Shovana Mukherjee vs River Steam Navigation Co. Ltd.

Ramendra Mohan Datta, J.—This is a suit by the widow and the children of the deceased, under the Fatal Accident Act, claiming damages for the death of the deceased to the extent of a sum of Rs. 50,000 on account of drowning from a flat named ''F. Bassein'' in which the deceased was posted as the flat clerk.

At the time of his death the deceased was aged 42 years. He left behind him his widow, the Plaintiff No. 1 and two sons and a daughter who were then minors. He was employed as a fiat clerk at a salary of Rs. 292 per month and was the only earning member of the family consisting of the above persons. The eldest son and the daughter have since attained majority and their majority have been recorded in this suit. The youngest is still a minor aged about 16 years.

The accident occurred on June 8, 1965, during the early hours of dawn at Pandu Ghat. According to the Plaintiff, for a considerable time prior to the time of occurrence on the day previous thereto, the river Brahmaputra was rising and there was heavy current on the river whereby ''F. Bassein'' was subjected to considerable pitching and rolling. Accordingly, �F. Bassein'' could not be placed near the jetty and had to be moored at a considerable distance from the jetty. She was a dumb vessel and was meant to be towed with a steamer for carrying cargo by inland navigation. At the time of the accident ''F. Bassein'' was lying moored in and around the vicinity of Pandu Steamer Ghat in Assam.

According to the Plaintiffs, towards the early hours of dawn, the deceased who was living in a cabin on the foreside of ''F. Bassein'' came out of his cabin in order to visit the only latrine situated on the aft of the flat, at a considerable distance from the said cabin. In order to reach the said latrine, the deceased had to pass through a very narrow corridor which hardly would allow a human being to pass through. It had no railings on the river side and the passage was completely unlighted and dark. It has transpired that while making an attempt to negotiate the said passage the deceased fell overboard into the river from the said fiat �F. Bassein'' and died due to drowning. The body of the deceased could not be recovered in spite of efforts.

5 The negligence complained of consisted of lack of due diligence and absence of precautionary measures to suit the varying conditions of the river and to ensure adequate means of safety in respect thereof by the Defendant, its servants and agents. It is complained that in the narrow corridor there was no railing and/or banisters. There was no light on the narrow corridor to help persons negotiating the same during darkness. There was no safety device provided on the narrow corridor to ensure safe passage and there was no life-saving appliances.

The Plaintiffs were unable to give full particulars of negligence until the Defendant made full discovery in respect of the said negligence, acts and conduct on the part of the Defendant.

The Plaintiff No. 1, who has verified the plaint, has stated that the facts relating to the accident were bassed on information received from the Defendant, its servants and agents and believed by her to be true. On the basis of the said information the plaint has been filed on June 8, 1966.

In the written statement filed by the Defendant the allegations of negligence have been denied. Regarding the incident it has been stated that the deceased who was in a febrile condition insisted on using the latrine situated near the stern of the said ''F. Bassein'' despite the remonstrances of the members of the crew of the said flat in the early hours of the morning on June 8, 1965. It was not admitted that the latrine was a, long way from the cabin or that the passage was a very narrow one or barely admitted the passage of a human being It was denied that the corridor had no railings About the river condition of Brahmaputra the facts stated in the plaint have not been admitted. The fact of considerable pitching and/or rolling or heavy current have not been admitted. It is stated that the death of the deceased was caused by negligence or contributory negligence of the deceased. The particulars thereof consisted in that the deceased insisted on visiting the latrine in a febrile condition despite the remonstrance of the crew of the said flat and the deceased failed to take proper care while going to the latrine from his cabin and voluntarily and freely with full knowledge of the risk he ran impliedly agreed to incur the risk. The damages suffered has been denied. The following issues were raised and settled at the trial:

(a) Did the deceased fall overboard into the river from the Defendant''s flat ''F. Bassein'' on account of negligence as alleged in para. 6 of the plaint?

(b) If so, was there any contributory negligence on the part of the deceased?

Did the flat F. Bassein conform to all the safety regulations of the Commissioners for the Port of Calcutta?

Did the deceased voluntarily and freely, with full knowledge of the risk he ran, impliedly agree to incur it?

Was the deceased of sound physique as alleged in para 8 of the plaint?

To what reliefs, if any, are the Plaintiffs entitled?

It is to be noted that in the written statement the condition of the river, as alleged in the plaint, has not been admitted. The emphasis was put on the febrile condition of the deceased and on his insistence on using the latrine in spite of remonstrances of the members of the crew. The correspondence, however, revealed that the facts relating to the incident were not such and the condition of his health was not so bad that he could not move. It is admitted that a few hours before the incident occurred he came back from the shore after attending the hospital at Gauhati and also the city office of the Defendant at Gauhati. From there he returned to Pandu and reached the said flat, which was moored in the midstream, at about 7 p.m. The Defendant''s letter dated June 19, 1965, whereby information about the drowning incident had been given to the widow, would give the impression that it was due to ill health and due to his insistence on going to the latrine, in spite of the ratings on duty advising him not to do so, that the deceased might have fallen overboard into the river. There is no mention whatsoever about the bad weather. The question would normally arise that if his health was so bad that the ratings on duty thought that he would not be able to negotiate the passage to reach the latrine, why was it that he was left alone and why could he not be escorted upto the latrine? The correspondence would further reveal that the widow was asking for the Police report and pursuant thereto the Defendant company through its superintendent one N.N. Lalchandani alone with its letter dated December 22, 1965, sent a copy of the letter received from the Officer-in-charge, Jhalukbari P.S., Kamrup, Gauhati, dated December 8, 1965, for information of the widow. This covering letter is the Plaintiff''s document, No. 14 and the enclosure is also included in the brief of documents which has been marked as Ex. A. In course of arguments it is contended that the contents of this Police report are not admissible in evidence and until the same would be proved the same could not be admitted in evidence at all, The genuineness of this letter cannot be challenged, because not only that this was sent by the Defendant but the same had also been included in the brief of documents which by consent of the parties have been tendered after formal proof in connection therewith have been dispensed with. The question is whether the facts stated in the Police report are correct or not. The fact that Lalchandani sent this report to the widow of the deceased would go to show that he did not dispute the correctness of the statement made therein. Had he done so, he would have written to the widow that the statements made therein were not correct. While discussing the evidence adduced on behalf of the Defendant, I shall deal with this Police report in detail about the admissibility thereof. The said Police report would particularly go to show the river condition and what was the result of the enquiry made by the Police in respect of ,the incident.

On the admissibility of the Police report the document has to be dealt with not in isolation but along with other correspondence to show what reliance was placed by the Defendant on the said report. A copy of the Police report which was received by the Defendant company was forwarded to the widow along with the Defendant''s letter dated December 22, 1965. The said report was the outcome of a diary made by the Defendant''s officer-in-charge at Pandu lodged with the Jhalukbari P.S. in the morning of June 8, 1965. The Defendant by its letter dated June 19, 1965, intimated the said fact to the widow. The said letter, inter alia, provided:

We wish to express our deep regret on the presumed death of Shri Mukherjee.... We shall advise you the outcome of the Police enquiry on completion.

The widow by her letter dated June 26, 1965, inter alia, wrote:

I shall be obliged if you kindly keep me informed about the investigation, referred to in the letter under reference.

Thereafter, by her letter dated July 17, 1965, the widow intimated that she did not receive further information about her husband and that she was awaiting the result of the investigation by the Police. The Defendant replied by its letter dated July 21, 1965, to say that it did not receive any further information from the Officer-in-charge, Jhalukbari P.S. and assured that the result of the investigation would be intimated to the widow as soon as it was received by the company. By her letter dated August 6, 1965, the widow again gave a reminder enquiring about the result of the investigation and the company by its letter dated August 12, 1965, inter alia, stated:

However, on receipt of Police report, which our Gauhati office is expediting, we shall consider in what way we can assist you.

The widow by her letter dated August 31, 1965, made further enquiries about the Police investigation report from the Defendant, but even at that stage the Defendant intimated by its letter dated September 13, 1965, that no report was received till then. The Defendant ultimately received the Police report and sent a copy thereof to the widow along with its covering letter dated December 22, 1965. Both the said covering letter and the said copy of the Police report are set out hereunder as follows:

River Steam Navigation Co. Ltd. (Incorporated in England) Post Box No. 157 4, Fairlie Place, Calcutta 1 22nd December, 1965

No. LWD/C.S. 22/2327

Sm. Sovana Mukherjee,

W/o. Sri Chittaranjan Mukherjee,

(Flat Clerk No. 493)

C/o. Sri Sukha Ranjan Mukherjee

4/E, Munshi Bazar Road,

Calcutta 15.

Further to our letter No. LWD/C.S. 22/1829 dated 13.9.65 we enclose a copy of the letter from the Officer-in-charge, Jhalukbari Police Station, addressed to the Superintendent of Police, Kamrup, Gauhati, dated 8.12.65, for your information.

Please accept our sincere condolence in your sad bereavement.

Please arrange to get a Succession Certificate from a competent Court of law for payment of your late husband''s dues to the estate.

We will let you know the assets and liabilities of your late husband as soon as possible.

Yours faithfully, Sd. N.N. Lalchandani for Superintendent.

Enclo : 1.

The Supdt. of Police,

Kamrup/Gauhati,

Through the C.I. City (West Gauhati)

Sub : Missing of Clerk, Sri Chittaranjan Mukherjee, Flat

Clerk No. 493 from Pandu Steamer Ghat.

Sir,

I have the honour to report that on 8.6.65 Officer-in-charge R.S.N. Co. and T.G.N. Co., Pandu Steamer Ghat, Sri P.K. Padmapati reported that one of his flat clerks Sri Chittaranjan Mukherjee was missing from the flat ''Bassein'' which was placed near Pandu Steamer Ghat for unloading.

On receipt of this information, immediate investigation was taken up by making a General Diary Entry vide G.D. No. 218 dated 8.6.65 of Jhalukbari P.S. During spot investigation it revealed that the flat ''Bassein'' came to Pandu Steamer Ghat from Calcutta via Pakistan on 5.6.65. One Chittaranjan Mukherjee, son of late Harsha; Nath Mukherjee of 4/E Munshi Bazar Street, Calcutta 15, was working as a clerk in the same flat. The said clerk was sickly and was suffering from stomach trouble since long time. On his arrival on Pandu Steamer Ghat he reported his illness to the Serang of the flat and the in-charge of the Ghat. The said clerk was living on the front side in a cabin. On 8.6.65 at about 3-20 a.m. the said clerk went out from his cabin with a ''lota'' to attend call of nature to a latrine situated in the back side of the vessel at a long distance. There is only one small ''corridor'' which is about 4 ft. only by which hardly a man can pass. The night was tipsy and there was heavy shower for the whole day. From the examination of the available witness of the vessel it is found that (the clerk could not reach the latrine by the said narrow corridor due to his illness. There was no ''jetty'' from the bank to the vessel on that very particular day as the river was rising and" there was heavy current in the river.. After half an hour all the crews of the vessel finding the unusual delay of returning the said clerk, they all searched for the said clerk, but he was not found in the vessel. Humanly it was not possible to come out, from the vessel without any help by boat as there was no ''jetty'' in the said vessel from the bank of the river. From the examination of witnesses and the circumstances, it is revealed that the man fell down in the river Brahmaputra while going, to latrine by the narrow corridor and the deadbody was taken by the heavy current. But as there was no eye-witness and the deadbody could not be traced due to heavy current in the river Brahmaputra for which no U.D. case was taken up under the instruction of Superior Officer. But it is definite the man accidentally fell down on the river Brahmaputra and was carried away by the current. Immediate action was taken by W.T. to search for the deadbody but without any result. Special party was deputed by boat to search for the deadbody which also ended without any result. Immediately after the occurrence the crews and the people of Steamer Ghat searched for the deadbody but without any result. All the riverside Police Station was informed to search for the dead-body but in vain. Enquiries also made by Calcutta Police and the result intimated by them was that the man had not returned to his home.

Under the above circumstances it is presumed that the man died by accidental drowning and the deadbody was carried by the, heavy current of the river.

Yours faithfully, Sd. Officer-in-charge Jhalukbari P.S.

Retd. to issuing officer with intimation that Sri Chittaranjan Mukherjee died by accidental drowning in water. This ref. Jhalukbari P.S. U.D. case No. 12/65.

Sd. O.C., Jhalukbari P.S. Dist. Kamrup, Assam. 8.12

The covering letter dated December 22, 1965, would clearly show that the Defendant accepted the Police report as correct and on that basis concluded that the said Chittaranjan Mukherjee had died by accidental drowning and that the deadbody was carried away by heavy current of the river. On that basis the Defendant expressed its condolences to the widow and asked the widow to get a succession certificate. In that letter there was no protest whatsoever to the effect that any part of the said report was incorrect. The said covering letter (P.D. 14) along with the said Police report, which was an annexure thereto, were included in the admitted brief of documents and as such, no further proof-was necessary about the genuineness of the document. It is only contended that the contents of the Police report had not been proved.

The next letter written by the Defendant is the letter dated March 15, 1966, addressed to the widow which will show in what way the Defendant had been relying on the said Police report and decided to make payment to the widow. The said letter will also show that the Defendant''s. Accounts Department and also its Provident Fund Section and Kilburn Employees'' Cooperative Credit Society Ltd, had been intimated about the Defendant''s decision to make'' payment to the widow in respect of the dues of the deceased. The said letter dated March 15, 1966, is also set out as follows:

River Steam Navigation Co. Ltd. (Incorporated in England) Post Box No. 157 4, Fairlie Place, Calcutta 1 March 15, 1966.

No. LND/CS-22/317

Sm. Sovana Mukherjee,

W/o. Late Chittaranjan Mukherjee,

C/o. Sri Sukha Ranjan Mukherjee,

4/E, Munshi Bazar Road,

Calcutta-15.

Dues

Dear Madam,

A/c. Late Chittaranjan Mukherjee, No. 493, F/Clerk. Further to our letter No. LWD/CS.-22/2327 of 22-12.65 we give below the details of P.F. dues to the estate of the above deed.

Sub-section upto part of Jan/65 Rs. 1,174-36

Coy''s cont. upto Decr. 1964 Rs. 1,126-87

Profit and Int. upto 1963 579-80

Rs. 2,881-03 P.

In addition, profit and interest for the year 1964 will be due to the estate of the deceased and we will advise you in this connection when the audit of the accounts for that year is completed.

The estate of the above deceased have also been granted gratuity amounting to Rs. 926-50 P. plus Rs. 418-35 P. pay in lieu of 43 days P.L. not availed of by the deceased.

Payment to be made to the legal heir/s of the deceased on production of a Succession Certificate from a competent Civil Court of Law.

We are requesting our. Accounts Dept. to arrange payment of dues after deducting the outstanding amounts, if any, on receipt pi the Succession Certificate.

Yours faithfully, Sd. N.N. Lalchandani for Superintendent

CC. Accounts Dept. Please arrange payment of dues to the legal heir/s of the deceased after deducting the outstanding amounts, if any, on receipt of the documents.

P.F. Section (IG). Ref. to their letter No. A/PF/691 dt. 18.2.66 to please arrange payment of P.F. dues to the legal heir/s on receipt of the documents.

Kilburn Employees'' Co-op. Credit Soc. Ltd.

I fail to appreciate why and how an objection had been raised on behalf of the Defendant in respect of the said Police report. Admittedly, the Defendant asked the Police to make an investigation by lodging a diary with the Officer-in-charge of Jhalukbari P.S. That would appear, from the letter dated June 19, 1965. What was stated before the Police had not been disclosed or caused to be Produced on behalf of the Defendant. The diary number and the other particulars thereof were within the exclusive knowledge of the Defendant, but the Defendant has, wrongfully withheld the same from the Court. The officer-in-charge of the Defendant at its Pandu Steamer Ghat one Sri P.K. Padmabati had not been called and there was no plausible explanation as to why he, could not be called to give evidence. If the file from the Gauhati office had; been produced that would have revealed many facts which were relevant for the purpose of this case. The Defendant''s witness Bhowmick admitted in the witness-box that even though important letters from the Officer-in-charge, Jhalukbari P.S., to the Officer-in-Charge, Entally P.S., are available in the file of the Defendant, yet the same had hot been disclosed in this proceeding. Bhowmick was asked questions on this Police report and he practically admitted that the said Police report dated December 8, 1905, contained facts which could hardly be challenged on behalf of the Defendant.

Taking all these facts into consideration, my considered view is that the contents of the copy of the Police report had been acted upon and proved in evidence and as such, the same could be relied on in evidence. In fact, the said document was sought to be challenged on behalf of the Defendant because of, the following facts which had, been mentioned therein, viz:

(a) Mukherjee was sickly and was suffering from stomach trouble since some time;

(b) the said clerk went out from his cabin at about 3-30 p.m. to attend the call of nature to a latrine situated-in the back side of the vessel at a long distance.

(c) there was only one small corridor which was about 4 ft. only by which hardly a man could pass;

(d) there was heavy current in the river for the whole day;

(e) the clerk could not reach the latrine by the said narrow corridor due lo his illness;

(f) there was no ''jetty'' from the bank to the vessel on that very particular day as the river was rising and there was heavy cur rent in the river and

(g) it was presumed that the man died by accidental draining and the deadbody was carried away by heavy current of the river.

To my mind, the Defendant has deliberately withheld all evidence which, if produced, would, have gone to prove the said facts as have been disclosed by the Police report. The said facts were in the exclusive control, knowledge and possession of the Defendant and as such, adverse inference must be drawn against the Defendant in respect thereto.

The copy of the Police report along with the said covering letter were disclosed by and on behalf of the Plaintiffs through their Solicitors. The same were inspected on behalf of the Defendant through its Solicitors. The Judge''s brief of document was prepared from the documents which were in the possession of the parties. The Judge''s brief of document was then sent to the Defendant and was returned after'' being duly satisfied that the copies had been duly prepared in the Judge''s brief of document. At the trial stage by consent the formal proof in respect of the said documents had been dispensed with and the same were tendered in evidence and marked as exhibits in this proceeding.

The Plaintiffs Solicitor Mr. P.K. Sen Barat gave evidence before me that the said documents were prepared from the documents produced on behalf of the Plaintiff. The same were taken away by the said Sukharanjan Mukherjee; the brother of the deceased. After the death of Sukharanjan Mukherjee the documents produced were not traceable. It is quite clear that the genuineness of the company document as appeared in the brief of documents is not challenged, but what is insisted upon is that the facts and circumstances of this case, as discussed above and as staged in the oral evidence adduced herein, the contents of the documents have become admissible in'' evidence and this Court is satisfied about the proof of the same and to get it admitted in evidence. It is contended on behalf of the Defendant that if a person makes admission on a matter of which he has no personal knowledge that would not amount to evidence. That is undoubtedly so, but here the case is different from that position in the sense that the Defendant directed the enquiry to be ''instituted and at its insistence the said investigation was carried out and the report made. The Defendant relied on the said report believing it, to be correct and acted upon the same by making payment to the Plaintiffs on the basis thereof.

Reliance was placed on the case of Khalil Adalkhah Vs. Great American Insurance Company, where the admissibility of a bill of lading as against the Insurance Company in respect of the truth of the contents thereof was considered by Deb J. That was the case of a qualified bill of lading and accordingly, it did not come within, the purview of pt. II, item 18 of the Commercial Documents Evidence Act and the Court required'' some proof as to whether the goods specified in it were actually shipped on board or not. I have y taken note of the fact that Bhowmick in his evidence has admitted that the Defendant had In their possession some more documents. The records of the stores supplied used to be maintained. Bhowmick was asked several questions on the covering letter dated December 22, 1965 and the Police report annexed thereto. He admitted that the said letter was addressed by the Defendant Company. He was shown the annexure to the said letter and he admitted that from the reference it appeared to him that it was the said letter from the Officer-in-charge, Jhalukbari P.S. He explained that the reference L.W.D. in the said letter stood for Labour Welfare Department. He admitted that no attempt was made on behalf of the Company to find out Subir Chandra Majumdar who had signed the written statement and verified the same as true to his knowledge. He admitted that he received the Police report from Jhalukbari P.S. It is necessary here to set out Qs. 149 to 152 to show that the documents which are relevant for the purpose of this case have not been disclosed.

Q. 149. You received the Police report?

Yes, from Jhalukbari P.S.

Q. 150. What effort did you make to find out evidence?

I have written letters and requested the Manager, now in Gauhati, to get in touch with the Police Station and find out records. But the reply 1 received were all-in negative. The Officer did not co-operate.

Q. 151. Have you got that in your records?

I have that in my records.

Q. 152. That has not been disclosed?

I did not know it would be asked for. I have it with me.

It is to be noted that the enquiry could be made only from the Defendant''s servants and employees and not from the Plaintiff''s representatives and in accordance with the incident as narrated on behalf of the Defendant only about the river condition, the same must have been noted on the basis of the knowledge as corroborated by the persons who had witnessed the incident. It is to be noticed that if the deceased had stomach trouble it did not develop immediately on that night but he was suffering from it since sometime past. The Police reported that the incident occurred at the dead of night and he had to pass through a very small corridor. There was heavy shower for the whole day and there was heavy current in the river. It was reported therein that the corridor was so small that hardly a man could pass through it and it mentioned only one small corridor and not two. The further fact which is revealed is that because of the heavy current in the river it was unsafe for the vessel to anchor near the jetty and that was why she was taken to midstream. The result of the enquiry showed that the man fell down in the river Brahmaputra while going to the latrine by the narrow corridor and the deadbody was washed away by heavy current. The Police presumed that the deceased died by, accidental drowning in the river.

On the question of negligence the only witness who deposed before me is Paresh Nath Mukherjee. He is the nephew of the deceased.. He got the news from one of his uncles, Sukharanjan Mukherjee. He was sent to the place where the deceased was reported to be missing. He is now 43 years of age and at the time of the incident he was about 34 years only. According to him, he went there to investigate the circumstances under which his uncle died. He went to Pandu Ghat. He found out the said flat. He couldn''t remember correctly the name of the flat. He thought it to be his duty to find out under what circumstances his uncle was missing. He went on board the flat where his uncle used to work and he visited the cabin also where the deceased used to stay. He went there four or five days after the event and after he received the information. He gave a description of the flat and of the passage from his uncle''s cabin down to the latrine. There was no cover by the side of the river and there was a narrow space through which one had to go to the passage from one side of the river. It ran along the water. The whole flat was like a covered godown. Everything was covered. But some narrow space was kept at the end for using the same as a passage. He couldn''t recollect how wide the passage was, but it was a very narrow one and it was not possible for any human being to pass through it. The witness himself could not pass through the passage. He was afraid to pass through it lest he might fall into the river. He was asked whether he could put his two feet side by Side over that passage and his answer was that one could do that with great difficulty; Even then looking into the river one gets afraid. There was no support to pass by that passage. There was no latrine near about the cabin where his uncle used to stay. He was only told that there was only one lavatory on the other side of his uncle''s, cabin and in reaching that latrine one had to go through the said-narrow passage. The witness had no courage to pass by it. On the left hand side of the passage was the covered godown and on the right hand side was the water Brahmaputra. Where asked whether he found any support fixed on the said wall of the godown the witness said, that he did not correctly remember but he remembered that there was no support at all on the right hand-side. There was no railing on the right hand side. The passage ran through the right hand side from his uncle''s cabin to reach the latrine. The witness did not check up if there was any passage on the left hand side.

Besides the Serang, he met another man through whom the news was received by-his uncle Sukharanjan Mukherjee. The said person wrote the letter to his uncle. The name of that person was Dwijendra Nath Kahari. He was the resident of jhalukbari and was the Officer-in-charge of Jhalukbari P.S. That Police Station was situated two or three miles away from Pandu P.S. He did not find any light in the passage for using the same at night. He did not mark it particularly whether any lifebuoys were available in the passage.

In cross-examination the witness said that in 1965 he was employed with the Eastern Railway and was posted at. Howrah General Stores. He used to reside at the same residence where his said uncle used to slay at Madhyamgram.. When he reached the Hat he found his uncle''s cabin lying vacant. His belongings were removed by him. The witness said that his second uncle informed him that, such an accident had taken place and asked the witness, to go to Gauhati. He started on the next day or the day after that upon applying for leave from his office and after obtaining the Railway pass.

In answer to Q. 71 onwards the witness said that the purpose of his visit to Pandu was to make an enquiry. According to him, it is a common human instinct to go to the spot where an accident or mishap had taken place and more so, when the victim happened to be one''s own'' relation and when the incident occurred at a distant place. The witness did not try to contact anybody at, the Defendant''s head office at Calcutta. His-second uncle used to look after all these things and the witness went to Pandu upon his instructions. He was shown various documents disclosed on behalf of the Plaintiffs. The witness reached Pandu at night. He stayed in the hotel for a night only. He stayed in Gauhati because in Pandu there was no place where one could stay. The witness stated that the distance between Gauhati and Pandu was about three or four miles.

On the next day he went to see the Officer-in-charge of the Jhalukbari P.S. whose address he had with him. His second uncle gave him the address of the said gentleman. He went to the flat in the afternoon on that day at about 3 or 4 p.m. The flat was then near the shore. The Officer-in-charge, Jhalukbari P.S., who was enquiring about the matter, sent a Police constable along with the witness. Thereafter the Police constable asked the Serang to make arrangement for them to go to the flat. The Sarang provided for them a small boat and with that boat they went to that flat. He then asked the Serang to tell him the event that took place and the Serang narrated how it took place. Besides his uncle there were some khalasis at the time of the accident on board the said flat. The witness did not inspect the entire flat. He saw the cabin and the passage and also a portion in front of the cabin. The latrine was situated on the other end of the flat. The witness did not enter the cabin and could not say correctly whether it was filled Up or empty. It was suggested to the witness that the lighting arrangements were there on the other end and to that the witness said that he could not contradict that. After inspection of the flat he came back to the shore and there he sat for sometime and then came back to the Police Station and thereafter, returned to Calcutta. On reaching Calcutta he narrated to his uncle about the happenings. So far as his aunt was concerned, he just told her that the uncle was missing and about his falling down from the flat. He did not tell her about all these in detail. The witness said that his second uncle had died in 1972 and prior to his death the said uncle was looking after the matter on behalf of the aunt and her children. It was suggested to the witness that he did not visit the place at all and if he had done so that would have found place in the correspondence. Various suggestions were given to the witness, viz., that all safety regulations required by law were taken in the flat and all precautionary measures were taken. The hand-railings and life-boat were all there and the construction of the flat was as per regulations of Calcutta Port Commissioners. It was also suggested to the witness that his under specifically asked by other crew not to visit the latrine at night and that just before the incident his uncle was keeping an indifferent health, but in spite thereof the deceased did not listen, to any such thing.

The next person to step into the witness-box was the Plaintiff No. 1 herself. On the question of negligence her evidence does not throw any light. According to her, her husband left in April 1965. He was in good health. The information about the accident was communicated by the company to her husband''s brother who told her that her husband had fallen down and died. According to her, in 1965 the age of her husband was about 42 years. She said that the Company wrote her the correspondence in English and the contents of the same were explained by her husband''s brother. She also said that Paresh was sent to Pandu in connection with the accident. It is revealed from her evidence that after the company''s letter was received the news about her husband''s death was disclosed to her. Regarding the visit of Paresh to Pandu she was not immediately told about the same. She was told about the said fact sometime later. After her husband''s death she was so much in grief that it wag not possible for her to remember when Paresh came back from Assam, but she remembered that after Paresh came back he told her that her husband had fallen down. Besides Paresh, she also came to know about this accident from the Police report. She also learnt that the passage through which her husband went was a very narrow one and was very slippery and there was a heavy storm and further, that it was raining heavily. By Police report she referred to the copy report which she received along with the Defendant''s letter dated December 22, 1965 and which had been disclosed by her. It was suggested to her that all sorts of precautionary measures which were required for the flat had been taken by the company on that day, but she did not agree with the suggestion and asserted that the passage leading to the latrine was narrow and slippery and there was no light and that was why her husband fell overboard into the river. It was suggested to her that her late husband voluntarily took the risk upon himself in going to the latrine assuming that there was risk in so going, but her answer was that if her husband had to attend the nature''s call where else should he go specially when the latrine was at a far away distance.

The Solicitor, appearing on behalf of the Plaintiffs, Mr. Prodyot Kumar Sen Barat came to the witness-box to say that the original documents which were disclosed in this proceeding on behalf of the Plaintiffs, after the same were inspected by the other side, had been taken away by Sukharanjan Mukherjee, the brotner of the deceased and since the death of Sukharanjan those documents were not traceable. The Plaintiff No. 1 also stated in her evidence that those documents were in the possession of Sukharanjan and since his death the same were not traceable. These are the only witnesses called on behalf of the Plaintiffs.

On behalf of the Defendant one Satyasekhar Pattanayak gave evidence. He has proved the registration of this flat as also the licence having been renewed on September 1, 1964, for one year in respect of the said flat. The same were corroborated by the Cargo Registration Book (Ex. 7A). He admitted that prior to 1965 there was no provision for life-belts in flats. He described the passage as 2 ft. in width and said that there would be two bollards in the passage. It was difficult for a man to negotiate the passage who is not accustomed to it. According to him, there would be a globular light which would be hung up in the fore part of the vessel for the purpose of enabling other passing vessels to know about the position of this flat, but such light did not serve the purpose of lighting the passage.

In answer to Q. 77 the witness admitted that he did not have any occasion to visit this flat ''F. Bassein''. The witness then deposed that he inspected similar types of flats. The latrines are always on the aft end. The Serangs'' cabin and the clerks'' cabin would be on the fore end. The width of the passage would be minimum 2 ft., i.e. the minimum prescribed under the Port Commissioners Rules and Regulations. If the flat would be empty then the main passage would be through the shed, but if the flat would not be so, then there would be two passages, one on the port side and the other on the-starboard side. There would be hand-rails on the side of the wall of the godown. For the purpose of granting licence the inner railings attached to the walls must be there, but so far as lighting arrangements are concerned the authorities are not particular about it. The reason why the outer railings would not be insisted upon in a flat is because it would not be practicable to have that. If there would be outer railings it would be 6" from the edge and while aproaching a jetty or a vessel coming alongside it would damage the railings and would hamper the smooth operation of bassein wires and ropes to the other vessel. It would also block the other vessel.

The witness admitted that there should be an inventory list in which particulars of the safety devices should be entered. The witness had no experience about the river condition in Pandu during monsoon. It was suggested that while negotiating the 200 ft. long passage under such condition there would be nothing to lean on if a man would tumble. The witness said that to meet such situation the railings in the inner side have been provided, but in view of the fact that bollards are placed in the passage, if one has to> cross the obstacles there is every possibility of the person to tumble. The witness also admitted that in such flats there would not be more than one latrine and that would be on the aft end. The witness also said that there would be a space of 4" between railings and the wall so that a person could easily have a grip. It follows from his evidence that space would be still narrower because of these railings which would cover a further space of 4" of the passage.

The next witness called on behalf of the Defendant was Sunil Kumar Roy. Prior to May 1967 he was working with the River Steam Navigation Company. He was with the said concern since the time when I.G.N.R. was amalgamated with R.S.N. He was appointed to look after the matters of maintenance, repairs of storing etc. in respect of the flats belonging to this company. The company had over 100 flats. During the Indo-Pakistan conflict in 1965 ''F. Bassein'' was impounded in East Pakistan. When asked whether he had any occasion to visit this flat he said that he must have visited on a previous occasion. Later on, he could not recall when he actually visited this flat. He produced a drawing of a flat and thereby gave an impression to the Court that the same related to ''F. Bassein'', but ultimately it transpired that the drawing was a general one and not of any particular flat. This drawing was not disclosed earlier and as such, was not shown to the other witnesses. The Defendant wanted to tender this in evidence to show how wide was the passage and where the railings were fixed. In my opinion, on behalf of the Plaintiff''s objections were rightly taken and on the basis of such objections I should be justified to disallow the said document being tendered in evidence. The evidence that was tendered in respect of such drawing was misleading and confusing and questions were asked on the basis that the said drawing related to ''F. Bassein'' although actually it transpired subsequently that that was not the correct position. He said that no outer railings would be provided in such dumb craft because it was not practicable to put it on the outer side. It was to move in tow of other steamers. The steamer comes alongside, passes, connects and then they would move about. Then the steamer would come alongside to connect, there would be little dashing and pushing. So in case of hand-rail it is likely to get damages and buckled in the port side. If the railing would be fitted to the outer edge, it would not possible to pass from the ship or flat to connect the vessel as they would always sail as a flotila, i.e. the mother ship would tie up dumb crafts and the whole unit would become a flotila. This is a side-towed vessel which is called push towed.

The evidence of Roy is not direct evidence but is based on conjectures and hypothesis so far as the width of the passage and the safety devices provided therein were concerned. He has no definite recollection about this flat but he wants to say that this is similar to other vessels and as such, the sizes would be similar. I do not think that sort of evidence should be entertained. No books of accounts of documents were disclosed to adduce direct evidence on this point.

If Paresh is to be believed that he had been to Pandu and on board the flat ''F. Bassein'' after the occurrence, then that must be held to be the only direct and positive evidence relating to the nature of the passage starting from the cabin of the deceased upto the end of the shed and the dangers that might be involved in passing through it at the dead hours of night. The evidence adduced by Pattanayak and S.K. Roy are not direct evidence but are based on hypothesis and conjectures. The gist of evidence of Pattanayak is that the flat satisfied the requirements of the port authorities and on that basis the licence was granted in September 1964 for one year. From that piece of evidence it was argued that until the contrary would be proved it should be presumed that in the normal course of event the condition of the flat remained the same as was at the time of the granting of the licence till the expiry of one year period. On that basis the Court was asked to conclude that the hand-railings were there fixed on the godown wall on the side of the passage all throughout the portion where it was narrow.

The evidence of S.K. Roy, in short, was to the effect that ''F. Bassein'' was a ''B'' type flat and the passage by the side of the shed in all such flats would be the same. It would be a little more than 3 ft. in width and the hand-railings would be fitted against the wall of the shed on the inner'' side of the passage. On the basis of such evidence the counsel submitted that I should conclude that the passage in the flat ''F. Bassein'' was exactly similar and accordingly, the width thereof would be a little more than 3 ft. and the other particulars narrated by the witness should be accepted by the Court. S.K. Roy in his evidence said that in course of inspection he must have boarded the flat ''F. Bassein'', but he did not remember anything or of any occasion when he did so. In fact, his evidence was not in respect of ''F. Bassein'' but in respect of similar type of flats which were in the possession of this company.

About Paresh it is contended that he had never been to Pandu and had never boarded ''F. Bassein''. The reason given is that had he done so, his name would have appeared in the correspondence. Secondly, there could be no reason why Paresh should be sent to Pandu and thirdly, Paresh has given a very incorrect answer in a very vital matter. He has said that there was only one passage leading to the latrine from his uncle''s cabin and that would show that he had never been to the flat. There is still another factor which is to be considered to find out whether Paresh had been there or not. He has said that it was not possible for any person to place two feet side by side on the passage.

To my mind, under circumstances like that, it is quite natural to think that somebody from the family must be sent to the site of the accident specially when at that stage nobody could say definitely that his uncle had died. At that point of time the investigation had not been completed. The deceased at that time was not traceable. There was some possibility of finding out the deadbody and in such event somebody from the family should normally very likely to be sent. It is normal to think that a member of the family would soon go there to find out what exactly had happened to the deceased at the time of the accident. The belongings left by the deceased had to be taken back and it was quite normal for the members of the family to think that Paresh would be the best person to make all possible enquiries in connection with the incident. Accordingly, I have little hesitation to hold that in the normal course it was quite likely that a member of the family of the deceased should rush to that place instead of making the enquiry only through correspondence. Now, the question is who went there. It was not suggested to Paresh that his second uncle Sukharanjan or somebody else and not Paresh had been there. To my mind, Paresh was the most suitable person to go there on behalf j of the family of the deceased. The children of the deceased were too young. Paresh was a young man. He was serving the Railways at that time and he could, as stated by him, arrange to get a ticket free of cost to go to Gauhati by virtue of his service with the Railways. For all these reasons, I have no hesitation to conclude that Paresh had been to Pandu and Gauhati and boarded the said flat ''F. Bassein'' and he was an eye witness in respect of the condition of the said flat and particularly, the passage leading to the latrine. The fact that the name of Paresh or his visiting Gauhati did not find place in the correspondence was of little consequence. About his evidence that there was only one passage by one side of the flat, in the absence of any direct evidence to the contrary, I do not attach much importance thereto. It may very well be that he could not remember about it.

The facts narrated by Paresh relating to the said passage and the risk involved therein had to a large measure been supported by both Pattanayak and S.K. Roy. Both of them have admitted that to a person who is accustomed to negotiate such passage it was not dangerous but to a person not so accustomed, the passage was undoubtedly difficult to negotiate particularly at the points where the bollards were fixed in the middle of the passage.

It is to be remembered that the tally clerk was not supposed to be a seasoned sailor even though he was posted in a flat and for a considerable length of time. It was not expected of him to move about in the passage at the dead of night unless he was forced to negotiate it at such hours. It is to be noted that the tally clerk was not a trained crew to move about in such a passage at times when there would be heavy current in the river and there would be no lighting arrangement or of railings on the river side of the flat. Under such circumstances, the tally clerk would not be expected to think of anything excepting his safety and would normally confine himself in his cabin unless, of course, he would be forced to come out of his cabin under extreme circumstances, such as to answer the call of nature. In a wintry night when there would be a swell in the river, a seasoned sailor would be required to work outside his cabin but than a crew like that of a tally clerk would undoubtedly remain inside his cabin unless he would be forced to come out. Then again, the position of a sick sailor, even though he is a seasoned sailor, would be the same as that of the tally clerk if he has to negotiate the passage to go to the latrine under such pressing circumstances.

I am satisfied from the evidence on record and the position remained unchallenged that the latrine was situated on the aft near the stern end of the flat and the flat clerk''s cabin was on the fore part of the flat and to reach there at a time when the shed would be closed, the tally clerk was bound to negotiate the passage even though the same would be too risky for him to negotiate. The position also remained unchallenged and it is practically the Defendant''s case in the written statement that the deceased was not keeping sound health. He was in febrile condition. Furthermore, there was no suggestion from any quarter that any alternative arrangement for the latrine was available near the fore part of the flat or in or about the cabin of the deceased.

I am also satisfied from the evidence on record that due to the inclement and monsoonish weather condition there was a swell in the river due to heavy current and even though it was too risky for the said flat clerk to negotiate the said passage for the purpose of reaching the said latrine, he was forced to undertake that journey finding no other alternative arrangement nearabout. The fact that the ratings cautioned him and asked him not to go to that passage would clearly go to show that the passage was particularly too risky and dangerous to negotiate. That being the position could it be said that the said flat clerk had voluntarily taken the risk upon himself? The Defendant''s case is that all throughout the day he had an escort when he had to go to the city office until he came back to the flat. If the railings would be there, as stated by the Defendant''s witnesses, that it is a must, I wonder why the ratings should think it so risky for the flat clerk to negotiate the said passage with the help of railings. It is difficult to appreciate why the ratings did not accompany the flat clerk and help him to reach the latrine through the said passage. Was it because it was too risky and dangerous even for them to go to that passage at that time? In the absence of any direct evidence on the part of the Defendant, I find it particularly difficult in disbelieving Paresh and not to accept his testimony on this point. The swell of the river must have been such that it made the passage too risky for anybody to negotiate, not to speak of the flat clerk with his feeble health. It is practically admitted that there was no light in the passage. There is no evidence before me that it was a moonlit night. So, I must hold that the passage was dark all throughout. It is admitted that the passage was not a smooth one. It had obstructions. There were at least two sets of bollards in the middle of the passage. The flat clerk definitely was not accustomed to move about in the passage in darkness and under such unusual circumstances.

It is surprising that no one was called from the Gauhati office of the Defendant at least to give direct evidence of the passage in the flat. An attempt was made to fill up the lacuna by calling S.N. Roy who gave evidence on the basis of his experience in respect of similar type of flats of the Defendant company.

The last witness called on behalf of the Defendant was Bibhuti Bhowmick. I have already discussed his evidence. It would appear that no records from the Gauhati office of the Defendant was called for and the relevant witnesses were not called on behalf of the Defendant. This witness also admitted that there were important and relevant documents available in the file of the Defendant, but the same were not disclosed in this proceeding.

From the above facts as discussed above, my findings are--(a) That the river Brahmaputra was rising and there was heavy current and the flat was subjected to considerable pitching and rolling on June 8, 1965, during the early hours of dawn and for a considerable time prior thereto, (b) There was absence of precautionary measure to suit the varying conditions of the river and the deceased had fallen overboard into the river and was drowned as a result thereof, (c) The passage from the flat clerk''s cabin leading to the latrine was considerably narrow and was difficult to negotiate in such weather conditions, (d) There were obstructions in the narrow passage and anybody could trip over the bollards at least on two places in the passage to reach the latrine, (e) There was no light provided in the passage and it was dark at the time the deceased fell overboard into the river, (f) The flat clerk was not trained as a sailor to skilfully negotiate such passage in such weather conditions. (g) Adequate safety devices could be provided in the narrow passage for persons like the flat clerk to negotiate the said passage in such weather conditions and at such hours of the dawn, (h) The flat clerk Chittraanjan Mukherjee had no other alternative but to be forced to undertake that journey from his cabin through the said narrow passage to reach the latrine under pressing circumstances. Anybody else under his position would have done the same thing. (i) The flat clerk died as a result of the drowning by falling overboard the said flat not in normal condition but under abnormal weather conditions, (j) The Plaintiffs have discharged their initial onus in proving the negligence, but the Defendant has failed to disclose vital documents and failed to produce necessary and vital witnesses to discharge the onus when the same was shifted on to the Defendant. In the facts and circumstances of this case, the facts relating to the incident of June 8, 1965 and for a considerable time prior thereto, were within the exclusive knowledge and possession of the Defendant, but in spite thereof the Defendant deliberately failed to disclose such facts and to adduce evidence by which the actual cause of drowning or death could be found out. Under those circumstances, the Court is bound to draw adverse inference against the Defendant in respect thereto by presuming the facts relating to such negligence u/s 114(g) read with Section 106 of the Evidence Act.

The position might have been different if there was a fall under normal condition and as a result thereof the flat clerk was drowned, but here there is sufficient evidence before me in proof of the fact that the river conditions were unusual and that was why the flat had to be taken to the midstream and anchored there. There is enough evidence that the flat clerk under extreme pressure of circumstances due to call of nature had been forced to negotiate the said passage to reach the latrine. That was the reason why he fell overboard into the river and was drowned and accordingly, those facts indicate that there were circumstances causing such a fall and unless such circumstances would be explained by the Defendant that would prima facie establish negligence on the part of the Defendant. The Defendant under such circumstances would be duty-bound to disclose all facts relating to the incident which were within its knowledge, control and possession and if the Defendant failed to do that, it would fail to disprove negligence. The Defendant was duty-bound to take reasonable care for the safety of its untrained employees in the flat such as the flat clerk. The Defendant was duty-bound to anticipate such perils of the river. The Defendant was under an obligation to provide for suitable latrine near the cabin or for other safety devices to avoid such perils. It would be meaningless to provide for a latrine at a place which cannot be reached at all hours and under all such circumstances. There must be a safe access or passage leading to it. It is no excuse that such an incident never occurred before and that on any previous occasion nobody fell overboard into the river in going to the latrine. In the case of Winter v. Cardiff Rural District Council (1950) 1 All E.R. 819 (823) the House of Lords laid down three personal obligations of the employer to provide for safety of the worker. It is observed:

These duties, it may be well to add, are not absolute in nature. They lie within and exemplify the broader duty of taking reasonable care for the safety of his workmen which rests on every employer and they may be more accurately described as (a) the duty to use reasonable skill and care to provide proper plant and equipment and (b) the duty to use reasonable skill and care to provide a proper and safe system of working where the task is such as to call for the laying down of a system or mode of working in the interests of safety. The test throughout is, I think, that of what is reasonable and proper to be done for the safety of the workman in the circumstances of the particular case. (P. 823)

In the case of Morris v. West Hartlepool Steam Navigation Co. Ltd. L.R. (1956) A.C. 552 (574, 575) a seaman in a grain ship at sea was sent down to fetch some timber from the ''tween decks. At that time for the purpose of loading grain the upper deck hatches were battened down, completely isolating that section of the ship, but the ''tween deck hatch covers were left off and no guard-rail was erected round the hatchway. There was evidence that on this ship it was quite usual for men to be sent down to the ''tween decks after the making ready of the holds had been completed and the deck hatches had been battened down. The seaman fell 40 ft. into the hold for some unexplained cause and injured himself. In reversing the decision of the Court of Appeal the House of Lords held that the shipowners had been proved to be in breach of their common law duty to the seaman. In that case also there was evidence that the guard-rail could not have been put up while the work was going on because it would have impeded the work and if there was negligence it was in failing to put up a guard-rail when the work was finished and before the men left that part of the ''tween deck. It was also argued that, whether the practice of leaving the hatches unprotected was good or bad, the steamship company was entitled to rely on it because it had gone on a long time and no one had heard of an accident arising from it. In the opinion of Lord Reid:

I would agree that, if a practice has been generally followed for a long time in similar circumstances and there has been no mishap, a reasonable and prudent man might well be influenced by that and it might be difficult to say that the practice was so obviously wrong that to rely on it was folly. But an employer seeking to rely on a practice which is admittedly a bad one must at least prove that it has been followed without mishap sufficiently widely in circumstances similar to those in his own-case in all material respects. This part of this case has caused me -considerable difficulty, but I do not think that it has been proved that the circumstances were similar where the practice prevailed. (P. 574)

Then it was observed:

Once it is established that danger was foreseeable and therefore, that the matter should have been considered before the accident, it appears to me that a reasonable man weighing these matters would have said that the precaution clearly ought to be taken. (P. 575)

In the case before me, it is difficult to appreciate why temporary railings even of ropes could not be provided on the river side so that the same could be fixed at times when the flat could not be tied with the ship. If that could be done then the risk in negotiating the passage would be minimised because the person concerned would be in a position to have a grip on the ropes if need be under such weather conditions. In any event, there is no evidence except verbal testimony of a few witnesses who had no direct knowledge about the F. Bassein that the railings were there fixed on the side walls of the shed of the flat. Paresh did not notice that and the other witnesses could not say on this because they were not on board the said flat.

In the case before me, there is no proof of any practice that under similar circumstances even for the flat clerk the practice followed for a long time was to provide for such narrow passage without any railings and that under such circumstances there has been no mishap. The witness S.N. Roy has tried to make out a general impression, on the basis of his experience, as to the width of the passage and the nature of railings and safety devices that are provided in flats of similar type. I do not think that by his evidence he has succeeded in establishing that safety measure had been taken to meet such weather conditions in the river Brahmaputra for a flat clerk to negotiate the passage to reach the latrine during the night time in darkness. I have no doubt in my mind that the safety measures provided therein were not at all adequate and that was why the ratings on duty were quite apprehensive that it would be difficult for the flat clerk to pass through the said passage. Had there been adequate safety devices provided in the passage they would have asked the flat clerk to be cautious in passing through the passage, but they would not have thought of desisting him from making the attempt. That would clearly show that the Defendant failed to provide any safety devices in the said passage. The said Police report also described the passage as the "only small corridor which is about 4 feet only by which hardly a man can pass." The expression ''by which hardly a man can pass'' would suggest that it is difficult even for a trained sailor to pass by that corridor because it is so narrow at places where it would be about 4 ft. To my mind the expression ''4 feet only'' did not mean to give the width of the passage, but it might have been possibly used in respect of the portion which was covered by two bollards which, according to other witnesses, would cover ''distances of about 3'' in length''. In fact, that is the position in respect whereof the evidence suggests that unless the same would be tripped over it would normally not be possible to pass through it. These are matters which ought to have been explained by calling witnesses from the Gauhati office or by calling the other persons who were there on board the said flat. It appears to be that even if hand-rails were there they were of little help to the passerby like the flat clerk at such points where bollards were fixed. It is true that from the evidence on record it is not possible to reach the conclusion as to how the accident occurred, but my findings are that the Defendant deliberately suppressed the evidence from the Court with the result that the possibility of eye-witnesses being there cannot be ruled out.

In any event, the Defendant has admitted by its correspondence that the flat clerk was presumed to be dead and has acted on the basis thereof by making payment of the arrears of salary and provident fund of the deceased. Under those circumstances, the contention of Mr. Mitter that the Defendant was not obliged to can the witnesses because there were no eye-witnesses as to the person failing overboard into the river was of no substance. In the facts and circumstances of this case, I am bound to draw adverse inference against the Defendant and presume that there were eye-witnesses who saw the accident and that was why the Serang ordered the jolly boat to search for the man.

On the basis of the prima facie evidence on record I hold that the Defendant failed to take adequate care and caution for the safety of the flat clerk by providing safety devices and safe condition of service and by reason of such omission the Defendant was guilty of negligence and as such, was is bound to compensate the Plaintiffs as the heirs and legal representatives of the deceased employee under the Fatal Accidents Act.

On the question of proof of negligence, in Charlesworth on Negligence (5th ed.) under Article 969 under the heading ''Cause of accident unknown'' it is provided as follows:

It is not necessary for a Plaintiff to give direct evidence of negligence. He may prove his case partly by direct and partly by indirect or circumstantial evidence. In some cases the facts of an accident are unknown and the Plaintiff to succeed must then prove facts from which an inference of negligence on the part of the Defendant may be reasonably inferred.

As already observed the facts in this case have put the matter beyond a mere surmise or conjectures. They lead to an inference which can be said to be a reasonable deduction from the facts actually observed and proved. The weather conditions, the Police report and the remonstrances of the ratings are some of the instances which necessarily would lead to the inference as to the cause of the accident and on the basis thereof, evidence of negligence has been established. I have already observed that the accident did not occur under normal conditions because the position would have been different under such circumstances as was the case in Field v. Perrys (Ealing) Ltd. (1950) W.R. 320 where a building contractor''s night watchman had injured himself in carrying out his normal duties by tripping over a loose plank which had been left in the roadway. But in Paris v. Stepney Borough Council L.R. (1951) A.C. 367 it was held that where a workman was suffering from a disability which increased the risk of serious injury if an accident should befall him, the special risk of injury would be relevant consideration in determining the precautions which the employer should take in the fulfilment of the duty of care which he owed to the workman. In that case the workman had only one good eye. The employer knew about it. He was employed as a garage hand. He injured himself in working on the back axle of a vehicle to remove a U-bolt which had rusted in. He struck it with a hammer and a metal chip flew off seriously injuring his good eye. He was not wearing goggles. It was held that the evidence was sufficient to sustain the finding that the employers were negligent in failing to provide this workman with protective goggles for work of this description and damages were awarded.

The next question which arises for consideration is what would be the quantum of damages and how the same should be assessed in this case. I have already come to my finding that this was an act of negligence which was forseeable within the scope of due care. Under similar circumstances in similar cases damages are now assessed on the basis of certain principles, but it must be remembered that, whatever principle might be followed, the figure which is ultimately to be assessed cannot be expected to be exact, but every attempt must be made to arrive at the figure in such a manner that it may not cause prejudice to either party. The whole thing is mainly, based on reasonable expectation of life to find out the pecuniary money value. The deceased might or might not have survived to the full term of his life and it is trite learning that such expectation wouldn''t be measured by yardstick. Hence, the element of guess work would have to be taken recourse to in assessing such damages. A liberal view has to be taken in assessing damages on the basis of reasonable expectation.

On the question of damages Sm. Shovana Mukherjee in her evidence has claimed Rs. 50,000 as loss suffered by her and her children on account of Chittaranjan Mukherjee''s death. She was asked as to how she arrived at that figure and she said that Rs. 20,000 was needed for running the household expenses, another Rs. 20,000 for marriage of her daughter and a sum of Rs. 10,000 for education of her sons. During her husband''s life-time all of them were entrirely dependent on the salary earnings of Chittaranjan Mukherjee. Ever since his death these persons were deprived of that source of earning to keep and maintain herself and her members of the family and to impart education on her children. She was maintaining herself and her family with the small sum which used to be given by the brother of her husband and she hereself had been working as a maidservant in a household. Her daughter had not been married yet. Shiva Prosad, her youngest son, had given up his studies and he was studying at home. He was not doing anything at all because the children could not be given any education by the mother. If her husband had been alive she had reasonably expected to educate them. She had the intention to teach music to her daughter. Rama Prosad, the eldest son, had passed the Higher Secondary examination, but for want of money he could not continue his studies, Rama Prosad passed the Higher Secondary examination 6 or 7 years ago. In cross-examination she said that her husband was drawing his last salary at the rate of Rs. 292 per month. Apart from this income she had no other means of livelihood. A sum of Rs. 292 used to be remitted by her husband every month. Sometimes it so happened that he could not remit the money to her for three or four months because of difficulty in sending the money orders, there having been no post office in such places. There was no average fixed amount which could be said to be the requirement to run the household expenses. The minimum amount that he used to pay her was Rs. 150 per month which was needed at that time, but that was about 10 years ago and at that time the price of articles was much lower than at present. Her eldest son was now employed in the office of the Accountant-General, West Bengal. She did not know what was his salary. There was no fixed amount which her eldest son gave her for running the household. The amount which her eldest son gave her was not sufficient for running the household. There are altogether four members in the family. She lived in a rented house at Asoke Nagar. That house belonged to her elder sister. The age of her youngest son is at present 17 years and that of her daughter is 20 years. There is further evidence before me that the deceased had died at the age of 42.

On the quantum of damages which should be awarded and how the said damages are assessed, the Supreme Court in the case of Gobald Motor Service Ltd. and Another Vs. R.M.K. Veluswami and Others, considered the English decisions in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) A.C. 601 as also the observation of Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd. L.R. (1951) A.C. 601. After considering the said decisions it was observed Supra:

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 ascertained. (P. 6)

Following the said principle and applying the same in the facts and circumstances of this case I think a sum of Rs. 27,000 should be assessed as the quantum of loss suffered by the Plaintiffs on account of the death of the said Chittaranjan Mukherjee and that should be recorded as the correct financial value of the injuries sustained by the widow and the children as a result of the death of the said deceased.

The principles governing the assessment of damages under Sections 1-A and 2 of the Fatal Accidents Act have also been considered by the Supreme Court in another later case in C.K. Subramania Iyer and Others Vs. T. Kunhikuttan Nair and Others, where it has been laid down that compulsory damages must be limited strictly to the pecuniary loss to the beneficiaries and the measure of damages is the economic loss sustained by the estate. It was observed that there could be no exact uniform rule for measuring the value of human life and the measure of damages could not be arrived at by precise mathematical calculations, but the amount recoverable would depend on the particular facts and circumstances of each case. It has been observed, further, that in action under the said Fatal Accidents Act it was not sufficient for the Plaintiff to prove that he lost by the death of the deceased a mere speculative possibility of pecuniary benefit. In order to succeed it was necessary for him to show that he had lost a reasonable probability of pecuniary advantage.

I have also taken into consideration the following cases for the purpose of ascertaining the damages in this case. The case of Sm. Mukul Dutta Gupta and Others Vs. Indian Airlines Corporation, , the case of Indian Airlines Corporation Vs. Sm. Madhuri Chowdhuri and Others, the case of Broom v. Morgan (1953) 1 All E.R. 854, the case of Howitt (Widow and Administratix) v. Heads (1972) 1 All E.R. 491, the case of Gomathi Ammal v. Ramachandran Pillai (1967) 1 M.L.J. 114, Halsbury, 4th ed., vol. 12 Article 1156 and the case of Chandrakanta Jayrambhai Amin and Another Vs. Pravin Mangaldas and Others, .

From the evidence before me a sum of Rs. 150 should be accepted as the monthly payment made to the wife to meet the households expenses. After allowing deduction a sum of Rs. 140 per month should be taken into consideration. If the same is multiplied by 12, the annual household expenses would come to Rs. 1,680 and if it is made 16 times then the amount would come to Rs. 26,880. I think I should be justified in allowing the figure of Rs. 27,000 as the damages in favour of the Plaintiffs. In my Opinion, out of this amount Rs. 8,100 should be given to the mother, Rs. 5,400 to the eldest son, Rs. 6,750 each to the daughter and to the youngest son.

In my opinion, the multiple System which is applied in such cases in England should not be applied here in India as the social conditions prevailing there are somewhat different from those prevailing in this country. There the background of social security is different. The availability of medical relief and old age pensions etc. are matters which in England are taken into account in the multiple system but not as in India. In India marrying a daughter in a middle class family is a matter which very often involves large sum of money, whereas in England ordinarily it may not be so. These are some of the instances of how conditions differ. Considering all these factors I think the principles of awarding the damages as laid down by the Supreme Court in the said two cases provide for safe guidance and should be followed and by following which I have come to my decision.

I, therefore, answer the issues as follows:

Issue No. 1(a) : The answer is in the affirmative.

Issue No. 1(b) : The issue as to contributory negligence was not pressed at the trial and was given up on behalf of the Defendant.

Issue No. 2 : There is no direct evidence on this point and as observed above, the evidence has been intentionally withheld from Court on behalf of the Defendant and accordingly, I answer this issue in the negative.

Issue No. 3 : Subject to what has been recorded, as stated above from the documentary evidence on record my finding is that the deceased had not been keeping sound physique.

Issue No. 5 : The Plaintiffs are entitled to a decree for Rs. 27,000 with interests on decree at 6% per annum and costs. Certified for two counsel. The said decretal amount would be apportioned amongst the Plaintiffs in the manner as follows:

The Plaintiff No. 1 Sm. Shovana Mukherjee would be entitled to Rs. 8,100. The Plaintiff No. 2 Rama Prosad Mukherjee would be entitled to Rs. 5,400, the Plaintiff No. 3 Kumari Swapna Mukherjee and the Plaintiff No. 4 Shiba Prosad Mukherjee, through their mother the Plaintiff No. 1, would be entitled to Rs. 6,750 each. Those four sums would make the total of Rs. 27,000. In respect of the sum of Rs. 6,750 which is receivable by Shiba Prosad Mukherjee, the minor, the same would be given to his mother Sm. Shovana Mukherjee as her natural guardian and next friend and the same would be held by her until the Plaintiff No. 4 Shiba Prosad Mukherjee would attain majority and thereupon the same would be made over by the mother to her said son. Until the attainment of majority and until the same would be made over to Shiba Prosad Mukherjee, there will be an order of injunction against the mother from spending the said sum in any manner without an order from the Court except for the purpose of making it over to the said son when he would attain majority. Upon making over the said sum as directed above, the order of injunction against Sm. Shovana Mukherjee would stand vacated.

The operation of the decree will remain stayed till January 7, 1976.