GOOLBAI MOTABHAI SHROFF Vs. PESTONJI COWASJI BHANDARI

JUDGEMENT

(1.) The plaintiffs are the Widow, sons and daughters respectively of one Motabhai Nanabhai Shroff who died of the injuries received by him in a motor accident on June 8, 1932, in Balaram Street, Bombay, and have brought this suit as the representatives of the deceased under the Fatal Accidents Act, XIII of 1855, to recover the sum of Rs. 15,000 as damages from the defendant who they allege was at all material times the owner of an Essex car bearing No. X-4939. Plaintiffs say that the defendant plied the said car for hire in Bombay for taking persons working in local mills to the mills every morning and bringing them back home every evening, and that for such purpose the defendant had employed one Kaikhushru Jam-shedji. On the morning of June 7, 1932, at about 6-45 a.m. the car was being driven by Kaikhushru, and one Nariman Cowasji Mistry was seated by his side. Nariman had at the time only a temporary license to drive motor cars. The car started from Tardeo. Kaikhushru and Nariman first picked up one Behramji Pirojsha, and subsequently the car stopped near the house of Sorabji Pestonji Digaria. Sorabji got into the car; at that time Kaikhushru had got out, as some one shouted to speak to him. Nariman who had also got out of the car, but was standing near it, got into the driver's seat, and tried to reverse the car. In reversing it, the car mounted up a footpath, and dashed against the wall of a building on the opposite side of the house in which Sorabji was living. The deceased Motabhai Shroff was at that time walking on the footpath, and was jammed in between the car and the wall, and received multiple injuries as a result of which he was taken to the hospital where he expired the next day.

(2.) Defendant denies that he was the owner of the car at any time or that Kaikhushru was in his employ for the purpose of driving it. It is his case that Kaikhushru was the owner, and he was a mortgagee of the car from Kaikhushru to whom he had advanced a sum of Rs. 1,000 at the end of April, 1932. He further contends that even if Kaikhushru be deemed to have been in his employ, the leaving of the car by Kaikhushru with Nariman and instructing him to reverse it as alleged by the plaintiffs, were not in the course of Kaikhushru's employment as the defendant's servant. Under the circumstances defendant denies all liability to the plaintiffs.

(3.) Defendant's counsel contended that in the absence of any representation being taken by the plaintiffs to the estate of Motabhai Shroff this suit was not maintainable. He argued that a suit under Act XIII of 1855 in the case of Parsis could only be brought by an executor or administrator of the deceased, and the word representative which occurs in the Act was inapplicable to Parsis, but was used only with reference to Hindus and Muhammadans. The same argument was advanced in Johnson V/s. The Madras Railway Company (1905) I.L.R. 28 Mad. 479, in relation to Europeans and also "Eurasians", as they were then called, but it was overruled, and that case has been followed in the most recent judgment in Esther Virginia Penheiro V/s. Maurice Minney (1934) I.L.R. 61 Cal. 480, in which it was held that the word representative in the Fatal Accidents Act had not the same meaning as the expression legal representative. as defined in the Civil P. C.. In the absence of an executor or administrator, the persons, for whose benefit a right of action is given by the Act, are to be deemed representatives of the deceased for the purpose of bringing a suit under the Act. The word representative , therefore, does not mean only executors or administrators, but includes all or any of the persons for whose benefit a suit can be brought under the Act, and the present plaintiffs are persons contemplated by the Act as being the persons by whom and for whose benefit an action can be brought. The cause of action in such a case is the loss resulting to the plaintiffs from the death of the deceased, and loss means the loss of pecuniary benefit which the plaintiffs would have got from the deceased if the latter had not died, e.g., his pecuniary savings from his income, his contributions to the family for maintenance and education, arid the assistance that he would have continued to give for the maintenance of the family, all which are estimable in terms of money. The age of the deceased, his expectation of life, the condition of his health, and his habits are also matters to be considered. The action is one which is purely compensatory, and the plaintiffs are entitled to sue for compensation in respect of their reasonable expectation of the value of the services of the deceased which have been lost to them for ever. My attention was also drawn to the case of Lakhmichand v. Ratanbai (1926) 29 Bom. L.R. 78, in which no objection was taken to the frame of the suit brought by and in the name of the representatives of the deceased. I, therefore, hold that the plaint substantially complies with the, requirements of the statute as far as the cause of action is concerned, though it is necessary in such cases, as was pointed out in the Calcutta case which I have referred to before, that the plaint in a suit under the Indian Fatal Accidents Act should not only give full particulars of the person or persons for whom or on whose behalf the action is brought, but also particulars of the nature of the .loss for which damages are claimed. In my opinion the suit as framed is maintainable.