Kochu Thommen, J.
1. This appeal is from the judgment and decree of the Subordinate Judge, Kottayam, in O.S. No. 46 of 1971. The appellants are the plaintiffs in a suit for damages arising on account of the death of their two children and their personal injuries and loss which were alleged to have been caused by the wrongful act of the defendants. The suit was decreed, but not in terms of the plaint as the court below awarded only part of the damages claimed. Hence the present appeal.
2. The 1st plaintiff is the husband of the 2nd plaintiff. On the night of 24-1-1969 the couple were walking back home along the Athirampuzha-Ettumanoor road with their daughter Vijayam (aged 12) and son Vikraman (aged 11) after seeing the fireworks at the Athirampuzha church. As they reached Uppupurakkal junction, bus No, KLT 8764 belonging to the 1st defendant and driven by the 2nd defendant suddenly hit them. Both the children died instantaneously and the parents were seriously injured. The learned trial Judge held that the accident was caused by the negligence of the 2nd defendant, and that the 1st defendant was vicariously liable in damages.
3. The plaintiffs claimed a total sum of Rs. 28,880 by way of damages from the 1st defendant under the following heads:
(a) Rs. 2,000 on account of the shock and injuries sustained by Vijayam;
(b) Rs. 2,000 on account of the shock and injuries sustained by Vikrarnan;
(c) Rs. 8,000 on account of the death of Vijayam;
(d) Rs. 10,000 on account of the death of Vikrarnan;
(e) Rs. 2,000 on account of the shock and injuries sustained by the 1st plaintiff;
(f) Rs. 2,000 on account of the shock and injuries sustained by the 2nd plaintiff; and
(g) Rs. 2,880 on account of the loss of earnings of the 1st plaintiff. Although it is not specifically so stated in the plaint, from the nature of theabove claims, it appears to be clear that the first four items arise under the Fata) Accidents Act (XIII of 1855), for short the Act; (a) and (b) being under Section 2 and (c) and (d) being under Section 1-A. The last three items are for personal injuries and loss suffered by the plaintiffs. The trial court awarded damages only in respect of items (d), (e) and (f) and limited the damages, under each of them, to Rupees1,000, Rs. 1,000 and Rs. 2,000 respectively. The total sum thus awarded was only Rs. 4,000.
4. Both the suit and the appeal were filed in forma pauperis. Although in the appeal the plaintiffs claimed the entire balance of Rs. 24,880 they have subsequently amended the appeal memorandum after obtaining the leave of this Court* and limited their claim to Rupees11,500. As per the amendment, the amounts claimed on account of shock and injuries sustained by Vijayam and Vikraman are given up. The claims on account of the death of Vijayam and Vikrarnan are limited to Rs. 5,000 each. Of the latter claim a sum of Rs. 1,000 was awarded by the lower court and the balance is now claimed. The claim for Rs. 2,000 on account of the shock and injuries sustained by the 1st plaintiff was allowed by the lower court only to the extent of Rs. 1,000 and the balance is claimed in the appeal. The claim on account of the shock and injuries sustained by the 2nd plaintiff was allowed in full by the lower court. The claim for Rs. 2,880 on account of the loss of earnings of the 1st plaintiff is now limited to Rs. 500. The plaintiffs have thus given up their claims under Section 2 of the Act and are now pursuing their claim only under Section 1-A and for personal injuries and loss.
5. The bus which was driven negligently by the 2nd defendant ran over the chest of Vijayam and the head of Vikraman, The children were instantaneously crushed to death. The bus hit the father (1st plaintiff) on the left side of his waist and he fell down unconscious. His stomach was operated upon in the Medical College Hospital, Kottayam, where he was hospitalised for several weeks. The bus hit the mother (2nd plaintiff) on her head and knocked her down, and then ran over her right arm. She lost half of her right thumb and she had to be operated upon twice in theMedical College Hospital, Kottayam, where she was hospitalised for a number of weeks. Flesh was cut off twice from her thigh and grafted on her injured arm. She has not yet completely recovered from the injury as she cannot even now bend her right arm or do any work with it. Both the children were extremely smart and healthy. The boy was studying in the III Standard and the girl in the IV Standard, and they were good in their studies. Both the parents were perfectly healthy and strong at the time of the accident. The grand-parents of the children had been blessed with long and happy life. The paternal grandfather died at the age of 75 and the paternal grandmother died at the age of 81. The maternal grandfather lived up to 89 years, and the maternal grandmother lived up to 79 years. The father is a goldsmith earning not less than Rs. 10 a day and the mother earned some income by making sweetmeats at home which she used to sell with the help of the daughter. In the normal course both the children would have lived long and healthy lives and brought happiness and prosperity to their home. In the normal circumstances, the parents could have looked up to the children in the future for financial support.
6. The children were not earning members at the time of their death, although the girl used to render some help to the mother in selling sweetmeats. Yet it is likely that they both would have successfully completed their education and attained suitable positions in life. Although they belonged to the family of a goldsmith and were brought up in circumstances which were by no means affluent, it is quite probable that, on account of the special protection enjoyed by the community to which they belonged, they would have had various opportunities to rise in life socially, educationally and economically. The mere fact that the children were not earning any money or money's worth would not disentitle their parents from claiming the full benefits under the Act; per Viscount Haldane L.C. in Taff Vale Railway Company v. Jenkins (1913) AC 1 at p. 4.
7. In estimating damages under Section 1-A of the Act, the court has to ascertain the pecuniary loss suffered by the family of the deceased on account of his death which was caused by an actionable wrong. Non-pecuniary loss such as mental suffering and anguish few the loss of a spouse or a child will be excluded from the computation of damages: Blake v. Midland Ry. (1852) 18 QB 93. What is payable under the section is not a solatium for injured feelings: per Viscount Haldane L. C. in Taff Vale Railway Company v. Jenkius (1913 AC 1) (supra) It is an amount calculated on a reasonable expectation of the pecuniary benefit which the beneficiaries would have derived had not the death occurred. The beneficiaries have to prove that by the death of the person they lost a reasonable probability of pecuniary advantage,
'There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities.' (per Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd., (1942) AC 601 at 617) (HL).
8. There is no hard and fast rule about the assessment of damages under the Act. Each case depends upon its own facts and circumstances. In the absence of statutory guidelines, the Court has to make an estimate of the pecuniary loss suffered by the members of the family of the deceased. The observation of Lord Wright that it is a hard matter of pounds, shillings and pence may appear to be too severe. Circumstances and attitudes have changed* Greater value is attributed to life while the purchasing power of the rupee has considerably diminished. Sentiments indeed have no place, but the Court has to evaluate the pecuniary loss resulting from death on the basis of a proper appreciation of the relevant circumstances and hard realities. In doing so, the Court has to take into account all reasonable probabilities of future benefits, but exclude from its consideration all fancied or bare possibilities or speculative conjectures. In other words, the damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In C.K Subramonia Iyer v. T. Kunhikuttan Nair (AIR 1970 SC 376).Hegde J. observed as follows (at p. 380of AIR):--
'The law on the point arising for decision may be summed up thus: Compulsory damages under Section 1-A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, the measure of damages is the economic loss sustained by the estate. 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 deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rulefor measuring the value of human life.In assessing damages, the Court must exclude all .considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority.........'
9. Considering the circumstances in which Vijayam and Vikraman lost their lives and their parents suffered injuries, and the prospects of future benefits which the parents lost in the death of the children, we feel that the court below did not correctly estimate the damages. A sum of Rs. 1,000 awarded on account of the death of Vikraman was unreasonably small. The boy was strong and healthy. Even if he did not choose a profession other than that of his forefathers', he would have, as an artisan, earned a reasonably good income for the family and, in all probability, supported his parents as they grew older. In the circumstances we feel that the entire sum claimed i.e. Rs. 5,000 ought to have been awarded on account of Vikraman's death.
10. The court did not award any damage's on account of the death of Vijayam. This in our view was wholly unjustified. The court failed to act on the right principle. The only reason statedby the court is that there was no material to indicate that there had been any earning female member of the family. In the first place the court ignored the fact that Vijayam had been helping her mother not only in the household work but also in preparing and selling sweetmeats. In the second place, the court failed to take note of the fact that women no longer remained cloistered in the kitchen, and in the modern society they earned as much income as the male members. Merely because no female member of the family had, in the past, earned any income, it could not be concluded that there was no reasonable possibility of this bright young girl growing up into a healthy, vigorous, independent and earning member of the family. We therefore feel that a sum of Rs. 5,000 ought to have been awarded on account of her death.
11. While the court awarded Rs. 2,000 on account of the shock and injury sustained by the wife, it limited the damages under that head in respect of the husband to Rs. 1,000. We do not find any justification for doing so. The husband, like the wife, was seriously injured. He too was hospitalised for several weeks and underwent a serious operation. The court did not correctly estimate the damages under this head. We feel that in the circumstances it would have been just and proper if a sum of Rs. 2,000 had been awarded on account of the shock and injuries sustained by him.
12. As regards the claim for damages on account of the loss of earnings of the husband, the court below stated 'apart from the mere statement of the 1st plaintiff there is no proof that he was actually in a position to carry on his business till recently'. The claim on that count was therefore disallowed. The evidence is that the 1st plaintiff was earning not less than Rs. 10 per day as a goldsmith. After the accident he was hospitalised and he could not earn any income while at the hospital and also for quite some time after his discharge. We are of the view that the present claim of Rs. 500 on that account is absolutely reasonable.
13. In the circumstances, we award to the plaintiffs, in addition to the amounts already awarded to them by the trial court, a sum of Rs. 10,500 under the following heads:
(1) Rs. 5,000 on account of the death of Vijayam:
(2) Rs. 4,000 on account of the death of Vikraman;
(3) Rs. 1,000 on account of shock and injuries sustained by the 1st plaintiff; end
(4) Rs. 500 on account of the loss of earnings of the 1st plaintiff.
14. The decree of the court below is accordingly modified and the appeal is allowed to the extent indicated above. The plaintiffs are entitled to realise their proportionate costs of this appeal from the 1st defendant.
A copy of the decree will be sent to the District Collector for realisation of the court-fees.