Thomas Richardson, J.
1. This is an appeal from the judgment and decree of the District Judge of Murshidabad, dated the 25th November 1919, affirming the decree of the Subordinate Judge, dated the 18th September 1918. The plaintiffs in the suit were, originally, the father, the mother, the widow and the minor daughter of the deceased Charu Krishna Dutta whose death was caused by an accident attributed to the negligence of the Murshidabad Municipality.
2. The claim was under Act XIII of 1855 for a lump sum of Rs. 1,020 as damages on that account, the plaintiffs asserting that the deceased had maintained them. The suit having been dismissed, the High Court directed a re-trial. Pending the second trial the father of the deceased died. The Courts below have now, by concurrent decrees, apportioned the entire sum claimed among the three surviving plaintiffs. The appellant is the defendant, the Chairman of the Murshidabad Municipality.
3. It appears that in the town of Murshidabad there is an old open drain running by the side of a public road. It is not disputed that the drain is a public drain, vested in the Municipality which the Municipality were re-excavating or making deeper. For that purpose certain stone slabs were removed which had been placed, across the drain to serve as a bridge by the owner of premises beyond the drain, one Gangadas Roy. The evidence is that the bridge consisted of several slabs side by side, each about 2 feet in width.
4. The work on this part of the drain having been completed, only one of the slabs was re-placed in position. Thereafter, on the night of the 16th July 1912, the deceased, going from the road with the intention of passing through Gangadas Roy's house or compound, fell into the drain and received certain injuries. The injuries were not in themselves of a serious character, but tetanus supervened and the deceased died on the 2nd August 1912.
5. The suit was instituted on the 8th January 1913.
6. In view of the argument addressed to us, it is convenient to set out the relevant provisions of Act XIII of 1855. Section 1 of that Act enacts in its first paragraph as follows: 'Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect of thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. 'The second paragraph of the section further enacts that '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,' In the third paragraph it is laid down that '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.'
7. As the result of the second trial, the Courts below have found that the defendant Municipality was guilty of negligence or breach of duty by reason of the fact that the drain at the point where the deceased fell in was not fenced or lighted in accordance with the requirements of Section 201 of the Bengal Municipal Act. Damages have been awarded, therefore, on the footing that on that ground the deceased, as an injured party, might, if he had survived, have maintained an action against the Municipality or its Chairman. Section 201 of the Municipal Act empowers the Commissioners of a Municipality to close a public road for repairs or for the purpose of constructing any sewer, drain, culvert or bridge or for any other public purpose. The section also provides that, 'whenever owing to such repairs or constructions or from any other cause, any road or part of a road shall be in a state which is dangerous to passengers, the Commissioners shall cause sufficient barriers or fences to be erected for the security of life and property, and shall cause such barriers or fences to be sufficiently lighted from sunset to sunrise.'
8. Dr. Basak, appearing on the Chairman's behalf, has contended, first, that the suit should have been dismissed under the provisions of sections 363 of the Bengal Municipal Act of 1884, secondly, that the facts found by the Courts below do not support the inference that the Municipality was guilty of such negligence as would make it liable to damages under Act XIII of 1855, and, thirdly, that the father having died pending the proceedings a deduction should have been made from the whole sum claimed of the amount representing his loss by reason of his son's death.
9. In my opinion, the first of these contentions fails in view of the terms of the judgment of the learned Judges of this Court, Fletcher and Smither, JJ., who remanded e the suit for re-trial. At that stage the suit had been dismissed on the preliminary grounds that the notice required by Section 363 of the Municipal Act had not been given and that the suit was out of time under that section. The section prescribes that no suit shall be brought against a Municipality 'for anything done under this Act' until the expiration of one month next after notice in writing has been delivered or left at the Municipal Office. Unless such notice be proved, the Court is to find for the defendant and every such suit must be commenced within three months next after the accrual of the cause of action and not afterwards. The learned Judges laid stress on the words 'anything done' under the Act. They pointed out that in 1884 there was no legislative definition such as that afterwards enacted in Section 3(2) of the Bengal General Clauses Act, 1899, under which. 'words which refer to acts done shall also extend to illegal omissions.' They were of opinion that Section 363 of the Municipal Act would have been applicable if the only cause of action disclosed in the plaint had been that the Municipality had improperly dug a hole in the road or the drain. They went on, however, to say that the plaintiffs also alleged a breach of duty by the Municipality in failing to perform their duty under Section 201. The conclusion at which the learned Judges, arrived was, that there was a case to be tried as to whether the plaintiffs, on the allegations in their plaint, have a sufficient cause of action which, if established by proper evidence, would entitle them to recover damages from the Municipality for their breach of duty.
10. It is true that in Maxwell on the Interpretation of Statutes (6th Edition, p. 133) it is stated that, 'Statutes which require notice of action for anything 'done' under them are construed as including an omission of an act which ought to be done as well as the commission of a wrongful one.' But it is unnecessary for us to consider how we might have construed the language of Section 363 if the point had been open. As between the parties to the present suit, the point is concluded by the previous judgment of this Court.
11. The issue indicated by the learned Judges has been tried and it has been found that the Municipality was guilty of breach of duty. If the learned Judges had not been of opinion that in such cases, the provisions of sections 363 had no application they would not have pat the parties to the expense of a re-trial. In my opinion it is not now open to the defendant to rely on these provisions.
12. The second contention urged for, the defendant is, that the facts found do not support the inference of negligence which the Courts below have drawn. The question of negligence or no negligence is in most cases, however, very largely a question of fact. The Courts below have concurrently found that the road was in a state dangerous to passengers and that it was a breach of duty on the part of the Municipality not to take the precautions specified in, Section 201 of the Act. It was not disputed that the road and the drain alongside it must be taken together as an integral whole. Both were vested in the Municipality and people had to cross the drain to get to the houses on the other side. What appears to be suggested is that the drain has always been where it is and unlighted at night and that passengers must take the road as they find it with the drain. But that argument was not presented to the Courts below and it is not necessary to deal with it for this reason. On the material before them, it was open to the Courts to find that, whatever might be said about the previous condition of things at the spot where the deceased met with the accident, that condition had been so altered as to bring about undoubtedly a state of the road dangerous to passengers within the meaning of the Act. It is not necessary to say that we should have come to the same conclusion on the same materials. I do not suggest the contrary, but all that we need say is that there were materials before the Courts on which they might reasonably come to the conclusion to which they did come. It was not only that the drain had been made a foot or two deeper. The learned Subordinate Judge refers to evidence showing that loose earth heaped on the eastern edge of the drain slipped from beneath the feet of the deceased causing him to fall. The Subordinate Judge draws the inference that the road was on that account in a dangerous condition. It may be that the learned District Judge goes further, but if he speaks of the drain generally as a possible source of danger, he also adverts to the alteration of the previous state of things. The danger, he says, became all the greater 'because in this particular instance certain stone slabs forming a passage across the drain had been removed and only one of them replaced in position.' In my opinion, this second contention cannot be supported.
13. The last point taken is that it was not open to the Courts below to divide the whole sum of Rs. 1,020 claimed in the plaint between the surviving plaintiffs. Here, also, I think the appeal fails. If the provisions of the Act of 1855 had been strictly observed, the suit should, as it seems, have been brought by the widow of the deceased as his representative for her own benefit and for the benefit of the parents and the child of the deceased. If the suit had been so framed, the objection urged would hardly have suggested itself. It is not denied that the death of the deceased caused pecuniary loss to the plaintiffs. The death of one of the plaintiffs does not, or does not, necessarily, diminish the total amount to be distributed as loss among the survivors. If the father had died before the accident, the deceased might have spent more on the other members of the family. The Act of 1855 expressly authorizes the division of the damages among the parties for whose benefit the suit is bi ought or 'any of them in such shares as the Court by its judgment or decree shall direct.' That would seem to give power to divide damages claimed and awarded between some only of the parties for whose benefit the claim is made. The damages here have been calculated on the basis of the earning of the deceased at the time of his death, and I agree with the District Judge that the value of his life does not depend on the number of his dependants but on his earning capacity. The loss to the defendants is the estimated amount which they collectively have lost by reason of bb death whether they be few or many.
14. In the result the appeal should, in my opinion, be dismissed with costs.
15. I agree.