1. On May 11, 1961, at about 5.25 P.M. on a road in Mangalore known as the Kankanady Road, Sylvester Machado, a little boy aged 8 years who was attempting to cross the road was caught underneath the wheels of a lorry and killed. That lorry belonged to defendant 1 and was driven by defendant 2. The two parents of Sylvester instituted a suit in the Court of the Subordinate Judge, Mangalore, for the recovery of a sum of Rs. 7705 as damages from defendants 1 and 2 and also from defendant 3, an insurer, with whom defendant 1 had insured his motor vehicle against third party risks. The Subordinate Judge awarded to plaintiffs a sum of Rs. 6,000 as compensation and from that decree the insurer appeals.
(2) The appellant complaints that no sum in excess of Rs. 1,000 could have been awarded as damages to the plaintiffs and Mr. Anantharamaiah appearing for the appellant contends that the sum of Rs. 6000 awarded is far too excessive, and that, the Subordinate Judge determined the compensation by the application of wrong principles and standards.
(3) The Subordinate Judge was of the view that Sylvester Machado was killed in consequence of rash and negligent driving on the part of defendant 2. In support of that finding he depended upon the evidence given by P.Ws. 2 and 3 who are the two brothers of Sylvester and upon the evidence of P.W. 5 who professed to have witnessed the incident. All the three gave evidence as in what happened when Sylvester was killed. He also depended upon the fact that defendant 2 was prosecuted for the offence of rash and negligent driving and convicted and also upon the fact that that conviction was affirmed in appeal.
(4) It is, of course, clear that the judgment of the Mangalore and that of the Sessions Judge in appeal constitute evidence that defendant 2 was prosecuted and convicted but on the question whether he was guilty of rash and negligent driving and whether in consequence of such rash and negligent driving Sylvester met with a premature death the evidence into which we should took is that given by P.Ws. 2, 3 and 5. In our opinion that evidence more than fully establishes such rashness and negligence.
(5) Indeed Mr. Anatharamaiah the learned advocate for the appellant, it should be observed, did not ask us to say that there was no element of rashness or negligence on the part of defendant 2 but contended that there was some kind of contributory negligence on the part of Sylvestor. His other submission was that Sylvester would not have been caught under the wheels of the lorry had he not unfortunately slipped and fallen on the road at one edge of it when he was about to reach the other end.
(6) [After discussing the evidence in paras 6 to 21 their Lordships came to the conclusion that there was the requisite element of rashness and negligence on the part of defendant 2. The fact that he used on of his hands for clasping a child and was negotiating the steering wheel with only one hand and was driving on the wrong side of the road was enough to prove beyond any doubt that there was actionable negligence on his part.]
(22) The next question to which we should advert is what concern the qualification of damages. As already observed the plaintiffs claimed Rs. 7,705 which included funeral expenses and the expenses of getting the lawyer's notice issued which amounted to Rs. 205. The sum of Rs. 7500 which represented the compensation proper was claimed under more than one head. The suit was brought under the provisions of the Fatal Accidents Act and it was explained in the plaint that the plaintiffs suffered severe mental agony and pain in consequence of the boy's death which deprived them of their child to whom they could have looked for their support. Compensation was also claimed for the loss of expectation of life and for the pain and agony caused to the deceased.
(23) The Subordinate Judge awarded a sum of Rs. 5000 as compensation for loss of expectation of life and a sum of Rs.1,000 for the pain and agony suffered by the deceased. He, therefore, made a decree for this aggregate sum of Rs. 6000.
(24) Before proceeding to discuss the correctness of this estimate we should advert to an argument advanced before us by Mr. Anantharamaiah in the context of a finding recorded by the Subordinate Judge that it was not open to the appellant who was an insurer to raise all those defendants which were open to defendants 1 and 2 and that that was the position created by the statutory provisions of S. 96 of the Motor Vehicles Act. Mr. Anantharamaiah in our opinion is right in making the complaint that this view taken by the Subordinate Judge overlooks the relevant provisions of S. 96 of the Motor Vehicles Act which preserves for the insurer the right to defend an action in the name of the assured if that right has been reserved to him under the insurance policy. That was what was clearly elucidated by the Supreme Court in British India General Insurance Co. Ltd. v. Itbar Singh : 1SCR168 .
(25) Mr. Anatharamaiah has read out to us the relevant provision in the insurance policy with which we are concerned in this case which reserves for the application that right. The Subordinate Judge was not right in thinking that the defendants which could have been raised by the assured could not have been raised by the appellant.
(26) Before proceeding to the estimate made by the Subordinate Judge it should be observed that considerable argument was expended before us over the question whether the plaintiffs were entitled to the compensation under S. 1A of the Fatal Accidents Act in addition to compensation under S. 2 and whether the compensation claimable in the present case was only under one section and not under the other. In support of this submission that the Subordinate Judge awarded compensation for loss of expectation of life without there being any claim for it. Mr. Anantharamaiah asked attention to the evidence of P.W. 6 which according to him made it very clear that the plaintiff's claim for damages are confined to the loss of pecuniary benefit. That part of the evidence upon which Mr. Anantharamaiah depended was to the effect that the first son of P.W. 6 was making available out of his income a sum of Rs. 40 to Rs. 50 to P.W. 6 for the expenses of the family and that P.W. 6 had claimed damages on that basis only. Depending upon this evidence given by P.W. 6, the argument maintained was that the only claim for damages was a claim for compensation for loss of pecuniary benefit which the plaintiff's would have derived had not Sylvester been killed and that it was not permissible for the Subordinate Judge to award compensation for loss of expectation of life.
(27) It was said that since compensation for the loss of pecuniary benefit is claimable only under S. 1-A of the Fatal Accidents Act and since compensation for loss of expectation of life is claimable under S. 2 on behalf of the estate of the deceased and since no such compensation was claimable under S. 2 on behalf of the estate of the deceased and since no such claim to compensation for loss of expectation of life had been made in the plaint, no such compensation was claimable or awardable. It is now clear from the decision of the Supreme Court in Gobald Motor Service Ltd. v. Velusami : 1SCR929 that although compensation is claimable by defendants of deceased under S. 1-A for loss of pecuniary advantage and compensation for loss of expectation of life is claimable under S. 2 in a case in which compensation is claimed by the dependents under both sections the claim could be set off where the estate is left to the defendant. It was also further explained that there was no legal impediment to a person who is entitled to compensation under both the section making a claim to such compensation although the claim would be controlled by the rule that the compensation under S. 1-A should be reduced by the amount awarded under S. 2 and vice versa.
(28) But we do not find it possible to say that Mr. Anantharamaiah is right in contending that no claim was made under S. 2 and that the only claim was that made under S. 1-A. The complete answer to the submission which is to the contrary is to be found in the averments contained in paragraph 4 of the plaint in which the plaintiffs claimed compensation both under S. 1-A and S. 2. Although the two sections were not specifically referred to in so many words in that part of the plaint, they asked compensation for deprivation of the benefit of the support which they would have derived in due course from Sylvester had he not met with a premature death. They claimed in addition compensation for the mental agony and pain caused to themselves. These two claims are, of course, fully within S. 1-A Similarly they claimed compensation for loss of expectation of life which was described as compensation for the 'shortening of the life' of Sylvester and for the pain and agony caused to him. It is equally clear that these claims fall within S. 2. We should not understand the evidence of P.W. 6 as literally as suggested by Mr. Anantharamaiah and in understanding the nature of the claim what we should do is to look into the plain language of the plaint and not on the dubious evidence given to P.W. 6 in the course of his cross-examination upon which Mr. Anantharamaiah constructed his argument.
(29) It was submitted for the appellant that since the Subordinate Judge awarded compensation only for loss of expectation of life and mental agony and pain suffered by Sylvester we should say that the Subordinate Judge who awarded compensation under S. 2 refused compensation under S. 1-A It was, therefore contended that the only investigation that we can make in this appeal is into the correctness of the quantification so made, without embarking upon an investigation as to whether any compensation should have been awarded for lost of pecuniary benefit and for pain and agony caused to the plaintiffs.
(30) When this appeal was preferred, that plaintiffs took a cross-objection to that part f the decree passed by the Subordinate Judge by which the claim for damages excess of Rs.600 had been negatived. This cross-objection was taken in forma pauperis and when permission was sought to take that cross-objection in that way this Court refused to grant that permission on the ground that the plaintiffs had since become possessed of sufficient means to enable them to pay the court fee payable on the cross-objection. By then a little more than Rs.1,000 which did not from the subject-matter of the appeal had been deposited by the appellant for payment to the plaintiffs and so the plaintiffs had become passed of the means to pay the court fee. So, there is no cross-objection before us and what were are called upon to decide is the correctness of the decree made in favour of the plaintiffs and not the correctness of that part of the decree which was adverse to the plaintiffs.
(31) The question whether any compensation is nevertheless claimable under S. 2 and the question whether even if compensation was awarded by the Subordinate Judge only for loss of expectation of life and pain and agony caused to the deceased what was a awarded could be maintained as what is claimable by the plaintiffs for loss of pecuniary benefit and pain and agony caused to themselves can arise only if we can find it possible to say that no compensation was claimable for loss of expectation of life and pain and agony caused to the deceased or that what has been warded is excessive. Otherwise those questions do not survive.
(32) The stress of the argument of Mr. Anantharamaiah was that since Sylvester was a little boy aged only 8 years, it was unreasonable on the part of the Subordinate Judge to think that there was loss of so much of future happiness or expectation of life as to justify the inference that the sum of Rs. 6,000 could represent the compensation for that loss. It was said that on account of the young age of Sylvester there was so much of uncertainty should his future that no one could make a confident assessment of prospective happiness which could with greater confidence he made where an individual has reached an age with settled prospects and benefits having encountered the risks and other uncertainties of childhood. That as Sylvester was still in the most formative years of his childhood, it was not possible for his parents to cherish those firm hopes which could be vested upon an adult who had established himself in a position of security or affluence and that in any event, the loss of expectation of life in the case of a little child like Sylvester would not bring to his parents anything more than a moderate sum of money in the form of compensation was the argument maintained.
(33) The Subordinate Judge in proceeding to assess a sum of Rs. 5,000 as the compensation claimable by the plaintiffs for loss of expectation of life depended. Almost entirely upon the decision of Jagadisan J in K.M. Krishna Gounder v P.N. Narasingam Pillai, : AIR1962Mad309 . It was pointed out by the learned Judge in that case that in awarding damages under the head of loss of expectation of life, the tender age of the victim could not constitute a very great impediment and that the assessment of compensation should be influenced by factors like the prospect of a predominantly happy life the ups and downs to the voyage of life, the circumstances of the individual and the like. The boy killed in the case before the learned Judge was only seven years of age and was studying in the second class in an elementary school There was evidence that he was healthy, clever and enthusiastic. The father of the boy gave evidence that the boy would have earned Rs. 50/- to Rs. 60/- a month as a clerk if he had not been killed. On the basis of these facts and depending upon comparable cases enumerated by Kemp in his book on 'the Quantum of Damages' the learned Judge awarded a sum of Rs. 5,000 as compensation for loss of expectation of life and a sum of Rs. 1000 for pain and mental agony to the deceased.
(34) The Subordinate Judge was of the view that the case before him had close resemblance to Krishna Gounder's case : AIR1962Mad309 and thought that the qualification of the compensation should be made on the same lines on which it was qualified in Krishna Gounder's case : AIR1962Mad309 .
(35) M. Anantharamaiah's complaint was that there was a mechanical adoption by the Subordinate Judge of the basis adopted by Jagadisan, J. without the discussion of the principles on which compensation should be quantified under Section 2 of the Fatal Accidents Act. He appealed to the decision in Benham v. Gambling (1941) 1 All ER7, and to the observation of Viscount Simon that in a case where the victim was a child, compensation for loss of expectation of life should be a very moderate figure. It was also said that since in Beham's case (1941) 1All ER 7 the compensation awarded under the head of loss of expectation of life was only 200 pounds we should reduce the compensation awarded by the Subordinate Judge.
(36) We should now proceed to discuss the effect of the evidence in the case before us to the extent it is of relevance to the quantification of compensation for loss of expectation of life. P.w.1 who was in charge of a school called the St. Joseph Elementary School in Kankanady and was its Headmistress gave evidence that Sylvester was, when he was killed in the third class in her school and had been promoted to the next higher class. Her evidence was that he was quite an intelligent boy and that his conduct was good and that he was quite healthy. She added that he was passing his examination every year and had been promoted to the next higher class. Her evidence was that he was quite an intelligent boy and that his conduct was good and that he was quite healthy. She added that he was passing his examination every year and had been promoted during the holidays before he was killed. She claimed acquaintance with Sylvester ever since he was admitted to the school three years earlier and as supervisor of the school she gave evidence from her personal experience about Sylvester.
(37) Sylvester's father as P.w.6 gave evidence that Sylvester was healthy and suffered from no illness in the past. He produced Exhibit A-10 which is a marks list recording the marks obtained by Sylvester in the examination in the year 1959 with the conveying letter Exhibit A9. Exhibit A10 shows that Sylvester secured sufficiently high marks in all the subjects and although Mr. Anantharamaiah suggested to us that P.W. 1 who admitted in her evidence that she was not teaching the class in which Sylvester was a student and could not have therefore, any personal knowledge about his proficiency we are disposed to take the view that having regard to the other parts of her evidence which disclose that she was maintaining close association and contract with the students of the school and also the fact that she was the supervisor besides being the Head Mistress the mere fact that she was not teaching Sylvester would not be a sufficient ground for thinking that she had no means of knowledge in regard to the attainments of Sylvester.
(38) What is, therefore, established by the evidence is that Sylvester was a sufficiently bright boy and in the enjoyment of P.W. 6 his father, shows that P.W. 6 was earning Rs. 3 to Rs. 4 a day and that his mother was in receipt of an income of Rs. 34 a month from a hospital in which she was working as a second division clerk in the Government Hospital at Mangalore on a salary of Rs.95 a month. The evidence of P.W. 6 was that P.W. 4 used to make available to him Rs. 40 to Rs. 50 a month towards expenses of the family. The fact that there were three members in the family of which Sylvester was a member and the fact that he was a promising young lad who had earned the good opinion of the head of the institution of which he was a student make it abundantly clear that according to normal expectations, his educational career would have come to a satisfactory termination without any reverses as it happened during the three years when he had passed his examination every year.
(39) We think that after the completion of his education, he would have been able to acquire sufficient earning power and according to reasonable expectations, all these circumstances of Sylvester's life would have ensured for him a measurable prospect of future happiness.
(40) The question is whether the Subordinate Judge was not right on these premises and facts in coming to the conclusion that the compensation for loss of expectation of life could be estimated at Rs. 5000.
(41) The facts of Krishna Gounder's case, : AIR1962Mad309 , have a striking resemblance to the facts of the case before us. In both the cases, the victim was quite a young lady who was still in the very early stages of his educational career. The parents in both the cases were in receipt of both the cases were bright and healthy. According to the father of the victim in Krishna Gounder's case, : AIR1962Mad309 , the victim would have when he embarked on a career been able to earn between Rs. 50 and Rs. 60 a month. It is obvious that Sylvester would have been able to earn a much larger income having regard to the expanding pay structures in these days in which even a class IV Official who does no more than manual work such as an office attendant is able to get an income in some cases a little more or in some cases little less than Rs. 100 a month in a civil post in the State of Mysore.
(42) So, it was contended by Mr. Ullal for the plaintiffs that since the Subordinate Judge depended upon a comparable case such as Krishna Gounder's case : AIR1962Mad309 in which compensation for loss of expectation of life was estimated at Rs. 5,000 we should be slow to disturb the estimate made in that way.
(43)The view taken by Jagadisan, J. in Krishna Gounder's case, : AIR1962Mad309 , was followed by the Kerala High Court in Subramonia Iyer, : AIR1964Ker209 where in the case of a child killed at the age of seven years, compensation for loss of expectations of life was estimated at Rs. 5,000.
(44) Now, it is well settled that compensation which is claimable for loss of expectation of life where the person who is killed is an adult so established himself in life that no one can have any doubt about his being able to live in happiness and comfort during a reasonably long time of which there has been a deprivation on account of the accident which killed him, is also claimable even where the victim is a child or a boy who is still undergoing his education and has to travel a long way before he can acquire any earning power.
(45) Section 2 of the Fatal Accidents Act entitles the estate of a deceased person to claim compensation for a non-pecuniary loss which was basically personal to the deceased. It is for the loss of expectation of life which is one species of non-pecuniary damage that the Subordinate Judge awarded Rs. 5,000 by way of compensation. The estimate of such compensation is not possible by the application of any appropriate formula in positive words. But the principles which should govern the assessment were clearly stated in the speech of Viscount Simon L.C. in Benham's case, 1941 1 All ER 7 in which it was explained that what had to be considered was whether there what had to be considered was whether there was 'the prospect of a predominantly happy life' and that the compensation should be 'a reasonable figure to be paid by way of damages for the loss of a measure of prospective happiness'. The noble Lord observed:
'It would be fallacious to assume, for the 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.'
The noble Lord proceeded to observe that in the case of a very young child there was necessarily about the child's future that no confident estimate of prospective happiness could be made as contrasted with the case of an individual who had reached an age with such prospects having encountered the risks and uncertainties of infancy and having in some measurable degree attained an established character and firmer hopes, which make the future more definite and less incalculable.
(46) In the assessment of reasonable compensation for the loss of the prospect of a span of life which is 'a complex of pleasure and pain of good and ill, of profits and losses' as Holroyd Pearce L.J. described it in Oliver v. Ashman (1962) 2 QB 210, the principle to be applied was stated by Viscount Simon L.C. in Benham's case, 1941-1, All ER 7. He said that it was necessary before damages could be given under that head.
'For the Court to be satisfied that the circumstances of the individual life were calculated to led, on balance to a positive measure of happiness of which the victim has been deprived by the defendant's negligence.'
He then said this:
'I would further lay it down that, in assessment damages for this purpose the question is not whether the deceased had the capacity or ability to appreciate that his further life on earthy 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 victim has been deprived. The damages are in respect of loss of life not of loss of future pecuniary prospects.'
(47) In Rose v. Ford 1937 Act 826, Lord Roche deprecated the application of a detailed analysis and concluded that in England the matter should be left broadly to the jury In Benham's case 1941-1 All ER 7.Viscount Simon L.C. explained that the loss is 'incapable of being measured in coin of the realm with any approach to real accuracy'.
(48) Parker C.J. in Oliver's case 1962-2 QB 210 gave 11,000 pounds as compensation for loss of expectation of life in the case of a boy aged twenty months whose brain was seriously injured in a motor accident. The Court of appeal said that although damages for loss earnings during the 'lost years' were improperly included by Parker C.J., the sum awarded was reasonable.
(49) As in Wise v. Kaye (1962) 1 QB 638 the Court of Appeal repelled the postulate that there was a distinction between a claim by a living plaintiff and the claim by the estate of the deceased to compensation for loss of expectation of life and Holrovd Pearce L J said:
'There is no distinction between damages for loss of expectation of life awarded to a living plaintiff and those awarded to the executor's of a dead man.'
(50) Discussing the difficulty in a proper assessment he observed:
'The ingredients that go to make the final figure have been scrupulously weighed in the judgment. We can only alter it if we are satisfied that it is a wholly erroneous estimate of the damages, if we are satisfied that broadly speaking there is only one reasonable answer to the problem and that the judge has failed to give it.
'One cannot seek for precision or certainty in many cases which are tried by the Courts in their anxious task of weighing imponderables. Often there is a norm whether established by common sense or reason or the convention of the Courts. Then one can decide how great a departure from it justifies the description 'wholly erroneous'' (page 231).
'I myself would feel inclined towards a larger figure but Lord Parker C.J. and my brethren all think otherwise I can give no adequate reason in support a higher figure or to show that one figure is more right than the other. There is no norm by which one can say that this figure is right and the other wrong. To say in Shetty's words 'I cannot argue. I can only feel' may be permitted in a juryman but it is rarely a sound foundation for a judgment. Here Lord Parker C.J. has impeccably balanced all the relevant matters with sympathy and anxious consideration and arrived at a conclusion. One certainly cannot say that it was wholly erroneous'. (page 232)
(51) While what would persuade a jury man to act in a particular way cannot constitute a satisfactory basis for the judgment of a Court which has to balance the relevant matters in making an assessment we should not be justified in reducing the compensation awarded by the Subordinate Judge unless we can say that relevant matters had not been property considered or that the assessment was wholly erroneous.
(52) On the evidence which we have discussed and which the Subordinate Judge carefully considered we do not find it possible to say that the assessment made by him was wholly erroneous. On the contrary, we are satisfied that he made a proper assessment and that the circumstances of the life of Sylvester's were 'calculated to lead on balance to a positive measure of happiness of which the victim has been deprived' by the negligence of the defendant.
(53) In the year 1941, a sum of 200 was awarded as compensation for loss of expectation of life in Benham's case 1941-1 All ER 7 but in the case of 1962-1 QB 638 there was an award of 400 for loss of expectation of life and there was no appeal by either side against that part of the award to the Court of Appeal although there was an appeal in respect of other matters. Diplock L.J. was prepared to raise the figure to 1,000 as he thought that such enhancement was justified by the decline in the purchasing power of the Referring to Benham's case 1941-1 All ER7 he said:
'Even if I am wrong in thinking that the figure awarded in Benham v. Gambling was not a purely arbitrary figure it was at least expressly awarded as compensation for loss of future happiness and as there is no reason to suppose that the value of happiness has depreciated in step with the currency I can equally see no reason why I should not be currency has depreciated since 1940. Even on this basis one would arrive at about the same figure of 1,000.'
(54) Although in the above case, the claim was on behalf of a living person who was twenty years of age when she was injured the ratiocination of Diplock L.J. is not without relevance to the case before us. In Oliver's case, 1962-2 QB 210, it will be recalled that in the case of an injury to a boy aged twenty months the Court of appeal affirmed an award of 11,000.
(55) In Garcia v. Harland and Wolf Ltd. (1943) 2 All ER 477, Atkinson J. alluding to the law enunciated in Benham's case 1941-1 All ER7 observed:
'There, then is the guidance but one cannot forget that life is deemed by the law to be our most precious asset. The severest punishment that the law knows is that of depriving a man of his life.
It is considered of greater value than liberty and to be a more severe punishment than depriving a man of his liberty for the rest of his natural life which usually means at the outside I suppose something under twenty years'.
(56) We are not prepared to think that the award of Rs. 5000 as compensation for loss of expectation of life requires any paring. the assessment by the Subordinate Judge rested on a careful balancing of all relevant circumstances and no one can with any confidence say that it is wholly erroneous or that a smaller sum should have been awarded.
(57) The Subordinate Judge awarded Rs. 1,000 as compensation for mental pain and agony caused to the deceased. The plaintiffs claimed compensation not only for mental pain and agony to themselves but also to the deceased. The one could be claimed under S. 1-A and the other under section 2 of the Fatal Accidents Act The death of Sylvester whose attainments must have been a source of abundant joy and hope to his parents cannot but have caused great anguish and distress to them. And under section 1-A of the Fatal Accidents Act a sum of Rs.1,000 could have been properly awarded as compensation for the agony and pain caused to themselves. In that view of the matter, since the award made under Section 2 could have been rightly made under Section 1-A the question whether in the case of instantaneous death caused by negligence the deceased experienced any pain or agony ceased to have relevance.
(58) Before concluding we should notice an argument advanced by Mr. Anantharamaiah that this appeal has to be heard only by the District Judge and not by this Court. The argument is founded on the provisions of the Mysore Civil Courts Act 1964, which came into force on July 1, 1964 and under the provisions of which an appeal arising out of a suit of less than Rs. 20,000 in value has to be heard and disposed of by the District Judge. This appeal which was preferred to this Court stood statutorily transferred under its provisions to the District Court. But on an application made by the plaintiffs under Section 24 of the Code of Civil Procedure the appeal was recalled to the file of this Court after hearing both sides by an order made on November 2, 1964. After it was so recalled the appeal is properly before us and there is nothing in Raja Soap Factory v. S.P. Shantharaj : 2SCR800 on which Mr. Anantharamaiah relied which can deprive this Court of its competence to dispose of it. We therefore negative the argument to the contrary.
(59) We dismiss this appeal with costs.
(60) Appeal dismissed.