|CITATION||AIR 1947 Cal 195|
|COURT||High Court of Calcutta|
|JUDGES/CORAM||Justice K.C. Chunder|
|DATE OF JUDGEMENT||07.06.1946|
It is the common law rule that anyone who by his own negligence contributed to the injury of which he complains cannot maintain an action against another in respect of it, for he will be considered in law to be the author of his wrong. A plaintiff is guilty of contributory negligence when he has by his own want of care so far contributed to the damage occasioned by the negligence or improper conduct of the defendant but for want of care, the damage would not have occurred. The true test of doctrine of contributory negligence has been laid down in the very old decision of the Calcutta High Court in the backdrop of the Fatal Accidents Act, 1855.
The facts of the case are as follows: A suit was filed for damages against the respondent under the Fatal Accidents Act by the widow, two minor sons, and a minor daughter of the deceased, killed by electric shock. The Subordinate Judge, 2nd Court, Dacca, found that for this death there was actionable negligence on the part of the defendant company.
The present appeal relates to the amount of damages and there is a cross-objection by the defendant-respondent against the findings and order of the learned Subordinate Judge. The first point raised in the cross-objection relates to the question of contributory negligence. The respondent company wanted to make out that the fact that the deceased was wet of body, that he took a short cut, or that he put his hands against the wire in support should be taken as acts of negligence. The other point urged at the hearing of the cross-objection that as the father did not join in the suit, the suit was not maintainable. The Calcutta High Court rejected the cross-objections and also re-calculated the amount of damages entitled to the plaintiff.
The main issues in the case were:
- Whether there was negligence at all on the part of the deceased, and therefore, there was contributory negligence?
- Whether the suit is maintainable, as the father did not join in the suit?
Summary of court decision and judgment
Ordinarily, in case of contributory negligence, there is negligence on both sides, but, the Court with the help of authorities held that the real test is whether one party could reasonably have avoided the consequences for the other party’s negligence. Therefore, in the present case, even the mere absence of negligence on the part of the deceased would not be sufficient to justify the want of contributory negligence.
Explaining Clayards v. Dethick & Daviesthe Court observed that knowledge by the plaintiff of an existing danger, or of the defendant’s negligence, is a very important element in determining whether or not he has been guilty of contributory negligence. In the present case, no one can even faintly suggest that the deceased was, or could reasonably have been expected at all to be aware of any danger existing from a live wire as a result of the defendant’s negligence.
As he was not doing anything which a person exercising reasonable care would not have done, and as he was not at all aware of any danger existing as a consequence of the defendant company’s negligence, the point of contributory negligence urged at the hearing of the cross-objection must, therefore, fail.
In all cases of fatal accidents, two things have to be kept separate, namely, first, only a certain limited class of persons have a right to bring the suit. These are the executor, or administrator, or representative of the deceased. Representative, in several decisions, has been, explained as meaning not the legal representative but the wife, husband, parent, or children. In the present case, the suit has been instituted by the wife and the children.
The second requisite in a suit under the Fatal Accidents Act is that it must be brought for the benefit of the wife, husband, parent and children. They are the beneficiaries. In the pauper application, it would have been a good ground for rejecting the same, but at the present stage there is no good reason for dismissing the claim of the plaintiffs on the ground that the father’s name was left out as one of the beneficiaries.
The decision emphasised the point that damages for death under the fatal accident concerned came under two heads, namely, (1) loss caused to the beneficiaries and (2) loss suffered by the estate of the deceased. The Court observed that the learned Subordinate Judge unfortunately has proceeded to calculate damages on wrong principles. He considered what a shop assistant in the service of another, about the age of the deceased would be likely to get as his wages and what will be his earnings in such service when he grows older. There is a good deal of difference between a person who spends his life in the service of another and a person who throughout his life wants to remain an independent trader and with that object he is acquiring experience in the trade.
The main criterion is the loss of reasonably expected pecuniary benefit. At the same time the probable earnings and future prospects of the deceased himself are taken into consideration because the extent to which a person can benefit others depends largely on his earning capacity. In the present case, the loss jointly to the wife and the three children should be estimated at Rs. 6000.
The existence of a ‘Duty Situation’ or a ‘Duty to Take Care’ is thus essential before a person can be held liable in Negligence, as per the decision. The judgment reiterates the true test of contributory negligence based on,
- Existence of the last opportunity of avoiding the accident;
- Knowledge by the plaintiff of an existing danger, or of the defendant’s negligence.
This decision draws the attention to the fact that in India unlike in England, damages for death under the fatal accident were both recoverable under Sections 1 and 2 of the Fatal Accidents Act. It also says that this distinction has unfortunately been overlooked in some cases in India.
The importance of this decision on the question of damage lies in the principle laid down there that the main criterion in assessing damages under the first head is the loss of reasonably expected pecuniary benefit to the beneficiaries and the probable earnings and future prospects of the deceased.
The Supreme Court reviewed this question of claim of damages of this nature under the Fatal Accidents Act in Gobald Motor Service Ltd. v. Veluswami where SubbaRao, J lays down the principle as follows:-
”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.”
Contributory negligence is an expression which implies that the person, who has suffered damage, is also guilty of some negligence and as contributed to the damage. The decision establishes that the defence of contributory negligence cannot succeed unless it is provided that the plaintiff was under a legal duty to take care for his own safety. It also rightly points out that the main criterion for assessing damages is the loss of reasonably expected pecuniary benefit as well as the probable earnings and future prospects of the deceased.
 Butterfield v. Forrester (1809) 11 East. 60.
 Underhills Law of Torts, 15th (1946) edn.P 186.
 (1848) 12 Q.B. 439.
 Lax.v. Darlington Corporation (1879) 5 Ex. D. 28, 36.
 Section 1, Fatal Accidents Act.
 I.d., Section 2.
 Indian Airlines Corporation v. Sm. MadhuriChowdhuri and Ors.AIR 1965 Cal 252.
 (1962) 1 SCR 929 p.940.