# Rajputana Textiles (Agencies) Lid v. Com,nissioner af lncome~tax, Bombay City

- **Citation:** [1962] 1 S.C.R. 929
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Ci~il Appeal No. 419 of 1957
- **Bench:** K. SuBBA RAO, Raghubar Dayal, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajputana-textiles-agencies-lid-v-com-nissioner-af-lncome-tax-bombay-city-2111
- **Pages:** 18

## Headnote

Fatal Accidents-Negligent act of driver of bus-Acting in the
course of employment-Liability of owner-Damages-Principles
of ascertainment-Pecuniary loss and loss of expectation of life-If
same person could claim under both heads-Fatal Accidents Act,
r855 (IJ of r855), SS. I, 2.
A bus run by the appellant met with an accident as a result
of which R died. R's dependants and heirs e.g. the father,
widow and sons. brought a suit for compensation under s. I of
the Fatal Accidents Act, 1855, for loss of pecuniary benefit sustained by them personally and under s. 2 thereof for the loss
sustained by the estate on account of the death of R.
The
High Court found that the bus was driven at an excessive speed
and there was negligence on the part of the driver and that the
appellants were liable for the same. On the question of damages,
it confirmed the amount of compensation of Rs. 25,000 under s. 1
of the Act for the loss of pecuniary advantage and of Rs. 6,ooo
under s. 2 of the Act for loss of expectation of life. The questions for consideration were (r) whether the accident wa> due
117
1961
Rajputana
Textiles
(Agencies) Lid.
v.
Com,nissioner af
lncome~tax,
Bombay City
Kapur J.
z96r
April 14.
930
SUPREME COURT REPORTS
[1962]
r96r
to any negligence on the part of the driver; (2) whether the
courts below were right in awarding compensation under s. r of
Gobald Motor
the Act for pecuniary loss sustained by the widow and the sons
Service Ltd.
of the deceased; and (3) whether the sum awarded as damages
v.
under s. 2 of the Act for loss of expectation of life should go
V•luswami
towards the reduction of the compensation awarded for pecuniary loss sustained under s. r of the Act, as otherwise it would
be duplication of damages in respect of the same wrong.
Held, that where on the basis of the evidence and on broad
probabilities it is found that the speed at which the bus was
driven was excessive having regard to the nature of the ground
on which the accident happened, there is a presumption that
the accident was caused by the negligence of the driver. As
the driver was acting in the course of his employment, the master would be liable for such accident, unless the presumption is
rebutted by the master.
In the present case, on account of the negligence of the
driver in the course of his employment the accident happened,
and, therefore, the appellant was liable for the same.
Barkway v. South Wales Transport Co. Ltd., [r948] 2 All E.R.
460, Joel v. Morison, (1&34) 6 Car. & P. 501 and Storey v. Ashton,
(1869) L.R. 4 Q.B. 476, applied.
That the actual extent of the pecuniary loss to the aggriev--
ed party may depend upon data which cannot be ascertained
accurately, but must necessarily 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
f
and on the other any pecuniary 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.
Davies v. Powell Duffryn Associated Collieries Ltd., [1942]
A.C. 601 and Nance v. British Columbia Electric Railway Company
Ltd., (1951] A.C. 601, followed.
Where the courts below have on relevant material placed
"m
before them ascertained the amount of damages under the head
of pecuniary loss by the dependants of the deceased, such findings cannot be disturbed· in second appeal except for compelling
·reason.
Held, further, that the rights of action under ss. r and 2 of
the Fatal Accidents Act are quite distinct and independent. If
a person taking benefit under both the sections was the same,
he cannot be permitted to recover twice over for the same loss.
In awarding damages under both the heads, there shall not be
duplication of the same claim, that is, if any part of the compensation representmg the loss to the estate goes mto the calculation of the persona

## Text

1 S.C.R. SUPREME COURT REPORTS
929
The Notice of Motion to raise other questions in
the High Court was rightly dismissed.
Apart from
the fact that the Notice of Motion was barred by time
and there was no application for condonation of delay,
the questions which were sought to be raised were
rightly held either to be covered by the question answered or they did not arise at all. The constitutional question under Art. 14 of the Constitution cannot
be raised in these proceedings because as we have said
above this Court is exercising its advisory jurisdiction
and its power is confined to the questions which arise
in an appeal.
This appeal must therefore be dismissed with costs.
Appeal dismissed.
GOBALD MOTOR SERVICE LTD. & ANOTHER
v.
R. M. K. VELUSW AMI & OTHERS
(K. SuBBA RAO, RAGHUBAR DAYAL and
J. R. MuDHOLKAR, JJ.)
Fatal Accidents-Negligent act of driver of bus-Acting in the
course of employment-Liability of owner-Damages-Principles
of ascertainment-Pecuniary loss and loss of expectation of life-If
same person could claim under both heads-Fatal Accidents Act,
r855 (IJ of r855), SS. I, 2.
A bus run by the appellant met with an accident as a result
of which R died. R's dependants and heirs e.g. the father,
widow and sons. brought a suit for compensation under s. I of
the Fatal Accidents Act, 1855, for loss of pecuniary benefit sustained by them personally and under s. 2 thereof for the loss
sustained by the estate on account of the death of R.
The
High Court found that the bus was driven at an excessive speed
and there was negligence on the part of the driver and that the
appellants were liable for the same. On the question of damages,
it confirmed the amount of compensation of Rs. 25,000 under s. 1
of the Act for the loss of pecuniary advantage and of Rs. 6,ooo
under s. 2 of the Act for loss of expectation of life. The questions for consideration were (r) whether the accident wa> due
117
1961
Rajputana
Textiles
(Agencies) Lid.
v.
Com,nissioner af
lncome~tax,
Bombay City
Kapur J.
z96r
April 14.
930
SUPREME COURT REPORTS
[1962]
r96r
to any negligence on the part of the driver; (2) whether the
courts below were right in awarding compensation under s. r of
Gobald Motor
the Act for pecuniary loss sustained by the widow and the sons
Service Ltd.
of the deceased; and (3) whether the sum awarded as damages
v.
under s. 2 of the Act for loss of expectation of life should go
V•luswami
towards the reduction of the compensation awarded for pecuniary loss sustained under s. r of the Act, as otherwise it would
be duplication of damages in respect of the same wrong.
Held, that where on the basis of the evidence and on broad
probabilities it is found that the speed at which the bus was
driven was excessive having regard to the nature of the ground
on which the accident happened, there is a presumption that
the accident was caused by the negligence of the driver. As
the driver was acting in the course of his employment, the master would be liable for such accident, unless the presumption is
rebutted by the master.
In the present case, on account of the negligence of the
driver in the course of his employment the accident happened,
and, therefore, the appellant was liable for the same.
Barkway v. South Wales Transport Co. Ltd., [r948] 2 All E.R.
460, Joel v. Morison, (1&34) 6 Car. & P. 501 and Storey v. Ashton,
(1869) L.R. 4 Q.B. 476, applied.
That the actual extent of the pecuniary loss to the aggriev--
ed party may depend upon data which cannot be ascertained
accurately, but must necessarily 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
f
and on the other any pecuniary 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.
Davies v. Powell Duffryn Associated Collieries Ltd., [1942]
A.C. 601 and Nance v. British Columbia Electric Railway Company
Ltd., (1951] A.C. 601, followed.
Where the courts below have on relevant material placed
"m
before them ascertained the amount of damages under the head
of pecuniary loss by the dependants of the deceased, such findings cannot be disturbed· in second appeal except for compelling
·reason.
Held, further, that the rights of action under ss. r and 2 of
the Fatal Accidents Act are quite distinct and independent. If
a person taking benefit under both the sections was the same,
he cannot be permitted to recover twice over for the same loss.
In awarding damages under both the heads, there shall not be
duplication of the same claim, that is, if any part of the compensation representmg the loss to the estate goes mto the calculation of the personal loss under s. r of the Act, that portion shall
be excluded in giving compensation under s. 2 and vice versa.
1 S.C.R. SUPREME COURT REPORTS
931
In the instant case, under s. l of the Act the sum of comr961
pensation was arrived at by taking into consideration, inter alia,
the reasonable provision the deceased,
1if alive, would have made
Gobald Motor
for his widow and sons.
Under s. 2 the fignre for damages
Servi" Lid.
awarded for the loss to the estate represents the damages for
v.
the mental agony. suffering and loss of expectation of life;
V•luswami
thus there was no duplication in awarding damages under both
the heads.
Rose v. Ford, [1937] A.C. 826, Feay v. Barnwell, [1938] All
E.R. 3r, Ellis v. Raine, [1939] 2 K.B. 180 and Secretary of State
v. Gokal Chand, (1925) I.L.R. 6 Lah. 451, referred to.
CIVIL APPELLATE JURISDICTION:
Ci~il Appeal No.
419 of 1957.
Appeal by certificate from the judgment and decree
dated January 16, 1953, of the Madras High Court in
A. S. No. 164 of 1949.
M. S. K. Sastri, for the appellants.
Bishan Narain, S. N. Andley, J.B. Dadachanji and
Ravindra Narain, for the respondents.
1961.
April 14.
The Judgment of the Court was
delivered by
SUBBA RAO, J.-This appeal by certificate is directSubba Rao J.
ed against the judgment of the High Court of J udicature at Madras dated January 16, 1953, modifying the
decree of the Court of the Subordinate Judge, Dindigul, in 0. S. No. 7 of 1948, a suit filed by the respondents for compensation under the provisions of the
Fatal Accidents Act (XIII of 1855).
The appellant, Gobald Motor Service Ltd. (hereinafter called the Company), was engaged in the business of transporting passengers by bus between
Dharapuram and Palni, among other places, in the
State of Madras. On September 20, 1947, one of the
buses of the Company, bearing registration number
MDC 2414, left Dharapuram for Palni at about 3 p.m.
At a place called. Thumbalapatti between Dharapuram and Palni, one Rajaratnam, along with his
brother by name Krishnan, boarded the bus. The bus ·
met with an accident at about 3 miles from Palni, as a
result of which some of:the passengers, including
Rajaratnam, sustained injuries. Rajaratnam died of
Gobald fl.1 otor
Service Ltd,
v.
Vsluswami
Subba Rao ].
932
SUPREME COURT REPORTS
(1962]
the injuries received in the accident on September 23,
1947. The first plaintiff, his father; the second
plaintiff, his widow; and plaintiffs 3 to 7, his sons,
instituted 0. S. No. 7 of 1948 against the Company in
the Court of the Subordinate Judge, Dindigul, for
compensation under s. 1 of the Fatal Accidents Act
(hereinafter called the Act) for loss of pecuniary benefit
sustained by them personally, and under s. 2 thereof
for the loss sustained by the estate on account . of the
death of Rajaratnam. They alleged in the plaint
that the driver, who was in charge of the bus, was
incompetent and inexperienced, that he was guilty of
rash and negligent conduct in the driving of the bus,
and that the accident was the result of his incom.
petence and negligence. The Company in its writtenstatement denied the said allegations and pleaded that
the accident was the result of the central bolt of the
left rear spring suddenly giving way, that Rajaratnam
was also guilty of contributory negligence .and that in
any event the damages claimed were excessive. The
learned Subordinate Judge came to the conclusion
that there was no proof that the bus was driven at a
reckless speed at the scene of the accident, but the
fact that the accident occurred on the off-side of the
road was itself evidence of his negligence and it had
not been rebutted by the defendants. He further held
that the driver was not proved to be incompetent. On
those findings, he held that the defendants were liable
for the negligence of their servant, and be awarded
damages as follows:
(1) Plaintiff 1 ... Rs. 3,600 under s. 1 of the Act.
(2) Plaintiffs 2 to 7 ... Rs: 25,200 under s. l of the
Act.
(3) Plaintiffs 2 to 7 ... Rs. 6,000 under s. 2 of the
Aot.
Against the said decree, the defendants preferred an
appeal to the High Court and it came to be disposed
of by a division bench of that court. The High Court on
a review of the entire evidence held that the speed at
which the bus was driven was excessive, having regard
to the nature of the ground," on which the accident happened, that there was negligence on the part of the
1 S.C.R. SUPREME COURT REPORTS
933
driver, and that the appellants were liable therefor. But
the High Court discounted the plea that the appellants,
apart from their being constructively liable for the
negligence of the drive~, were also negligent in employing Joseph, who was not a competent driver.
Both the courts, therefore, concurrently held that the
accident occurred on account of the negligence of the
driver. On the question of damages, the High Court
confirmed the amount of compensation awarded to the
plaintiffs 2 to 7 both under ss. I and 2 of the Act, but
in regard to the first plaintiff, it reduced the compensation awarded to him from Rs. 3,600 to Rs. 1,000;
with this modification, the appeal was dismissed with
costs.
Learned counsel for the appellants raised before us
the following points: (1) The finding of the High Court
that the bus was driven at an excessive speed at the
place where the accident occurred, based on probabilities, was erroneous. (2) The concurrent finding of the
two courts that respondents 2 to 7 would be entitled
to damages in a sum of Rs. 25,200 for the loss of
pecuniary advantage to them was not based upon any
acceptable evidence but only on surmises. (3) The High
Court went wrong in awarding damages separately
for loss of expectation of life under s. 2 of the Act, as
damages under that head had already been taken into
consideration in giving compensation to respondents
2 to 7 for the pecuniary loss sustained by them by tbe
death of Rajaratnam.
The first question for consideration is whether the
accident was due to any negligence on the part of the
driver Joseph. A clear picture of the topography and
the physical condition of the locality where the
accident took place would, to a large extent, help us
in deciding the said question. The accident took place
at Puliampatti where the road passed over a culvert
and then took a sharp bend with a downward
gradient. To the east of the road was a drain and
that was marked off by 5 stones 2 feet high. At a
distance of 20 or 25 feet from the stones, there were
trees. The ·bus after crossing the culvert crashed
againt the 5th stone with so much force thatthe latter
Gobald Ai otor
Strvice Ltd.
v.
Veluswatni
Subba Rao ].
r96r
Gobald Motor
Service Ltd.
v.
Veluswami
Subba Rao ].
934
SUPREME COURT REPORTS
[1962]
was uprooted and broken. It next attacked a tamarind
tree which was stated to be at a distance of 20 or 25
feet from the stone, and its bark was peeled off and it
tra veiled some more distance before it finally came to
rest. The evidence disclosed that some of the passengers were knocked and thrown down within the bus
itself and sustained injuries, while Rajaratnam was
thrown out of the bus into the ditch at a place 16i feet
south of the tamarind tree. It must be self.evident
from the said picture of the accident that the bus
must have been driven at a high speed. P.Ws. 3 and
4, two of the passengers in the bus, P.W. 6, a brother
of Rajaratnam, who also travelled in the bus, and
P.W. 5, who ran a coffee and tea stall at the place of
the accident, swore in the witness-box that the bus
was being driven at a high speed when the accident
happened. Their evidence reinforces the compelling
impression of high speed caused by the objective feaures thrown out by the topography of the place of the
accident. On the other hand, on the side of the defendants (appellants herein) D. W. 2, who claimed to have
travelled in the bus, deposed that the bus was travelling at the usual speed, but his cross-examination
discloses that he was an improvised witness. D.W. 3,
who was sitting by the side of the driver, deposed to
the same effect, but he was an employee of the Company and was obviously interested to support their
case. The evidence adduced on the side of the defence
is certainly not convincing. An attempt was made to
ca.lculate the speed of the bus on the basis of the time
given by P. W. 6 as to when Rajaratnam boarded the
bus and the time when the ,bus dashed against the
tree, and the mileage covered between the two points
within the said time. On the basis of such a calculation it was contended that the speed would have been
less than 15 miles per hour; but it is not possible to
deduce the speed from such a calculation, as the
witnesses were speaking of the time only approximately and not with reference to any watch. That
apart, it cannot be said that the bus maintained an
even pace throughout. The High Court, on the basis
of the evidence and on broad probabilities, he.Id that
1 S.C.R. SUPREME COURT REPORTS
,935
the apeed at which the bus was driven was excessive,
having regard to the nature of the ground on which
the accident happened; and having gone through the
evidence, we are quite satisfied that the said finding
was justified on the material placed before them. It
must, therefore, be held that there was negligence on
the part of the driver.
Apart from the positive evidence, in the present
·case the accident took place not on the main road, but
on the off.side uprooting the stone at the drain and
attacking a tamarind tree 25 feet away from the said
stone with such a velocity that its bark was peeled off
and the bus could stop only after travelling some more
distance.from the said tree.
The said facts give rise
to a presumption that the accident was caused by the
negligence of the driver. Asquith, L. J., in Barkway v.
South lf ales Transport Oo. (1) neatly summarizes the
principles applicable as to onus of proof in the following short propositions:
"(i) If the defendants' omnibus leaves the road
and falls down an embankment, and this without
more is proved, then the res ipsa loquitur, there is a
presumption that the event is caused by negligence
on the part of the defendants, and the plaintiff
succeeds unless the defendants can rebut this presumption. (ii) It is no rebuttal for the defendants to
show, again without more, that the immediate cause
of the omnibus leaving the road is a tyre-burst, since
a tyre-burst per se is a neutral event consistent, and
equally consistent, with negligence or due diligence
on the part of the defendants. When a balance has
been tilted one way, you cannot redress it by adding
an equal weight to each scale. The depressed scale
will remain down. This is the effect of the decision
in Laurie v. Raglan Building Company Ltd., ('),
where not a tyrecburst but a skid was involved.
(iii) To displace the presumption, the defendants
must go further and prove (or it must emerge from
the evidence as a whole) either (a) that the burst
itself was due to a specific cause which does not
connote negligence on their part but points to its
(1) (1948] 2 All E.R. 460, 471,
(2) (1942) I K.B. I j2.
Gobald ft.1 otor
Service Ltd.
v.
Veluswami
Subba Rao ].
Gobald Motor
Service Ltd.
v.
Veluswami
Subna Rao ].
636
SUPREME COURT REPORTS
'[1962]
absence as more probable, or (b) if they can point
to no such specific cause, that they used all reasonable care in and about the management of their
tyres."
The same principles have been restated in Halsbury's
Laws of England, 2nd Edn., Vol. 23, at p. 671, para
956, thus:
"An exception to the general rule that the burden
of proof of the alleged negligence is iu the first
instance on the plaintiff occurs wherever the facts
already established are such that the proper and
natural inference immediately arising from them is
that the injury complained of was caused by the
defendant's negligence, or where the event charged
as negligence 'tells its own story' of negligence on
the part of the defendant, the story so told being
clear and unambiguous. To these cases the maxim res
ipsa loquitur applies. Where the doctrine applies, a
presumption of fault is raised against the defendant,
which, if he is to succeed in his defence, must be
overcome by contrary evidence, the burden on the
defendant being to show how the act complained of
could reasonably happen wlthout negligence on his
part. Where, therefore, there is a duty on the defendant to exercise care, and the circumstances in
which the injury complained of happened are such
that with the exercise of the requisite care no risk
would in the ordinary course of events ensue, the
burden is in the first instance on the defendant to
disprove his liability. In such a case, if the injurious
agency itself and the surrounding circumstances are
all entirely within the defendant's control, the
inference is that the defendant is liable, and this
inference is strengthened if the injurious agency is
inanimate."
The said principles directly apply to the present case.
Here, the events happened tell their own story and
there is a presumption that the accident was caused
by negligence on the part of the appellants. But it is
said that this presumption was rebutted by proof that
the accident was due to the rear central bolt of the bus
'
I
~
I
1
t[
~
I
I
•
'
~
••I
.,.
1 S.C.R. SUPREME COUnT RrePoliTS
937
suddenly giving way. The High Court, after considering the relevant evidence, held that it was not possible
to hold that the accident was caused by tho break in
the bolt. \Ve have gone through the evidence and we
do not see any flaw in that conclusion.
The scope of the liability of a master for the negligence of his servant has been succinctly stated by
Baron Parke in Joel v. Morison(') thus:
'·The master is only liable where the servant is
acting in the course of his employment. If he was
going out of his way, against his master's implied
commands, when driving on his master's business,
he will make his master liable; but if he was going
on a frolic of his own, without being at all on his
master's business, the master will not be liable."
Again, in Storey v. Ashton (') Cockburn, L.C.J., says:
"The true rule is that the master is only responsible so long as the ser;rant can be said to be doing
the act, in the doing of which he is guilty of negligence, in the course of his employment as servant."
In the same case, Lush, J., said:
"The question in all such cases as the present is
whether the servant was doing that which the
master employed him to do."
In the present case, admittedly, on account of the
negligence of the driver in the course of his employment 'the said accident happened, and, therefore, the
appellants are liable therefor.
The next question is whether the courts below were
right in awarding compensation of Rs. 25,200 for the
pecuniary loss sustained by the respondents 2 to 7 by
reason of the death of Rajaratnam, under s. 1 of the
Act. Section 1 of the Act reads:
"Whenever the death of a person shall be caused
by wrongful act, neglect or default, and the act,
neglect or default 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 would have been liable if death had
(r) (1834) 6 Car. & P. 501; 172 E.R, 1338.
(2) (1869) L.R. 4 Q.B. 476.
us
Gobald J{otor
Service Ltd.
v.
• Veluswanti
Sul!ba Rau ],
Gobald Motor
Service Ltd.
v.
Feluswami
Suhba Rao ].
938
SUPREME COURT REPORTS
(1962]
not ensued shall be liable to an action or suit for
damages, notwithstanding the death of the person
injured, and although the death shall have been
caused under such circumstances as amount in law
to felony or other crime.
Every such action or suit shall be for the benefit
of the wife, husband, parent and child, if any of the
person whose death shall have been so caused, and
shall be brought by and in the name of the executor,
administrator or representative of the person decea.
sed; and in every such action the Court may give
such damages as it may think proportioned 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
deductng 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 shares as the Court by its judgment
or decree shall direct."
This section is in substance a reproduction of the
English Fatal Accidents Acts, 9 and 10 Viet. ch. 93,
known as the Lord Campbell's Acts. The scope of the
corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords
in Davies v. Powell Duffryn Associated Collieries Ltd.(').
There, Lord Russell of Killowen stated the general
rule at p. 606 thus:
"The general rule which has always prevailed in
regard to the assessment of damages under the
Fatal Accidents Acts is well settled, namely, that
any benefit 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 considered separately."
Lord Wright elaborated the theme further thus at
p. 611:
"The damages are to be based on the reasonable
expectation of pecuniary benefit or benefit reducible
(1) [z942] A.C. 601.
...
1 S.C.R. SUPREME COURT REPORTS
939
to money value. In assessing the damages all circumstances which may be legitimately pleaded in
diminution of the damages must be considered ..... .
The actual pecuniary loss of ea.ch individual entitled to sue can only be ascertained by balancing, on
the one hand, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by
reason of the death."
The same principle was restated with force and clarity
by Viscount Simon in Nance v. British Columbia
Electric Railway Company Ltd. (1 ).
There, the learned
Lord was considering the analogous provisions of the
British Columbia legislation, arid ho put the principle
thus at p. 614:
"The claim for damages in the present case falls
under two separate heads. First, if the deceased
had not been killed, but had eked out the full span of
life to which in the absence of the accident he could
reasonably have looked forward, what sums during
that period would he probably have applied out of
his income to the maintenance of his wife and
family?"
Viscount Simon then proceeded to lay down the
mode of estimating the damages under the first
head. According to him, at first the deceased man's
expectation of life has to be estimated having regard
to his age, bodily health and the possibility of premature determination of his life by later accidents;
secondly, the amount required for the future provision of his wife shall be es ti mated having regard
to the amounts he used to spend on her during his
lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years
of the man's estimated span of life, and the said
amount must be discounted so as to arrive at the
equivalent in the form of a lump sum payable on his
death; fourthly, further deductions must be made for
the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further
amounts have to be deducted for the possibility of the
(1) (1951] A.C. 601.
Gobald Motor
Serv£ce Ltd.
v.
Veluswami
Subba Rao ].
_Gobald JI,! otor
Service Ltd.
v.
Veluswami
Subba llao ].
I
940
SUPREME COURT REPORTS
[19621
wife dying earlier if the husband had lived the full
span of life; and it should also be taken into account
that there is the possibility of the widow remarrying
much to the improvement of her financial position. It
would be seen from the said mode of estimation that
many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the
respondents may depend upon data which cannot
be ascertained accnrately, hut must necessarily be
an estimate, or evP.n 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
advantage which from whatever source comes to
them by reason of the death, that is, tho balance of loss
and gain to a dependant by the death must be ascertained.
The burden is certainly on the plaintiffs to establish
the extent of their loss.
Both the courts below found,
on the evidence, the following facts: (I) The family
owned .a building worth Rs. 2,00,000 at Palni, and
120 acres of nanja land worth about Rs. 1,000 per acre.
(2) It was engaged in the business of manufacturing
Indian patent medicines from drugs and had been
running a Siddha Vaidyasalai at Palni for a period of
30 years and had also branches in Colombo and
M•iclras. (3) Rajaratnam studied in the Indian School
of Medicine for two years and thereafter set up his
own practice as a doctor, having registered himself as
a practitioner in 1940. (4) He took over the management of the family Vaidyasalai at Palni. (5) Rajaratnam was earning· in addition Rs. 200 to Rs. 250
per month in his private practice. (6) He had a statns
in life, being Municipal Councillor of Palni and sometimes its Vice-Chairman, and was maintaining a fairly
good standard of life and owned motor cars. (7) He
was aged 34 years at the time of his death and, therefore, had a reasonably long span of life before him, if
the accident had not taken place. On the said findings,
the High Court summarized the position thus:
" ......... the position is that there is here a man of
,J
/
..
1 S.C.R. SUPREME COURT REPORTS
941
age 34 carrying on business as a Doctor, with
reasonable prospects of improving in his business.
He was living in comfort and by his early death
plaintiffs 2 to 7 have lost their prospects of education, position in society and even possible provisio)'l
in their favour.
Under the circumstances, the
award of Rs. 25,000 as damages must be accepted as
quite reasonable."
When the courts below have, on relevant material
placed before them, ascertained the said amount as
damages under the first head, we cannot in second
appeal disturb the said finding except for compelling
reasons. Assuming that Rajaratnam had not died, he
would have spent, having regard to his means and
status in life, a minimum of Rs. 250 on respondents 2
to 7; and his income, as indicated by the evidence,
would certainly be more than that amount.
The
yearly expenditure he had to incur on the members
of the family would have been about Rs. 3,000 and
the sum of Rs. 25,200 would represent the said. expenditure for just over 8 years.
In the circumstances, the balance of loss and gain
to the dependants by the death of Rajaratnam, in
the sense stated by Lord Wright and Viscount Simon,
could not be less than Rs. 25,200; indeed, having
regard to the circumstances of tho case, it is a moderate sum; it is rather a conservative e.stimate.
We,
therefore, accept that figure as representing the damages for respondents 2 to 7 in respect of their claim
under the head of pecuniary loss to thorn by the death
of Rajaratnam,
The last contention raises an interesting point.
Under s. 2 of the Act the respondents 2 to 7 were
awarded Rs. 5,000 as damages for loss of expectation
of life. It was contended that this amount should go
in reduction of Rs. 25,200 awarded under s. 1 of tho
Act on the ground that otherwise it would be duplication of damages in respect of the same wrong.
The second proviso to s. 2 of the Act reads:
· "Provided that, in any such action or suit, the
executor, administrator or representative of the
deceased may insert a claim for and recover any
Gobald Motor
Service Lld.
v.
Veluswami
Subba Rao J.
, 1961
Gobald Motor
Setvice Ltd.
v.
Veluswami
Subba Rao J.
942
SUPREME COURT REPORTS
[1962]
pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default,
which sum, when recovered, shall be deemed part
of the assets of the estate of the deceased."
While s. 1 of the Act is in substance a reproduction of
the English Fatal Accidents Acts, 9 & 10 Viet. Ch. 93,
known as the Lord Campbell's Acts, s. 2 thereof
corresponds to a provision enacted in England by the
Law Reform (Miscellaneous Provision) Act, 1934. The
cause of action under s. 1 and that under s. 2 are
different.
While under s. 1 damages are recoverable
for the benefit of the persons mentioned therein,
under s. 2 compensation goes to the benefit of the
estate; whereas under s. 1 damages are payable in respect of loss sustained by the persons mentioned therein, under s. 2 damages can be claimed inter alia for
loss of expectation of life.
Though in some cases
parties that are entitled to compensation under both
the sections may happen to be the same persons, they
need not necessarily be so; persons entitled to benefit
under s. 1 may be different from those claiming under
s. 2.
Prima f acie as the two claims are to be based
upon different causes of action, the claimants, whether the same or different, would be entitled to recover
compensation
separately under both the
heads.
But a difficulty may arise where the party claiming
compensation under both the heads is the same
and the claims under both the heads synchronize
in respect of a particular sub-head or in respect
of the entire head. In that situation, the question is
whether a party would be entitled to recover damages
twice over in respect of the same wrong. In England
this question came under judicial scrutiny in Rose v.
Ford (1 ).
There the question was w hethcr and to
what extent deductions would have to be made in
giving compensation both under the English Fatal
Accidents Acts and the Law Reform (Miscellaneous
Provision) Act, 1934. A young woman called Rose
was killed in an accident. Her father sued for damages under both the Acts. It was contended that as
he got damages for personal loss, he could not be
(1) [1937J A,C. 826, 835.
t
I
l S.C.R. SUPR.8ME COURT REPORTS
943
awarded once again compensation for the loss of expectation of life. Though in that case it was held
that the father was entitled under both the Acts, Lord
Atkin made the following observations, which are
appropriate to the present case:
"I should add that I see no difficulty as to the
alleged duplication of damages under the Act ofl934
and the Fatal Accidents Acts. If those who benefit
under the last mentioned Acts also benefit under the
will or intestacy of the deceased personally, the ·
damages under those Acts will be affected. If they do
not, there seems no reason why an increase in the
deceased's estate in which they take no share should
affect the measure of damages to which they are
entitled under the Act."
A similar question arose in Feay v. Barnwell(').
There, Mrs. Feay was killed in an accident and her
husband sued for damages under both the Acts. It
was held that, as the husband was the claimant under
both the Acts, credit should be given in assessing the
damages under the :Fatal Accidents Acts, for what
was given to him under the Law Reform Act, 1934.
So too, in Ellis v. Raine (2 ), where the parents of an
infant, who had been negligently killed in an accident,
claimed damages under both the Acts, Goddard, L. J.,
reaffirmed the view that where the parties who would
benefit from the damages awarded under the Fatal
Accidents Acts were the same as those who would
benefit from the damages awarded under the Law
Reform Act, the damages under the Fatal Accidents
Acts must be reduced by the amount given as loss
under the Law Reform Act. Finally the same view
has been reaffirmed and restated with clarity in Davis
v. Powell Duffryn Associated Collieries Ltd. ('). There
Lord Macmillan described the nature of the two heads
thns at p. 610:
"The rights of action in the two cases are quite
distinct and independent. Under the Law Reform
Act the right of action is for the benefit of the
deceased's estate; under the Fatal Accidents Acts
(1) (1938] I All. E.R. 31.
(2) (1939] 2 K.B. 180
(3) (1942) A.G. 601.
Gobald Motor
Service Ltd,
v.
Veluswami
Subba ·Rao J.
Gl.'bald Motor
Service Ltd.
v.
Veluswami
Subba Rao ].
944
SUPREME COURT REPORTS
L1962]
the right of action is for the benefit of the deceascd's dependants. But, inasmuch as the basis of
both causes of action may be the same, namely,
negligence of a third party which has caused the
deceased's death, it was natural to provide that the
rights of action should be without prejudice the one
to the other. lt is quite a different thing to road
the provision as meaning that in assessing damages
payable to dependants under the Fatal Accidents
Acts no account is to be taken of any benefit which
the dependants may indirectly obtain from an
award under the Law Reform Act through participation in the deceased's estate. . .......... .it is appropriate that any benefit taken indirectly by a dependant by way of participation in an award under the.
Law Reform Act should be taken 'into account in
estimating the damages awarded to that dependant
under the Fatal Accidents Acts."
Lord Wright addressed himself to the same question
and answered it at p. 614 thus:
"The injury suffered by the individual from the
death cannot be computed without reference to the
benefit also accruing from the death to the same
individual from whatever source."
The principle in its application to the Indian Act has
been clearly and succinctly stated by a division bench
of the Lahore High Court in Secretary of State v.
Gokal Chand (1).
In that case, Sir Shadi Lal, C. J.,
observed at p. 453 thus:
"The law contemplates two sorts of damages:
the one is the pecuniary loss to the estate of the
deceased resulting from the accident; the other is
the pecuniary ]oRs sustained by the members of his
family through his death. The action for the latter is brought by the legal representatives, not for
the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate
and when recovered form part of the assets of the
estate."
An illustration may clarify the position.
X is the
(1) (1925) I.L.R, 6 Lahore 451.
'
~
I
,
I •
' I
)
I S.C.R. SUPREME COURT REPORTS
945
income of the estate of the deceased, Y is the yearly
expenditure incurred by him on his dependants (we
will ignore the other expenditure incurred by him).
X-Y, i.e., Z, is the amount he saves every year. The
capitalised value of the income spent on the dependants, subject to relevant deductions, is the pecuniary
loss sustained by the members of his family through
his death. The capitalised value of his income, sub.
ject to relevant deductions, would be the loss caused
to the estate by his death. If the claimants under
both the heads are the same, and if they get compensation for the entire loss caused to the estate, they
cannot claim again under the head of personal loss
the capitalised income that might have been spent on
them if the deceased were alive. Conversely, if they
got compensation under s. 1, representing the amount
that the deceased would have spent on them, if alive,
to that extent there should be deduction in their
claim under s. 2 of the Act in respect of compensation
for the loss caused to the estate. To put it differently,
if under s. I they got capitalised value of Y, under
s. 2 they could get only the capitalised value of Z, for
the capitalised value of Y + Z, i.e., X, would be the
capitalised value of his entire income.
The law on this branch of the subject may be briefly stated thus: The rights of action under ss. l~.nd 2
of the Act are quite distinct and independent. If a per.
son taking benefit under both the sections is the same,
he cannot be permitted to recover twice over for the
same loss. In awarding damages under both· the
heads, there shall not be duplication of the same
claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation
of the personal loss under s. I of the Act, that portion
shall be excluded in giving compensation under s. 2
and vice versa.
In the instant case, under s. 1 of the Act both the'
courts gave compensation to plaintiffs 2 to 7 in a sum
of Rs. 25,200. This sum was arrived at by taking
into consideration, inter alia, the reasonable provision
the deceased, if alive, would have made for them.
II9
Gobald Motor
Service Ltd.
v.
Veluswami
_Subba Rao ].
'
Gobald Motor
Service Ltd.
v.
Veluswami
Subba Rao ].
I96I
April z4.
946
SUPREME COURT REPORTS
[1962]
Under s. 2 both the courts awarded damages for the
loss to the estate in a sum of Rs. 5,000. That figure
represents the dama.ges for the mental agony, suffering and loss of expectation of life. There was no
duplication in awarding damages under both the
heads. No material has been placed before us to enable us to take a different view in regard to the
amount of compensation under s. 2 of the Act.
The judgment of the High Court is correct and the .
appeal fails and is dismissed with costs.
Appeal dismissed.
U. UNICHOYI AND OTHERS
v.
THE STATE OF KERALA
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. N. WANOHOO, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Minimum Wages-Notification fixing wage structure-If ultra
vires-Validity of enactment-Capacity of employer to pay, if
relevant consideration-Minimum Wages Act, 1948 (XI of 1948),
ss. 5, 9·
The petitioners, representing certain tile factories, challenged the validity of the Minimum Wages Act, 1948, as also the
notification issued by the Kerala Government prescribing minimum rates of wages in respect of employment in the tile industry on the report of a committee constituted under the Act and
consisting of the representatives both of the employers and
employees who agreed with its recommendations. The case of
the petitioners was that the notification had in effect fixed not
minimum wages but fair wages and since neither the committee
-nor the Government in fixing them had considered the capacity
ol the employers to pay, the notification was void.
Held, that in view of the decisions of this Court the constitutional validity of the Act could no longer be in doubt and
any hardship that may be caused to employers by the wages
fixed under the Act or their incapacity to pay the same are
irrelevant consid~rations in fixing such v.·ages.
, •I
•
I
1
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