TMI Blog1961 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 the damages claimed were excessive. The learned Subordinate Judge came to the conclusion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensation to respondents 2 to 7 for the pecuniary loss sustained by them by the 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 against the 5th stone with so much force that the latter 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 travelled 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 16 1/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 Wales Transport Co. [[1948] 2 All E.R. 460, 471.] 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., [[1942] 1 K.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 [(1834) 6 Car. P. 501; 172 E.R. 1338.] 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 [(1869) L.R. 4 Q.B. 476.] Cockburn, L.C.J., says The true rule is that the master is only responsible so long as the servant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 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 each 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. [[1951] A.C. 601.]. There, the learned Lord was considering the analogous provisions of the British Columbia legislation, and he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lai at Palni for a period of 30 years and had also branches in Colombo and Madras. (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 ₹ 200 to ₹ 250 per month in his private practice. (6) He had a status 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 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 provision in their favour. Under the circumstances, the award of ₹ 25,000 as d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 facie 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 [[1937] A.C. 826, 835.]. There the question was whether and to what extent deductions would have to be made in giving compensation bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. It is quite a different thing to read 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 La ..... 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