Case: Gobald Motor Service Ltd. &amp; Another Vs. R. M. K. Veluswami &amp; Others

2. 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 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 O. 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 incompetence and negligence. The Company in its written-statement 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 me 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 he 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. 1 of the Act.(3) Plaintiffs 2 to 7 ..Rs. 6,000 under S. 2 of the Act.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 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 driver, 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. 1 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.

Reasoning:
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, 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; 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.5. 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 thesaid 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 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 the break in the bolt. We have gone through the evidence and we do not see any flaw in thatthe 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 liablewould 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 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 and on the other any pecuniary advantage which from whatever source comes to them by reason of the death that is, the balance of loss and gain to a dependant by the death must bethe 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 years9. In the circumstances, the balance of loss and gain to the dependant 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 the case, it is a moderate sum; it is rather a conservative estimate. 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 them by the death of Rajaratnam.10. 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. I of the Act on the ground that otherwise it would be duplication of damages in respect of the same wrong.The law on this branch of the subject may be briefly stated thus : The rights of action under Ss. 1 and 2 of the Act are quite distinct and independent. If a person 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. 1 of the Act, that portion shall be excluded in giving compensation under S. 2 and vice versa.13. 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. 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 damages 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.