1. This appeal is by the Karnataka Stale Road Transport Corporation (KSRTC) and its Officers and is directed against the Judgment and Award dated 20-8-1984 made in M.C. (MVC) No.203 of 1981 on the file of the Motor Accidents Claims Tribunal, Dakshina-Kannada, Mangalore, granting to the parents a compensation of Rs. 22,800/- for the death of their 12 year old son in a motor-accident.
2. The unfortunate incident occurred at 4.15 P.m. on 29-12-1980 at the pilgrim centre ofDharmasthala in South Kanara District involving appellant's stage-carriage Bus MYG 5700. The driver of the bus, it would appear, had parked the bus and had gone to the appellant's office at Dharmasthala to transact some official business. At that time, one Sarvotham, an artisan working in the KSRTC entered the bus and drove the bus within the Temple premises atDharmasthala. He drove the bus negligently and hit the boy, Raghavendra, who was walking along the road. The boy succumbed to the severe injuries. The parents brought the present action claiming a compensation of Rs. 50,000/-from the appellants.
Appellant, in its defence, contended that, as the accident was not caused by any servant in the course of employment, appellant was not vicariously liable.
3. On a consideration of the evidence, the Tribunal recorded a finding that the driver of the Bus was negligent in leaving unattended the bus which could be started even
without a switch key and that, therefore, the appellant was liable. The Tribunal on some calculations of its own, award-ed a sum of Rs. 18,000/- towards the loss of dependency. Out of this 10% was deducted towards uncertainties. To the balance of Rs. 16,200/- so arrived at were added a sum of Rs. 5,000/-towards 'loss of company and love and for the grief suffered'; a sum of Rs. 600/- towards transportation of the body; and Rs. 1,000/- towards the funeral and obsequies. This award is challenged in this appeal.
4. We have heard Sri G.Lingappa, Learned Counsel for the appellant and Sri Ashok R. Kalyanasetty for Respon-dent-1, Claimant.
On the contentions urged, the points that fall to determination in this appeal are :
(a) Whether the finding of the Tribunal that, in the circumstances of the case, the conduct of the driver leaving the bus unattended amounted to actionable negligence and the appellant, as master, was vicariously liable is erroneous and calls for interference in appeal.
(b) If Point (a) is held against the appellant whether the quantum of the award is unsupportable on the ground that the deceased was an infant and the award could only be in a conventional sum.
5. Re: Point (a): The law as to the vicarious liability of the for the acts and omissions of his servant in the course of employment is somewhat complex, and each case ,really turns upon the particulars of its own facts . 'The doctrine of vicarious liability' ,said Lord Pearce (ILR (Karnataka) 1980(2) SNRD No. 46i) 'has not grown from any veryclear, logical or legal principle but from social convenience and rough justice'. Itwas suggested that the master's liability for the negligence of his servant is not a vicarious liability but liability of the master himself owing to his failure to have seen that his work was properly and carefully done and that when a(ILR (Karnataka) 1980(2) SNRD No. 46) Imperial Chemical Industries Ltd.-v.- shatwell:(1965)A,C,656,685master is held liable for the negligence of his servant in doing a particular thing 'he is himself under a duty to see that care is exercised in doing of the things'(ILR (Karnataka) 1980(2) SNRD No. 46 ii). Where a servant left a vehicle unattended the omission is done 'acting in the course ofemployment'.
Charlesworth and Percy 'On Negligence' (Seventh Edition; 1983) referring to the liability of the master, arising out of servant leaving master's vehicle unattended, observed :
'2. 117. Servant leaving vehicle unattended : A carter, in charge of his master's horse and cart for the day, is acting in the course of his employment if he leaves his horse and cart unattended during the dinner hour, so that the horse runs away and an accident occurs. Similarly, if he leaves his horse and cart with a boy who goes with him to deliver parcels and the boy contrary to his master's orders, drives the cart and has an accident, he is in the course of his employment to look after the horse and cart during the day, and his master will be liable for damage.'
The following passage in Salmond and Heuston on the 'Law of Torts' (18th Edition : 1981) may also be noted :
'....So it has been held that a servant who is authorised to drive a motor vehicle, and who permits an unauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The master may even be responsible if the servant impliedly, and not expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonablyforeseeable that the third party will attempt to drive it, at least if the driver retains notional control of the vehicle.'
(vide pp. 438, 439)
In Clerk and Lindsell on 'Torts' (14 Edition : 1975) this passage occurs:
' ...... The defendants, who were the employers of the lorry driver but not of the workman, were held liable on the ground that the driver had been negligent in thus allowing the workman to drive the lorry, and that(ILR (Karnataka) 1980(2) SNRD No. 46 ii) Broom v. Moogan : (1953) 1 Q B. 597, 609 per Denning LJ.this was negligence in the course of the driver's employment not withstanding that he was forbidden to allow any one to drive his lorry because he was employed not only to drive but also to be in charge of the lorry in all circumstances while en duty.....'
(vide para 240, page 137)
'Generally, the principle involved is that the defendant will not be liable in negligence for anyact of conscious volition on the part of a third party, unless the act is one which ought to have been anticipated or was the reasonable consequence of his own default. It was therefore held to be negligent for the driver of acart to leave it stationary in charge of an unskilled youth, for he ought to have anticipated that the youth would seize the opportunity to drive. Where a tram-conductor knew that passengers often rang the bell to start the tram, his employers were held responsible for an accident arising from the practice, on the ground of theconductor's negligence in permitting it to occur'
(vide para 933, page 558)
6. Even if the master had issued specific orders to the servant against leaving the vehicle unattended and the omission on the part of the servant is virtually a disobedience of the orders of the master, that will not, by itself, make any difference to the liability of the master. The risk that in such circumstances some one else may be tempted to tamper with the vehicle and misuse it was reasonably foreseeable by the driver. He would be under a duty to take all reasonable care. The fact that a servant disobeys the orders of his master does not necessarily mean that he is acting outside the course of his employment. The distinction that needs to be kept distinguished is the one between the order of the master limiting the 'scope of the employment', the disobedience to which means that servant is not in the course of theemployment on the one hand and an order limiting the '(sic) of performance', the disobedience to which does not imply that the servant is outside the employment. Illustrating this principle, Charlesworth observed :
'2. 123... For example, an order that a van driver shall not allow any person to travel in his van, notice of which is displayed on thevan, is an order limiting the scope of the servant's employment, with the result that a breach of the order involves the master in no liability. By way of contrast, an order to employees not to use uninsured motor oars merely limits the way, in which the work is to be performed, so that the liability of the employer is not excluded, if damage is caused, when such order is disobeyed. As explained above it is essential to avoid the approach of isolating the wrongful act of the servant from its surrounding facts, in order to determine whether or not it was done in the course ofhis employment.'
In Gujarat Road Transport Corporation v. Haribhai Vallabbabhai & Others, 1984 A.C.J. 72 the question, in ananalogous context was noticed thus :
'5......Learned Advocate contended that as the bus was driven unauthorisedly by Prahladji, the ST. Corporation and/or the driver were not liable to pay compensation. He has further contended that the driver was not discharging the work of the S.T. Corporation when he went to take meals at his sister-in-law's place...'
Answering the question against the master, the High Court said :
'7 .....It can be said that the driver ought to have anticipated that some one might start the bus in his absence and that too a bus which was not having any shutter on the left side and ought not to have left the bus unattended on the road in a thickly populated locality of the village.....'
'11. From the above discussion it is clear that S.T. bus was without any shutter. It could be started by any person merely by pushing a button. We also consider that the driver was discharging his master's function when he left the bus unattended at village Kukarvada. He had not taken precaution as prescribed under Section 84 of the Motor Vehicles Act. Hence it can be said that the driver had left the dangerous bus which Wonderful engine of death and destruction, which was likely to be used by others and particularly by young persons for which he could have reasonablyforeseen the resultant injury.... The S.T. Corporation ought to have taken a reasonable care to see that the bus was having shutter which could be locked. It could have reasonably been seen by the S.T. Corporation that the driver, who was sent on duty from 7.00 a.m. till 2.30 p m. would at least stop the bus somewhere to take tea and snacks-'
The law puts a special responsibility on the owner who allows the vehicle to go on the road in-charge of some one else. The liability subsists not only with his driver acting in the course of his employment; but also where the driver, with the owner's consent, is driving the car on the owner's business or for the owner's purpose. In the present case, the bus apparently, had no lockable doors; it had a push-button ignition-system; it was accessible .... and a virtual invitation .... to any mischief monger. This constituted also a breach of statutory duty imposed by Section 84 of the Motor Vehicles Act, 1939.
7. We, therefore, hold that the failure on the part of the driver in leaving such a vehicle unattended and which enabled the said Sarvotham to misuse the vehicle is something which the owner becomes answerable for. We, accordingly, find no substance in the first contention of Sri G. Lingappa. Point (a) is answered accordingly
8. Re: Point (b) The contention of Sri G. Lingappa is that the deceased boy was yet an infant and the awards in such cases could only be in conventional sums andsubstantial awards for loss of prospective pecuniary loss areseldom made. He contends that in the case of boys of very young age the uncertainties and vicissitudes of future life are so varied and pronounced that it would be impossible to make even a 'guesstimate' as to how the infant, had he lived, would have shaped in future. Sri Lingappa relied upon the decision of this Court in Government of India v. Jeevaraja Alva, 1970 A.C.J. 221 to indicate the extent to which awards could go in such cases.
It is true that children of very young age are subject to all the risks of life such as illness, accident, death and there was also the possibility that his or her parents might or might not survive him or her. The education andmaintenance of the child could itself be a substantial burden for the future and that the whole matter was so beset with 'doubts, contingencies and uncertainties' that there was hardly any substantial or intelligible basis for an estimate of pecuniary loss for the future. The events of the future were so distant and remote that the whole matter reduced itself to a mere Speculative possibility. In such cases no award could be made under the pecuniary head of loss of prospective income and only an award under the head of 'loss of expectation oflife' in a conventional figure was permissible. The severe limitations placed upon the size of awards under the head 'Loss of expectation of life' in cases such as Benham v. Gambling, 1941 A.C. 157 must now be seen in the light of Picket v. British Rail Engineering, 1978(3) W.L.R. 955 (H.L.) a case which, virtually, lead to a statutory abolition of this head of damages in England.
9. Learned Counsel on both sides referred us to a number of authorities. Cases disclose a wide variation in the pattern of awards made in cases of young children. In some cases, for the death of an infant of 5 years sums upto Rs. 20,000/-have been awarded. At the other extreme is the case where only Rs. 3,000/- was considered permissible for the death of a boy of 10 years. On the difficulties besetting the task of assessment of damages generally in all fatal accidents' actions, Supreme Court, in C. K. Subraoaonia Iyer v.T. Kunhikuttan Nair, : 2SCR688 said :
14......There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on The particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the decreased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life...'
The principle on which compensation for the 'loss of pecuniary benefit,' either present or prospective is awarded is that a reasonable expectation of pecuniary benefit can be established by showing that though the deceased had not attained full-age and full earningcapacity, there are prospects of future contributions to the claimants. But this expectation must be a reasonable expectation and not a mere speculativepossibility. That is the reason why in cases of very young children parents cannot recover - because the child wassubject to all risks of illness, accident and death and there can be no adequate basisfor speculation one way or the other. In Burnett v. Cohen, (1921) 2 KB 461 the father who was in business could not recover where the deceased was a boy aged 4 years, because the expectation of pecuniary benefit for the future would not be a reasonable expectation in such a case. It was a mere speculative possibility.Mc Cardie J. observed:
'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 16 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 such a case there is, at best, a speculative possibility and that would be insufficient to sustain a claim, which as one Judge said ILR (Karnataka) 1980(2) SNRD No. 46 'is pressed to extinction by the weight of multiplied contingencies.'
10. Cases of death of adolescent children, however, are somewhat different and are representative of the class of cases where awards are for pecuniary losses which are ibid page 472 purely prospective. Parents would have incurred the costs of up-bringing of children and of training them. They art on the verge of reaping some financial return from a grateful and dutiful child though not at the moment of death yet receiving any benefit. In those cases the possibility of prospective pecuniary gains is not unreasonable and is, therefore, compensatable. Taff Vale Railway Company v.Jenkins, 1913 AC 1 is a leading' case o n the point where a daughter living with her parents and who died at 16 at a time when her dress-makers' apprenticeship had only just 2 months to run-out after which she would have started earning increasing sums of money, having been shown to be exceptionally clever at her work. The defence that she had never before earned and never before contributed to the parents' support was turned down. Even in the case of adolescent children who are preparing their way for a prospective career the quantum of damages would depend upon the facts and circumstances of the case and the extent to which the circumstances justify a prognostication for the future as to the probable career and the probable earning for the future and what the future may reasonably foreseen to hold out for them.
11. We, venture to think, however, that there are some special distinctions that must be noticed in Indianconditions. The loss of the parents may not be limited to prospective pecuniary, losses, in terms of money contributions. Dependency consists not only of financial contributions, either present or prospective, but also of the value of goods and services. It will be unrealistic to think, particularly, in the context of Indian life thatadolescent children would not be in a position to contribute some services to the family. In the conditions of rural-life boys and girls offer services to the family in many ways and are even known to take care of a small-time family business or avocation. How these services should be sounded in terms of money would again turn upon the facts of a particular case. This loss of services is not merely prospective. It is both present andprospective. Prospectively, in later life the services which Indian parents look-forward to from a grown up son, apart from those, merely of emotional content, are so varied and diverse that they can hardly be exhaustively enumerated. It appears to us that it may not also be permissible to think in terms of setting off the value of these services against the expenses of food, shelter and raiment of the children. These expenses are liable to be set-off not against the value of their services but against the joys and other rewards of family life and the; many, many ways in which children enliven, and bring meaning to a, home as they alone could do
12. In the present case, there is evidence to show that the boy was about 12 years of age. That is an age where, as Sabhahit, J. observed , the boy 'would have crossed the earlier uncertainty of life in child-hood'. The award of Rs. 16,200/- made in this case for 'loss of prospective income' could be justified, in part at least, if suchjustification is at all necessary, on the basis of the loss of the present services. We do not think that the award is to be considered impermissible on ground alone that the award related to an infant in whose case the contingencies and uncertainties were so intense hat any reasonable estimate for theprospective pecuniary loss was neither possible nor permissible. We, accordingly, hold and answer Point (b) also against the appellant.
13. In the result, as both the contentions urged in support of the appeal fail, the appeal is dismissed. No costs.