GOBALD MOTOR SERVICE LIMITED Vs. R M K VELUSWAMI

JUDGEMENT

(1.) This appeal by certificate is directed against the judgment of the High Court of Judicature at Madras dated January 16, 1953, modifying the decree of the Court of the Subordinate Judge, Dindigul, in O. S. No. 7 of 1948, a suit filed by the respondents for compensation under the provisions of the Fatal Accidents Act (XIII of 1855).

(2.) The appellant, Gobald Motor Service Ltd. (hereinafter called the Company), was engaged in the business of transporting passengers by bus between Dharapuram and Palni, among other places, in the State of Madras. On September 20, 1947, one of the buses of the Company bearing registration number MDC 2414, left Dharapuram for Palni at about 3 p. m. At a place called Thumbalapatti, between Dharapuram and Palni, one Rajaratnam, along with his brother by name Krishnan, boarded the bus. The bus met with an accident at about 3 miles from Palni as a result of which some of the passengers, including Rajaratnam, sustained injuries. Rajaratnam died of the injuries received in the accident on September 23, 1947. The first plaintiff, his father; the second plaintiff, his widow; and plaintiffs 3 to 7, his sons, instituted O. S. No. 7 of 1948 against the Company in the Court of the Subordinate Judge, Dindigul, for compensation under S. 1 of the Fatal Accidents Act (hereinafter called the Act) for loss of pecuniary benefit sustained by them personally, and under S. 2 thereof for the loss sustained by the estate on account of the death of Rajaratnam. They alleged in the plaint that the driver, who was in charge of the bus, was incompetent and inexperienced, that he was guilty of rash and negligent conduct in the driving of the bus, and that the accident was the result of his incompetence and negligence. The Company in its written-statement denied the said allegations and pleaded that the accident was the result of the central bolt of the left rear spring suddenly giving way that Rajaratnam was also guilty of contributory negligence and that in any event me damages claimed were excessive. The learned subordinate Judge came to the conclusion that there was no proof that the bus was driven at a reckless speed at the scene of the accident, but the fact that the accident occurred on the off-side of the road was itself evidence of his negligence and it had not been rebutted by the defendants. He further held that the driver was not proved to be incompetent. On those findings, he held that the defendants were liable for the negligence of their servant, and he awarded damages as follows:

(3.) Learned counsel for the appellants raised before us the following points. (1) The finding of the High Court that the bus was driven at an excessive speed at the place where the accident occurred, based on probabilities, was erroneous. (2) The concurrent finding of the two courts that respondents 2 to 7 would be entitled to damages in a sum of Rs. 25,200 for the loss of pecuniary advantage to them was not based upon any acceptable evidence but only on surmises. (3) The High Court went wrong in awarding damages separately for loss of expectation of life under S. 2 of the Act, as damages under that head had already been taken into consideration in giving compensation to respondents 2 to 7 for the pecuniary loss sustained by them by the death of Rajaratnam.