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PETITIONER: GOBALD MOTOR SERVICE LTD. & ANOTHER

       Vs.

RESPONDENT: R. M. K. VELUSWAMI & OTHERS

DATE OF JUDGMENT: 14/04/1961

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1962 AIR    1            1962 SCR  (1) 929  CITATOR INFO :  R          1970 SC 376  (13)  F          1971 SC1624  (6)

ACT: 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, 1855 (13  of  1855), SS. 1, 2.

HEADNOTE: A bus run by the appellant met with an accident as a  result of which R died.  R’s dependents and heirs e.g. the  father, widow  and sons, brought a suit for compensation under S.  1 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. 6,000 under S. 2  of the Act for loss of expectation of life.  The questions  for consideration were (1) whether the accident was due                       117 930 to any negligence on the part of the driver; (2) whether the courts below were right in awarding compensation under s.  1 of the Act for pecuniary loss sustained by the widow and the sons  of  the deceased; and (3) whether the sum  awarded  as damages  under  S. 2 of the Act for loss of  expectation  of life  should  go towards the reduction of  the  compensation awarded for pecuniary loss sustained under s. 1 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

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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., [1948] 2 All E.R. 460,  Joel v. Morison, (1834) 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 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 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. 1 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 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. 931 in  the instant case, under s. 1 of the Act the sum of  com- pensation was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for his widow and sons.  Under s. 2 the figure for damages  awarded for the loss to the estate  represents  the damages  for  the  mental  agony,  suffering  and  loss   of expectation  of  life;  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. 31, Ellis v. Raine, [1939] 2 K.B. 180 and Secretary  of State V.  Gokal  Chand, (1925) I.L.R. 6 Lah.  451,  referred to.

JUDGMENT: CiVIL APPELLATE JURISDICTION: Civil 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. Ravindra Narain, for the respondents. 1961.  April 14.  The Judgment of the Court was delivered by SUBBA  RAO,  J.-This  appeal  by  certificate,  is  directed against  the  judgment of the High Court  of  Judicature  at

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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 932 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  incompetence   and negligence.  The Company in its written-statement denied the said allegations and leaded that the accident was the result of the central plea 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. 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 933 driver, and that the appellants were liable therefore.   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

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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 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 934 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  161 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 features 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  travel- ling 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 calculate 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

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even  pace throughout.  The High Court, on the basis of  the evidence and on broad probabilities, held that 935 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. 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  Wales  Transport  Co.  (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  pre-               sumption.  (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., (2), where not a  tyre-               burst  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 ER. 46o, 471. (2) [1942] 1 K.B. 152. 936               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               in 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

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             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 without 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 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 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 (1) 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 (2) 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  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 therefore. The next question is whether the courts below were right  in awarding  compensation of Rs. 25,200 for the pecuniary  loss unstained  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:

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             "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 (1)  (1834) 6 Car. & P. 501 ; 172 E.R. 1338. (2)  (1869) L.R. 4 Q.B. 476.     118 938               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 deceased;  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 deducing 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 Vict. 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.(1).  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               dependent by reason of the relevant death must               be  taken into account.  Under those Acts  the               balance of loss and gain to a dependent by the               death  must  be ascertained, the  position  of               each dependent 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)  [1942] A.C. 601. 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               each  individual entitled to sue can  only  be               ascertained by balancing, on the one band, the               loss  to him of the future pecuniary  benefit,               and,  on  the other, any  pecuniary  advantage               which  from  whatever source comes to  him  by

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             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, 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  ou t               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 pro- vision  of his wife shall be estimated 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. 940 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  imponderable 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 dependent by the death must be  ascer- tained. 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:  (1)  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 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

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addition  Rs.  200  to  Rs. 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: 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  plaintiff,-, 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               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 dependents 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. 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 the 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 942               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 Vict.  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

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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  (1).   There  the question  was  whether 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) [1937] A.C. 826, 835. 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 of 1934 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.  (3).    There   Lord Macmillan  described the nature of the two heads thus at  p. 610:               "The  rights  of action in the two  cases  are               quite distinct and independent.  Under the Law

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             Reform  Act  the right of action  is  for  the               benefit  of the deceased’s estate;  under  the               Fatal Accidents Acts (1) [1938] 1 All.  E.R. 31.  (2) [1939] 2. K.B. 180 (3)  (1942) A.C. 601. 944               the right of action is for the benefit of  the               deceased’s  dependents.  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.  It is quite a different thing to  read               the  provision  as meaning that  in  assessing               damages payable to dependents under the  Fatal               Accidents  Acts no account is to be  taken  of               any   benefit   which   the   dependents   may               indirectly obtain from an award under the  Law               Reform   Act  through  participation  in   the               deceased’s  estate.............. it is  appro-               priate that any benefit taken indirectly by  a               dependent by way of participation in an  award               under the Law Reform Act should be taken  into               account  in estimating the damages awarded  to               that  dependent  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 loss sustained  by  th e               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 caus-               ed 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. 945 income  of  the  estate of the deceased,  Y  is  the  yearly expenditure  incurred  by  him on his  dependents  (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 dependents, subject to  relevant deductions,  is the pecuniary loss sustained by the  members of  his family through his death.  The capitalised value  of his  income,  subject 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  compen- sation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the  capitalised

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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. 1 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.  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. 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.        119 946 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. The  judgment  of the High Court is correct and  the  appeal fails and is dismissed with costs.                                 Appeal dismissed.