DEVI SINGH Vs. MANGATHAYAMMAL

JUDGEMENT

(1.) The suit under appeal was one brought by the respondent who was the mother of a boy named Ponnusami, aged about 13, who was in the employment of one of the bailiffs of this Court, Mr. Boyton. On 27 April 1928 at about noon this boy was knocked down and killed by a motor omnibus of which the appellant was the owner. The omibus was coming from Saidapet down the Mount Road in the direction of George Town. This accident happened opposite to the building of Messrs. Fiat and Co. Motor Dealers. The boy appears to have been killed instantaneously and it was alleged by the respondent who filed the suit that the accident was the result of negligent driving of the driver of the motor omnibus. If that allegation was proved, then clearly the appellant would be liable to pay damages being responsible for the negligent act of his driver. Rs. 2,000 damages were claimed. The learned trial Judge found that the appellant's servant had driven the omnibus negligently and that as a result of that negligent driving the boy Ponnusami was killed. Finding in favour of the respondent on the question of liability, he assessed the damages at Rs. 600. On the question of negligence which is of course a pure question of fact only one eye witness was called; that was a man named Matcher, a sergeant who was at the time employed as door-keeper by Messrs. Fiat and Co., and was standing by the door or at any rate in such a position as enabled him to see what" happened. His evidence is that the accident happened to the right hand side of the middle of the road, that is to say, on the motor bus's wrong side of it, that the bus was going along at about ,30 miles per hour and that originally in the middle of the road it suddenly swerved to its wrong side and having done so knocked over the little boy, by means of its front wheels and ran over him and killed him. He also says that the bus driver did not sound the horn. There are no other eye witnesses.

(2.) A witness was called for the defence, and that was a Sub-Inspector of the City Police, Hopkins, who apparently was investigating the matter and who was present at the inquest. He says that at the inquest the witness Matcher who was also a witness at the inquest said that it was not the bus driver's fault. His evidence upon this point, in my opinion, should not be accepted and the learned trial Judge rightly rejected it. It is rather peculiar that he should have remembered the answers given by this one witness and none of the answers given by any of the other witnesses. In my opinion the evidence of Matcher is to be accepted. That establishes that not only was the omnibus travelling at a fast rate and the driver did not sound the horn as obviously as he ought to have done travelling at that speed, but that the omnibus also swerved to its wrong side. The motor bus driver, has not been called to explain how it was that he failed to blow the horn or state that he did do so or deny that he went on to his wrong side and why it was that he did not see the little boy in front of the car in sufficient time to pull up and avert the accident. In my opinion the negligence was clearly proved.

(3.) Then the question of damages arises. I observe that the learned trial Judge has riot addressed himself to the basis upon which damages in such cases as this have to be awarded. This was a fatal accident and obviously the suit had been brought under the Fatal Accidents Act (13 of 1855) which, as in England, enables the legal representatives of the deceased persons to maintain actions in respect of fatal injuries caused to these whom they legally represent, thus making on exception to the rule of action persbtialis moritor cum persona ; but although a light of action is given to the "legal representatives, widows, husbands, fathers and children, thero is a recognized basis for the assessment of damages. Only stich damages can be awarded as caritote Shown to have been actually suffered financially by these who bring the suit; sentimental damages cannot be "awarded nor can damages be awarded merely for the loss of a son, daughter, a wife 01 a husband unless actual financial damages "have been suffered or, as was decided in an English case, where there was at the time of the accident a prospective pecuniary advantage to these who afterwards bring the suit which prective pecuniary advantage is lost by reason of the fatai injury caused to the person In respect of whose death the suit is filed.