Sarjoo Prosad, C.J. -
(1.)1. These three appeals arise out of as many suits for recovery of damages instituted against the common defendant, the Kotah Transport Ltd., the appellant in all these appeals, by different plaintiffs, who are respondents to these appeals. First Appeal No. 21 of 1952 arises out of Suit No. 14 of 1949 instituted by the Jhalawar Transport Service Lid., the plaintiff in that suit, in the Court of the Civil Judge at Jhalawar. First Appeal No. 4 of 1955 arises out of Suit No. 36 of 1949 instituted by the plaintiff Amar Nath Bhatia in the Court of the District Judge at Kotah, while First Appeal No. 5 of 1955 arises out of Suit No. 37 of 1949 instituted in the same Court by the plaintiffs Suit. Gayatri Devi and her minor son Dhirendra. All these suits were field on the same day, that is, 29-7-1949. Most of the witnesses are also common, but Suit No. 14 of 1949. which has given rise to First Appeal No. 21 of 1952, was disposed of earlier on 29-3-1952, by the Civil Judge of Jhalawar, and the other two suits were disposed of later by the District Judge of Kotah on 30-11-1954.
(2.)ALL these cases relate to an unfortunate incident, which happened on the 30th of July, 1948, between 10 and 11 A. M resulting in a collision between the defendant's Bus No. RSKT 428 and the Bus of the Jhalawar Transport Service Ltd.. No. RS 256 JH. For the sake of convenience these buses will be hereafter described as "the Kotah Bus" and "the Thalawar Bus'' respectively. The defendant's Kotah Bus happened to be travelling from Aklera to Kotah via Patan. It left Aklera a day earlier on 29-7-1948; but since the Tindhara river was in high flood, and could not be forded, the Bus and the passengers stopped for the night at Mundawar. In the morning the Bus left for Munderi, and then it crossed over the bridge of the Kalisindh river, on which water was flowing. It was then running on the Munderi road and was hound for Patan, from where it had to go to Kotah. It was being driven bv its driver Mohammad Sharif, and was fully loaded with passengers and goods.When it reached the tri-junction of three different roads, or to be more accurate a junction of four roads, near the gate of the Khandia garden, it had to take a turn towards the south in order to go to Patan. It should be stated here that the route from Patan to Jhalawar runs from south to north in order to go to the garage; but to go to Mangalpura and to the Clock Tower side the road takes a turn towards the west. The Munderi Road, which comes from the north-east, also joins these roads on the east. The bus travelling on the Munderi Road, therefore, had to negotiate a gentle curve at the tri-junction in order to travel south to Patan. While negotiating the turn, or when the Bus had almost negotiated it, it collided violently with the Jhalawar Bus coming from the opposite direction, which was running from Patan to Jhalawar, and was about to turn to the Mangalpura Road. The violence of the impact was such that the left front wheel of the Kotah Bus was pushed inside, and the Bus overturned losing balance on its left side in the middle of the road, its engine facing towards Mangalpura, while the right front bonnet of the Thalawar Bus and its engine were completely smashed. One of the occupants of the Kotah Bus, Shri Indra Sen Varma, husband of Smt. Gayatri Devi. and father of Dhirendra, the plaintiffs in one of the suits, was thrown out and crushed under the body of the bus, and he died on the spot. The left leg of another occupant of the Kotah Bus, Sri Amar Nath Bhatia of Jhalawar, the plaintiff in another suit, was caught underneath the over-turned Bus, and was broken to pieces; the leg eventually had to be amputed; and several other passengers also received injuries. The Manager of the Jhalawar Transport Service Ltd., Shri Satyadev Shukla (P. W. 4). received information of the occurrence, and, he immediately rushed to the spot. Information was lodged with the police, who promptly took up investigation. The dead and injured were removed to hospital, and arrangement was made for the transport of the stranded passengers. The police also had photographs taken of the place of occurrence and the position as also the condition in which the buses were lying as a result of the accident.
The above facts are beyond controversy and common to all these cases. It was on account of this accident that the above suits for damages were instituted by the parties concerned. Since the facts and the evidence were largely common, it was felt convenient' to hear all these appeals together with the consent of parties, and they are, therefore, all governed by this judgment. It would be, however, more convenient to dispose of primarily the suit out of which First Appeal No. 21 of 1952 arises since this was the suit which came to be decided earlier than the other two suits. First Appeal No. 21 of 1952.
The plaintiff in this suit has sought to recover from the defendant a sum of Rs. 12,210/8/-for the damage caused to its Buy No. RS 256 JH on account of the collision of the defendant's Bus No. RSKT 428. It is alleged that the damage was caused on account of the rash and negligent driving of the defendant's driver Mohammad Sharif. The case of the plaintiff is that the driver of the Kotah Bus, Mohammad Sharif. after crossing the Kolisindh river drove the Bus rashly and negligently upto the place of collision, travelling at a very fast speed, that no horn was ever blown by him, nor brake applied: he lost his presence of mind, losing thereby the control over his vehicle, took a turn towards his right instead of keeping towards his left, and thereby dashed against the right side of the front portion of the Jhalawar Bus smashing the bonnet and the engine totally, and thereby causing an irreparable loss to the plaintiff.
The defendant admitted the collision near the Khandia tank, as a result of which one man died and some received injuries, but in the additional pleas it repudiated the allegation of rashness and negligence. On the contrary the defendant suggested that the accident was due to the rashness and negligence of the driver of the Jhalawar Bus, which dashed against the defendant's Bus, on account of which the defendant was entitled to recover damages from the plaintiff, for which it reserved its right to sue.
The two most important questions which arose for decision in the case were: (1) whether the collision was duo to the rash and negligent act of the driver of the Kotah Bus belonging to the defendant, or was it due to the negligence of the driver of the Jhalawar Bus; and (2) if the plaintiff was entitled to any damages on that account, the amount to which he was so entitled. Both sides led evidence in proof of their respective cases, and the learned Civil Judge, who had framed several issues in the case, found all the material issues in favour of the plaintiff, and decreed the claim for damages for a sum of Rs. 10,417/- only with costs and pendento lite interest.
On appeal these findings have been strenuously challenged by Mr. Jain, the learned counsel who appeared for the defendant-appellant. He contends that the plaintiff has failed to prove any rash and negligent act on the part of the driver of the defendant's Bus. He sumbits that on the evidence it should be held that while taking a turn on the road near the gate of the Khandia garden, the defendant's Bus was running on the left side of the road; but the plaintiff's Bus, which was coining from Patan side and was being very rashly driven by its driver Sajjad Mohammad, went to the extreme right of the road, and thereby violently struck against the Bus of the defendant; the thrust was such that it dented the left mud guard and pushed in its left front wheel, causing it to overturn completely on its left side. As a result of the impact the front of the Kotah Bus. which was heading towards Patan, was completely turned toward Jhalawar side.
The evidence led by the parties consists largely of passengers who were travelling in either of these hapless Buses, and certain persons who happened to bo either present at the scene of the occurrence or went there shortly thereafter. In order to be able to appreciate the evidence it is, however necessary to examine at the outset the evidence of the Police Officer, who took up investigation immediately after the information of the occurrence was given to him, and the evidence furnished by the photographer as to the site of the occurrence and the position in which the Buses were lying in consequence of the collision. This is important in order to judge which of the conflicting theories as to the cause of the accident is more probable, whether the accident happened in the manner alleged by the plaintiff or in the manner alleged by the defendant. It must be remembered that the onus to prove rashness and negligence alleged by the plaintiff lies upon it, and if it is unable to do that, it cannot recover damages from the defendant. It is of course not disputed that Mohammad Sharif was the driver who was driving the defendant's Bus, and was doing so in the course of the defendant's employment. The plaintiff in this case has definitely put forward the cause of the accident, and the Court has. therefore to enquire whether the cause, if proved, was due to the negligence of the defendant and its agent. The abstract doctrine of "res ipsa loquitur'' (the thing speaks for itself) may not in terms apply to the circumstances of this case. This rule generally applies only to those cases where the exact cause of the accident is unknown. There the res can speak for itself so as to throw the inference of negligence or laches upon the defender. Even in such cases the defendant can rebut that presumption by offering a reasonable explanation of the way in which the accident might have happened. The doctrine of res ipsa loquitur is nothing but a branch of a larger rule namely that where the proved facts render it reasonably probable, in the absence of explanation, that there was negligence on the part of the defendant and that the damage was caused by that negligence, it is for the tribunal of fact to say whether the case is not established (Underhill on Tort). The maxim is merely a rule of evidence affecting onus, but does not alter the general rule that the burden of proof of the alleged negligence rests upon the plaintiff. It only means that the res or the facts and circumstances of the accident proved by the plaintiff are by themselves, without any direct proof of negligence, sufficient prima facie evidence from which an inference of. negligence may reasonably be drawn. See also Gwalior and Northern India Transport Co. Ltd.. v. Dinkar Durga Shankar Joshi. (S) AIR 1955 Madh B 214 and S. Nagamani v. Corporation of Madras, (S) AIR 1953 Mad 59. Therefore, the res, in any case, is important. Even if by itself it may not lead to a presumption of negligence on the part of the defendant; it may, at any rate, enable the Court to test the evidence given by the parties, and to see which evidence is more consistent with the facts and circumstances of the accident. (His Lordship then examined the evidence in the case (Paras 9-12) and concluded that the accident happened because of the rash and negligent act of the defendant's driver.) 9-13.It has been further contended that the plaintiff's agent also contributed to the negligence, and reliance has been placed on the evidence of Gaianand and Mahendra Kumar, both plaintiff's witnesses. We have seen (portion omitted in this report-Ed.) that the evidence of Mahendra Kumar is thoroughly unreliable and the learned Judge below was right in thinking that he appears to have been won over by the defendant. No weight can be attached to his testimony. Gajanand has of course opined tbat the accident took place: due to the negligence of both the drivers. This opinion of Gaianand does not appear to be well-founded, as we have shown from the materials on record. The circumstances appear to have been such that the plaintiff's driver could not do more than what he did to avoid the accident. He was going on the left side of the road at a reasonable speed and even if he had applied the brakes, he could not escape the damage. The evidence shows that there was plenty of room on the left side of the Kotah Bus and instead of giving a wide berth to the Jhalawar Bus as ft should have been, the Kotah Bus appears to have occupied the whole berth at the turning. It is true that the rule of the road is not an inflexible rule, and on occasions of emergency with a view to save the situation a deviation from the rule may not be only justified, but absolutely necessary; but here the circumstances justifying the deviation from the normal rule nf the road did not at all exist. Contributory negligence can be successfully pleaded only where it is shown that there was negligence on the part of the plaintiff, which contributed to the accident, so that the defendant even by ordinary care could not avoid it. It may be also available where notwithstanding the defendant's negligence, the plaintiff by exercising ordinary care could have avoided the accident. In other words, if the approximate (sic proximate?) cause of the injury is the negligence of both the plaintiff and the defendant, the injury should be allowed to rest where it lies, and the plaintiff cannot recover anything. There is nothing in this case to sustain the plea of contributory negligence. The mere fact that the plaintiff's Bus was also involved in the accident does not carry us anywhere, because the damage to the Bus is the very foundation of the cause of action. Therefore, the conclusion is irresistible that it was due to the rash and negligent act of the driver of the defendant's Bus that the collision happened. (His Lordship then considered and rejected the evidence of a person examined as an expert.) 14-15. There can be no doubt, therefore that the defendant is liable for the rash and negligent act of his driver, done in the performance of his duties and in the course of his employment, thereby causing injury to the plaintiff's Bus. The question then is what should be the quantum of this damage. The plaintiff's Bus, was purchased in April, 1947, and the accident took place on 30-7-1948, after it had been in service for about a year. It was usually utilised as a City Bus when other buses of the plaintiff were not available for the service. The true measure of damage in such cases is the difference between the market price before and after the accident. The plaintiff has proved by evidence both oral and documentary, which has not been seriously challenged before us, that the Bus was purchased for over Rs. 13,000/-, and that its value at the time of the accident after making allowance for its depreciation to the extent of Rs. 1,083/- came to Rs. 11,917/-, as found by the learned Civil Judge, Here the entire Bus was not destroyed, and, therefore, any value that could be obtained for the remaining parts of the Bus as it was left after the accident has to be deducted from that value; or if the Bus could be effectively repaired and put into service, the costs of repairs alone had to be awarded. We find from the evidence of Shyam Sunder, a dealer in second-hand trucks and motor parts, who examined the Bus immediately after the accident, that he offered Rs. 1,500/- for it as scrap value. He says that he had thoroughly examined the Bus. It was quite incapable of repairs. Only its parts could be used. The engine had completely burst and the body was damaged all over; but its tyres and tubes were intact, and these and the timber and the iron and the other parts were valued by him at Rs. 1,500/-. The statement of the motor mechanic Umrao All (P. W. 14). who works in the Jhalawar Transport, and appears to have sufficient experience, is that he tried to repair the Bus, but it was beyond repairs. He says that one side of the body was so badly damaged that the body also could not be repaired. The evidence of this witness and that of Satyadev Shukla also shows that the chassis had been crushed in the front up to the seat of the driver, the radiator, front axle, gear box, and the front glasses had all been destroyed. There is no evidence worth the name in rebuttal of all this; but the defendant has relied upon the statement of Umrao that a new engine in those days could be had for Rs. 1,200/-to Rs. 1,500/-, and the body could be constructed as admitted in the plaint for about Rs. 2,806/- an such a decree should be passed only for these amounts. This argument ignores the cost of the chassis, which had become useless, and which was the most costly part of the Bus, and had been alone purchased for about Rs. 10105/-. Therefore, the only allowance, which could be made was for Rs. 1,500/-, the scrap value of the materials, and the learned Judge below was justified in granting a decree to the plaintiff for a sum of Rs. 10,417/- only. There is no merit in this appeal, which is accordingly dismissed and the decree of the learned Civil Judge is affirmed. First Appeal No. 4 of 1955. 16. We may now deal with the appeals which are directed against the decision of the District Judge, Kotah. Though the suits to which these appeals relate were disposed of by separate judgments of even date, they were tried together and most of the witnesses are common to the two suits. As has been pointed out earlier, the material witnesses in these suits are also common to the suit filed in Jhalawar. We would take up first Suit No. 36 of 1949, which corresponds to First Appeal No. 4 of 1955. Amar Nath, the plaintiff in that suit sued to recover Rs. 80,000 by way of damages from the Kotah Transport Company for the loss of his left leg which had to be amputated as a result of the collision. The details of the injury have been set out in para 3 v and cof the plaint. The left leg of the plaintiff was caught underneath the body of the overturned bus, it was fractured to pieces and was bleeding profusely, while the plaintiff lay senseless in that condition; about an hour and a half thereafter the bus was lifted up and the plaintiff was extricated and taken to hospital where the leg had to be amputated to save his life. The plaintiff's life was despaired of, but after a good deal of care and attention he was declared out of danger after seven days and had to stay in hospital under treatment from 30-7-48 to 28-9-49, and even after his discharge from hospital he had to continue treatment at home until some ten months thereafter when his wound healed up. On account of the accident and the loss of his leg, which crippled him for life, the plaintiff suffered heavy losses. His age at the time of the accident was only 40 years, and normally he claimed that he could survive for another 50 years. He further claimed that he was a big A class contractor of the P. W. D., and owned the Pottery Works Stone Syndicate, Jhalawar, and four trucks. He also took contracts of forests and his monthly income from these sources was much more than Rs. 600. He accordingly calculated his lass of income under various heads at a very high figure, including a sum of Rs. 3,000/ over the costs of medical treatment; but he restricted his relief only to Rs. 80,000/-. The defendant admitted the collision, hut denied the allegation of rashness and negligence against his driver Mohammad Sharif as being the cause of the accident. It further pleaded that just about the time of the collision the plaintiff had opened the door of the bus and had put out his leg to jump down as a result of which his leg was smashed. It attributed the fault to the driver of the Jhalawar bus and denied all liability for the payment of damages. In effect the pleading seemed to attribute some sort of contributory negligence to the plaintiff. 17. The learned District Judge says that it was! an admitted fact that the two buses were found on the side of the Khandia-ka-Talab, which was the wrong side of the road for the Kotah bus and the right side for the Jhalawar bus, which meant that the Kotah bus was in the wrong. He observes: "I may understand that a bus may take a turn and change the direction, but it cannot cross the road and go from one side to the other and fall there." He also found that the driver of the Kotah bus did not sound the horn and it was due to the rash and negligent driving of the Kotah bus which was responsible for the collision resulting in the overturning of the bus and the consequent iracture of the leg of the plaintiff, who, On account of the impact, was thrown out of the bus. There was no evidence to show that the plaintiff opened the door of the bus and put his leg outside prior to the collision. He accordingly decreed the claim for damages for a sum of Rs. 19,000/- only with future interest and cost; Rs. 15,000/- for loss of future income, Rs. 2,000/- spent on treatment, and another Rs. 2,000/-for physical and mental suffering. 18. The finding of rashness and negligence, as also the amount of damages decreed have been seriously questioned in this appeal. On the point of rashness and negligence it would be quite unnecessary for us to go into much details of the evidence for the reason that the evidence of the material witnesses is almost on the same lines as that in the earlier case already discussed. (After discussing the evidence, (Paras 18-19) His Lordship held that the accident was the cause of the injury which the plaintiff Amarnath sustained and that the defendant's driver was responsible for the accident, for which the defendant would be liable to pay damages to the plaintiff.) 19-20. The more serious argument, which Mr. Jain, the learned counsel for the appellant, advanced in this case, is about the quantum of damages. It has been argued that the plaintiff has failed to prove the actual amount which he spent over medical treatment. In the absence of any such evidence no decree can be passed on that account. It is also urged that there should have been no decree passed for physical and mental suffering, and the decree for the amount of Rs. 15,000/- for loss of future income was purely on a speculative basis, and, as admitted in the judgment itself, not passed on any calculation. We have, therefore, to examine each of these items to see how far the criticisms are justified. The facts alleged in the plaint as to the period of time for which the plaintiff was in hospital, and the serious nature of his injury have not been disputed, nor has it been disputed that his leg had to be amputated in order to save his life. The plaintiff had also to undergo treatment for a fairly long period even after his discharge from hospital. Dr. Bhatia (P. W. 4) has been examined in the case for the plaintiff. He was the person who amputated his leg in hospital. He says that he had to do so in order to save his life. He further says that Amar Nath had to spend mostly from his pocket to meet the expenses of his treatment, and even after his discharge from hospital, the treatment continued. The doctor opined that all this must have cost him between Rs. 1,500/- to Rs. 2,000/- including the cost of having an artificial leg. Though capable of ordinarily walking about with the artificial leg, on journeys he still needed a helper. It has been. argued that Amar Nath has not produced any account of the expenses incurred, while the doctor I says that he himself had not taken any fees from Amar Nath. It would have been of course better in a case of special damage to prove the actual expenditure incurred; but in view of the doctor's evidence and having regard to the admitted circumstances of the case, it cannot be fairly urged that a decree for Rs. 2,000/ on that account was unjustified. Even assuming that the doctor himself did not take any payment from, the plaintiff, that would not entitle the defendant to take any advantage of it, because a wrong-doer cannot claim my benefit that the plaintiff may have had in that!' regard for reasons of his own. In (S) AIR 1955 Madh B 214, it was observed that: "The fact that the doctors who treated the plaintiff, on account of their friendship with him or for some other reason, did not claim from him any fees, is a matter which is completely collateral to damage. If the plaintiff for reasons peculiar to him gets the benefit of free medical advice, the defendants cannot appropriate the benefit to themselves, by saying that by their negligent act they have not inflicted any financial burden on the" plaintiff in the shape of doctor's fees." We are respectfully inclined to agree with these observations, and any reasonable amount that could be allowed to the plaintiff on that ground under that head of damages has been rightly allowed. 21. The next contention of the learned counsel for the defendant is that a separate amount for physical and mental pain should not have been given to the plaintiff when damage was being allowed to him under the general head of loss of earning capacity or future income. The principle underlying the measure of damages is that the injured party is to be placed pecuniarily in the same position as he would have been but for the negligence of the defendant except where the damage is too remote. Where it is a case of personal injuries, a decree for a reasonable sum for pain and suffering sustained is also permissible. Damages are usually classified under two heads : general and special. General damages are those which are normally presumed to flow from the breach of duty or negligence complained of. It is not necessary to allege the details of such damages in the statement of claim. Special damages relate to a specific item of loss as a result of negligence, which would not ordinarily flow as a matter of course from the negligence in question. Full particulars of such special damages have to be stated. Damages for pain and suffering are incapable of exact estimate, and their assessment must necessarily depend upon a reasonable view of the case in relation to all the circumstances. Cbarlesworth in "The Law of Negligence" observes: "Loss of enjoyment of life and the hampering effect of the injuries in the carrying on of the normal social and personal routine of life, with the probable effect on the health and spirits of the injured party, are proper to be taken into account. So, too, is any permanent or temporary injury to health." A man's normal expectancy of life is a thing of temporal value, so that its impairment is something for which damages should be given. See Rose v. Ford, 1937 AC 826 (847). the injured party is also entitled to damages for his financial loss, actual and prospective. Actual financial loss may consist of loss of earnings, medical and nursing expenses, and cost of convalescence, and the fact that payment has not actually been made in respect of liabilities incurred under any of these beads of damages is immaterial as long as the liability is a genuine liabilty actually incurred. 22. The question then is whether the Court below was legally justified in granting damages both for physical and mental pain and suffering and loss of earning on account of the injury. We do not see why it could not be done. There is a very interesting and learned discussion on the subject in a recent decision of the Madras High Court in the State of Madras v. James Appadurai, AIR 1959 Mad 369 which throws much light on the matter. Generally there are three heads under which damages can be recovered in such an action: (i) personal suffering and loss of enjoyment of life; (ii) actual pecuniary loss resulting to and expensed reaspnably incurred by the plaintiff; and (iii) the probable future loss of income by reason of incapacity or diminished capacity for work. We have already dealt with the second head. We do not see any reason to hold that under the other two heads also reasonable compensation could not be validly given. Damages for personal suffering cannot be measured by any precise rule and it is scarcely intended to be a full compensation for the injury sustained. The principle of "restitutio in integrum" is an unattainable ideal in this respect. In re Mediana, Mediana v. Comet, 1900 AC 113 at p. 115, Lord Halsbury observed : "How is anybody to measure pain and suffering in monies counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which represents such a thing as the pain and suffering a person has undergone by reason of an accident." 'The trend of decisions is with which we entirely agree that substantially large amounts have been awarded by Courts as damages under this head, though not without much regret for their inability to grant more. In the above Madras case itself the plaintiff. was the son of a carpenter and had studied npto the fourth class. His elder brother was a cleaner earning Rs. 30/- a month. The plaintiff wanted to become a fitter though at the relevant time he merely vended ice-fruit. On the relevant date of the accident he was sitting on a culvert near the main gate of a college with one of his legs hanging down. Then a bus crossed the culvert near the gate, it dashed against the culvert hitting the ulaintiffs leg which was hanging down and severed it below the knee. The leg had to be amputated. It was found that the bus was being driven rashly and negligently as a result of which the injuries were caused and a sum of Rs. 10,000/- granted as compensation was held to be correct. Mr. Beri for the respondent is, therefore, justified in contending that in the case before us a decree for Rs. 2,000/- only for personal injuries and suffering is a very paltry amount, and althogh there is no cross appeal the entire decree for Rs. 10,000/ could be supported oh this ground alone. 23. To recapitulate the facts, the plaintiff's left leg was caught and crushed underneath the defendant's bus due to the rasb and negligent driving of its driver, and he sustained various other injuries; his leg had to be amputated and he hovered between life and death in the hospital for about a week when his life was despaired of; he had to remain in hospital for treatment for a very long period; even when discharged he underwent treatment for another long period since the wound had not healed up, and worse still he has been crippled for life and largely incapacitated due to the deprivation of his leg. It is true that the plaintiff has not produced his books of account to prove his income and expenditure; but apart from the evidence of the plaintiff himself there is convincing evidence to establish that he was a reliable and important contractor of the P. W. D., and that he used to obtain substantially big contracts of buildings and roads. The evidence of Shri Abdul Rashid (P. W. 7), the Engineer, is relevant on the point, and there is also the evidence of Bishamber Nath (P. W. 8), Assistant Engineer. Dr. Bhatia (P. W. 4) also says that the plaintiff obtained contract of the hospital building in 1942. Even though some of the contracts were taken in partnership of his brother or a few other persons, the evidence appears to be adequate to prove that his monthly income could not have been less than Rs. 500/ to Rs. 600/ a month. By reason of the injury which he sustained, and the permanent deprivation of his limb, there is hardly any doubt that it must seriously interfere with his earning capacity. In the circumstances the discretion exercised by the learned District Judge in granting him compensation of Rs. 15,000/ for loss of earning is not quite speculative, but is based upon the background of his pecuniary status and his prospective earning in future. In assessing damages for future loss, some element of speculation is bound to be there, provided there is reasonable material to justify the inference on which the assessment is made. In the present case, the quantum of damages on account of mental and physical loss and suffering was altogether inadequate, and on the whole the amount taken along with the award for loss of prospective earning would amply go to justify the decree passed by. the learned District Judge. There is no evidence; in rebuttal given by the defendant. In the circumstances it will not be right for us to interfere with the decree which has been granted in this case either. The appeal is without any substance, and must be, therefore, dismissed with costs. First Appeal No. 5 of 1955. 24. The only other case which remains is First Appeal No. 5 of 1955, in which Shrimati Gayatri Devi and her son are the plaintiffs-respondents. In this case also identical questions arose for consideration in addition to the important question of the right to sue. As the plea in bar has been pressed upon us with zeal and resourcefulness by the learned counsel appearing for the defendant-appellant, we consider it appropriate to deal with it at the outset. 25. The plaintiffs in this case sued to recover damages to the tune of Rs. 80,000 on account of the premature death of Shri Indra Sen Varma, M. A., LL. B., the husband of the first plaintiff, Shrimati Gayatri Devi, and the father of the second, their minor son, by reason of the accident. Shri Indra Sen was the District Magistrate and Sub-Judge at Aklera in the then Kotah State. On the merger of the State in Rajasthan, he was promoted as Collector, Kotah Division, in the grade of Rs. 300-500/. On 29-7-48 he left Aklera in the defendant's bus for Kotah accompanied by his wife and son and his mother and two peons, to assume his new office at Kotah, when the bus collided on the way to Patan near Khandia Talab with the Jhalwar bus on the morning of the 30th July, 1948. Shri Indra Sen fell under the over-turned bus, and was crushed and died instantaneously. The plaintiffs alleged, as in the other cases, that the collision was due to the rash and negligent driving of Mohammad Sharif, the defendant's driver, and, therefore, sued the defendant for damages. At the time of the accident and death Shri Indra Sen was a young man of only about 40 years with creditable prospects in his service. 26. While admitting the fact of the accident and the death of Shri Indra Sen, the defendant denied its liability and the rashness or negligence of its driver. The plea raised by the defendant was that when the collison of the buses became inevitable, Shri Indra Sen opened the door of the Kotah bus, and jumped out, when at about the same time the Jhalawar bus dashed against it and the Kotah bus was overturned, and by chance fell on the side on which Shri Indra Sen was lying. Consequently he was crushed to death. It is significant that in the written statement there was no plea taken that the suit was not maintainable at the instance of these plaintiffs. The plea was, however, taken in the course of arguments before the learned District Judge and overruled. The contention of Shri Narula followed by Shri Nathu Lal Jain, the learned counsel for the appellant, is that the representatives of the) deceased could not sue for damages resulting in the death of the deceased, because no right or action survived in their favour. It was hit by the doctrine of actio personalis moritur cum persona. Such a Euit could be filed only under the Fatal Accidents Act, which was not applicable to Kotah, when the accident happened, nor when the suit was filed on 29-7-49, The Act came into force in Rajasthan on the 24th of January, 1950, and could not have any retrospective operation. The learned District Judge held that Article 21 of the Limitation Act of Kotah State read with Section 21 of the Kotah State Civil Courts Act, 1945, enabled the Court in a case which was not provided for by any other law for the time being in force to act according to justice, equity and good conscience. He held that even if the Fatal Accidents Act was not in force in the Kotah State, the principles of justice, equity and good conscience underlying the Act could be availed of in deciding the case; and as such the plaintiffs had a cause of action to sue for damages. The plea that the Common Law of England did not recognise such a cause of action did not prevail with the learned Judge, as he considered that on the face of it, it was highly inequitable to adopt the Common Law in that form, the effect of which would be to make it cheaper to kill a man than to maim and cripple him. The learned counsel has seriously questioned these reasonings of the learned District Judge. 27. Under Article 21 of the Indian Limitation Act, a "suit by an executor, administrator or representative under the Indian Fatal Accidents Act, 1855, can be filed within one year from the date of the death of the person killed." The Kotah State Limitation Act, which was published in the State Gazette on 16-8-1947, adapted Article 21 with the modification that for the words "Indian Fatal Accidents Act, 1855", the words "law relating to fatal accidents in force in the State" were substituted. The contention of Shri Narula is that the Limitation Act does not afford any right to sue even though it may provide for a period of limitation for any class of suit. Therefore, it has to be seen, if there was any "law relating to fatal accidents in force in the State" at the relevant time, and in the absence of any such law the plaintiffs could nod take advantage of the provisions of the Limitation Act. He submits that there was no such law prevailing in the State, and has endeavoured to explain away Section 21 of the Kotah State Civil Courts Act as well. It cannot be doubted that the Limitation Act; by itself could not confer any right to sue though it might specify a period of limitation for a certain kind of suit. But it is obvious from the very fact of the adaptation made in the Limitation Act that either there was some law relating to fatal accidents in force in the State or some such law was seriously in contemplation at the time. Let us, therefore, examine the Kotah State Civil Courts Act of 1945. Section 21 of the Act runs thus: " (i) Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Muhammadan Law in cases where the parties are Muhammedans, and the Hindu Law in cases where the parties are Hindus, shall form the rule of decision, except in so far as such law has, by legislative enactment or by custom having the force of law and governing the property or parties concerned, been altered or. abolished. (ii) In cases not provided for by Sub-section (1) or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience." The learned counsel argues that the second clause of Section 21 should be read in the context of the first sub-section. The first sub-section evidently provides for the application of the personal law of the parties in any suit or proceeding where any question regarding succession, inheritance, marriage or caste or any religious usage or institution arises, excepting where such law has been expressly modified or affected by custom having the force of law. It is, therefore, suggested that where any other question apart from those specified in Sub-section (1) arises in a suit or proceeding to which the personal law may not be applicable, the Court shall decide the matter according to justice, equity and good conscience. Stress is laid upon the word "question" as opposed to "suit" occurring in subsection (1) of the section, and upon the nature of the questions for determination specified in that sub-section. Our attention is also drawn to the opening words of the section "Certain decisions to be according to personal law". On these grounds it is submitted that Sub-section (2) of Section 21 has a narrower interpretation, and must be restricted to suits where the above questions do not arise and not to all suits generally, not provided for by any other law. Having examined the provisions of the Act with care, we do not think that such an interpretation of the second Sub-section is justified. The section occurs in Ch. V, which lays down "Supplemental Provisions". The first subsection deals with questions governed by personal laws; but in our opinion the second sub-section applies generally to all other suits or proceedings which are not governed by personal laws or by any other law for the time being in force. The two sub-sections are in contradistinction of each other not simply in regard to the questions which are likely to be governed by personal laws, but also in regard to the nature of the suits which are not governed by any other law for the time being in force. This conclusion is irresistible when we come to find that there is no other provision in the Act which deals with other classes of suits. Section 21 is indeed the only relevant provision in the enactment which provides for classes of suits where questions arise relating to the personal laws of the parties concerned, and suits of other varieties, and the manner in which such suits should be disposed of by the Courts. The two Sub-sections taken together exhaust the whole ranee of suits. It, therefore, follows that a suit for damages for tortious action would fall under the second sub-section of Section 21. The learned counsel then argues that even so the principle of justice, equity and good conscience can at the most enable the court to act upon the Common Law of Torts prevailing in England, which has been adapted in India, the law not having been codified; and since the Common Law did not recognise any such cause of action, the plaintiffs had to be non-suited. It is contended that it was entirely wrong on the part of the Court below to import the statute law of England in order to create a cause of action for the plaintiffs, which did not exist in Common Law, and thereby indirectly apply the provisions of the Fatal Accidents Act to Kotah. A large number of authorities and text-books, both English and Indian, have been cited in support of the proposition, beginning from the leading case of Baker v. Bolton, (1808) 1 Camp 493, where Lord Ellenborough is reported to have said that "in a Civil Court the death of a human being could not be complained of as an injury; and in this case the damages as to the plaintiff's wife must stop with the period of her existence." Lord Ellenborough thus held that under the Common Law of England no one could recover damages in tort for the death of another. The above dictum of Lord Ellenborough naturally provoked severe criticism on various occasions by Judges and commentators; for instance, in the case of Osborn v. Gillett, (1873) 8 Ex 88 Baron Brarnwell with reference to the dictum observed: "No argument is stated, no authority cited, and I cannot set a high value on that case, great as is the weight of the considered and accurately reported opinions of Lord Ellenborough after argument. The reporter puts a most significant querry (If the wife be killed on the spot, is this to be considered damnum absque injuria) --Why should the answer to it be 'Yes', as the defendant contends." He further pointed out that "It is true Lord Ellenborough is reported to have said that in a Civil Court death could not be complained of as an injury. But there is nothing else to justify the above opinion ...." The majority of the Judges in that case, however, followed the view of Lord Ellenborough, and the dictum has been confirmed in other subsequent decisions --See for instance Clark v. London General Omnibus Co., Ltd. (1906) 2 KB 648, and Admiralty Commrs. v. S.S. Amerika, 1917 AC 38. In the latter case the House of Lords approved of that principle with the following remark in the speech of Lord Loreburn: "It is far too late for this House to disturb the rule expressed by Lord Ellenborough in (1808) 1 Camp 493 even were we of opinion that the common law ought originally to have been differently interpreted." The noble Earl further opined: "Your Lordships have been interested in ascertaining the origin of Lord Ellenborough's decision. I share in that interest, but I cannot throw any light on the subject beyond what may be derived from the opinions of Lord Parker and Lord Sumner, both of which I have had the advantage and 'the pleasure of reading." Lord Parker, while examining the reasonings of Lord Ellenborough and expressing his agreement with them admitted that he could not find anything in the earlier authorities inconsistent with that observation. The underlying principle in these decisions is that a rash or negligent act resulting in the death of a man amounted to felony, which fell in the category of a criminal wrong, and, therefore, no action would lie in the Civil Courts for recovery of damages in such cases; but if the act complained of resulted only in maiming or jn deprivation of a leg or limb or any other grievous! injury incapacitating the victim for life, an action for damages as a civil remedy was conceivable The anomaly was, therefore, patent enough to attract criticism. 28. The Fatal Accidents Act, 1846, which is referred to as Lord Campbell's Act modified the rigour of the rule laid down in (1808) 1 Camp 493. Winfield in his text-book on Tort observes: "When railways were coming into use in England, fatal accidents multiplied apace, and this made reform of the law imperative; as it stood, if there was to be an accident at all, the more people who broke their necks instead of being merely injured in it, the better for the railway company; for, while injured survivors could recover heavy damages the relatives of those who died could recover nothing. In 1846, the old common law rule was greatly modified by the Fatal Accidents Act, which is often referred to as Lord Campbell's Act." (6th Edn. pp. 233-234). Pollock is equally critical of the rule. Says the eminent jurist: "We have next to consider the effect produced on liability for a wrong by the death of either the person wronged or the wrong-doer. This is one of the least rational parts of our law. The common law maxim is actio personalis moritur cum persona, or the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. The maxim 'is one of some antiquity, but its origin is obscure and post-classical'." (Pollock, Law of Torts, 13th Edn., pp. 62-63). Again at p. 68, he adds: "Railway accidents, towards the middle of the nineteenth century, brought the hardship of the common law rule into prominence. A man who was . maimed or reduced to imbecility by the negligence! of a railway company's servants might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell's Act, (9 and 10 Vict. C. 93, A. D. 1846), a statute extremely characteristic of English legislation." Lord Campbell's Act, which is substantially in tha same terms as the Indian Fatal Accidents Act (Act XIII of 1855), provided that whenever the death of a person was caused by the wrongful act, neglect or default of another, such as would (if death had not ensued) have entitled the injured person to sue and recover damages in respect thereof, then the person who would have been liable if death had not ensued would be liable to an action for damages, although the death would have been caused under such circumstances as amount to felony. Under the said Act, though the right to suer was limited to executor or administrator of the deceased for the benefit of the deceased's wife, husband, parent, child, grandparent etc., the right to sue was further extended by the Law Reform (Miscellaneous Provisions) Act, 1934, so as to include/ illegitimate children or children by adoption. The result of this change was that damages were recoverable under the Act, which the deceased himself could not possibly have recovered, and the only defences that were open were the defences that could have been pleaded against the deceased, if he had survived, and had instituted a suit for recovery of damages on account of the injury caused. In addition to that the Law Reforms Act introduced some other changes in the Common Law as to damages available, which were not originally available. It was suggested at some stage that where a person to whom injury had been caused died instantaneously, as a result of the injury, he had no cause of action, and, therefore
Even under this Act the heirs of the deceased could not sue for damages on account of his death; but this, in our opinion, is not correct. The cause of action in such cases is not the death but the negligence which caused it, and Even if there is only a split second between that act of negligence and the death -- and it would seem, Even if the death is instantaneous --the action will descend to the personal representative (see Morgan v. Scoulding, (1938) 1 KB 786). Sub-section (4) of Section 1 of the Act of 1934 further provided that: "Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death, such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered." Thus the death of the person at the same time as the damage suffered made no difference to the cause of action, which under the Act in question subsisted in favour of the heirs and representatives. This was the state of the English Common Law on the subject whatever the position may have been prior to Lord Campbell's Act of 1846 and the Law Reforms Act of 1934; and the Indian Courts when applying the rules of justice, equity and good conscience, would be justified in applying the law of torts as it stood at the relevant time, and not g o back to the prenatal period when Lord Ellenborough propounded hts dictum about the Common Law, in respect of which Even Lord Loreburn could not repress the deferential remark that it should have been interpreted otherwise than it) was. 29. It must be said to the credit of the Courts in India that in the ends of justice, they did not feel obsessed with the historical incident of the Common Law in the remote past, but applied freely the Common Law doctrine as it stood in the light of these momentous salutory changes which provided the land mark in the progress of the law on the subject. In Rakhmabai v. Dhanraj AIR 1921 Nag 102, a Division Bench of the Nagpur Judicial Commissioner's Court held that the principles embodied in the Fatal Accidents Act should be applied to cases in Berar, though the Act itself was not applied to that territory. They observed: "It appears that the principle to be applied is not simply the maxim actio personalis moritur cum persona, which existed in English Law was generally thought to be inequitable, but this maxim coupled with the variations introduced both in England and in British India." In another decision of the same Court on a difference of opinion between two learned Judges, the matter was referred to another Bench. Stone C. J., who decided the reference with Pollock J. observed: As my learned brother has pointed out, both in this country and in the Privy Council in England, it has been indicated that for the term 'justice, equity and good conscience' one finds a rule, a valuable guide, by looking to the law as established in England. I do not desire to criticise, Even if I am capable of doing so, the long series of decisions which have in England established the doctrine of common employment. Nor do I desire to indicate that they are not for England consonant to justice. It is not necessary for a Judge in India so to presume. What one has to consider is whether, in the circumstances here present, and at this date, the rule iS in accordance with justice. equity and good conscience in India." (vide Secretary of State v. Rukhminibai, AIR 1937 Nag 354 at pp. 367 and 368). Again the learned Chief Justice adds: "One cannot take the Common Law of England divorced from the statute law of England and argue that the former is in accordance with justice, equity and good conscience and that the latter which has modified it js to be ignored today in England, so far as this case is concerned.... It is true that in considering what the Common Law of England is, one has not to look at the statute law of England; but the law of England is composed of both, and one seeks guidance when determining what is justice, equity and good conscience not by looking at a particular branch of the law in England, but by looking at what is the law of England at present in force, and Even then one is not compelled to apply that law unless one is of the opinion that bearing in mind the circumstances as existing in India today, that law can according to justice, equity and good conscience be here applied. I must not be understood as suggesting that Judges. In the guise of seeking guidance as to what is in accordance with justice, equity and good conscience, are free to import into India the statute Law of England." It would be illogical to accept the contention of Shri Narula that in applying the principles of justice, equity and good conscience, the Court, should treat the Common Law on the subject divorced from the statute law, when the established law at the relevant date prevailing on the topic whether in India or in England is the law as modified by the Statutes. Shri Narula has placed great reliance unon another Full Bench decision of Nagpur (Kantilal Motichand v. Balkrishna Waman, AIR 1950 Nas 132), where the majority of the learned Judges held that the earlier decision of AIR 1921 Nag 102, which we have already discussed, was not correctly decided. While we are greatly impressed with the erudition and research so remarkably displayed in the judgment of Hidayatullah J., we feel much more attracted, and we say so with much respect, by the reasonings in the referring judgment of Sen J., and the dissentient judgment of Mudholkar J. and if we had only to choose between the two views, we think it necessary to observe that we would unhesitatingly incline towards the latter. We are, however, relieved of this predicament on account of certain distinguishing features indie last mentioned decision. The distinction has been noticed by the learned District Judge. The cause of action in that Nagpur case arose on 8th May, 1938. and the suit was filed by the widow, the sons and daughters of the deceased on 12th June. 1939, against the defendant for damages for causing death by tortious acts. At the material time the Indian Fatal Accidents Act, 1855, had not been applied to Berar. It was applied to that territory under the Berar Laws Act. 1941. The question arose by what law the case was to be decided. Section S of the Central Provinces Laws Act (Act XX of 1875) provided that in questions regarding certain topics the personal laws of the parties had to be applied. Section 6 enacted that in cases not provided for by Section 5 or by any other law for the time being in force, the courts should act according to justice, equity and good conscience. It is important to recall that these provisions are analogous to the two sub-sections of Section 21 of the Kotak State Civil Courts Act. Unfortunately Even the Central Provinces Laws Act had not been applied to Berar at the relevant time or Even till 1941. which was a glaring omission in the Provincial Berar Laws Act. The net result was that neither the Fatal Accidents Act applied to Berar, nor could the Courts in a case of this nature act under the principles of justice, equity and good conscience within the meanof Section 6 of the Central Provinces Laws Act. In the present case we have found that Sub-section (2) of Section 21 was applicable to Kotah, and consequently the Courts could act within the meaning of that section. 30. The position in this case is yet stronger as further factors indicate; these factors strengthen the hands of the Court in interpreting and applying the principles of the Indian Fatal Accidents Act in deciding cases of this nature. Some Annual Administration Reports of the Kotah State from October, 1938, to September, 1939, and October, 1940, to September, 1941, have been produced. These reports indicate that the Courts in that territory were guided generally by the spirit of the laws in force in British India. Appendix II of the second Report gives the list of special laws, and one of them is the Law of Torts adapted from British India, which is item No. 13 in the Appendix. Then again, there was the Kotah State Laws Act of 1948 (Act I of 1948). which received the Ruler's assent on 3-1-1948, and was published on the Kith of January. Under Section 3 of the Act, the Kotah Government was empowered by notification in the Gazette to apply or extend with such restrictions and modifications as it thought fit to the Kotah State or any part thereof any laws of India which were in force in India at the date of such notification. Section 4 is far more important. It says " For the purpose of facilitating the application or extension to the Kotah State or any part thereof of the Laws of India (1) Any Court or authority may, subject to the other provisions of this Act, construe the Laws of India, mutatis mutandis i. e. with such alterations not affecting the substance is may be necessary or proper to adapt them to the matter before the Court or authority concerned, and (2) The Kotah Government may, subject to the other provisions of this Act by notification in the State Gazette, direct by what officer any power or duty shall be exercised or discharged and such notification shall have effect as if enacted in this Act.'' This statute, therefore, armed the courts with definite powers to construe the laws of India in such a manner as to suit the demands of justice in a particular case. This Act, therefore, read with the Civil Courts Act undoubtedly empowered the courts in Kotah to apply the principles of the Indian Fatal Accidents Act to cases arising before them, and the cause of action in the present case arose long after these enactments were in operation in. that area. Therefore, there was no question here of creating a new cause of action under cover of the principles of justice, equity and good conscience; but that by virtue of Section 4 of the Kotah State Laws Act the cause of action vouchsafed under the Fatal Accidents Act in all such cases had to be recognised and given effect to by the courts in that area. 31. Shri Narula has next contended that Even if the laws of Kotah, where the suits were instituted, treated it as an actionable wrong for purposes of granting damages, it should have been further shown that it was also an actionable wrong according to the laws of the Jhalawar State, where the accident happened, these being two sovereign States at the time. In other words the contention of the learned counsel is that the 'lex fori' and the 'lex loci' must both be shown to treat this wrong as an actionable civil wrong. Dicey's Conflict of Laws. Rule 180 says: "Whether an act done in a foreign country is or is not a tort (i. e., a wrong for which an action can be brought in England) depends upon the combined effect of the law of the country where the act is done (lex loci delicti commissi) and of the law of England (lex fori)." It is said in this case that although the 'lex fori" may sanction, but the 'lex loci delicti commissi' is also to be proved. But Rule 181 clearly provides as follows: "An act done in a foreign country is a tort and actionable as such in England, only if it is both (1) actionable as a tort, according to English few, or in other words, is an act which, if done in England, would be a tort; and (2) not justifiable, according to the law of the foreign country where it was done." We have no doubt as to the correctness of the principles embodied in the above rules, and it is manifest that Clause (2) of the rule will govern this case. Here there is nothing to show that the laws of Jhalawar justified such an act. That it was a wrongful act is undoubted, and could not be justified by any such law. Therefore, it is obvious that the lex loci delicti commissi has been established and nothing has been shown to the contrary. The plaintiffs would, therefore, be entitled to recover damages. For the above reasons we do not iind it possible to entertain the contention of the learned counsel in spite of all his strenuous endeavour to persuade us to do so that there was no cause of action in favour of the plaintiffs, and that the plaintiffs' suit should be thrown out on that account. 32. The only questions which then remain are the questions of proof of rash and negligent act resulting in the death of Shri Indra Sen and the quantum of damages decreed in favour of the plaintiffs. On the first point we have little to add to our earlier discussion of the evidence. It would be no use covering the same grounds over again. The evidence of the plaintiff Shrimati Gayatri Devi (P. W. 7) appears to be quite convincing, and is fully borne out by the other materials on record. She says: "The cause of accident was that our bus was running on a very high speed and the driver was driving it on wrong side and hence he could not control it and consequently the accident took place. I do not remember whether the road is straight at the place where the accident occurred or there is curve. Sharif driver had not sounded the horn before reaching the crossing. No space was left on the road towards 'Khandia Talao'. The bus collided just at the end of the road, Some of the luggage on the bus was ours. I do not know about the luggage of the others. My husband Shri Indra Sen was sitting by the side of the driver. After the collision, the gate of the bus broke out, the wheel was damaged and the bus fell on him and he breathed his last." We cannot but hold that the collision was due to the rash and negligent conduct of the defendant's driver while driving the Bus, and that as a result of the collision Shri Indra Sen died. It is suggested that the driver of the Jhalawar Bus was also in the wrong. We have already seen that it was not so. The other driver tried to pull out as much to the left as possible in order to avoid the accident; yet the defendant's Bus struck against the Jhalawar Bus. Even if the driver of the Jhalawar Bus was at fault, that would not exonerate the defendant of its liability for the accident and death. The finding of the Jearned District Judge is based upon a correct appreciation of the evidence on record, and in appeal nothing of any significance has been shown to us to warrant interference with those findings. As pointed out by the Privy Council in Rivers Steam Navigation Co. Ltd. v. Hathor Steamship Co. Ltd., AIR 1916 PC 73, in collision cases where questions of fact alone arise, a Court of Appeal should be most chary of interfering with the decisions of the trial Judge who had seen the witnesses and had noticed their demeanour. In exceptional cases and for special reasons alone, can an appellate court reverse the judgment of the trial Judge on a finding of fact. In such cases, the function of the appellate court is not to rehear the case and consider how it would have decided at the trial, as to the facts alleged, but to see whether the trial Court has so misapplied its mind to the incidents proved before it, as to warrant the reversal of its judgment on what after all are exclusively questions of fact. In this case we have reviewed the entire evidence, and as we have said, we find no reason to differ from the findings of the learned Judge below. 33. On the question of damages the learned Judge has granted a decree to the plaintiffs for Rs. 32,000/-, Rs. 27,000/- on account of the loss at earning of the deceased Shri Indra Sen. and Rs. 5,000/- by way of solatium for great mental shock and suffering caused to the plaintiffs due to the bereavement. It is rightly contended by the learned counsel for the appellant that this grant by way of commiseration or consolation was not permissible in law. Winfield on Tort (6th Edition, page 237) says, "Further, the principle excludes anything like a solatium for mental suffering and anguish for the loss of the deceased, for that would lead to awkward inquiries as to the claim of a child who was unborn, unfilial or a lunatic". The principle is amply supported by authorities to which we need not refer. The learned counsel for the respondents also concedes that no damage could be allowed under that head, but he contends that in computing the loss of earning the learned Judge has made an abnormally heavy deduction on account of personal expenses of the deceased. It stands to reason that a person who earns on the average Rs. 400/- a month, as held by the learned Judge, would not spend as much as Rs. 250/- per month over himself and similarly Rs. 200/- per month during the period of his pension so as to swallow up the entire probable pension. It is common experience that generally a person spends more on his family than on himself. He accordingly submits that although there is no cross appeal on behalf of the plaintiffs the decree as a whole should be sustained on that ground inasmuch as it is much too favourable to the defendant. We think the contention is sound, and, therefore, the decree does not call for interference. So far as the computation of the future earning is concerned, the learned Judge has adopted a correct legal standard, and we would be loath to interfere with his discretion in the matter. Viscount Simon in Nance v. British Columbia Electric Rly. Co. Ltd., 1951 AC 601, at p. 614. observed: "The principles which apply under this head are not in doubt. 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 first instance was a judge sitting alone, then before the appellate court can properly intervene, 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 (Flint v. Lovell, (1935) 1 KB 354 approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ltd., (1942) A. C. 601.) The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal be Even wider than when the figure has been assessed by a judge sitting alone. The figure must be wholly 'out of all proportion' (per Lord Wright, (1942) AC 601, 616)." 34. We accordingly affirm the decree of the learned Judge, and dismiss the appeal with costs. The result is that all the appeals fail and are dismissed with costs.