The Corporation of Madras vs V. Thangammal

Venkatadri, J.—This appeal arises out of an order passed by the Motor Accidents Claims Tribunal (Chief Judge, Court of Small Causes)

Madras, awarding compensation in a sum of Rs. 5000/- for causing the death of an unfortunate child aged 4 years by a lorry belonging to the

Corporation of Madras. The Tribunal found that the accident was due to the negligence of the driver of the Corporation. The Corporation has filed

this appeal.

Kemp in his book on the Quantum of Damages, Volume 2, page 174, has observed that pain and suffering and loss of expectation of life are

matters which cannot be calculated in terms of money. Nevertheless, the law recognizes these as topics upon which damages may be given. The

observation of the learned author is more apt, when the deceased is an infant. If the deceased is an infant, there may well have been no actual

pecuniary benefit derived by its parents during the child''s lifetime. But this will not necessarily bar the parent''s claim. The House of Lords and the

Court of Appeal were often engaged in fixing compensation for loss of expectation of life. In Tafe Vale Railway v. Jenkin (1931) A.C.I the

Respondent brought an action under the Fatal Accidents Act, 1846, against the Railway for damages for the loss of his daughter who was killed in

a railway accident. The deceased was aged 16 at the time of her death and she was a dressmaker''s apprentice who had the prospect of earning

by pursuing her business. Lord Atkinson said:

All, that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the

existence of this expectation is an inference of fact-there must be a basis from which an inference can reasonably be drawn....

And Lord Moulton said:

The fact of past contribution may be important in strengthening the probability of future pecuniary advantage, but it cannot be a condition precedent

to the existence of such a probability.

Their Lordships were not inclined to disturb the verdict of the jury who had awarded �75 as damages. In Barnett v. Cohen (1921) 2 K.B. 461

the Court of Appeal had to decide whether the parents of a boy aged 4 who had died in an accident were entitled to damages for the loss of

expectation of life of the child. M''cardie, J., did not award damages as there was no evidence of damage present or prospective. The learned

Judge observed:

The deceased was a bright and healthy boy..... The boy was subject to all risks of illness...... The whole matter is beset with doubts, contingencies

and uncertainties....

Upon the facts of this case, the Plaintiff has not proved damage either actual or prospective. The action therefore fails"". Only the Law Reform

(Miscellaneous) Act, 1884 provided for the first time, that on the death of any person after the commencement of that Act all causes of action

subsisting against or vested in him shall survive against, or as the case may be for the benefit of, his estate. Thu, the Law Reforms Act provided that

an action would lie for loss of expectation of life.

After the passing of the Act, in Rose v. Ford the House of Lords had to decide the question of damages for loss of expectation of life of woman

aged 23 who died as a result of a motor car collision. The father of the deceased woman brought an action against the Defendant for pain and

suffering, the loss of leg and for the shortening of reasonable expectation of life of the deceased. Humphreys, J. awarded a sum of �300 under

the head of pain and suffering and did not award damages for loss of expectation of life. In appeal, majority of the judges of the Court of Appeal

gave damages in a sum of �1,000. On further appeal to the House of Lords, Lord Atkin said:

...living person can claim damages for loss of expectation of life. If he can, I think that right is vested in him in life, and on his death, under the Act

of 1934, passes to his personal representative. How the damages are to be calculated is a question which the House has not to decide, for there

has been no quarrel with the amount, fixed by the Court of Appeal, in this case of �1000.

In Benham v. Gambling (1941) A.C 157 the House of Lords had, for the first time, to decide what should be the quantum of damages to be

awarded for loss of expectation of life. In that case, a child aged two and a half years was involved in a car accident. The only question was the

diminution of the child''s expectation of life. Evidence showed that the child was living in modest but other-wise favorable circumstances. At the

trial, Asquith, J. fixed the damages at �1,200 as it was neither unreasonably excessive nor unreasonably deficient. In appeal, it was held that the

award of �1,200 should stand, but Goddard, L.J., thought that the amount should be reduced to �350. Finally, when the matter came upto

the House of Lords, Viscount Simon, L.C. posed the question what were the main considerations to be borne in mind in assessing damages under

the head of loss of expectation of life, and observed:

...I am of opinion that the right conclusion is not to be reached by applying what may be called the statistical or actuarial test -And in any case the

thing to be valued is not the prospect of length of days, but the prospect of a predominantly happy life. The age of the individual may, in some

cases, be a relevant factor. The ups and downs of life, its pains and sorrows as well as its joys and pleasures all that makes up ''life''s fitful fever''

have to be allowed for in the estimate. In assessing damages for shortening of life, therefore such damages should not be calculated solely, or even

mainly, on the basis of the length of life that is lost....

The noble Lord thought that in the case of a very young child, there was uncertainty about the future, that happiness did not depend on wealth or

status and it would be an attempt to equate incommensurables and that therefore in assessing damages whether in the case of a child or an adult,

very moderate figure should be chosen. In the end, the House of Lords agreed that the proper figure in that case would be �200. They also

observed that even that amount would be excessive if it were not that the circumstances of the infant were most favorable. Thus, with regard to the

measure of damages under the Law Reforms Act, without attempting to lay down any hard and fast standard, the House of Lords clearly

disapproved the generous scale which had hitherto almost universally prevailed. And cases held that a sum approximating to anything like

�1.000 must be the exception and not the rule. This case has been reviewed in the Law Quarterly Review Vol. 65 at page 10 thus:

Perhape the most remarkable instance of judicial legislation to be found in the books is Benham v. Gambling (1941) A.C. 157 in which the House

of Lords, faced with the insoluble problem of giving a reasonable construction to an Act which was itself unreasonable, established a fixed limit to

control the award of damages for loss of expectation of life under the Law Reform (Miscellaneous Provisions) Act 1934.

In Bingham''s Motor Claims Cases, the learned author observed at page 463 that the difficulties of assessment have been lessened but by no

means abolished by the Benham''s case. The difficulty was felt in Cumper v. Pothecary (1941) 2 All. E.R. 516 by the Court of Appeal, where

Goddard, L. J. observed that damages for loss of expectation of life would have to be scaled down very considerably.

In Garcia v. Harland and Welff Ltd. (1943) 2 All. E.R. 477 the deceased was a workman aged 27. He had settled prospects, good health,

valuable industrial knowledge of an expert worker. Atkinson, J. said:

I cannot help feeling that counsel for the Plaintiff was right when he said that I have to deal with a case where really the maximum damages that

could ever properly be given, should be given. Nevertheless, I have regard to what the House of Lords obviously thought, namely, that large

damages ought not to be given in such cases....

In Hort v. Griffith-Jones (1948) 2 All. E.R. 729 Streatfield, J., while dealing with damages for the death of a child aged four, observed:

I must also bear in mind the age of the deceased child, and the fact that the child had yet to pass through the ordinary dangers of childhood, and I

do not think that as large an award of damages is applicable to a child of that age. I have also to take into account the chance of the child''s

happiness of life....

It was also held in that case that in assessing the amount of damages to be awarded in respect of the loss of expectation of life of a child, regard

must be had to the depreciation in value of money since the decision in Benham v. Gambling (1941) A.C. 157 in Ware Cunard White Star

(1950)84L.I. L.R. 61 Hodson, J. observed:

It is not possible to lay down any figure which even appears to limit the discretion of the Court by mathematical rules....

There is no principle of law upon which either a maximum or a minimum can be fixed. The discretion of the Registrar is not readily to be disturbed

if the figure is not obviously widely different from what the court thinks it ought to be"".

The award of �500 by the Registrar was confirmed. In Sellers v. Best (1954) 2 AH E.R. 389 in assessing Law Reform Damages in the case of

a married woman (age not stated), Pearson, J. observed that he gave the more or less conventional sum of �400.

Thus, on a review of the entire English case law on the subject, it is seen that the Court of Appeal and the House of Lords were reluctant to give

damages of more than �500, though they were anxious to increase the quantum of damages taking into consideration the depreciation of the

value of money, at the current time.

Even in Hart v. Griffith-Jones (1948) 2 All. E.R. 729; Streat-field. J., observed:

I would not be justified in awarding as much as �200 which was the award of the House of Lords to a child living in rather special

circumstances, but I think counsel for the Plaintiff is right in saying that some addition must be made in respect of the alteration in the value of the

�....

Even in the year 1945, in Sands v. Devari (1945) S.C. 38 Lord Normand said:

Since we must perforce measure the damage in money, we must, I think, take account of large and relatively permanent variations in the value of

money.

In the same case, Lord Monerieff said:

As regard what falls to be paid in money the court must take note of changes in the value of money.

Now, coming to the principles on which an appellate court will interfere with an award of damages made by a Tribunal, I would refer to a well

known passage from the judgment of Greer L.J. in Flint v. Lovell (1935) 1 K.B. 354 (360).

In order to justify reversing the trial judge on the question of the amount of damages, it will generally be necessary that this Court should be

convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to

make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled.

To the same effect is Lord Wright''s observation in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) A.C. 610 (616).

An Appellate court is always reluctant to interfere with a finding of the trial judge on any question of fact, but it is particularly reluctant to interfere

with a finding on damages which differs from an ordinary finding of fact in that it is generally much more a matter of speculation and estimate....

Where, however, the award is that of the judge alone, the appeal is by way of rehearing on damages as on all other issues, but as there is generally

so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an, ordinary act of decision, the

appellate Court is particularly slow to reverse the trial judge on a question of the amount of damages....

Similarly, Viscount Simon, delivering the judgment of the Board in Nance v. British Columbia Electric Railway (1951) A.C. 601 (613) observed:

Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded

below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of the First instance was a

judge sitting alone, then, before the appellate court can properly interfere, it must be satisfied either that the judge, in assessing the damages,

applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this that

the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

Denning L.J. said in McCarthy v. Coldair (1951) A.C. 271

I think Mr. Everett put the test graphically and rightly when he said that this Court would interfere if it said to itself ""Good gracious me-as high as

that.

The very same Lord made a very similar remark in Tayler v. Mayor, Alderman and Burgessess of South Hampton (1952) C.A. No. 89.

This Court does not interfere with an award by a judge who tries a case, unless, looking at it, it is out of all proportion to the figure which this

Court considers the proper award. When I heard the facts of this case, I said to myself: ''Good gracious me- as low as that for these injuries''. -

Giving the best consideration I can to it, it seems to me that this sum is too low.

Now, coming to our High Court, in K.M. Krishna Gounder Vs. P.N. Narasingam Pillai and Others, arising under the Fatal Accident Act, where a

boy aged 7 was killed in a lorry accident, the learned Subordinate Judge awarded Rs. 5,000 as damages for loss of expectation of life. The

learned Judge (Jagadisan J.) observed:

...it will not be too much to assume that the boy would have taken his place as a citizen of India and derived all the advantages in life thrown open

to the citizens of India under our present Constitution....

I am unable to say that the award of Rs. 5,000 given by the learned Subordinate Judge as damages for loss of expectation of life is in any way

excessive or extravagant

In Abdul Mohamad Agra and Another Vs. Peter Leo D''Mello and Another, , Justice Patel had to decide a case where the parents of the boy

claimed Rs. 6,000 as compensation on account of the death of that boy alleged to have been killed by rash and negligent driving. The learned

judge reviewed the entire case law and came to the conclusion that the amount awarded was not immoderate.

In the instant case, the Tribunal has found that the accident was due to the negligence of the Appellant''s driver and has awarded Rs. 5,000 as

adequate and reasonable damages. On the facts of evidence, there is no reason to interfere with that finding. Further, taking into consideration the

value of rupee and the depreciation in the value of money, I am unable to say that the amount of Rs. 5,000 is an entirely erroneous estimate of the

damage. I cannot also think that the amount awarded is so inordinately high as would call for a reduction. Nor can I say to myself ""Good gracious

me as high as that.

In the result, the appeal must fail and it is-dismissed. But I direct each party to bear its-cot throughout.