HARBANS LAL,J. - (1.) THE subject-matter of the present reference is important but quite baffling a question, as to how the damages should be quantified which the offender, who is held responsible for terminating prematurely the life of another person by this culpable act, negligence or default is liable to pay to the legal representatives or the dependants of the deceased or, in other words, the determination of the amount of compensation which the legal representatives or dependants are entitled to get from such offender.
(2.) THE injured person, who was the victim of any injury at the hand of another person which resulted in permanent or temporary incapacity causing thereby some loss of earning, has always been held to be entitled to get damages against the offender under the law of torts, but there was no specific provision for getting damages before 1855 in India if such injury resulted in the death of the injured person, nor was there any legal provision as to who will be entitled to get the damages or the compensation in such a contingency. The Indian Fatal Accidents Act, 1855 (hereinafter to be called the Act), for the first time provided for such damages or compensation and also enumerated the parties entitled to the same in S. 1-A of the Act, which is reproduced below: "whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct. " Section 2 similarly provides for the recovery of pecuniary loss to the estate of the deceased in an action or a suit by the executor, administrator, or the representative of the deceased. The preamble of the Act which gives the background and the purpose for enacting the legislation is to the following effect: "an Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong. " Citation : AIR Vol. 66 Year 1979 Section 1 of the Act is, in substance, reproduction of the English Fatal Accidents Act, 1846 (9 and 10 Vict. C. 93), known as the Lord Campbell's Act, the scope of which was under discussion by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. , 1942 AC 601. Lord Wright in his judgment while dealing with the question relating to the determination of the amount of wages which the deceased was earning, held" There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his appointment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependant, and other like matters of speculation and doubt. " According to Lord Russell, in the said case, the balance of loss and gain to the dependant by the death under question has to be determined. It was held as under: "the general rule which has always prevailed in regard to the assessment of damages under the Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those Acts the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependant being considered separately. "
(3.) IN Nance v. British Columbia Electric Rly. Co. Ltd. , 1951 AC 601, Viscount Simon was of the opinion that the claim to damages in cases of death fell under two separate heads: first, what sums the deceased would have probably applied out of his income to the maintenance of his wife and family if the deceased had not been killed and would have lived the full span of life; second, what would have been the additional savings which the deceased would or might have accumulated during the period he would have lived but for the premature death, which would probably have accrued to his wife and family. For the purpose of arriving at the correct assessment under these two heads, Viscount Simon laid down the following principles: "under the first head--indeed, for the purpose of both heads--it is necessary first to estimate what was the deceased man's expectation of life if he had not been killed when he was: (let this be 'x' years) and next what sums during these x years he would probably have applied to the support of his wife. In fixing x, regard must be had not only to his age and bodily health, but to the possibility of a premature determination of his life by a later accident. In estimating future provision for his wife, the amounts he usually applied in this way before his death are obviously relevant, and often the best evidence available; though not conclusive, since if he had survived, his means might have expanded or shrunk, and his liberality might have grown or wilted. " Their Lordship of the Supreme Court in Gobald Motor Service Ltd. v. R. M. K. Veluswamy, AIR 1962 SC 1, relied upon the principles as enunciated and reproduced above in the two English cases. Therein, one passenger going in a bus was killed when the bus met with an accident. The victim was 34 years of age at the time of his death and his annual earning was estimated at Rs. 3,000/ -. The suit for damage had been filed by his widow, father and his children. The Claims Tribunal had awarded a sum of Rs. 25,000.00 as compensation. the following principles as laid down by Viscount Simon in Nance'' case (supra) were relied upon: 1. The deceased man's expectation of the life has to be estimated keeping in view his age, his bodily health and the possibility of premature determination of his life by subsequent accident; 2. The amount required for the future provision of his wife should be estimated having regard to the amount the deceased used to spend on her during his life time; 3. This estimated annual sum should be multiplied by the number of years of the man's estimated span of life. 4. The said amount must be discounted so as to arrive at the correct equivalent in the form of lump sum payable on his death, after making deductions for the benefit accruing to the widow for the acceleration of her interest in the estate, and 5. Deductions should also be made for the possibility of the wife dying earlier if the husband had full span of his life and also for the possibility that in case the widow remarries, that may result in the improvement of her financial position. It was also held therein that any mode of estimation of damage has to take into account a number of imponderables. It was held,- "the actual extent of the pecuniary loss to the respondent may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained. " Their Lordships in the above case approved the award of Rs. 25,000.00 and dismissed the appeal by the bus company for reduction of amount. In the opinion of their Lordships, this sum would have been sufficient for the expenditure of the dependants for just over eight years and as such, it was held to be a "moderate sum; rather a conservative estimate. " ;