E V PENHEIRO Vs. MMINNEY

JUDGEMENT

(1.) This is an action under the Fatal Accidents Act (Act 13 of 1855). On 26 June 1933, at about 10 a.m., one Charles Penheiro, an assistant in Messrs. Liptons Limited was crossing Bentinck Street from west to east in order to reach Weston Street when he was knocked down by the defendant's motor car which was being driven from south to north along Bentinck Street by the defendant's driver, Charles Penheiro was seriously injured and died the same afternoon at the Medical College Hospital, death being due to fracture of the skull. On 4th August 1933, Mr. E. P. Swinhoe, a Solicitor, under instructions from Mrs. Charles Penheiro wrote to the defendant claiming Rupees 45,000 as loss and damages sustained by her by reason of her husband's death and threatening legal proceedings in default of payment. The claim was repudiated by Messrs. Orr, Dignam and Co., Solicitors, acting on behalf of the defendant, by their letter of 8 September 1933; but before that date and on 31 August 1933 this suit was filed. In the plaint, as it stood before the amendments to which I shall refer later, the only plaintiff was Mrs. Esther Virginia Penheiro, the widow of Charles Penheiro, and she sought to recover the sum of Rs. 45,000 or such other sum as may deem just to this Court as damages, which she on her behalf assessed at Rs. 45,000. It was stated in the plaint that Charles Penheiro had died leaving him surviving his widow, the plaintiff, and others who were not desirous of joining in the suit, and that the plaintiff had instituted the suit as representative of Charles-Penheiro, deceased, for the benefit of herself.

(2.) In para. 3 of the plaint it was alleged that the defendant's motor car No. 19912 under the charge and control of the defendant's servant was being driven from south to north along Bentinck Street rashly and negligently at a rapid and dangerous spaed and struck the said Charles Penheiro down and ran over him. As a result, Charles Penheiro received injuries, which are described in the plaint, and died. On 16 November 1933, Messrs. Orr, Dignam and Co., Solicitors for the defendant, asked for particulars: (1) as to all parties interested in the suit and the nature and extant of their interest, and (2) as to the damages alleged to have been sustained. On 24 November they sent a reminder and on 27 November 1933, they received a reply to their letter of 16 November from Mr. E.P. Swinhoe, Solicitor for the plaintiff. In his letter Mr. Swinhoe stated that the children of his client, Mrs. Esther Virginia Penheiro, and her husband the late Charles Penheiro were not desirous of joining in the suit as they had agreed that their mother should get all the compensation. As for the particulars of damages asked for, the letter stated that the plaintiff's sole means of support during her married life was provided by her husband from his monthly salary of Rs. 175 and a varying monthly amount as allowance, etc., the total from both sources being Rs. 200, or thereabouts, and that by the death of the deceased the plaintiff had been deprived of the whole of this amount and consequently of her means of livelihood. On 29 November Messrs. Orr, Dignam and Co. wrote that the particulars furnished were not sufficient, and did not comply with the provisions of law and further that their client had been advised that the plaint did not disclose any cause of action and the suit as framed was not maintainable. In reply to the letter of 29th November, Mr. Swinhoe wrote on 2 December, stating that Charles Penheiro had left him surviving his widow and the children whose names were mentioned as his only heirs and legal representatives, and that the children had given up their rights and claims to the money that might be recovered from the defendant as costs, compensation or damages in favour of the plaintiff. The letter also gave particulars of the damages which the widow had sustained, making up the total of Rs. 45,000 claimed in the plaint.

(3.) In the meantime and on 22 November, 1933, the defendant had filed his written statement in which he took the point that the plaint did not disclose a cause of action, and that the suit as framed was not maintainable. He denied that his servant drove the ear negligently or was guilty of the alleged or any negligence or that the motor car was being driven at a rapid or dangerous speed. He alleged that the accident was not caused or occasioned by any of the acts complained of but arose from in evitable accident and alternatively there was contributory negligence on the part of Charles Penheiro. Particulars were given of the alleged contributory negligence. It was submitted that the plaint did not disclose any damages which the plaintiff was entitled to claim and that the plaintiff was not entitled to recover Rs. 45,000 or any sum at all. On 4 December 1933, there was rather a curious letter written by Mr. Swinhoe to the defendant's solicitors calling upon them to give discovery of "certain facts" of which your client is in possession" and "which are not personally known to my client." The letter went on to say: For instance, your client is personally aware of the negligent and wrongful act which caused the death of my client's husband, and your written statement is not sufficiently clear to indicate properly the nature and extent and mode of the injury. And although your client was sitting in the car at the time of the said wrongful act, you have not disclosed all the facts connected with the said negligence and wrongful act of your client.