-1 QB 629 in which the Court of Appeal had held that the hirer was responsible for the crane driver's negligence. The Judicial Committee of the Privy Council in A. H. Bull & Co. v. West African Shipping Agency and Lighterage Co., AIR 1927 PC 173 expressed approval of the Donovan's case, 1893-1 QB 629. In the A. H. Bull's case, AIR 1927 PC 173 the appellants had lent on hire to the respondents a lighter which was manned by two of the appellant's employees. During the night, the two native lighter boys negligently left the lighter, which got a drift and was broken up. The Judicial Committee of the Privy Council held that the respondents were responsible, as the lighter men were under their orders and control during the night as well as during the actual loading. According to the facts as found, the lighter boys were out of the control of the appellants, and subject to the orders and under the control of the respondents. A. H. Bull & Co's, case, AIR 1927 PC 173 can be distinguished from the Mersey Docks case, 1947 AC 1 on the ground that on the special facts of the case, the lighters hired had to be watched over by the bailee and it was the bailee's duties to keep an eye upon the labourers, or to furnish others so that the Chattel might not be lost.
46. The decision In Donovan's casp, 1893-- 1 QB 629 can be supported on ground that under the contract, the hirer had the right to discharge the driver. The principle of the carriage cases and the crane cases appears to be the same (vide Viscount Simon's speech in Mersey Docks case. 1947 AC 1 at p. 11).
47. In Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board, 1942 AC 509 the facts as stated in the headnote of the case reads;
'Under a contract with a petroleum company for the carriage and delivery of their petrol in its lorries, a transport undertaking agreed (a) to keep the petrol while in transit insured against fire and spillage; (b) to dress its employees engaged in the delivery in such uniforms as the company might direct; and (c) that its employees engaged in the delivery were to accept the orders of the company (regarding such delivery, the payment of the accounts and all matters incidental thereto) provided that this should not be taken as implying that its employees were the employees of the company. While one of the lorries belonging to the undertaking, in respect of which a policy had been issued by an insurance company against liability to third parties arising from damage to property caused by its use by the undertaking, was being used to deliver petrol at a garage in accordance with the agreement, the driver, while transferring petrol from the lorry to an underground tank, struck a match to light a cigarette and threw it on the floor, causing an conflagration and an explosion. Claims in respect of consequent damage having been made against the undertaking, the insurance company contended that they did not fall within the scope of the policy.'
It was held that the contract did not contemplate any transference of servants as contrasted with transference of service, and the driver at the time of the accident was acting as the servant of the undertaking. Clause 9 of the agreement mainly relied on by the appellants in the said case had established that, at the time of the accident, Davison (driver) was a servant not of the Respondent but of Holmes, Mullin and Dunn Ltd. and was to the effect that all employees of the respondent engaged in such delivery should accept the orders of Holmes, Mullin and Dunn Ltd. regarding such delivery, the payments of accounts and of matters incidental thereto and that the Respondent should dismiss any employee disregarding or failing to obey such orders. Notwithstanding that clause, it was held that there was no transference of the services of the driver. Dealing with Clause 9 of the contract, as to its effect, this is what Lord Wright said:
'It is I think clear that the presumption is all against there being such a transfer. Most cases can be explained on the basis of there being an understanding that the man is to obey the directions of the person with whom the employer has a contract, so far as is necessary or convenient for the purpose of carrying out the contract. Where that is the position, the man who receives direction from the other person does not receive them as a servant of that person, but receives them as servant of his employer. Where the contract is a running contract, for the rendering of certain services over a period of time, the places where, and the times at which, the services are to be performed, being left to the discretion (subject to any contractual limitations) of the other contracting party, there must be some one who is to receive the directions as to performance from the other party and they are given to the employer, whether he receives them personally or by a clerk or by the servant who is actually sent to do the work. That I think is the position here. The contract is of a character very common between the owner of lorries or other vehicles and one who wants to hire them for the conveyance of his goods. In principle the facts here are indistinguishable from those in Quarman v. Burnett, (1840) 6 M & W 499. Davison was subject to the control of Holmes, Mullin and Dunn Ltd.. only so far as was necessary to enable the respondents to carry out their contract. In doing so he remained the respondent's servant. They paid him and alone could dismiss him. Even in acting on the directions of Holmes Mullin and Dunn Ltd., he was bound to have regard to paramount directions given by the respondents and was to safeguard their paramount interests ............ C). 9 provides that the employees of the respondents or their predecessors engaged in the delivery should accept the orders of Holmes, Mullin and Dunn Ltd.. 'regarding such delivery, the payment of accounts and all matters incidental thereto'. These are just the matters in respect of which, for the convenient performance of the contract, the lorry men employed would naturally be required to obey the wishes of those for whom the petrol was being carried. I do not find anything in the rest of the agreement to lead to any other conclusion. It is not, however, necessary to make any nice examination of its terms. A question of this sort must be decided on the broad effect of the contract.'
48. The question for our decision is whether the plaintiffs have established that when Defendant No. 4 negligently drove his motor vehicle and caused the accident, the relationship of master pro hac vice had been constituted between the appellants and the driver defendant No. 4. The question has to be decided on interpretation of the agreement Exhibit D-5, applying the principles laid down by the House of Lords in Mersey Docks case, 1947 AC 1. The plaintiffs have to establish that the appellants had a right not only to give directions as to what work defendant No. 4 had to perform, but also had the right to control how he should drive the lorry. That question primarily rests on the broad effect of the agreement between defendant No. 3 the owner of the vehicle and the general employer of Defendant No. 4 on the one hand and the appellants. The learned trial Judge relied on Clause 7 of Exhibit D-5 for coming to the conclusion that the appellants are liable as respondent Superior. In the Court also, the learned counsel for the plaintiff-respondents rested his argument mainly on Clause 7 of Exhibit D-5.
49. Exhibit D-5 is the agreement dated 30th November 1955 entered into between the President of India and the Bangalore Ex-Service Men's Transport Company Ltd., Bangalore (Defendant No. 3). Under the said agreement. Defendant No. 3 agreed to provide motor vehicle services for the daily transit, conveyance and delivery in Bangalore of all postal articles, mail bags and postmen as defined in the Indian Post Offices Act, 1898. and the Government of India agreed to entrust the said work to Defendant No. 3 upon the terms and conditions appearing in the contract. Clause (1) of the agreement provided that during the continuance of the agreement which is for a period of three years. Defendant No. 3 shall duly and safely convey within Bangalore between the General Post Office and the various postal sub-offices, railway stations and places mentioned in the First Schedule annexed to the agreement and such other places as may be ordered by the Post Master General by means of regular and efficient motor vehicles to be approved by the Post Master General, all postal articles, mail bags and postmen to the satisfaction and under the general direction of the Post Master General. All motor vehicles reserved by Defendant No. 3 for conveyance of mail were to be used solely and exclusively for the conveyance of the said postal articles and for no other purpose. A postal official on duty was entitled to travel on every motor vehicle employed in the carrying of the said postal articles and the driver of such motor vehicle was required to comply with all reasonable directions by the Postal Official in the motor vehicle. No other passenger was allowed to be carried without the permission of the Post Master General.
50. Clause 7 of the agreement Exhibit D-5 which is a relevant clause reads:
'The contractor shall provide as driver for the motor vehicles when used for the purposes of this agreement competent, careful, trustworthy, civil and responsible and duly licensed drivers who shall at all times be subject to the approval of the Post Master General. The contractor shall pay the wages of every such driver and shall be responsible that he is clear and sober and suitably dressed to the approval of the Post Master General and that no other person shall be permitted to drive such motor vehicles.
All such drivers shall be deemed to be the servants of the Contractor but shall drive and maintain the motor vehicles in their charge in accordance with and shall obey all orders and directions given to them by duly authorised postal officials for the purpose of carrying out the services to be performed by the contractor under this agreement'. If the Post Master General shall give notice in writing to the contractor that he has reason to be dissatisfied with the conduct of any driver the contractor will forthwith on receiving the complaint supply and substitute in the place of the driver complained of another approved driver for the purpose of this contract'.
(Underlining (here into ' ') is ours).
The following facts are established from the evidence on record: The drivers of the motor vehicles used for the conveyance of the postal articles were paid by Defendant No. 3; the appellants had no right to take any disciplinary proceedings against the drivers or to discharge them and if the postal authorities were not satisfied with the conduct of any driver the Post Master General had the right to tell Defendant No. 3 to substitute another driver for the purpose of the contract. The question is whether the plaintiffs have discharged their burden against the presumption existing that the general employer continues to be the master of the driver notwithstanding the hiring of the vehicle with the driver.
51. From the oral evidence of Defendant No. 4, it does not appear that the postal authorities had any right to direct the manner of driving the vehicle. It was argued by the learned counsel for the Respondents that under Clause 7, the postal authorities had the power or right to direct and control the manner of driving. The learned Central Government Pleader submitted that the entire agreement has to be read and Clause 7 therein has to be construed not in an isolated manner and that the obedience of orders contemplated under Clause 7 was for the purpose of carrying out the services to be performed by the contractor under the agreement. He further submitted that since the agreement was for a term of three years and the contractor would not be available to receive directions as to the performance of the contract, as is usual in contracts of this character, the drivers on behalf of the contractors were required to obey orders and in complying with the said directions, the drivers do not receive them as servants of the appellants but receive them as servants of the contractors. The right conferred on the appellants under the agreement, in our opinion, does not empower the postal authorities to control the manner of driving the vehicles by the drivers. The intention of the parties was that the drivers should receive the directions or the orders of the postal authorities and comply with the same for the purpose of carrying out the services. The Postal Authorities had the right to direct the drivers as to what postal articles they should convey, from what place to what place they should drive and at what time they should start. That is what is contemplated under Clause 7 of the agreement and not the right to control the manner of driving which was vested in the drivers to be exercised in their discretion. The plaintiffs, in our judgment, have failed to establish that the relationship of master and servant had been constituted pro hac vice between the appellants and the driver Defendant No. 4. Accordingly Point No. VI is answered in favour of the appellants.
52. Point No. VII: The Respondent's learned counsel submitted an alternative argument that assuming that Defendant No. 3 was an independent contractor and the appellants were not constituted temporary masters of Defendant No. 4, even then, the appellants are liable for the negligence of their contractor or the servants of the contractor since the appellants are performing a statutory duty in conveying the mails and they cannot evade or escape the responsibility by entrusting the work enjoined on them by the statute to an independent contractor.
53. In Winfield on Tort 7th Edition at pages 756-757 it is stated thus:
'Where a special duty is laid by statute on an individual or class of individuals either to take care or even to ensure safety (an absolute duty in the true sense) they cannot in any way escape from or evade the full implication of and responsibility for that duty: whether the duty is absolute in this sense depends upon the true construction of the statute. Many of the duties imposed by the Factories Act, 1948 e.g. to guard dangerous machinery, are absolute. Where a statute authorises something to be done which would otherwise be illegal, the duty is generally such that there is liability if the work is done by an independent contractor. There is a recognised exception that an employer is not liable for the collateral or casual negligence of an independent contractor, that is, negligence in some collateral respect, as distinct from negligence with regard to the very matter delegated to be done.'
54. The liability of an employer for the tort of his independent contractor where a special duty is laid by the statute on the employer is not a truly vicarious liability: he is liable for a duty which he has broken himself.
55. The Indian Post Office Act, 1898. has granted the exclusive privilege of conveying letters to the Central Government. That exclusive privilege includes all the incidental services of receiving, collecting, sending, despatching and delivering of letters except in the cases mentioned in Clauses (a), (b) and (c) of Sub-section (1) of Section 4 of the Act. Where the Union Government is sued for damages for loss of a letter owing to the negligence of a servant employed in the Post Office, it. is not defence to plead that the work of conveying letters was entrusted to an independent contractor and the loss of the letter was caused owing to the negligence of the contractor or the contractor's servant. But where a contractor is employed for transporting postal articles from one post office to another or from the railway station to the post office and the contractor's driver by his negligence commits a tort, say, running over a man, the Union Government is not liable because that is a collateral negligence.
56. In the instant case, it was not In consequence of any order of the postal authorities that Defendant No. 4 ran against the gate pillar of the compound wall; it was in consequence of his negligence in driving the vehicle, that is to say, in performing the work for which he was employed by Defendant No. 3 to do. In performance of the work of Defendant No. 4, viz., the manner of driving the vehicle, the postal authorities had not intervened. Therefore in our opinion, the appellants are not liable for the negligence of Defendant No. 4.
57. Our findings on Point Nos. VI and VII are sufficient to dispose of the appeals; the appellants succeed on the said findings. Since the appeals were argued on all the points and the matter may be taken in appeal to the Supreme Court, we have given our findings on all the points.
58. For the above reasons, these appeals are allowed, the decrees of the Court below against the appellants i.e. Deft. Nos. 1 and 2 are set aside and suits O. S. Nos. 37 and 38 of 1959 are dismissed against Defendants Nos. 1 and 2.
59. In the circumstances, we directthe parties to bear their own costs.
60. Appeals allowed.