K.C. Chunder, J.
1. Hariananda Poddar was killed by electric shock on 1st July 1939, at Sim Road, Naraynganj. A suit was filed for damages under the Fatal Accidents Act by the widow, two minor sons and a minor daughter of the deceased against the respondent, The Chittagong Engineering and Electric Supply Co., Ltd. and another, with whom we have no concern in this appeal, as the claim against him was dismissed and no appeal filed against the order of dismissal. The claim was decreed for Rs. 1500 and costs of Rs. 47-7-6 pies and Rs. 1110 was ordered to be paid as court-fees by the plaintiffs to the Government, as the plaintiffs had filed the suit as paupers. The appeal relates to the amount of damages and there is a cross-objection by the defendant-respondent against the findings and order of the learned Subordinate Judge. We shall take up the cross-objection first.
2. The Subordinate Judge, 2nd Court, Dacca, found that for this death there was actionable negligence on the part of the defendant company. The pole fuse at Pole No. 43, from which connection had been taken, was defective. He found also that the higher resisting power of the earth-wire used made it incapable of immediate discharge of electricity into the earth; and the third and the most important factor found by the learned Subordinate Judge was that an insulation bush at the open end of the G.I. pipe, which prevents the destruction of the insulation in the V.I.E. cables inside the pipe, was absent. The learned Subordinate Judge held that there was negligence on the part of the defendant company. The evidence given by Mr. Meyer, the Electrical Inspector to the Government of Bengal, was accepted by the Court below and on that evidence the findings arrived at by the learned Subordinate Judge were correct. At the hearing of the appeal, the learned Subordinate Judge's findings on this point have not been contested. It is now accepted that there was negligence on the part of the defendant company.
3. The learned Subordinate Judge has also found that in the present case there is an individual right of action. The law on the point is quite clear. In the case of a public authority exercising statutory powers, there may or may not exist a duty to take care in favour of particular individuals. Where such a duty exists, an individual who is injured by negligence in the performance of such a statutory duty has a right of action in respect of that negligence unless the statute expressly or impliedly excludes such liability. In the present ease it was not contested at the hearing of the appeal that there was such a duty to take care and right of individual action was not expressly or impliedly excluded by the statute.
4. The Fatal Accidents Act gives a right to the executor, administrator or representative of the person deceased to bring an action or suit, provided the death of the person was caused by wrongful act, neglect or default, which was such as would have entitled the party injured to maintain an action and recover damages had he been alive.
5. In the present case as there was actionable negligence on the part of the company, it was held that there was a right to sue under the Fatal Accidents Act. The defence mainly was that there was contributory negligence on the part of deceased.
6. The first point raised in the cross-objection relates to the question of contributory negligence. The facts as disclosed by the evidence are that the deceased took his bath at the pipe water hydrant at Sim Road and when his body was wet he was coming back to the cloth shop of his father, where he worked as his father's assistant. This shop adjoins the Road and there is a drain in between and a verandah or a raised platform next to it. An electric wire comes down to the ground from the pole and this has to be a dead wire, that is, a wire without current in it. Unfortunately for the deceased, owing to the negligence of the defendant company mentioned before, this wire was a live wire. The deceased was taking a short cut and as he was carrying a vessel containing water, he put his hand on the electric wire for support when getting upon the platform and was instantaneously killed. These facts are found also by the learned Subordinate Judge and have not been challenged at the hearing of the appeal.
7. The learned Subordinate Judge's judgment is not very clear as to the reason why he considered that in law there was no contributory negligence on the part of the deceased. We, therefore, think it necessary to state the legal principles as far as applicable to the appeal before us.
8. It is now a firmly established principle that ordinarily there is no liability for negligence unless there is in the particular ease a legal duty to take care. In Thomas v. Quartermaine (1887) 18 Q.B.D. 685 at p. 694 Lord Bowen J. said:.the ideas of negligence and duty are strictly correlative and there is no such thing as negligence in the abstract, negligence; is simply neglect of some care which we are bound by law to exercise towards somebody.
When there is no duty to exercise care at all, negligence in the popular sense has no legal consequences. Two things have to be kept distinct : first, there must be the existence of such a legal duty to take care; and secondly, the degree or amount of care which is obligatory.
9. There are cases in which absolute liability has been imposed by law, namely, those which come within the rule in Fletcher v. Rylands (1866) 1 Ex. 265 and John Rylands v. Thomas Fletcher (1868) 3 H.L. 330. Had the learned Subordinate Judge not found negligence on the part of the company in the present case, it would have been necessary for us to discuss this rule at length, as the rule in Rylands v. Thomas Fletcher (1868) 3 H.L. 330 has been applied in cases of chemicals, fire and electricity.
10. It is not clear from the learned Subordinate Judge's judgment whether he considered there was no negligence at all on the part of the deceased, and therefore, there was no contributory negligence. Mr. Mazumdar, appearing for the respondent company, wanted to make out that the facts that the deceased was wet of body, that he took a short cut, or that he put his hands against the wire in support should be taken as acts of negligence. We are unable to consider this argument as deserving of serious notice. There is no duty on the part of any person that he should go about always with a dry body, or that he should not take a short cut for convenience, or that he should not put his hand against something for support. We do not find any negligence on the part of the deceased for these acts.
11. Even such a great authority as Sir John Salmond had taken the view that a plaintiff, in order to be defeated by the defence of contributory negligence, must be under a legal duty to take care for his own safety, but since the decision of Lord Parmoor in Grayson Ltd. V. Ellerman Lines, Ltd. (1920) 1920 A.C. 466 at p. 477 agreeing with the law as propounded by Akin, L.J. in the Court below, in Ellerman Lines, Ltd. v. Grayson Ltd. (1919) 2 K.B. 514 there is now very little doubt that Sir John Salmond's opinion has to be considerably modified. Lord Parmoor said:
I do not think that the question of contributory negligence depends upon any breach of duty as between the plaintiff and the negligent defendant; it depends entirely on the question whether the plaintiff could reasonably have avoided the consequences of the defendant's negligence.
12. Ordinarily, in case of contributory negligence, there is negligence on both sides, but, as has been pointed out in the passage just quoted, the real test is whether one party could reasonably have avoided the consequences for the other party's negligence. Therefore, in the present case, even mere absence of negligence on the part of the deceased would not be sufficient to justify want of contributory negligence.
13. The rule in Denies v. Mann (1842) 10 M. & W. 546 approved and applied by the House of Lords in Radley v. L. & N.W. Ry. Co. (1876) 1 A.C. 754 seemed to lay down as universal rule that the true test in ease of contributory negligence is the existence of the last opportunity of avoiding the accident. The decision of the Judicial Committee of the Privy Council, however, in British Columbia Electric Co. v. Loach 3 A.I.R. 1916 P.C. 208 shows that this rule, although an approximation to the truth, is not a complete and adequate statement of it. This decision of the Judicial Committee has been approved of and accepted in other subsequent decisions. It is unnecessary for us to enter into the question of qualifications of the rule in Denies v. Mann (1842) 10 M. & W. 546.
14. It was urged by Mr. Majumdar that in spite of the live wire, as a result of the negligence of the defendant company, if the deceased had not put his hand on the same, the accident could have been avoided and so there was contributory negligence. This contention is not sound in law. It was pointed out in Lax. v. Darlington Corporation (1879) 5 Ex. D. 28, per Bramwell L.J. at p. 36, explaining Clayards v. Dethick & Davies (1848) 12 Q.B. 439 that knowledge by the plaintiff of an existing danger, or of the defendant's negligence, is a very important element in deter, mining whether or not he has been guilty of contributory negligence. In the present case, no one can even faintly suggest that the deceased was, or could reasonably have been expected at all to be aware of any danger existing from a live wire as a result of the defendant's negligence. Under the circumstances, even though the deceased, by not touching the wire, when his body was wet and therefore a greater conductor of electricity, could have avoided the accident, we cannot consider that there was any contributory negligence on his part by doing so, as he was not doing anything which a person exercising reasonable care would not have done, and as he was not at all aware of any danger existing as a consequence of the defendant company's negligence. The point of contributory negligence urged at the hearing of the cross-objection must, therefore, fail.
15. Although there are as many as 26 grounds mentioned in the memorandum of cross-objection, only one other point was urged at the hearing of the cross-objection. We have already mentioned that the suit was instituted by the widow and the children. It appears that the father of the deceased was also alive. It was urged by Mr. Majumdar that as the father did not join in the suit, the suit was not maintainable. The Fatal Accidents Act says:
Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator, or representative of the person deceased; and in every such action, the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them in such shares as the Court by its judgment or decree shall direct.
16. In all cases of fatal accidents, two things have to be kept separate, namely, first, only a certain limited class of persons have a right to bring the suit. These are the executor, or administrator, or representative of the deceased. Representative, in several decisions has been, explained as meaning not the legal representative but the wife, husband, parent or children. In the present case, the suit has been instituted by the wife and the children. It was pointed out in Pym v. G.N. Ry. Co. (1863) 4 B. & S. 396 under the English Fatal Accidents Act, that the right of action is not given merely to the relatives as a class but to the individuals comprised in that class.
17. This decision was followed, as far back as 1905, in Johnson v. Madras Ry. Co. ('05) 28 Mad. 479 and that decision of the Madras High Court has been accepted as correct by Page J. sitting singly in the original side of this High Court in Nani Bala Sen v. Auckland Jute Co. Ltd. : AIR1925Cal893 and by Roy J., also sitting singly in the original side of this High Court in E.V. Penheiro v. M. Minney : AIR1934Cal655 . In our opinion, the right of action belongs to any one of the persons, namely, the executor, or the administrator, or the representative, that is, the wife or husband or parent or child. Any one of them can bring the suit for the benefit of the others. There is therefore no defect in the present case, because the father had not joined as a plaintiff.
18. The second requisite in a suit under the Fatal Accidents Act is that it must be brought for the benefit of the wife, husband, parent and children. They are the beneficiaries. Any one of the persons entitled to sue can bring the suit, but the suit must be brought for the benefit of these four specified class of persons. The true value of the objection of Mr. Majumdar as it appears to us is not that the suit was brought by any wrong person, or not by all the persona entitled to bring the suit, but that in the suit among the beneficiaries the father was not mentioned. The decisions cited by him, namely, Rivers Steam Navigation Co., Ltd. v. Sir Khanta Kumar : AIR1934Cal632 and Rivers Steam Navigation Co., Ltd. v. Hiralal De : AIR1934Cal712 both decisions of Mallik and Patterson JJ. in the civil revisional jurisdiction of this High Court relate to this defect and not to the right to sue in a case under the Fatal Accidents Act. In both these decisions, the learned Judges held that a pauper application should be rejected if all the beneficiaries are not mentioned. In our opinion, a plaint in a suit under the Fatal Accidents Act should not be carelessly drawn and should mention all the persons for whose benefit the suit was filed. In the present case on the merits there has been no disadvantage to the respondent company, because there is a right to bring only one suit under this Act and the company cannot be sued again by the father. The Act clearly states 'that not more than one action or suit shall be brought for, and in respect of the same subject-matter of complaint.' The plaint in any such suit shall give full particulars of all the persons for whose benefit the suit has been brought and must further state the nature of the claim in respect of which damage is sought to be recovered. The learned Subordinate Judge has further found that although sufficient time had elapsed, the father had not come forward to claim any damages and the father is fairly well off and not dependent upon the son. In the pauper application, it would have been, in view of the above mentioned decisions of this High Court, a good ground for rejecting the same, but at the present stage there is no good reason for dismissing the claim of the plaintiffs on the ground that the father's name was left out as one of the beneficiaries. As these are all the points urged at the hearing of the cross-objection, it fails and is dismissed.
19. We now come to the appeal which relates to the amount of damages. The plaintiffs claimed Rs. 20,000 as damages. The learned Subordinate Judge allowed Rs. 1500. In the appeal, by application which was allowed, the claim was modified to Rs. 6000 only. The learned Subordinate Judge has found on the evidence that the deceased belonged to the trader class; his father had a cloth shop, in which he was an assistant. As the shop belonged to his father, he was not in receipt of any pay, but was learning his business under his father whom he was helping. In return for this his father used to pay for the maintenance of his wife and children. He was a young man of 28 in sound health and had reasonable prospect of a fairly long life. His father was old and aged about 60. In the ordinary course, he would have succeeded his father as seller of cloth. These facts have not been challenged in the appeal and we accept them as correct.
20. The learned Subordinate Judge unfortunately has proceeded to calculate damages on wrong principles. He considered what a shop assistant in the service of another, about the age of the deceased would be likely to get as his wages and what will be his earnings in such service when he grows older. There is a good deal of difference between a person who spends his life in the service of another and a person who throughout his life wants to remain an independent trader and with that object he is acquiring experience in the trade.
21. The learned Subordinate Judge has next proceeded to capitalise what he considered would have been the average wage of such a man in service. He has considered that after all his personal expenses were paid such a man could be assumed to have Rs. 125 a year to spend for his family. He has even asked himself the question:
What sum of money bearing six per cent, per annum interest and being reduced by Rs. 125 per year will exhaust itself in course of 30 years?
Obviously, what the learned Subordinate Judge was driving at was that the plaintiffs would be in the position of annuitants and would have no claim on the capital sum. Rupees 125 was a grogs underestimate by the learned Subordinate Judge. But even if that amount had been correct, any table of annuities would have shown that Rs. 1500 was too inadequate.
22. It is necessary in the present case to lay down the principles on which calculations as to damages should ordinarily be made in cases of this nature. The basic principle is that laid down by Lord Blackburn in Livingstone v. Rawyards Coal Co. (1880) 5 A.C. 25 at p. 39. It was said by him:
Where any injury is to be compensated by damages, in settling the sum of money given for reparation or damages you should as nearly as possible get at that sum of money -which would put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting the compensation or reparation.
We may just mention that the general rule has some qualifications dependent upon malice, intentional or wilful wrong doing etc. In a case under the Fatal Accidents Act, these qualifications have no application.
23. In the various decisions which have been passed under this Act, it has not been always kept clearly in view that damages are claimed under two heads. It is unfortunate that this distinction has been overlooked and some of the decisions are very much open to criticism. No good purpose will be served by examining them at length. The Act itself lays down both the heads. In Section 1 of the Act, a right has been given to ask for damages proportionate to the loss resulting from such death to the parties claiming such damages. This is the first head of damages; that is, it is reparation for the loss caused to the beneficiaries mentioned in the Act. There is a second head of claim which is mentioned in Section 2 of the Act:
Provided that, in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which, sum when recovered, shall be deemed part of the assets of the estate of the deceased.
24. Under the English Law, no such confusion can arise as in Indian decisions because damages under the first head are recoverable by the Fatal Accidents Act, whilst damages under the second head do not fall within that Act but are now recovered under Law Reform (Miscellaneous Provisions) Act, 1934.
25. In the present case, there is no claim for damages under the second head. We, therefore, confine ourselves to the first head of loss to the beneficiaries themselves. There must be a pecuniary loss sustained by the persons claiming either actual or expected. Such pecuniary loss is evidenced by proof of a reasonable expectation of pecuniary benefit. There must be a certain amount of guesswork in estimating such expectation as various factors have to be considered which cannot be expressed arithmetically. At the same time sympathetic damages, or solatium for loss of companionship etc., are not relevant. The main criterion is the loss of reasonably expected pecuniary benefit. At the same time the probable earnings and future prospects of the deceased himself are taken into consideration because the extent to which a person can benefit others depends largely on his earning capacity. In the present case, we consider that at least benefit to the extent of Rs. 30 per month would be reasonably expected by the wife and the children of the deceased from him. We have considered the table of annuities supplied to us from the Hindu Family Annuity Funds Limited by the plaintiff's advocate. We have also considered that in the class to which the deceased belonged, sons after a certain age begin to be able to maintain themselves. We have taken into consideration other circumstances relevant to the matter and we are of opinion that the loss jointly to the wife and the three children should be estimated at Rs. 6000.
26. Generally and ordinarily, it is required} under the Act that the share of each of the beneficiaries should be apportioned. The circumstances are rather special in this case. The children are very young, the mother is their natural and legal guardian and she has no adverse interest to them. If any amount is separately apportioned to the children, then there will have to be an order for security, which would not be desirable in the present case as the widow is very poor. In view of the fact that the amount is small and the circumstances mentioned we do not proceed to make any separate apportionment as a special case.
27. The order for costs passed by the learned Subordinate Judge should be modified in our opinion. In the Court below, for the court-fees payable to the Government the plaintiffs would pay Rs. 600 and the defendant company the balance. The plaintiffs would get their costs in the Court below on the basis of a claim for Rs. 6000. The plaintiffs-appellants will get their full costs in this appeal; hearing fee 10 gold mohurs and in the cross-objection each party will bear its own costs. The court-fees in the appeal would be payable to the Government by the defendant company.
R.C. Mitter, J.