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The Indian Mutual General Insurance Society Ltd., Madras Vs. M. Kothandian Naidu and anr. - Court Judgment

LegalCrystal Citation
SubjectInsurance
CourtChennai High Court
Decided On
Case NumberAppeals Nos. 162 and 309 of 1961
Judge
Reported inAIR1967Mad54
ActsFatal Accidents Act
AppellantThe Indian Mutual General Insurance Society Ltd., Madras
RespondentM. Kothandian Naidu and anr.
Cases ReferredAbdul Mahomed Aga v. Peter Leo
Excerpt:
- - madras(second defendant) has instituted the main appeal from this judgment and decree, which is on the substantial merits as well as on the quantum of damages, namely a. but, however this might be the second defendant society(appellant) is certainly entitled to plead that the grounds upon which it seeks to set aside the decree for damages should be independently assessed by us in appeal notwithstanding the somewhat curious and inexplicable failure of the first defendant to agitate the matter at all. 601 as well as to the dicta of viscount simon in nance v......from the indian mutual general insurance society(second defendant in the suit), with regard to a fatal accident to his son subbanna, aged 18 years. the learned subordinate judge of chingleput tried the action on the merits, and gave a decree for rs. 7500 due from both defendants, with proportionate costs. the indian mutual general insurance society ltd. madras(second defendant) has instituted the main appeal from this judgment and decree, which is on the substantial merits as well as on the quantum of damages, namely a.s. 162 of 1961. a.s. 309 of 1961 is an appeal by the plaintiff in the suit, which is limited to the ground that the quantum of damages ought to have been determined as at least rs. 15000 in favour of the plaintiff-appellant.(2) a fact, which is of some relevance in the.....
Judgment:

Anantanarayanan, J.

(1) These appeals arise out of a suit filed by the plaintiff for the recovery of a sum of Rs. 20,750 as damages, out of which plaintiff sought to recover Rs. 20,000 from the Indian Mutual General Insurance Society(second defendant in the suit), with regard to a fatal accident to his son subbanna, aged 18 years. The learned Subordinate Judge of Chingleput tried the action on the merits, and gave a decree for Rs. 7500 due from both defendants, with proportionate costs. The Indian Mutual General Insurance Society Ltd. Madras(second defendant) has instituted the main appeal from this judgment and decree, which is on the substantial merits as well as on the quantum of damages, namely A.S. 162 of 1961. A.S. 309 of 1961 is an appeal by the plaintiff in the suit, which is limited to the ground that the quantum of damages ought to have been determined as at least Rs. 15000 in favour of the plaintiff-appellant.

(2) A fact, which is of some relevance in the situation before us, is that D. Paddabhoy Reddi (first defendant), the proprietor of the lorry which caused the fatal accident according to the evidence, and who was mulcted in damages equally with the second defendant insurance Society, had not instituted any appeal, from the decree against him. But, however this might be the second defendant society(appellant) is certainly entitled to plead that the grounds upon which it seeks to set aside the decree for damages should be independently assessed by us in appeal notwithstanding the somewhat curious and inexplicable failure of the first defendant to agitate the matter at all. or even to associate himself with the second defendant in the main appeal. Another relevant fact, which may be stated at the outset itself, is that Godi Chakravarthi, the driver of the lorry of the first defendant, who actually caused the fatal accident, was prosecuted for a criminal offence and ultimately acquitted in the court of Session, Chingleput. It is conceded that while the fact of this acquittal may not be irrelevant, the judgment of the acquittal has no direct bearing upon the merit of this action; this action by the plaintiff will have to be judged, exclusively on the facts of its record. Further, it is not in controversy before us that the acquittal by the court of Session was based, not on any explicit finding that the accident occurred in some other manner, as claimed by the first defendant, but on the award of the benefit of doubt to the concerned accused.

(After referring to pleadings, evidence and argument(Paras 3 to 9) His Lordship concluded.) The claim for damages is thus substantiated beyond controversy.

(3) With regard to the quantum, the two appeals may be taken up and regarded together. The facts here are that Subbanna was the fourth son of the plaintiff, and that he was looking after the lorry business of his father, who was a middle-aged man. The plaintiff did not produce his accounts, but the only evidence about profits from the lorry business is that of the plaintiff, who alleges that he conducts the business with two lorries, and derives an average profit of Rs. 500 per month. The learned Subordinate Judge was of the view that the plaintiff was making a profit of Rs. 208-8-0 per month, or roughly Rs. 2500 per year, from the lorry business, restricted to the share which could be attributed to the management of subbanna. From this he estimated the pecuniary loss as three years' loss of profits, and quantified the damages at Rs. 7500. Undoubtedly, this is quite arbitrary, and based upon no logical or perceptible foundation. We have been at some pains to ascertain the true principles applicable to the facts as in the record, in estimating the damages to be properly awarded to the plaintiff in an action of this kind.

(4) Those principles will be found tersely stated in Halsbury's Laws of England (Simonds Edn) Vol. II. pages 257 and 258 (paragraphs 429 and 430). Again in Gobald Motor Service v. Veluswami : [1962]1SCR929 , their Lordships of the Supreme Court had to consider the basis of assessment of damages in actions for damages arising under the Fatal Accidents Act, and they have referred to the decision of the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 A.C. 601 as well as to the dicta of Viscount Simon in Nance v. British Columbia Electric Rly. Co. Ltd. 1951 A.C. 601. In the latter decision, several factors have been elucidated, which would be relevant for the computation of damages. For the present purpose, it is not really necessary to particulars them here. We shall those factors which appear to arise for application on the facts of the present record, when actually computing damages. In Mayne and Mcgregor on Damages 12th Edn, pages 691 and 692, para 813, the technique of evaluation has been discussed by the learned authors. As stated by them:

'This(basis) may be calculated by taking the annual figure of the dependency, whether stemming from money or goods provided of services rendered, and multiplying it by the number of years that the dependency might reasonably be expected to last. This latter figure is generally referred to as the multiplier. The resulting amount must then be scaled down by reason of two considerations, first that a lump sum is being given instead of the various sums over the year, and second that contingencies might have arisen to cut off the benefit prematurely'.

(5) The dicta of Lord Wright in 1942 AC 601 are also cited here, and the contingencies have been particularised, in more than one decision. Two recent decisions, which, however do not bring in any new principle to be applied to the present context of facts, are the decision of this Court(Jagadisan J.) in Krishna Gounder v. Narasingam Pillai : AIR1962Mad309 and the decision of the Bombay High Court in Abdul Mahomed Aga v. Peter Leo D' Mello, : AIR1965Bom21 , Upon the formulated basis, it will be clear that since the plaintiff was aged about 53, when he lost his son, who was actively assisting him in the lorry business, the plaintiff might be considered as normally entitled, or likely to receive, the benefit of the services of this son, for a period of about 18 years, till his 70th year; in other words, that will be the computed expectation. As regards the factors affecting the evaluation in favour of the second defendant appellant, such as an annuity or a sum of life assurance that might result from the fatal accident, to the benefit of the plaintiff, there is no evidence that any such factor exists. But it is true that the deceased, who was a bachelor, might have married later, in which case his service contribution might be reduced, or might cease altogether. On the contrary, the service contribution of the deceased to the dependent(plaintiff) might actually have increased, by greater efficiency and experience obtained by the victim, but for the fatal accident, in the conduct of the lorry business. In any event, since we are awarding a lump sum, we cannot award the maximum due, merely upon an arithmetical computation, with the expectation determined at 18 years. We fix the average contribution at Rs. 125 per month, since this amount seems to be very reasonable, in the light of the available data. Though the deceased was not the only son, there is no evidence that any other son could have immediately taken up the conduct of the lorry business, and run the business in an equally satisfactory manner. We reduce the period of computation to ten years, for the purpose to the evaluation, and this enables us to arrive at the sum of Rs. 15,000 as quantified damages. Taking all the facts into consideration, we are of the view that this an eminently just and reasonable estimate.

(6) In result, therefore, the appeals are disposed of by dismissing the appeal of the second defendant Society(A.S. 162 of 1961) and allowing the appeal of the plaintiff(A.S. 309 of 1961) to the extent of granting a decree for Rs. 7500, in addition to the decree already granted by the trial court, against both the defendants with proportionate costs on this sum throughout, in A.S. 309 of 1961. There will be no costs in A.S. 162 of 1961.

(7) Order accordingly.


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