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P. Anthaiah and Sons Vs. Kummarikantha Dibbayya and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 118 of 1965
Judge
Reported inAIR1970AP380
ActsFatal Accidents Act, 1955 - Sections 1A
AppellantP. Anthaiah and Sons
RespondentKummarikantha Dibbayya and anr.
Appellant AdvocateY.G. Krishna Murty, Adv.
Respondent AdvocateS. Hanumiah, Adv.
Excerpt:
civil - loss of service - section 1a of fatal accidents act, 1955 - letter patent appeal filed by defendant against award in suit for compensation by husband and children of deceased who died due to negligent act of driver of defendant - deceased was employees of municipal board - claim for compensation included loss of service which is opposed by defendant - held, inclusion of loss of service and tune of compensation awarded in respect cannot be termed as unreasonable. - - from all the evidence before me i think i am bound to come to the conclusion that the mother would have made every effort to have brought up the children and to have educated them as well as she could, and to have devoted every available penny which she had to spare for that purpose......of loss of educational concessions and secondly a sum of rs. 2,3000/- awarded under the head of loss of services to the members of the family due to the death of the plaintiff's wife. the learned judge agreed with the contention of the first defendant and disallowed the sum of rs. 1,000/- towards loss of educational concessions. as regards the second item of compensation, the learned judge held that the court below was right in awarding the amount on the ground of loss of services of the deceased to the members of the family. against the said judgment, the first defendant filed the above letters patent appeal. the plaintiff did not question the decree of the court in the first appeal in so far as the trial court's decree was reduced by a sum of rs. 1,000/-2. the main point for.....
Judgment:

Krishna Rao, J.

1. This appeal is filed by the first Defendant. The first respondent herein filed a suit O. S. 53 of 1959 in the court of the Subordinate Judge, Narasaraopet for recovery of Rs. 12,000/- by way of compensation for himself and on behalf of his four children consequent upon the death of his wife aged 32 years, who was an employee as a sweeper in a Panchayat Board earning a salary of Rs. 36/- per month, in an accident as a result of the negligent driving of a bus belonging to the first defendant in the suit. The second defendant who is an Insurance Company was the authorised insurer for the said vehicle. The suit was contested by the first defendant on various grounds including the liability and quantum of damages. The trial Court found that the first defendant was liable and awarded Rs. 6,000 /- as compensation taking several factors into consideration. Against the said judgment , the first defendant alone filed an appeal A. S. 68 of 1961 to this Court.

Before the learned Judge (Gopal Rao Ekbote, J.) objection was raised in respect of two sums of money out of the amount decreed by the trial Court. The first is a sum of Rs. 1,000/- allowed on account of loss of educational concessions and secondly a sum of Rs. 2,3000/- awarded under the head of loss of services to the members of the family due to the death of the plaintiff's wife. The learned Judge agreed with the contention of the first defendant and disallowed the sum of Rs. 1,000/- towards loss of educational concessions. As regards the second item of compensation, the learned Judge held that the Court below was right in awarding the amount on the ground of loss of services of the deceased to the members of the family. Against the said judgment, the first defendant filed the above Letters Patent Appeal. The plaintiff did not question the decree of the Court in the first Appeal in so far as the trial Court's decree was reduced by a sum of Rs. 1,000/-

2. The main point for consideration in this appeal is whether the courts below were right in allowing a sum of Rupees 2,300/- towards loss of services which the members of the family would have received but for the accident. On this question, the learned counsel for the appellant has not been able to place before us any authority in support of his contention that no compensation can be awarded in lieu of the loss of services. The learned counsel placed reliance upon several decisions including one of the Supreme Court but it is not necessary to refer to any of them as they do not deal with the present question. On the other hand, there is abundant authority against the appellant's contention. In Mayne & Mc Gregor on Damages Twelfth Edition (1961) the law on the point is stated in paragraph 826 as follows:

'The loss to the children generally does not, where the husband is alive and claiming, fall to be considered separately by the Court. As to gratuitous services, the amount will generally go to swell the husband's loss, since he remains under an obligation to maintain the children........................................................

. . .. . .. . .. . .. . .. . .. . .. . .. . .. . . . . .. . .

Nevertheless. It may be argued that the benefit of a mother's personal attention to a child's upbringing, morals, education and psychology, which the services could never provide, has in the long run a financial value for the child, difficult as it is to assess.'

In Berry v. Humm & Co., (1915) 1 KB 627, a case arising under the English Fatal Accidents Act, where a wife who died in an accident, performed the ordinary household duties of a woman in her position and in consequence of her death the plaintiff, her husband, had to employ a housekeeper and to incur extra expenses of management by the housekeeper instead of by his wife, it was held that the damages recoverable in such an action are not limited to the value of the money lost or the money value of things lost but include the monetary loss incurred by replacing services rendered gratuitously by the deceased where there was a reasonable prospect of their being rendered freely in the future but for the death and that therefore, the plaintiff was entitled to recover such damages.

3. Again in Preston v. Hunting Air Transport Ltd., (1956) 1 QB 454 at page 461 a case arising under the Carriage by Air Act, it was held, construing the words 'damage sustained' as follows at page 461:---

'Whether that damage should be calculated purely on what may be estimated as the financial loss which these infants have sustained, or whether it should be calculated on the broader basis of the loss which they inevitably must have sustained beyond the actual financial loss by the fact that they lost their mother as young children aged some three or four years, who were at the time of her death, already deprived of a father. As I interpret the words of Art. 17 it does seem to me that this is an item of damage for which the plaintiffs are entitled to be compensated . I must take into account, in calculating any sum which should be awarded to them, something more than the purely financial loss and award some a sum extremely difficult to arrive at for the loss which they have sustained by reason of the fact they have lost the care of their mother at an age when probably they needed it most.

From all the evidence before me I think I am bound to come to the conclusion that the mother would have made every effort to have brought up the children and to have educated them as well as she could, and to have devoted every available penny which she had to spare for that purpose.'

There is, therefore, clear authority for the proposition that the children and the husband of the deceased are entitled to compensation on the ground of the loss of the services of the deceased which were no doubt gratuitous, for the reason that the members of the family can replace gratuitous services only by incurring expenditure. No argument appears to have been advanced before the Courts below that even if the plaintiff was entitled to some compensation under this head, a sum of Rs. 2,300/- was excessive. But even assuming that the question is open to argument, we are of the opinion that the said sum of Rs. 2,300/- as a reasonable estimate. Out of the four children of the deceased the youngest daughter was eight years of age which the other two daughters were 10 & 15 years old. The youngest daughter certainly requires the services of the mother for a period of eight years while the other daughters needed her services for six years and one year, that is till they attain the age of 16. It is not suggested that the husband took a second wife and hence he was certainly deprived of the services of his wife. Even estimating the value of her services at Rs. 25 per month for all the members of the family, the sum of Rs. 2,300/- cannot be regarded as unreasonable. e therefore, reject the contention of the learned counsel for the appellant that the sum of Rs. 2,300/- should be disallowed. The decree passed by his court in A. S. 68/61 is therefore, confirmed. Out of the amount decree, the Insurance Company was directed to pay Rs. 2,000/- while the first defendant is made liable only for the balance of Rs. 3,000/-

4. For all the above reasons, this appeal is dismissed with costs of the plaintiff-first respondent.

5. Appeal dismissed.


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