Full Judgment Text
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PETITIONER:
GOBALD MOTOR SERVICE LTD. & ANOTHER
Vs.
RESPONDENT:
R. M. K. VELUSWAMI & OTHERS
DATE OF JUDGMENT:
14/04/1961
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1962 AIR 1 1962 SCR (1) 929
CITATOR INFO :
R 1970 SC 376 (13)
F 1971 SC1624 (6)
ACT:
Fatal Accidents--Negligent act of driver of bus--Acting in
the course of employment--Liability of
owner--Damages--Principles of ascertainment--Pecuniary loss
and loss of expectation of life--If same person could claim
under both heads--Fatal Accidents Act, 1855 (13 of 1855),
SS. 1, 2.
HEADNOTE:
A bus run by the appellant met with an accident as a result
of which R died. R’s dependents and heirs e.g. the father,
widow and sons, brought a suit for compensation under S. 1
of the Fatal Accidents Act, 1855, for loss of pecuniary
benefit sustained by them personally and under S. 2 thereof
for the loss sustained by the estate on account of the death
of R. The, High Court found that the bus was driven at an
excessive speed and there was negligence on the part of the
driver and that the appellants were liable for the same. On
the question of damages, it confirmed the amount of
compensation of RS. 25,000 under S. 1 of the Act for the
loss of pecuniary advantage and of Rs. 6,000 under S. 2 of
the Act for loss of expectation of life. The questions for
consideration were (1) whether the accident was due
117
930
to any negligence on the part of the driver; (2) whether the
courts below were right in awarding compensation under s. 1
of the Act for pecuniary loss sustained by the widow and the
sons of the deceased; and (3) whether the sum awarded as
damages under S. 2 of the Act for loss of expectation of
life should go towards the reduction of the compensation
awarded for pecuniary loss sustained under s. 1 of the Act,
as otherwise it would be duplication of damages in respect
of the same wrong.
Held, that where on the basis of the evidence and on broad
probabilities it is found that the speed at which the bus
was driven was excessive having regard to the nature of the
ground on which the accident happened, there is a
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presumption that the accident was caused by the negligence
of the driver. As the driver was acting in the course of
his employment, the master would be liable for such
accident, unless the presumption is rebutted by the master.
In the present case, on account of the negligence of the
driver in the course of his employment the accident
happened, and, therefore, the appellant was liable for the
same.
Barkway v. South Wales Transport Co. Ltd., [1948] 2 All E.R.
460, Joel v. Morison, (1834) 6 Car. & P. 501 and Storey v.
Ashton, (1869) L.R. 4 Q.B. 476, applied.
That the actual extent of the pecuniary loss to the aggriev-
ed party may depend upon data which cannot be ascertained
accurately, but must necessarily be an estimate, or even
partly a conjecture. Shortly stated, the general principle
is that the pecuniary loss can be ascertained only by
balancing on the one hand the loss to the claimants of the
future pecuniary benefit and on the other any pecuniary
advantage which from whatever sources come to them by reason
of the death, that is, the balance of loss and gain to a
dependant by the death must be ascertained.
Davies v. Powell Duffryn Associated Collieries Ltd., [1942]
A.C. 601 and Nance v. British Columbia Electric Railway
Company Ltd., [1951] A.C. 601, followed.
Where the courts below have on relevant material placed
before them ascertained the amount of damages under the head
of pecuniary loss by the dependants of the deceased, such
findings cannot be disturbed in second appeal except for
compelling reason.
Held, further, that the rights of action under ss. 1 and 2
of the Fatal Accidents Act are quite distinct and
independent. If a person taking benefit under both the
sections was the same, he cannot be permitted to recover
twice over for the same loss. In awarding damages under
both the heads, there shall not be duplication of the same
claim, that is, if any part of the compensation representing
the loss to the estate goes into the calculation of the
personal loss under s. 1 of the Act, that portion shall be
excluded in giving compensation under s. 2 and vice versa.
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in the instant case, under s. 1 of the Act the sum of com-
pensation was arrived at by taking into consideration, inter
alia, the reasonable provision the deceased, if alive, would
have made for his widow and sons. Under s. 2 the figure for
damages awarded for the loss to the estate represents the
damages for the mental agony, suffering and loss of
expectation of life; thus there was no duplication in
awarding damages under both the heads.
Rose v. Ford, [1937] A.C. 826, Feay v. Barnwell, [1938] All
E.R. 31, Ellis v. Raine, [1939] 2 K.B. 180 and Secretary of
State V. Gokal Chand, (1925) I.L.R. 6 Lah. 451, referred
to.
JUDGMENT:
CiVIL APPELLATE JURISDICTION: Civil Appeal No. 419 of 1957.
Appeal by certificate from the judgment and decree dated
January 16, 1953, of the Madras High Court in
A. S. No. 164 of 1949.
M. S. K. Sastri, for the appellants.
Ravindra Narain, for the respondents.
1961. April 14. The Judgment of the Court was delivered by
SUBBA RAO, J.-This appeal by certificate, is directed
against the judgment of the High Court of Judicature at
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Madras dated January 16, 1953, modifying the decree of the
Court of the Subordinate Judge, Dindigul, in 0. S. No. 7 of
1948, a suit filed by the respondents for compensation under
the provisions of the Fatal Accidents Act (XIII of 1855).
The appellant, Gobald Motor Service Ltd. (hereinafter called
the Company), was engaged in the business of transporting
passengers by bus between Dharapuram and Palni, among other
places, in the State of Madras. On September 20, 1947, one
of the buses of the Company, bearing registration number MDC
2414, left Dharapuram for Palni at about 3 p.m. At a place
called Thumbalapatti between Dharapuram and Palni, one
Rajaratnam, along with his brother by name Krishnan, boarded
the bus. The bus met with an accident at about 3 miles from
Palni, as a result of which some of the passengers,
including Rajaratnam, sustained injuries. Rajaratnam died
of
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the injuries received in the accident on September 23, 1947.
The first plaintiff, his father; the second plaintiff, his
widow; and plaintiffs 3 to 7, his sons, instituted 0. S. No.
7 of 1948 against the Company in the Court of the
Subordinate Judge, Dindigul, for compensation under s. 1 of
the Fatal Accidents Act (hereinafter called the Act) for
loss of pecuniary benefit sustained by them personally, and
under s. 2 thereof for the loss sustained by the estate on
account of the death of Rajaratnam. They alleged in the
plaint that the driver, who was in charge of the bus, was
incompetent and inexperienced, that he was guilty of rash
and negligent conduct in the driving of the bus, and that
the accident was the result of his incompetence and
negligence. The Company in its written-statement denied the
said allegations and leaded that the accident was the result
of the central plea of the left rear spring suddenly giving
way, that Rajaratnam was also guilty of contributory
negligence and that in any event the damages claimed were
excessive. The learned Subordinate Judge came to the
conclusion that there was no proof that the bus was driven
at a reckless speed at the scene of the accident, but the
fact that the accident occurred on the off-side of the road
was itself evidence of his negligence and it had not been
rebutted by the defendants. He further held that the driver
was not proved to be incompetent. On those findings, he
held that the defendants were liable for the negligence of
their servant, and be awarded damages as follows:
(1)Plaintiff 1 ... Rs. 3,600 under s. 1 of the Act. (2)
Plaintiffs 2 to 7... Rs. 25,200 under s. 1 of the Act.
(3) Plaintiffs 2 to 7... Rs. 6,000 under s. 2 of the Act.
Against the said decree, the defendants preferred an appeal
to the High Court and it came to be disposed of by a
division bench of that court. The High Court on a review of
the entire evidence held that the speed at which the bus was
driven was excessive, having regard to the nature of the
ground on which the accident happened, that there was
negligence on the part of the
933
driver, and that the appellants were liable therefore. But
the High Court discounted the plea that the appellants,
apart from their being constructively liable for the
negligence of the driver, were also negligent in employing
Joseph, who was not a competent driver. Both the courts,
therefore, concurrently held that the accident occurred on
account of the negligence of the driver. On the question of
damages, the High Court confirmed the amount of compensation
awarded to the plaintiffs 2 to 7 both under ss. 1 and 2 of
the Act, but in regard to the first plaintiff, it reduced
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the compensation awarded to him from Rs. 3,600 to Rs. 1,000;
with this modification, the appeal was dismissed with costs.
Learned counsel for the appellants raised before us the
following points: (1) The finding of the High Court that the
bus was driven at an excessive speed at the place where the
accident occurred, based on probabilities, was erroneous.
(2) The concurrent finding of the two courts that
respondents 2 to 7 would be entitled to damages in a sum of
Rs. 25,200 for the loss of pecuniary advantage to them was
not based upon any acceptable evidence but only on surmises.
(3) The High Court went wrong in awarding damages separately
for loss of expectation of life under s. 2 of the Act, as
damages under that head had already been taken into
consideration in giving compensation to respondents 2 to 7
for the pecuniary loss sustained by them by the death of
Rajaratnam.
The first question for consideration is whether the accident
was due to any negligence on the part of the driver Joseph.
A clear picture of the topography and the physical condition
of the locality where the accident took place would, to a
large extent, help us in deciding the said question. The
accident took place at Puliampatti where the road passed
over a culvert and then took a sharp bend with a downward
gradient. To the east of the road was a drain and that was
marked off by 5 stones 2 feet high. At a distance of 20 or
25 feet from the stones, there were trees. The bus after
crossing the culvert crashed against the 5th stone with so
much force that the latter
934
was uprooted and broken. It next attacked a tamarind tree
which was stated to be at a distance of 20 or 25 feet from
the stone, and its bark was peeled off and it travelled some
more distance before it finally came to rest. The evidence
disclosed that some of the passengers were knocked and
thrown down within the bus itself and sustained injuries,
while Rajaratnam was thrown out of the bus into the ditch at
a place 161 feet south of the tamarind tree. It must be
self-evident from the said picture of the accident that the
bus must have been driven at a high speed. P.Ws. 3 and 4,
two of the passengers in the bus, P.W. 6, a brother of
Rajaratnam, who also travelled in the bus, and P.W. 5, who
ran a coffee and tea stall at the place of the accident,
swore in the witness-box that the bus was being driven at a
high speed when the accident happened. Their evidence
reinforces the compelling impression of high speed caused by
the objective features thrown out by the topography of the
place of the accident. On the other hand, on the side of
the defendants (appellants herein) D. W. 2, who claimed to
have travelled in the bus, deposed that the bus was travel-
ling at the usual speed, but his cross-examination discloses
that he was an improvised witness. D.W. 3, who was sitting
by the side of the driver, deposed to the same effect, but
he was an employee of the Company and was obviously
interested to support their case. The evidence adduced on
the side of the defence is certainly not convincing. An
attempt was made to calculate the speed of the bus on the
basis of the time given by P. W. 6 as to when Rajaratnam
boarded the bus and the time when the bus dashed against the
tree, and the mileage covered between the two points within
the said time. On the basis of such a calculation it was
contended that the speed would have been less than 15 miles
per hour; but it is not possible to deduce the speed from
such a calculation, as the witnesses were speaking of the
time only approximately and not with reference to any watch.
That apart, it cannot be said that the bus maintained an
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even pace throughout. The High Court, on the basis of the
evidence and on broad probabilities, held that
935
the speed at which the bus was driven was excessive, having
regard to the nature of the ground on which the accident
happened; and having gone through the evidence, we are quite
satisfied that the said finding was justified on the
material placed before them. It must, therefore, be held
that there was negligence on the part of the driver.
Apart from the positive evidence, in the present case the
accident took place not on the main road, but on the off-
side uprooting the stone at the drain and attacking a
tamarind tree 25 feet away from the said stone with such a
velocity that its bark was peeled off and the bus could stop
only after travelling some more distance from the said tree.
The said facts give rise to a presumption that the accident
was caused by the negligence of the driver. Asquith, L. J.,
in Barkway v. South Wales Transport Co. (1) neatly
summarizes the principles applicable as to onus of proof in
the following short propositions:
"(i) If the defendants’ omnibus leaves the
road and falls down an embankment, and this
without more is proved, then the res ipsa
loquitur, there is a presumption that the
event is caused by negligence on the part of
the defendants, and the plaintiff succeeds
unless the defendants can rebut this pre-
sumption. (ii) It is no rebuttal for the
defendants to show, again without more, that
the immediate cause of the omnibus leaving the
road is a tyre-burst, since a tyre-burst per
se is a neutral event consistent, and equally
consistent, with negligence or due diligence
on the part of the defendants. When a balance
has been tilted one way, you cannot redress it
by adding an equal weight to each scale. The
depressed scale will remain down. This is the
effect of the decision in Laurie v. Raglan
Building Company Ltd., (2), where not a tyre-
burst but a skid was involved. (iii) To
displace the presumption, the defendants must
go further and prove (or it must emerge from
the evidence as a whole) either (a) that the
burst itself was due to a specific cause which
does not connote negligence on their part but
points to its
(1) [1948] 2 All ER. 46o, 471.
(2) [1942] 1 K.B. 152.
936
absence as more probable, or (b) if they can
point to no such specific cause, that they
used all reasonable care in and about the
management of their tyres."
The same principles have been restated in Halsbury’s Laws of
England, 2nd Edn., Vol. 23, at p. 671, para 956, thus:
"An exception to the general rule that the
burden of proof of the alleged negligence is
in the first instance on the plaintiff occurs
wherever the facts already established are
such that the proper and natural inference
immediately arising from them is that the
injury complained of was caused by the
defendant’s negligence, or where the event
charged as negligence tells its own story’ of
negligence on the part of the defendant, the
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story so told being clear and unambiguous. To
these cases the maxim res ipsa loquitur
applies. Where the doctrine applies, a
presumption of fault is raised against the
defendant, which, if he is to succeed in his
defence, must be overcome by contrary
evidence, the burden on the defendant being to
show how the act complained of could
reasonably happen without negligence on his
part. Where, therefore, there is a duty on
the defendant to exercise care, and the
circumstances in which the injury complained
of happened are such that with the exercise of
the requisite care no risk would in the
ordinary course of events ensue, the burden is
in the first instance on the defendant to
disprove his liability. In such a case, if
the injurious agency itself and the
surrounding circumstances are all entirely
within the defendant’s control, the inference
is that the defendant is liable, and this
inference is strengthened if the injurious
agency is inanimate."
The said principles directly apply to the present case.
Here, the events happened tell their own story and there is
a presumption that the accident was caused by negligence on
the part of the appellants. But it is ,said that this
presumption was rebutted by proof that the accident was due
to the rear central bolt of the bus
937
suddenly giving way. The High Court, after considering the
relevant evidence, held that it was not possible to hold
that the accident was caused by the break in the bolt. We
have gone through the evidence and we do not see any flaw in
that conclusion.
The scope of the liability of a master for the negligence of
his servant has been succinctly stated by Baron Parke in
Joel v. Morison (1) thus:
’The master is only liable where the servant
is acting in the course of his employment. If
he was going out of his way, against his
master’s implied commands, when driving on his
master’s business, he will make his master
liable; but if he was going on a frolic of his
own, without being at all on his master’s
business, the master will not be liable."
Again, in Storey v. Ashton (2) Cockburn, L.C.J., says:
"The true rule is that the master is only
responsible so long as the servant can be said
to be doing the act, in the doing of which he
is guilty of negligence, in the course of his
employment as servant."
In the same case, Lush, J., said:
"The question in all such cases as the present
is whether the servant was doing that which
the master employed him to do."
In the present case, admittedly, on account of the
negligence of the driver in the course of his employment the
said accident happened, and, therefore, the
appellants are liable therefore.
The next question is whether the courts below were right in
awarding compensation of Rs. 25,200 for the pecuniary loss
unstained by the respondents 2 to 7 by reason of the death
of Rajaratnam, under s. 1 of the Act. Section 1 of the Act
reads:
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"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 thereof, the party
who would have been liable if death had
(1) (1834) 6 Car. & P. 501 ; 172 E.R. 1338.
(2) (1869) L.R. 4 Q.B. 476.
118
938
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.
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 deducing 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."
This section is in substance a reproduction of the English
Fatal Accidents Acts, 9 and 10 Vict. ch. 93, known as the
Lord Campbell’s Acts. The scope of the corresponding
provisions of the English Fatal Accidents Acts has been
discussed by the House of Lords in Davies v. Powell Duffryn
Associated Collieries Ltd.(1). There, Lord Russell of
Killowen stated the general rule at p. 606 thus:
"The general rule which has always prevailed
in regard to the assessment of damages under
the, Fatal Accidents Acts is well settled,
namely, that any benefit accruing to a
dependent by reason of the relevant death must
be taken into account. Under those Acts the
balance of loss and gain to a dependent by the
death must be ascertained, the position of
each dependent being considered separately."
Lord Wright elaborated the theme further thus at p. 611:
"The damages are to be based on the reasonable
expectation of pecuniary benefit or benefit
reducible
(1) [1942] A.C. 601.
939
to money value. In assessing the damages all
circumstances which may be legitimately
Pleaded in diminution of the damages must be
considered...... The actual pecuniary loss of
each individual entitled to sue can only be
ascertained by balancing, on the one band, the
loss to him of the future pecuniary benefit,
and, on the other, any pecuniary advantage
which from whatever source comes to him by
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reason of the death."
The same principle was restated with force and clarity by
Viscount Simon in Nance v. British Columbia Electric Railway
Company Ltd. (1). There, the learned Lord was considering
the analogous provisions of the British Columbia
legislation, and he put the principle
thus at p. 614:
"The claim for damages in the present case
falls under two separate heads. First, if the
deceased had not been killed, but had eked ou
t
the full span of life to which in the absence
of the accident he could reasonably have
looked forward, what sums during that period
would he probably have applied out of his
income to the maintenance of his wife and
family?"
Viscount Simon then proceeded to lay down the mode of
estimating the damages under the first head. According to
him, at first the deceased man’s expectation of life has to
be estimated having regard to his age, bodily health and the
possibility of premature determination of his life by later
accidents; secondly, the amount required for the future pro-
vision of his wife shall be estimated having regard to the
amounts he used to spend on her during his lifetime, and
other circumstances; thirdly, the estimated annual sum is
multiplied by the number of years of the man’s estimated
span of life., and the said amount must be discounted so as
to arrive at the equivalent in the form of a lump sum
payable on his death; fourthly, further deductions must be
made for the benefit accruing to the widow from the
acceleration of her interest in his estate; and, fifthly,
further amounts have to be deducted for the possibility of
the
(1) [1951] A.C. 601.
940
wife dying earlier if the husband had lived the full span of
life; and it should also be taken into account that there is
the possibility of the widow remarrying much to the
improvement of her financial position. It would be seen
from the said mode of estimation that many imponderable
enter into the calculation. Therefore, the actual extent of
the pecuniary loss to the respondents may depend upon data
which cannot be ascertained accurately, but must necessarily
be an estimate, or even partly a conjecture. Shortly
stated, the general principle is that the pecuniary loss can
be ascertained only by balancing on the one hand the loss to
the claimants of the future pecuniary benefit and on the
other any pecuniary advantage which from whatever source
comes to them by reason of the death, that is, the balance
of loss and gain to a dependent by the death must be ascer-
tained.
The burden is certainly on the plaintiffs to establish the
extent of their loss. Both the courts below found, on the
evidence the following facts: (1) The family owned a
building worth Rs. 2,00,000 at Palni, and 120 acres of nanja
land worth about Rs. 1,000 per acre. (2) It was engaged in
the business of manufacturing Indian patent medicines from
drugs and had been running a Siddha Vaidyasalai at Palni for
a period of 30 years and had also branches in Colombo and
Madras. (3) Rajaratnam studied in the Indian School of
Medicine for two years and thereafter set up his own
practice as a doctor, having registered himself as a
practitioner in 1940. (4) He took over the management of the
family Vaidyasalai at Palni. (5) Rajaratnam was earning in
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addition Rs. 200 to Rs. 250 per month in his private
practice. (6) He had a status in life, being Municipal
Councillor of Palni and sometimes its Vice-Chairman, and was
maintaining a fairly good standard of life and owned motor
cars. (7) He was aged 34 years at the time of his death and,
therefore had a reasonably long span of life before him, if
the accident had not taken place. On the said findings, the
High Court summarized the position thus:
941
age 34 carrying on business as a Doctor, with
reasonable prospects of improving in his
business. He was living in comfort and by his
early death plaintiff,-, 2 to 7 have lost
their prospects of education, position in
society and even possible provision in their
favour. Under the circumstances, the award of
Rs. 25,000 as damages must be accepted as
quite reasonable."
When the courts below have, on relevant material placed
before them, ascertained the said amount as damages under
the first head, we cannot in second appeal disturb the said
finding except for compelling reasons. Assuming that
Rajaratnam had not died, he would have spent, having regard
to his means and status in life, a minimum of Rs. 250 on
respondents 2 to 7; and his income, as indicated by the
evidence, would certainly be more than that amount. The
yearly expenditure he had to incur on the members of the
family would have been about Rs. 3,000 and the sum of Rs.
25,200 would represent the said expenditure for just over 8
years.
In the circumstances, the balance of loss and gain to the
dependents by, the death of Rajaratnam, in the sense stated
by Lord Wright and Viscount Simon, could not be less than
Rs. 25,200; indeed, having regard to the circumstances of
the case, it is a moderate sum; it is rather a conservative
estimate. We, therefore, accept that figure as representing
the damages for respondents 2 to 7 in respect of their claim
under the head of pecuniary loss to them by the death of
Rajaratnam.
The last, contention raises an interesting point. Under s.
2 of the Act the respondents 2 to 7 were awarded Rs. 5,000
as damages for loss of expectation of life. It was
contended that this amount should go in reduction of Rs.
25,200 awarded under s. 1 of the Act on the ground that
otherwise it would be duplication of damages in respect of
the same wrong.
The second proviso to s. 2 of the Act reads:
"Provided that in any such action or suit, the
executor, administrator or representative of
the deceased may insert a claim for and
recover any
942
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."
While s. 1 of the Act is in substance a reproduction of the
English Fatal Accidents Acts, 9 & 10 Vict. Ch. 93, known as
the Lord Campbell’s Acts, s. 2 thereof corresponds to a
provision enacted in England by the Law Reform
(Miscellaneous Provision) Act, 1934. The cause of action
under s. 1 and that under s. 2 are different. While under
s. 1 damages are recoverable for the benefit of the persons
mentioned therein, under s. 2 compensation goes to the
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benefit of the estate; whereas under s. 1 damages are
payable in respect of loss sustained by the persons
mentioned therein, under s. 2 damages can be claimed inter
alia for loss of expectation of life. Though in some cases
parties that are entitled to compensation under both the
sections may happen to be the same persons, they need not
necessarily be so; persons entitled to benefit under s. 1
may be different, from those claiming under s. 2. Prima
facie as the two claims are to be based upon different
causes of action, the claimants, whether the same or
different, would be entitled to recover compensation
separately under both the heads. But a difficulty may arise
where the party claiming compensation under both the heads
is the same and the claims under both the heads synchronize
in respect of a particular sub-head or in respect of the
entire head. In that situation, the question is whether a
party would be entitled to recover damages twice over in
respect of the same wrong. In England this question came
under judicial scrutiny in Rose v. Ford (1). There the
question was whether and to what extent deductions would
have to be made in giving compensation both under the
English Fatal Accidents Acts and the Law Reform
(Miscellaneous Provision) Act, 1934. A young woman called
Rose was killed in an accident. Her father sued for damages
under both the Acts. It was contended that as he got
damages for personal loss, he could not be
(1) [1937] A.C. 826, 835.
943
awarded once again compensation for the loss of expectation
of life. Though in that case it was held that the father
was entitled under both the Acts, Lord Atkin made the
following observations, which are
appropriate to the present case:
"I should add that I see no difficulty as to
the alleged duplication of damages under the
Act of 1934 and the Fatal Accidents Acts. If
those who benefit under the last mentioned
Acts also benefit under the will or intestacy
of the deceased personally, the damages under
those Acts will be affected. If they do not,
there seems no reason why an increase in the
deceased’s estate in which they take no share
should ,affect the measure of damages to which
they are entitled under the Act."
A similar question arose in Feay v. Barnwell There, Mrs.
Feay was killed in an accident and her husband sued for
damages under both the Acts. It was held that, as the
husband was the claimant under both the Acts, credit should
be given in assessing the damages under the Fatal Accidents
Acts, for what was given to him under the Law Reform Act,
1934. So too, in Ellis v. Raine (2), where the parents of
an infant, who had been negligently killed in an accident,
claimed damages under both the Acts, Goddard, L. J.,
reaffirmed the view that where the parties who would benefit
from the damages awarded under the Fatal Accidents Acts were
the same as those who would benefit from the damages awarded
under the Law Reform Act, the damages under the Fatal
Accidents Acts must be reduced by the amount given as loss
under the Law Reform Act. Finally the same view has been
reaffirmed and restated with clarity in Davis v. Powell
Duffryn Associated Collieries Ltd. (3). There Lord
Macmillan described the nature of the two heads thus at p.
610:
"The rights of action in the two cases are
quite distinct and independent. Under the Law
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Reform Act the right of action is for the
benefit of the deceased’s estate; under the
Fatal Accidents Acts
(1) [1938] 1 All. E.R. 31. (2) [1939] 2. K.B. 180
(3) (1942) A.C. 601.
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the right of action is for the benefit of the
deceased’s dependents. But, inasmuch as the
basis of both causes of action may be the
same, namely, negligence of a third party
which has caused the deceased’s death, it was
natural to provide that the rights of action
should be without prejudice the one to the
other. It is quite a different thing to read
the provision as meaning that in assessing
damages payable to dependents under the Fatal
Accidents Acts no account is to be taken of
any benefit which the dependents may
indirectly obtain from an award under the Law
Reform Act through participation in the
deceased’s estate.............. it is appro-
priate that any benefit taken indirectly by a
dependent by way of participation in an award
under the Law Reform Act should be taken into
account in estimating the damages awarded to
that dependent under the Fatal Accidents
Acts."
Lord Wright addressed himself to the same question and
answered it at p. 614 thus:
"The injury suffered by the individual from
the death cannot be computed without reference
to the benefit also accruing from the death to
the same individual from whatever source."
The principle in its application to the Indian Act has been
clearly and succinctly stated by a division bench of the
Lahore High Court in Secretary of State v. Gokal Chand (1).
In that case, Sir Shadi Lal, C. J., observed at p. 453 thus:
"The law contemplates two sorts of damages:
the one is the pecuniary loss to the estate of
the deceased resulting from the accident; the
other is the pecuniary loss sustained by th
e
members of his family through his death. The
action for the latter is brought by the legal
representatives, not for the estate, but as
trustees for the relatives beneficially
entitled; while the damages for the loss caus-
ed to the estate are claimed on behalf of the
estate and when recovered form part of the
assets of the estate."
An illustration may clarify the position. X is the
(1) (1925) I.L.R. 6 Lahore 451.
945
income of the estate of the deceased, Y is the yearly
expenditure incurred by him on his dependents (we will
ignore the other expenditure incurred by him). X-Y, i.e.,
Z, is the amount he saves every year. The capitalised value
of the income spent on the dependents, subject to relevant
deductions, is the pecuniary loss sustained by the members
of his family through his death. The capitalised value of
his income, subject to relevant deductions, would be the
loss caused to the estate by his death. If the claimants
under both the heads are the same, and if they get compen-
sation for the entire loss caused to the estate, they cannot
claim again under the head of personal loss the capitalised
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income that might have been spent on them if the deceased
were alive. Conversely, if they got compensation under s.
1, representing the amount that the deceased would have
spent on them, if alive, to that extent there should be
deduction in their claim under s. 2 of the Act in respect of
compensation for the loss caused to the estate. To put it
differently, if under s. 1 they got capitalised value of Y,
under s. 2 they could get only the capitalised value of Z,
for the capitalised value of Y+Z, i.e., X, would be the
capitalised value of his entire income.
The law on this branch of the subject may be briefly stated
thus: The rights of action under ss. 1 and 2 of the Act are
quite distinct and independent. If a person taking benefit
under both the sections is the same, he cannot be permitted
to recover twice over for the same loss. In awarding
damages under both the heads, there shall not be duplication
of the same claim, that is, if any part of the compensation
representing the loss to the estate goes into the
calculation of the personal loss under s. 1 of the Act, that
portion shall be excluded in giving compensation under s. 2
and vice versa.
In the instant case, under s. 1 of the Act both the. courts
gave compensation to plaintiffs 2 to 7 in a sum of Rs.
25,200. This sum was arrived at by taking into
consideration, inter alia, the reasonable provision the
deceased, if alive, would have made for them.
119
946
Under s. 2 both the courts awarded damages for the loss to
the estate in a sum of Rs. 5,000. That figure represents
the damages for the mental agony, suffering and loss of
expectation of life. There was no duplication in awarding,
damages under both the heads. No material has been placed
before us to enable us to take a different view in regard to
the amount of compensation under s. 2 of the Act.
The judgment of the High Court is correct and the appeal
fails and is dismissed with costs.
Appeal dismissed.