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Concord of India Insurance Co. Ltd., Calcutta and ors. Vs. C.K. Subramonia Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 1054, 1083 and 1094 of 1959
Judge
Reported inAIR1964Ker209
ActsFatal Accidents Act, 1855 - Sections 1A, 2 and 3
AppellantConcord of India Insurance Co. Ltd., Calcutta and ors.
RespondentC.K. Subramonia Iyer and ors.
Appellant Advocate V. Balakrishnan Eradi, Adv. in A.S. No. 1054 of 1959,; V. Suryanarayana Iyer and;
Respondent Advocate C.S. Ananthakrishna Iyer and P. Ramanarayanan, Advs. in A.S. No. 1054 of 1959,; Y.R. Krishna Iyer and
Cases ReferredK. M. Krishna Gounder v. Narasingam Pillai
Excerpt:
.....claimed rs. 5000 for pain and suffering undergone by injured boy and rs. 25000 for pecuniary loss to plaintiffs - plaintiff not entitled to get any compensation under section 1-a for death of deceased - evidence adduced established that pain and suffering experienced by deceased not excessive - so fixation of sum to be reduced to rs. 1000 - evidence adduced showed speculative possibility of pecuniary benefit - deceased at time of accident not rendering material benefit to his parents - rs. 5000 awarded for pecuniary loss. ) - - town-bus owned by the 1st defendant and driven by the 2nd defendant, and was so severely injured that he died in hospital on the early morning of february 28, 1956 he was a smart bright boy, aged 8 years at the time of the accident, studying in standard..........and step-daughter; and (ii) under section 2 -- for damages in the nature of compensation for 'any pecuniary loss to the estate of the deceased occasioned by' the accident. though the action or suit is to be brought by 'the executor, administrator or representative of the person deceased', the claim under section 1-a is for the benefit of the relatives specified above; and the claim under section 2 is to be part of the assets of the deceased's estate. the plaintiffs in the present case are the father, the mother and the grandmother of the deceased. the father and the mother being the heirs of the deceased would alone be entitled to the latter claim while all the plaintiffs are entitled to the former. 5. section 3 of the act requires.'the plaint in any such action or suit shall give full.....
Judgment:

Madhavan Nair, J.

1. These appeals have arisen in an action for damages under the Fatal Accidents Act, XIII of1855.

2. Krishnamoorthi, the eldest son of the plaintiffs 1 and 2, was hit, on the evening-dusk of February 26, 1956, by a. Town-bus owned by the 1st defendant and driven by the 2nd defendant, and was so severely injured that he died in hospital on the early morning of February 28, 1956 He was a smart bright boy, aged 8 years at the time of the accident, studying in Standard III having been at the top of his class all through. His parents are affluent. He had a reasonable prospect of occupying a good position in life. In respect of his death caused by the negligence of the 2nd defendant the plaintiffs claimed Rs. 30,000 as damages. At the instance of the 1st defendant, the 3rd defendant-company, with which the bus had been insured against accidents, was also brought on record. The District Judge fixed the damages at Rs. 5,000/-, and held defendants 2 and 3 and the estate of the 1st defendant liable. A. S. No. 1054 is by the 3rd defendant, the insurance company; A. S. No. 1083 by defendants 4 to 8 being the legal representatives of the 1st defendant; and A. S. No. 1094 by the plaintiffs.

3. That the fatal accident was caused by the negligent driving of the bus by the 2nd defendant had been found by the District Judge and is borne by the evidence on record. The real problem here is of the assessment of damages -- thatmade by the District Judge being challenged by the plaintiffs as too low, and by the defendants as excessive. The 3rd defendant claims complete immunity in this action.

4. The Fatal Accidents Act provides two distinct rights of action:

(I) under Section 1-A -- for damages 'proportioned to' the loss resulting from such death to the wife, husband, parent or child of the deceased, the word 'parent' being defined to include father, mother, grandfather and grandmother and the word 'child' to include son, daughter, grandson, granddaughter, step-son and step-daughter;

and (ii) under Section 2 -- for damages in the nature of compensation for 'any pecuniary loss to the estate of the deceased occasioned by' the accident.

Though the action or suit is to be brought by 'the executor, administrator or representative of the person deceased', the claim under Section 1-A is for the benefit of the relatives specified above; and the claim under Section 2 is to be part of the assets of the deceased's estate.

The plaintiffs in the present case are the father, the mother and the grandmother of the deceased. The father and the mother being the heirs of the deceased would alone be entitled to the latter claim while all the plaintiffs are entitled to the former.

5. Section 3 of the Act requires.

'The plaint in any such action or suit shall give full particulars of the person or persons for whom, or in whose behalf such action or suit shall be brought and of the nature of the claim in respect of such damages shall be sought to be recovered.'

Hence, the plaint has to set forth the full particulars of the claims in respect of which damages are claimed by the plaintiffs.

6. Under Section 1-A, the claim can only be (in the words of Pollock C. B.) 'in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life' that was done away with. (Vide Franklin v. S.E. Rly., Co., (1858) 3 H and N 211).

The position is explained in Winfield on Tort (7th Edition, pages 133-134) thus:

'...... no award in the nature of a solatiumfor mental suffering and anguish for the loss of the deceased will be made ...... Nor is a merespeculative possibility of pecuniary benefit sufficient, as where the person killed was aged four years and his father proved nothing except that he had intended to give the child a good education.

On the other hand, there may be a reasonable expectation of pecuniary benefit although the relatives had no legal claim to support by the deceased, as where a son who was killed had voluntarily assisted his father in the father's work, or where he once gave him money during a period of unemployment, or where a wife who was killed had gratuitously performed the ordinary household duties. Indeed, it is not necessary that the deceased should have been actually earning anything or giving any help, provided there is a reasonable propability, as distinct from a bare possibility, that he will do so; ......'

As observed by the Supreme Court in GobaldMotor Service Ltd. v. R. M. K. Veluswami, AIR 1962 SC 1 the actual extent of such pecuniary loss 'may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate or even partly a conjecture'. But the Court has to estimate the same,

'...... this question of reasonable expectationof 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 reco. very.' observed Mc'Cardie, J., in Barnett v. Cohen, (1921) 2 KB 461.

Another head of compensatory damages, that may fall within the scope of Section 1-A, is the expenditure that the relatives have met for the medical treatment and the funeral of the deceased.

7. The beads of damage recoverable under Section 2 are:

(i) Pain and suffering undergone by the deceased;

(ji) Loss of expectation of life;

(iii) Loss of earnings and profits upto the date of death (but not of future earnings);

(iv) Medical and hospital expenses, if incurred;

(v) Funeral expenses, where they have been paid out of the estate of the deceased.

Needless to say, the rights dealt with by the two sections are distinct and independent; but duplication of reliefs to the same person on the same count has to be avoided in practice.

8. The claims in the present suit are stated in the plaint thus:

'5. The deceased Krishnamoorthi was the plaintiffs Nos. 1 and 2's eldest boy. He was leading at school, and was a very bright boy in his class. The plaintiffs 1 and 2 are in the prime of their youth and are healthy. The 1st plaintiff is well-placed in Society and is a partner in a running concern whose yearly turnover is between six and seven lakhs of rupees; he is paying large amounts as Income-tax and Sales Tax. The plaintiffs are well-placed and they are accustomed to a luxurious and rich life. The plaintiffs who were looking forward for the day when the deceased entered life as an energetic young man and occupy a very decent position in life has suffered a great loss on his death. Krishnamoorthi was smart and healthy and was loved by all. The plaintiffs intended to provide for the deceased, the best education any rich parent could think of, and the deceased would have come out successful and made a mark in any walk of life. Well-placed as he was, and with guidance and help of the plaintiffs, the deceased, if his life was spared, would certainly have occupied a high position in life. The deceased boy on whom the plaintiffs would and could have looked upon in their old age as a pillar of strength and love, is now lost; and the loss is irreparable. He was a smart and dutiful son, on whom the plaintiffs could have relied and counted for such assistance or services a parent could think of at the hands of his son.

'6. The plaintiffs have suffered great mental agony on account of the death of the boy. They are entitled both under general law and under thestatute to claim adequate compensation and damages on this account. The plaintiffs have sustained a heavy loss, both personal and pecuniary. The mental suffering and agony the plaintiffs had to undergo knows no bounds. Necessary amounts were spent for medical aid, trying to save the life of the deceased but without result.

'7. The suffering of the body was terrible. In the circumstances detailed above, the ist plaintiff as representative of the deceased boy, as his bereaved parent and as beneficiary of this action claims a sum of Rs. 300007- on behalf of the plaintiffs by way of compensation and damages for the loss sustained by the plaintiffs. The deceased boy has two brothers and a sister. They do not claim any compensation on this account.' And the prayer is for a decree 'for a sum of Rs. 30,000/- in favour of the 1st plaintiff, with interest thereon at 6 per cent per annum from the date of the plaint, against the defendants'.

At examination, the 1st plaintiff apportioned the claim under two heads: 'He died inch by inch. For that alone Rs. 5000/- is claimed. The balance of Rs. 25,000/- is the pecuniary loss to the beneficiaries'. It is conceded at the Bar that the word 'beneficiaries' here refers to 'relatives entitled to the benefit of the Act'.

It in clear from the above, that the only claims made in the present suit are:

(i) Rs. 5000/- for the pain and suffering undergone by the injured boy: and

(ii) Rs. 25,000/- being the pecuniary loss to the plaintiffs resulting from the death of the boy. The first conies under Section 2, and the second under Section 1-A of the Act. The averments in the plaint seem to suggest that the claim included 'adequate compensation and damages' on account of the 'great mental agony' suffered by the plaintiffs on the death of their beloved son; but, that head of claim appears to have been given up at the evidence stage -- quite rightly, since, 'sentimental damage, bereavement or pain and suffering' of the plaintiffs do not afford them a cause of action in law. No claim is made for the loss of normal expectation of the boy's life. Though it is a usual element in the assessment of damages under Section 2 of the Act in cases of this kind, we will not be justified in considering it here if the absence of a specific claim thereto.

9. Damages for pain and suffering of the deceased is a recognised count, but its extent is proportioned to the actual suffering had by the deceased.

In Rose v. Ford, 1937 AC 826 a young woman was seriously injured in her right leg in a collision of motor-cars caused by the negligent driving of the defendant. Two days after the accident her leg was amputated; and four days after the accident she died as the direct result of the injury to the leg, having been unconscious nearly all the four days. The action for damages by her father was tried by Humphreys, J., who awarded 500 'for pain and suffering and the loss of the right leg'. The Court of Appeal unanimously reduced the 500 to the sum of 22, composed of 20 for pain and suffering and 2 for the loss of the leg. The Court held that substantial damagescould not be given for pain and suffering, as the girl lived after the accident only four days, the greater part whereof she was in a state of coma, or for the loss of the leg as she lived only two days after the amputation during which she never tried to walk. The plaintiff appealed to the House of Lords; and all the noble Lords agreed to accept the award of the Court of Appeal.

The facts of the present case are not far different from those of 1937 AC 826. The accident was at 7 P. M. on February 26. The boy's right thigh was severely injured. The boy was taken immediately to the nursing home of P. W. 5, Dr. Krishna lyer, who bandaged his thigh and directed his removal to the General Hospital forthwith. P. W. 5 has sworn that the boy was semi-conscious when he was taken to him and had not regained consciousness after he was admitted in the hospital. The testimony of P. W. 8, the father, is that the boy reached the hospital before 7-30 P. M. that day, was taken to the theatre at 8 P. M. and administered chloroform, was brought to the ward two hours later, remained unconscious till 6 A. M. the next day, seemed to regain consciousness for a minute or two, became again unconscious and remained so till his death on the early morning of February 28. In the circumstances the pain and suffering experienced by the boy cannot be much and therefore we have to find the fixation of the sum of Rs. 5000/- as damages for the boy's pain and suffering to be excessive, and have to reduce it to Rs. 1000/-, giving the utmost consideration to the present day depreciation in the value of money.

10. As respects loss to the parents, the District Judge observed that the evidence did not disclose anything more than a 'speculative possibility of pecuniary benefit and as such the plaintiffs are not entitled to get any compensation under Section 1-A for the death of the deceased.'

The deceased was only a student in the Standard III in a Junior Basic School and of 8 years of age when he met with the accident. He was not then rendering any material benefit to his parents. But, as mentioned before, it is not essential that he should have been actually earning or rendering service of a material value to his parents, provided there is a reasonable probability that he will do so in future. As observed by Lord Moulton in Taff Vale Rail., Co. v. Jenkins, 1913 AC 1.

'The fact of past contribution may be important in strengthening the probability of future pecuniary advantage, but it cannot be a condition precedent to the existence of such a probability.' The evidence is that the boy was quite healthy and very smart. He was bright too; and Ext. A-6 shows that he was at the top of his class in all the three years of his study. The witnesses examined on the side of the plaintiffs prove that ha was devoted to his parents and affable in nature. In the circumstances the boy must be found to have been one of great promise. That he would have been of assistance and material help to his parents in the years to come, had he been alive, appears certain in this case. In an almost similar case in K. M. Krishna Gounder v. Narasingam Pillai, AIR 1962 Mad 309 the Madras High Courtawarded Rs. 5000/- as damages. We find that sum to be a reasonable estimate of the present value of the future benefits that the plaintiffs as parents might have reasonably expected from the deceased if he had survived.

11. In the result, the decree of the Court below is modified, and a sum of Rs. 1000/- is awarded as damages to the estate of the deceased enuring to plaintiffs 1 and 2, and Rs. 5000/- as damages for pecuniary loss resulting from the death of the deceased to the plaintiffs jointly. (It is agreed that no apportionment need be made of the latter damages among the plaintiffs.) As the plaintiffs have not made any claim against the 3rd defendant-company there will be no decree against it. Rights and liabilities between defendants 1 and 3 arising out of insurance do not properly arise in this suit and are therefore left open as has been done by the District Judge.

In the circumstances of this case we direct the parties to bear their respective costs throughout.


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