STATE OF MYSORE Vs. GOWRI VITHAL DESHBHANDARI

JUDGEMENT

(1.) This is an appeal from the judgment and decree of , the Court of the Civil Judge, Senior Division, Karwar, in Original Civil Suit Number 139/1955, in which the respondents 1 to 5 claimed damages in respect of the death of one Vithal Laxman Deshbhandari on 1st October 1954 as a result of a fatal accident caused to him by a motor vehicle driven by the second defendant, a motor driver employed by the first defendant. The plaintiffs brought the suit, out of which this appeal arose, under Section 1-A of; the Fatal Accidents Act, 1855 (Act XIII of 1855) on their own behalf and on behalf of the defendants 3 and 4, the parents of the deceased, on the ground that Vithal Laxman Deshbhandari's death was caused by the negligence, of the second defendant, for which the first defendant was responsible. The first plaintiff is the wife and plaintiffs 2 to 5 are the minor children of the deceased Vithal Laxman Deshbhandari who was working as a porter in the bus stand at Honavar. There were altogether three porters including the deceased working in the said bus stand. The other two porters were P. W. 2 Durgappa and P. W. 3 Nagappa, Motor Transport having been nationalised in the District of North Kanara, the Bombay State Road Tansport Corporation was operating the stage carriage services on different routes in that district during the relevant period. Bus No. B. Y. L. 9441 was one of the stage carriages operating between Honavar and Kumta. It used to start from Honavar on its daily service at about 5.30 A.M. During the rainy season, the buses would not start on the self-starter and the practice was to push them for some distance in order to start them. The porters working in the bus stand were normally called to do this work of pushing the vehicles. On 14-6-1954, defendant Ho. 2 asked the deceased Vithal Laxman and P, Ws. 2 and 3 to push his vehicle as it would not start. P. Ws. 2 and 3 (Durgappa and Nagappa) pushed the vehicle from the two sides on the rear and the deceased was in the centre of the rear. When the vehicle had been pushed for some distance its engine started. :Then without giving any warning to the porters who were on the rear and pushing the vehicle, the second defendant suddenly reversed the Vehicle and drove with speed, p. Ws. 2 and 3, who were at the corners on either side of the bus, escaped but deceased Vithal Laxman who was at the centre of the-rear had no time to escape and he was felled down on the ground by the motor vehicle. According to the ease of the plaintiffs as found by the trial court, not only that Vithal Laxman was knocked down by the vehicle but he was run over by the Bus causing him serious injuries, particularly the fracture of his spinal cord. Vithal Laxman was removed to the Municipal Hospital at Honavar immediately and he remained there as an inpatient for about twelve days. Thereafter, he was taken to the Civil Hospital at Karwar where he- remained as an inpatient till 2-7-1954, when he was discharged as his case was found hopeless. Then, he was taken back to his house at Kumta, where on 9-7-1954, he swore to an affidavit before the Taluka Magistrate at Kumta stating the circumstances under which he was knocked down by the bus causing him serious injuries. On 1-10-1954, Vithal Laxman succumbed to his injuries. On 8-4-1955, a lawyer's notice was issued to defendant No. 1 demanding a compensation of Rs. 15,000/- under the Fatal Accidents Act and the suit was instituted on 11-7-1955. Plaintiffs alleged that the deceased was aged only 34 years at the time of his death, and was earning about Rs. 80 to 90/- per month on an-average and he was the sole bread winner of the family consisting of the plaintiffs and defendants 3 and 4. They estimated the damages at Rs. 15,000/-. The second defendant filed a written statement denying the plaint allegation that the deceased Vithal Laxman was knocked down by his bus and died as a result thereof. He also denied that the average monthly income of the deceased" was Rs. 80/- to Rs. 90/-. The quantum of damages claimed was also disputed. The first defendant did not file, any written statement-hut merely adopted the written statement filed by the second defendant. Dafendants 3 and 4 appeared by a-Pleader and supported the claim of the plaintiffs but they did not file any written statement. On the pleadings, the learned trial Judge framed seven issues. The findings on all the issues are in favour of the plaintiffs. Accordingly he decreed the suit awarding Rs. 15,000/- as damages against defendants 1 and 2. Aggrieved by the said decree, the State of Mysore represented by the General Manager. Mysore Government Road Transport department, successor-in-interest to Bombay State Road Transport Corporation, has preferred this appeal.

(2.) Shri Chennappa, the learned Assistant Advocate-General appearing for the appellant, has taken us through the pleadings and the entire evidence. ' After going through the evidence, he has rightly, in our opinion, not challenged the correctness of the finding that the fatal accident was caused to deceased Vithal Laxman Deshbhandari by the negligence of defendant No. 2. The learned-Counsel restricted his arguments to the quantum of damages awarded by the learned trial judge. Before the appellate Court can properly intervene on the assessment of damages by a trial Judge, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law as by taking into account some irrelevant factor or leaving out of account some relevant one or that the amount awarded is either so inordinately low or so inordinately high that it must be 3 wholly erroneous estimate of the damage. Shri Channappa urged that the assessment of damages by the learned trial-Judge is not in accordance with-the correct principle of law as settled by judicial decisions. The contention of Shri Channappa, in our opinion, is Well founded. The learned trial Judge estimated the average daily earnings of the deceased at Rs. 2/- and on that basis his annual earning at Rs. 720/-. Deceased Vithal was born on 15-5-1921 and he died when he had completed 33 years four months and 16 days. His expectation of life was fixed if he had not been killed when he was, at 21 years 7 months and 14 days. Then, the learned Judge calculated the total amount that would have been earned by the deceased if he had lived for 21 years 7 months and 14 days and arrived at the figure Rs. 15,568/-. Since the plaintiffs' claim is only for Rs. 15.000/-, he awarded that amount, as compensation. After stating that the decisions relied on by him "lay down that the damages are compensation for the loss" of the actual pecuniary benefit which the beneficiaries might reasonably have expected to enjoy had the deceased not been hilled", he assessed the damages at the total amount that would have been earned by the deceased if he had lived to the age of 55 years.

(3.) Section 1-A of the Fatal Accidents Act provides for a suit to be brought for the, benefit of the wife, husband, parent and child, if any,--of the person whose death has been caused by wrongful act, neglect or default of the party sued and that in every such action the court may give Such damages as it may think proportionate 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 shires as the court by its judgment or decree shall direst. The Indian Fatal Accidents Act, 1855, is in pari materia with the English Fatal Accidents Acts, known as the Lord Campbell's Acts. English Courts had laid down that damages in actions under the Fatal Accidents Acts are such as the jury think proportionate to the injury resulting from the death to the parties for whose benefit the action is brought. Damages are based on the amount of actual pecuniary benefit which those persons might reasonably have expected to enjoy had the deceased person not been killed. The Supreme Court of India, in Gobald Motor Service Ltd. v. Veluswami, ,, AIR1962 SC 1 , [1962 ]1 SCR929 , has accepted the principles governing the assessment of the quantum of damages as laid down by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601 and the Judicial Committee of the Privy Council in Nance v. British Columbia Electric Rly. Co. Ltd., 1951 AC 601. Dealing with the casa of the death of a working husband. Lord Wright in 1942 AC 601, said: