# IC. K. SUBRAMONIA IYER & ORS v. T. KUNHIKUTTAN NAIR AND 6 ORS

- **Citation:** [1970] 2 S.C.R. 688
- **Court:** Supreme Court of India
- **Decided:** 1969-10-08
- **Bench:** J. C. Shah, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ic-k-subramonia-iyer-ors-v-t-kunhikuttan-nair-and-6-ors-4937
- **Pages:** 9

## Headnote

Fatal Accidents Act {13 of 1855), ss. IA and 2-Assessment of
damages-Principles for.
The appellants filed a suit claiming a sum of Rs. 30,000 as damages
under os. IA and 2 of the Fatal Accidents Act, 1855 for the death of
their son aged 8 years. The boy had stood first in Standa~d III and bis
future was claimed to be bright. The trial court computed the damages
unde<> ss. IA and 2 at Rs. 5,000. In appeal the High Court determined
-- the damages under s. IA at Rs. 5,000 and undelr s. 2 at Rs. 1,000. In
appeai ·by certificate before this Court.
HELD : Compulsory damages under s. IA of the Act for W<ongful
death must be limited strictly to the pecuniary loss to the beneficiaries
and under s. 2 the measure of damages is the economic loss sustained by
the estate.
There can be no -exact uniform rule for measuring the value
of human life and the measure of damages cannot he arrived at by precise
mathematical calculations but the amount recoverable depends
on
the
particular facts and circumstances of each case.
The life expectancy
of the deceased or of the beneficiaries whichever is shorter is an imp0rtant
-factor,_ ~ince the elements which go to make up thr value of the life of
the deceased to the designated beneficiaries are necessarily personal to
each case in the very nature of things, there can be no exact or uniform
rule for measuring the value of human life. In assessing the damages the
court must exclude all considerations of matter which rest in speculations
or fancy though conjecture to some extent is inevitable.
As a general
rure parents are entitled to recover the present cash value of the prospective ~er vice of the deceased minor child.
In addition they may receive
compensation for loss of pecuniary benefits reasonably to be expected
afer the child attains majority. In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findinl!' reached
by th~. courts below, if they have taken all the relevant facts into consideration. [695 F-696 A]
/)arjes and Anr, v. Powell Duffer:;n Associated Collieries Ltd. [1942]
A.C. 601, Franklin v. South East Railway Company, 157 E.R. 3 H. &
N. 448, Taff Vale Railwl!Y Company v, llmklns, (1913] A.C. 1, Barnett v.
Cohen & Orf. [1921] 2 K.B. 461, N•-nce v. British Columbia Electric Rly,
Co. Ltd. [1951] A.C. 601 and Gobald Motor Service Ltd. & Anr. v. R.M.K.
Veluswami & Ors. [1962] 1 S.C.R. 929, applied.
(ii) In the present case although the deceased was a bright ollild, it was
uncertain how much assistance he would have given after growing up to
his parents. The father was a plrosperous business man and hardly needed
assistance.
There was no material on record as to the age of the parents
and their state of health.
On the basis of the evidence on. record it could
not be said that the dama~es ordered bv the High Court were inadequ.ate.
[696 Cl
CIVIL APPELLATE JUR1smcTION : Civil Appeal No. 2227 of
1966.
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c. K. s. IYER v. T. K. NAIR (Hegde, !.)
6 89
Appeal from the judgment and decree dated December 10,
1963 of the Kerala High Court in Appeal Suit No. 1094 of 1959.
S. V. Gupta and Lily Thomas, for the appellants.
Rameshwar Nath, for respondent No. 2.
Sardar Bahadur, Vishnu Bahadur Saharya and
Y ougindra
Khushalani, for respondent No. 3.

## Text

688
IC. K. SUBRAMONIA IYER & ORS.
v.
T. KUNHIKUTTAN NAIR AND 6 ORS.
October 8, 1969
(J. C. SHAH AND K. S. HEGDE, JJ.j
Fatal Accidents Act {13 of 1855), ss. IA and 2-Assessment of
damages-Principles for.
The appellants filed a suit claiming a sum of Rs. 30,000 as damages
under os. IA and 2 of the Fatal Accidents Act, 1855 for the death of
their son aged 8 years. The boy had stood first in Standa~d III and bis
future was claimed to be bright. The trial court computed the damages
unde<> ss. IA and 2 at Rs. 5,000. In appeal the High Court determined
-- the damages under s. IA at Rs. 5,000 and undelr s. 2 at Rs. 1,000. In
appeai ·by certificate before this Court.
HELD : Compulsory damages under s. IA of the Act for W<ongful
death must be limited strictly to the pecuniary loss to the beneficiaries
and under s. 2 the measure of damages is the economic loss sustained by
the estate.
There can be no -exact uniform rule for measuring the value
of human life and the measure of damages cannot he arrived at by precise
mathematical calculations but the amount recoverable depends
on
the
particular facts and circumstances of each case.
The life expectancy
of the deceased or of the beneficiaries whichever is shorter is an imp0rtant
-factor,_ ~ince the elements which go to make up thr value of the life of
the deceased to the designated beneficiaries are necessarily personal to
each case in the very nature of things, there can be no exact or uniform
rule for measuring the value of human life. In assessing the damages the
court must exclude all considerations of matter which rest in speculations
or fancy though conjecture to some extent is inevitable.
As a general
rure parents are entitled to recover the present cash value of the prospective ~er vice of the deceased minor child.
In addition they may receive
compensation for loss of pecuniary benefits reasonably to be expected
afer the child attains majority. In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findinl!' reached
by th~. courts below, if they have taken all the relevant facts into consideration. [695 F-696 A]
/)arjes and Anr, v. Powell Duffer:;n Associated Collieries Ltd. [1942]
A.C. 601, Franklin v. South East Railway Company, 157 E.R. 3 H. &
N. 448, Taff Vale Railwl!Y Company v, llmklns, (1913] A.C. 1, Barnett v.
Cohen & Orf. [1921] 2 K.B. 461, N•-nce v. British Columbia Electric Rly,
Co. Ltd. [1951] A.C. 601 and Gobald Motor Service Ltd. & Anr. v. R.M.K.
Veluswami & Ors. [1962] 1 S.C.R. 929, applied.
(ii) In the present case although the deceased was a bright ollild, it was
uncertain how much assistance he would have given after growing up to
his parents. The father was a plrosperous business man and hardly needed
assistance.
There was no material on record as to the age of the parents
and their state of health.
On the basis of the evidence on. record it could
not be said that the dama~es ordered bv the High Court were inadequ.ate.
[696 Cl
CIVIL APPELLATE JUR1smcTION : Civil Appeal No. 2227 of
1966.
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c. K. s. IYER v. T. K. NAIR (Hegde, !.)
6 89
Appeal from the judgment and decree dated December 10,
1963 of the Kerala High Court in Appeal Suit No. 1094 of 1959.
S. V. Gupta and Lily Thomas, for the appellants.
Rameshwar Nath, for respondent No. 2.
Sardar Bahadur, Vishnu Bahadur Saharya and
Y ougindra
Khushalani, for respondent No. 3.
The Judgment of the Court was delivered by
Hegde, J. The question for decision in ~his ~ppeal by certificate is short but important and that quest1011 1s what are the
principles governing the assessment of damages under ss. lA
and 2 of the Fatal Accidents Act (Act XIII of 1855) (to be
hereinafter referred to as the Act) ?
One Krishnamoorthy son of plaintiffs 1 and 2 aged about
8 years was hit by a bus _owned by the 1st defendant (who died
during the pendency of this suit) and driven by the second defendant on February 26, 1956. As a result of that accident Krishnamoorthy sustained very severe injuries. He became unconscious
almost immediately after the accident and died in the hospital
on the early morning of February 28, 1956.
Krishnamoorthy
was the eldest son of plaintiffs 1 and 2. Both the courts have
come to the conclusion that he was a bright boy and was at the
top of his class in his s ~hool. At the time of his death he was
in Standard III.
His parents are affluent.
They could have
afforded to give him good education. Hence there was a bright
future for him. The plaintiffs claimed a sum of Rs. 30,000 as
damages under ss. lA and 2 of the Act.
The District Judge
computed the damages under ss. lA and 2 at Rs. 5,000. In
appeal the High Court determined the damages under s. IA at
~s. 5,000 ~d .under s. 2 at Rs. 1,000. Aggrieved by that decismn, the plamttffs have brought this appeal.
We shall first read s. IA and 2 for the purpose of ;;scertaining the principles governing the assessment of the damages under
those sections. Section l A reads :
"Whenever the death of a person shall be caused
by wrongf~l act, neglect or default and the act, neglect
or defau~t 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
wo~ld have been . liable if death had n'ot ensued shall
~e hable to an acuon or suit for damages, notwithstandmg the death of the person injured, and although the
death shall .have been caused under such circumstan,ces
as amount m law to felony or other crime.
Eyery such action or suit shall be for benefit of ·
the wife, husband, parent and child, if any, of the person
690
SUPREME COURT REPORTS
[1970] 2 s.c.R.
whose death shall have been so caused, and shan be
brought by and in the name of tlie e.xecutor, administrator or representative of .the person deceased;"
Section 2 reads thus :
"Provided always that not more than one action or
suit shall be brought for, and in respect of the cJme
subject matter of complaint.
Provided that, in any
such action or suit, the executor, administrator or representative of the deceased may insert a claim for and
recover any pecuniary loss to the estate of the deceased
occasioned by such wron~ul act, neglect or default,
which sum, when recovered, shall be deemed part of
the assets of the estate of the deceased."
The rights under the two provisions are quite distinct and
independent.
Under the former section the damages are mac'.~
payable to one or the other relations enumerated therein whereas
the latter section prqvides for the recoupment of any pecuniary
loss to the estate of the deceased occasioned by the wrongful act
complained of. Sometimes, the beneficiarie' under the iwo provisip?s l'lay be the. same.
Section IA is in svbstance a reproduct10n of the Enghsh Fatal Accidents Acts 9 and 10 Viet. ch. 93
known as the Lord Campbell's Acts.
Section 2 corresponds to
one of the provisions in the English Law Reform (Miscellaneous
Provisions) Act, 1934.
The scope of s. 1 of the Campbell's Acts was considered by
the House of Lords in Davies and Anr. v. Powell Dufjeryn Associated Collieries Ltd. (1), Dealing with the mode of assessment
of damages under that section Lord Russel of Killowen observed :
"The general rule which has always prevailed in
regard to the assessment of damages under the_ Fatal
Accidents Act is well-settled, nvmely, that any oenefit
accruing to a dependant by reason of the relevant death
must be taken into account. Under those Acts the
balance of loss and gain to a dependant by the death
must be ascertained, the position of each dependant being comidered separately."
Lord Wright ~lated the law on the point thus :
"The general nature of the reme~y under the Fatal
Accidents Acts has often been explamed. These Acts
provided a new "cause of action and did not merely
regulate or enlari;, a~ old one", _as. Lord Summer
observed
in
Admiralty Commrsswners v.
S. S.
(1) [1142] A. C. 601 ;
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c. K. s. !YER v. T, K, NAIR (Hegde, J.)
6!il
America('). The claim is, in the words. of Bowen
L.J.; in The Vera Cruz
(No. 2) (2 )
for injuriously
affecting the family of the deceased.
It is not a claim
which the deceased could have pursued in his own life
time, because it is for damages suffered not by himself,
but by his family after his death.
The Act of 1846,
R. 2 provides that the· action is to be for the bene~t of
the wife or other member of the family, and the jury
(or judge) are to give such damages as may be thought
proportioned to the injury resulting to such parties from
the death. The damages are to be based on the reasonable expectation of pecur.iary benefit or benefit reducible
to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered : Grand Trunk
Ry. Co. of Canada v. Jennings( 3 ). The actual pecuniary loss of each individual entitled to sue can only be
ascertained by balancing, on the one hand, the loss to
him 0f the future pecuniary benefit; and, on the other,
any pecuniary advantage which from whatever source
comes to him by reason of the death."
In ascertaining pecuniary loss caused to the re,lations mentioned in s. lA, it must be borne in mind that these damages
are not to be given as solatium but are to be given with reference
to a pecuniary loss.
The damages should be calculated with
reference to a reasonable expectation of pecuniary benefit from
the continuance of the life of t11e deceased-see Franklin v. The
South East Raibvay Company('). In that case Pollock. C.B.
observed:
"We do not say that it was necessa1y that actual
benefit should have been derived, a reasonable expectation is enough and such reasonable expectation might
well exist, though from the father, not being in need,
the son had never done anything for him. On the other
hand a jury certainly ought not to make a guess in the
matter, but ought to be satisfied that there has been a
loss of sensible and appreciable pecuniary benefit,
which might have been reasonably expected from the
continuance of the life."
·
In Taff Vale Railway Company v. Jenkins('), the Judicial
Committee observed that it is not a condition precedent to the
maintenance of an action under the Fatal Accidents Act, 11!4'6,
-~----------'--
(!) [1917] A. C. 38, 52.
12) (1884) 9 !'. D. 96, 101:
(3} 13 A"peal Cases. 801', 804.
(4) i57, English Reports 3 ·H & N, 448.
'
15)
[19131 A. C. I.
-692
SUPREME COURT REPORTS
[1970] 2 s.c.R.
that the deceased should have been act.ually earning money or
money's worth or contributing to the support of ~ plaintiff ar
or before the date of the death provided that the plaintiff had. x
reasonable expectation of pecuniary benefit from the ci:mtinuance
of the life. Therein Lord Atkinson stated the law thus :
"I think it has been well established by authority
that all that is necessary is that a reasonable expectation of pecuniary benefit should be entertafned by the
person who sues. It is quite true that the existel!ce of
this expectation is an . inference of fact-there must be
a basis of fact from which the inferegce can reasonably
be drawn; but I wish to express my emphatic dissent
from the proposition that it is necessary that two of the
facts without which the inference cannot be drawn are,
first,. that the deceased earned money in the past, and
second, that he or she contributed to the support of the
plaintiff.
These are, no doubt, pregnant pieces of
evidence, but they are only pieces of evidence; and the
!lece~sary inference can I think be drawn from circumstances other than and diffeteat from them."
In an action under the Act, it is not stfficient for the plaintiff
to prove that he lost by the death of the deceased a mere speculative possibility of pecuniary benefit. In order to succeed, it is
necessary for him to show that. he has lost a reasonable probability of pecuniary advantage. In Barnett v. Cohen and ors. (1),
McCardie J. speaking for the Court quoted with approval ·the
following observations of Lord Haldane in his judgment in Taff
.Vale Ry. Co. v. Jenkins(') :
" "The basis is not what has been calJed solatium,
that is to say, damages given for injured feelings or on
the ground of senliillent, but damages based on compensation for a pecuniary loss.
B11t then Joss may be
prospective, and it is quite clear that prospective loss
may be taken into account. It has been said that this
is qualified by the proposition that the child must be
shown to have been earning something before any
damages can be assessed. I know of no foundation in
principle for that proposition either in the statute or in
any doctrine of law which is applicable; nor do I think
it is really establi~hed by the authorities when you
examine them. . . . . . . . . . ... I have already indicated
that in my view the real question is that which Willes, J.
defines in one of the cases quoted to us, Dalton v. South
(l) [1921) 2 K.B. 461
(2) [1913] A.C. l.
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c. K, s. IYER v. T. K. NAIR (Hegde, /.)
693
Ii.astern Ry. Co.(') 'Aye or No, was there a reasonable
expectation of pecuniary advantage '?"
Proceeding further the learned judge referred to the observations of Pollock, C. B. in Taff Vale Ry. Co. v. Jenkins(2) :
" "It appears to me that it was intended by the Act to
.give compensation for damage sustained, and not to en·
able persons to sue in respect of some imaginary
damage, and so punish those who are guilty of negligence by making them pay costs." "
Dealing with the facts of the case before him McCardie, J.
ibseryed :
"In the present action the plaintiff has not satisfied•
me that he had a reasonable expectation of pecuniary
benefit. His .child was under four years old. The boy
was subject to' all risks of illness, disease, accident and
death. His education and upkeep would have been a
substantial burden to the plaintiff for many years if he
had lived.
He might or might not have turned out a
useful young man. He would have _earned nothing till
about sixteen years of age. He might never have aided
his father at all. He might have proved a mere expense.
I cannot adequately speculate one way or the other. In
any event he would scarcely have been expected to
contribute to the father's income, for the plaintiff even
now possesses 1,000 1, a year by his business and i:nay
increase it further, nor. could the son have been expected to aid in domestic service.
The whole matter is
beset with doubts, contingencies and uncertainties.
Equally uncertain, too, is the life of the plaintiff himself in view of his poor health. He might or might not
have survived his son.
That is a point for consideration, for, as was pointed out by Bray J., when sitting
in the Court of Appeal in Price v. Glynea and Castle
Coal Co.('): "Where a clainl is made under Lord
Campbell's Acts, as it is here, it is not only a question
of the expectation of the life of the claimant". Upon
the facts of this. case Jhe plaintiff has not proved
damage either actual or prospective.
His claim is
pressed to extinction by the weight or multiplied' contingencies.
The action therefore fails."
The mode of assessment of damages is not free '.rom doubt.
It is beset with certain difficulties.
It depends on many imponderables. The English coutcs have formulated certain basis for
(I} (1858) 4, C. B. (N. S.) 296.
(2) [1913] A. C. I.
(3) 9 B. W. C. C. 188, 198.
694
SUPREME COURT REPORTS
[1970] 2 S.C.R.
calculating damages under Lord Campbell's Acts.
The rules
ascertained by the English courts are set out in Winfield on
Torts 7th Edn. at pp. 135 and 136 as follows :
"The starting point is the amount of wages whj.ch
the deceased was earning, the ascertainment of which
to some extent may depend on the regularity of his employment. 'Then there is an estimate of how much was
required or expended for his own personal and Jiving
expenses.
The balance will give a datum or basic
figure which will generally be turned into a lump sum
by taking a . number of years' purchase. That sum,
however, has to be taxed down by having regard to the
uncertainties, for instance, that the widow might have
again married and thus ceased to be dependent, and
other like matters of speculation and doubt".
The
number of years' purchase is left flud, from twelve to
fifteen has been quite a common multiple in the case of
a healthy man, and the number should not be materially
reduced by reason of the haz:.rdous nature of the occupation of the deceased man. These principles are, however, only appropriate where the
d~ceased was the
bread-winner of the family.
Oliviously. they cannot be
applied, for example, where the claim is in respect of
a mere expectation of pecuniary benefit from the
deceased or where the decased's contribution to the
family was in kind and not in cash. In truth, each case
must
depend . upon its own facts.
In ·Do/bey v.
Godwin('), the plaintiff was the widowed mother of
the deceased, an unmarried man 29 years of age, and
he had contributed substantially to her upkeep.
The
Court of Appeal held that it would be wrong to assess
the damages on the same basis as if the plaintiff were
the widow of the deceased, principally on the ground
that it was likely that he would have married in due
course and that then his contributions to his mother
would have been reduced."
The mode and manner of ascertainment of damages in faral
accidents cases came up for consideration in Nance v. British
Columbia Electric Rly. Co. Ltd.('). In
that case Viscount
Simon, formulated the following tests for ascertaining
the
damages : ( 1) First estimate what was the deceased man's expectation of life if he had not been kiJJed when he was; and (2) What
sums during those years, he would have probably applied to the
support of the dependant.
In fixing the expectation of life of
the deceased regard must be had not only to his age and bodily
0)
[1955] I, W. L. R. 553, 1103.
12) [1951], A. C. 601;
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695
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health· but premature termination of his life by a later accident.
Iu estimating future provision for his depeudant the amounts he
usually applied in this way before his death are obviously relevant,
and often the best evidence available though not conclusive, since
if he had survived, his means might have expanded or shrunk,
and bis liberality might have grown or wilted. After making th~
B
calculations on the basis of the two tests, his Lordship observed
that· deduction must further be made for the benefit accruing to
the dependant from the acceleration of his interest in his estate
and further allowance must be made for the possibility that the
dependant himself might have died before he died.
In Gobald Motor Service Ltd. and anr. v. R. M. K.
VeluC
swami and ors. (') , this Court held that the actual extent of the
pecunia~· loss to the aggrieved party may depend on a data
which cannot be ascertained ·accurately but must necessanly 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
D
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. Therein it was further observed
that where the courts below nave on relevant material placed
before them ascertained the amount of damages under the head
of pecuniary loss to the dependanfs of the deceased, such findings
E
cannot be disturbed in second appeal except for compelling
reasons.
The law on the point arising for decision may be summed up
thus : Compulsory damages under s. IA of the Act for worngful
death must be limited strictly to the pecuniary loss to the beneficiaries and that under s. 2, the measure of damages is the econoF
mic loss sustained by· the estate. There can be no exact uniform
rule for measuring the value of the human life and the measure
of damages cannot be arrived at by precise mathematical ca.lculations but the amount recoverable depends on the particular facts
and circumstances of each case.
The life expectancy of the
deceased or of the beneficiaries whichever is shorter is an imG
portant factor. Since the elements which go to make up the value
· of the life of the deceased to the designated beneficiaries are ·
necessarily personal to each case, in the very nature of things,
th.ere can be no exact or uniform rule for measuring the value of
human life. fa assessing damages, the court must exclude all
considerations of matter which rest in speculation or fancy though
H
conject1;1re to some extent is inevitable. As a general rule parents
are entJ.tled to recover the present cash value of the prospective
service of the deceased minor child. In addition they may ieceive
(!) [1962] I S.C.R. 929
696
SUPREME COURT REPORTS
[1970] 2 S.C.R,
co~pensation for loss of pecuniary benefits reasonably to be
expected after the child attains majonty. In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findings reached by the courts below, if they have
taken all the relevant facts into consideration.
Now applying the above rules to the facts of the present case,
it is seen that the deceased child was only 8 years old at the time
of his death. How he would have turned out in life later is at
best a guess. But there was a reasonable probability of his becoming a successful man in life as he was a bright boy in the
school and his parents could have atforded him a good educa'
tion. It is not likely that he would have given any financial assistance to his parents till he was at least 20 years old. As seen from
the evidence on record, his father was a substantial person. He
was in business and his business was a prospervus one. As things
stood he needed no assistance from his son. There is no material
on record to find out as to how old were the parents of the deceased
at the time of his death. Nor is 'there any evidence about their
state of health. On the basis of the evidel}Ce on record, we are
unable to come to the conclusion that the damages ordered by
the High Court are inadequate.
In the result this appeal fails and the same is dismissed. But
in the circumstances of the case we make no order as to costs.
G.C.
Appeal dismissed.
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