Mishra, J.
1. This is a 'most pathetic case' to borrow the words of the learned trial Judge, where a dutiful servant, who was employed as senior charge-hand, Card No. 450 in the Electrical Department of the factory of the first defendant-respondent in O.S.A No. 180 of 1981 and appellant in O.S.A. No. 84 of 1981, had a fatal fall while attending to his duty and where consequently his widow and two children moved the court for compensation.
2. On 10.10.1970, at about 6.45 p.m. while Gopalakrishnamurthy was attending to his duty, he had a fatal fall. He sustained injuries to his brain and spine solely on account of the accident. He died on account of the injuries sustained on account of the fall while on duty, at about 10.30 p.m. on 10.10.1970. He was the only bread earner for the widow, the first plaintiff, and the two young children, Plaintiffs 2 and 3. He died at the age of 34 years, In the ordinary course he would have superannuated only on attaining the age of 55 years. There has been some dispute as to the total emoluments actually drawn by him until his death, but there is proof on record that he was getting a total emolument of Rs. 617-81 per month.
3. Although there were three defendants in the suit, only one contested, that is to say, the first defendant, the Managing Director of Dunlop (India) Ltd., who stated in the written statement that Gopalakrishnamurthy instructed one K. Narayanan, a driver of fork lift truck to hoist him to 'C' line sky wrecker Panel situate at a height of about 15 feet from the ground level in front of C-6 Mabath Press, and while so attending to the work by standing on the forks of the said truck, he instructed the driver to lower the fork and reverse it and that when the driver did so, he (Gopalakrishnamurthy) lost his balance and fell down, and later died at the Government Hospital at about 10.50 p.m. on 10.10.1970. To quote from the judgment of the trial court.
According to the 1st defendant, as per rule 5 under Chapter 'Persons Falling' in the defendant's Factory Safety Code, no one but the driver should be allowed to ride on a fork lift truck, therefore any act done by the employee liable to cause danger to himself or to his co-workers and failure to observe factory instructions constitute misconduct under Clauses 22 and 24 of the defendant's standing orders and that therefore, Gopalakrishnamurthy died due to his own negligence.
4. The plaintiffs, who in forma pauperis estimated the damage at Rs. 3,00,000, however, restricted the claim to Rs. 2,00,000. The trial court dismissed the suit, but ordered..in the peculiar circumstances without costs; so too, I direct the 1st defendant to pay the court-fee payable to the Government because the deceased met with the accident in his anxiety to carry out immediately repairs to sky wrecker.
While the plaintiffs appealed against the dismissal of the suit, the first defendant appealed against the order directing him to pay the court-fee. The two appeals have been posted for hearing. They have been heard together. They are being disposed of under a common judgment.
5. We have not detailed many facts which are stated in the plaint and controverted in the written statement, and further facts that are stated in the written statement, for we shall presently notice that before the trial court, the first defendant gave up the dispute as to the claim of the first plaintiff that she was the wife of the deceased, and that of plaintiffs 2 and 3 that they were the legitimate children of the deceased. The learned trial Judge mainly took up two issues, (1) whether Gopalakrishnamurthy died due to the negligence of the 1st defendant, and (2) whether Gopalakrishnamurthy met with the accident on account of his own negligence as alleged in paragraph 11 of the written statement, and proceeded to examine the same by stating as follows:
Really the burden is on the plaintiffs to establish that the unfortunate accident took place solely due to the negligence of the 1st defendant; only then, will the plaintiffs be entitled to sustain their claim for damages as against the 1st defendant, the employer of the deceased.
This, he stated, it appears, on a reference to the decision brought to his notice in the case of Jeet Kumari v. Chittiagong : AIR1947Cal195 . In the said decision, it had been ruled.
There is no liability for negligence unless there is in the particular case a legal duty to take care. Where there is no duty to exercise care at all, negligence in the popular sense has no legal consequences. Two things have to be kept distinct. First, there must be the existence of such a legal duty to take care; and secondly the decree or amount of care which is obligatory.
6. What is stated in the judgment of the Calcutta High Court, in Jeet Kumari v. Chittagong : AIR1947Cal195 is not on the principle of burden of proof. A landmark judgment of the Supreme Court in Shyam Sunder v. State of Rajasthan : [1974]3SCR549 , has made it clear that the maxim res ipsa loquitur is attracted to a case under Fatal Accidents Act, and the meaning of the word 'negligence' should be understood in the light of the said maxim for the purpose of proving such negligence by the employer. The Supreme Court has said.
The maxims res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. The fact of the accident may, sometimes, constitute evidence of negligence and then the maxim res ipsa loquitur applies.
How to understand the maxim is also stated in Shyam Sunder v. State of Rajasthan : [1974]3SCR549 , cases supra. The Supreme Court has said,
The maxim is stated in its classic form by Erle, C.J. See Scott v. London and St. Katherine Docks (1865)3 H.&C.; 596:...Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
The maxim does not embody any rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption to an argument on the evidence. Lord Shaw remarked that 'If the phrase had not been in Latin, nobody would have called it a principle. See Ballard v. North British Railway, Company 1923 S.C. 43. The maxim is only convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without, having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing in the matter are at the outset unknown to him and often within the knowledge of the defendant. But though the parties' relative access to evidence is an influential factor, it is not controlling. Thus, the fact that the defendant is as much at a loss to explain the accident or himself died in it does not preclude an adverse inference against him if the odds otherwise point to his negligence. (See John G. Fleming. The Law of Torts, 4th ed. p.264). The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. The maxim is based on commonsense and its purpose is to do justice when the facts bearing on causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (See Barkwav v. South Wales Transport (1950)1 All E.R. 392).
Based upon the above, the Supreme Court has said,
The plaintiff merely proves a result, not any particular act or Omission producing the result. If the result, in the circumstances in which he proves it makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply, and the plaintiff will been titled to succeed unless the defendant by evidence rebuts that probability.
In the case of fatal accident, thus, when the victim of the accident himself is no more to disclose all the facts, and his heirs and legal representatives know not how the death occurred, beyond knowing that he suffered the accident while performing his duty, that the circumstances prove the result, and once the result is proved by them, they make it probable that it was caused by the negligence of the defendant. On such facts and doctrine of res ipsa loquitur, the Court must ask the defendant to explain how the accident occurred, and how the defendant is not guilty of negligence. This has to apply, particularly when it is not in doubt that in the ordinary course of things the accident would not have occurred if the management had used proper care.
7. The Supreme Court has also pointed out that in such cases, the answer needed by the defendant to meet the plaintiffs case may take alternative forms, and firstly it may consist in a positive explanation by the defendant of how the accident did in fact occur, of such a kind as to exonerate the defendant from any charge of negligence. In such a case of defence, the Supreme Court said, it should be noticed that the defendant does not advance his case by inventing fanciful theories unsupported by evidence, of how the event might have occurred, and the whole inquiry is concerned with probabilities, and facts are required, not mere conjecture unsupported by facts. Here again, another caution.
As Lord Macmillan said in his dissenting judgment in Jones v. Great Western (1930)47 T.L.R. 39.The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference, in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of Causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.
Thus it is said,.an inference is a deduction from established facts and an assumption or a guess is something quite different but not necessarily related to established facts.
The above is the method applied when the defendant gives a positive explanation of how the accident did in fact occur. In a case, however, where the defendant is unable to explain the accident, the Supreme Court has pointed out,.It is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm.
The Supreme Court has, in Shyam Sundar's case : [1974]3SCR549 not minced words, and recognised that 'over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs', and said,
Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age, less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance.
8. The learned trial Judge has thus committed error of law in saying that the burden is on the plaintiffs to establish that the unfortunate accident took place solely due to the negligence of the first defendant and only then will the plaintiffs be entitled to sustain their claim for damages as against the 1st defendant, the employer of the deceased. He was not made aware of the maxim res ipsa loquitur, and the fact that when it was shown that the accident took place when the victim was working in the factory of the first defendant, he should call upon the management to explain by positive proof how the accident did in fact occur and whether the management had taken all reasonable steps to avert for seeable harm. The learned trial Judge asked none of these questions. He has thus fallen in error and denied on account of such error only the claim which the heirs and legal representatives of the victim should receive in an action in tort.
9. Learned Counsel for the first defendant management, however, has drawn our attention to the pleading in paragraph 5 of the written statement in particular, wherein it is said in answer to the allegations contained in paragraph 7 of the plaint, as follows:
The deceased instead of using a ladder instructed one Mr. K. Narayanan, Ch. No. 2293, a driver of a Fork Lift Truck, to hoist him to the said 'C' Line Panel. While so attending to the work by standing on the forks of the said truck, the deceased instructed the driver to lower the fork and reverse it. When the driver did so, the deceased lost his balance and fell down at about 6.25 p.m., and later died at the Government Hospital, Madras, at about 10.50 p.m. on 10.10.1970.
and further,
This defendant states that as per Rule 5 under Chapter 'Persons Falling' in the Defendant's Factory Safety Code, no one but the driver should be allowed to ride on a fork lift truck. This defendant further submits that any act done by the employee liable to cause danger to himself or to his co-workers and failure to observe factory instructions constitute misconduct under clauses XXII and XXIV of the Defendant's Standing Orders. Thus it may be seen that Gopalakrishnamurthy died due to his own negligence.
and contended that the management has advanced a positive explanation as to how the accident did in fact occur. He has taken us through the evidence of the witnesses and to the standing Orders and the Safety Code of the Factory. The booklet called 'Our Factory Safety Code' brought on the record does not bear any print line. There is no evidence showing when the Safety Code was published and when enforced. D. W.2., who has described himself as Safety Manager, has said that his two-fold functions were, (1) to prevent accidents by promoting safety consciousness among the employees; and (2) to investigate accidents so as to prevent their recurring in the factory, and deposed that there is a Factory Safety Code compiled by him (D. W.2), the booklet which we have seen already; but the exact day when it was prepared, he did not remember. He was put on the job in 1960, and it took three months, he thought it should be in the year 1964. When asked whether it was issued to every member, he answered 'yes', and added that subsequently even the new entrants of the factory were also issued with a copy as part of the induction training, and that Gopalakrishnamurthy was also furnished with a copy. But no other evidence is available to corroborate his oral testimony. It is not known thus who furnished a copy of the so-called 'Safety Code' to Gopalakrishnamurthy and when a copy of the Safety Code was furnished to Gopalakrishnamurthy.
10. On the question how the accident occurred, D.W. 1 is the sole witness. He was a fitter at the relevant time working in the Engineering Department of the Factory. He has stated that he was present at the time of the accident. A mould had to be fixed in B6 Pressing machine. He was carrying the mould in the fork lift. There were three lines. He took the mould in the C-line. At that time, Gopalakrishnamurthy was working, attending to break-down in 'C Line. There was some Electrical trouble in the machine called 'Skyraker'. He was waiting in front of skyraker. When this witness neared him, he wanted him (the witness) to lift him (victim) up to attend to some repairs, which he said would take only two minutes. Obeying him, this witness lifted the victim in the fork lift. The victim gave some connections in the line and finished his job. After that, this witness has said;
I lowered the fork lift and reversed it. At that time, he was having the fuse-carriers, test lamps and other things in his hands. When the fork lift was in the reverse direction, there was a jerk and he fell down.
If there is anything in this narration, it shows that the victim had the concern of the management in his mind that he wanted to make some repairs in the Skyraker. When D.W.I came near him, he asked him to lift him to complete the work. This witness lifted him and he (victim) gave connections in the line and finished his job. The accident occurred when this witness lowered the fork lift and reversed it. When asked, 'was the fork lift in a good condition?', this witness answered 'yes'. It was in good condition' and when asked whether the accident occurred due to defects in the fork lift, he said, 'I cannot say.'
11. We have also been taken through the evidence of D.W.3, the Shift Engineer, who was responsible to maintain plant machinery. He was informed about the accident by a co-worker, and made entry in the accident register. He has deposed that the victim should not have used fork lift truck, and instead, should have used the ladder that was available. His evidence about the condition of the fork lift truck is not based upon any personal knowledge. He has said,
It was in good condition. Otherwise, Mr. Narayanan (D.W.I) could not have changed the mould. He was able to ride and use. It was perfect.
The evidence that the management has produced has substantially fallen short of any positive proof that it had taken all reasonable steps to avert any foreseeable harm or that it had used proper care, and that the accident arose not from want of care. It is not in dispute that Narayanan (D.W.1) lifted the victim (the deceased) in the fork life and when he finished his job, Narayanan lowered the fork lift and reversed it. When the fork lift was in the reverse direction, there was a jerk, and the victim fell down. Thus, the accident occurred not on account of any carelessness of the victim, but on account of the reversal of the fork lift by D.W.I and the jerk that followed. There is nothing to establish conclusively that the victim violated any instruction or Standing Order or Rule, by asking D.W.I to lift him in the fork lift. There is also nothing to show that there was any ladder nearby except the oral testimony above-noticed, and that by not using the ladder, the victim had violated any of the instructions. In view of the above, it is a case, in our opinion, in which it can be reasonably said that the accident in which Gopalakrishnamurthy sustained injuries was one which does not happen in the ordinary course of things. There is no reliable evidence that the fork lift was in a good condition or that the management had used proper care to ensure that no such accident occurred. In other words, there is neither a positive explanation by the first defendant of how the accident did in fact occur, nor there is any positive proof advanced by him that he had taken all reasonable steps to avert the accident.
12. A court can deduce from the evidence, and only a reasonable deduction will have the validity of legal proof. The Court cannot recognise fanciful theories unsupported by evidence how the event might have occurred. In other words, the court shall not enter into assumption or guess or conjecture first to rule out lack of due care or act of negligence of the management. It is a case, in our opinion, in which the learned trial Judge should have found, as we have found, that the management has failed to discharge the onus of proof, and the plaintiffs have proved the Accident, and that in the circumstances, it could have happened only on account of the negligence of the management.
13. Since the case failed before the trial court for the reason of a mistake of law, the trial court made no attempt to ascertain the quantum of damages. It is not in dispute that the victim was 34 years old at the time of his death. Learned Counsel for the first defendant has drawn our attention to a standing order under which an employee of the first defendant superannuated at the age of 55. The victim Gopalakrishnamurthy would have served for atleast another 21 years and superannuated, but for, the reasons of Providence or otherwise, termination of his service. In any case, he would have earned the bread of his family until his demise, which in the ordinary circumstance one can always fix until the age of superannuation, if not more. We have already found that inspite of a controversy created as to the emoluments, it is proved beyond doubt that Gopalakrishnamurthy received emoluments, all told, Rs. 617-81 per month. We do not have any material to show whether he had earned any provident fund and/or gratuity or would have earned had he continued in service. In fact, there is no such case pleaded in the plaint, and no evidence also taken by either side in this behalf. Calculated on the basis of salary/emoluments last drawn by the victim, had he lived and served in the capacity he was serving, he would have drawn Rs. 617.81 per month, if not more. In this, we do not take notice of the increase in emoluments and/ or any promotions that the victim would have earned in course of his tenure of service. Calculated on that basis, thus, for period of 21 years, the minimum that the victim would have earned can be worked out at Rs. 1,55,694 or more. Plaintiffs, in our opinion, are thus entitled to compensation atleast of Rs. 1,55,694. (We have not taken into account the fractions).
14. In G.K.S. Iyer v. T.K. Nair A.I.R. 1970 S.C. 876, it has been pointed out that 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 of fact from which the inference could reasonably be drawn. But, in the words of Lord Atkinson in the decision in Taff Vale Railway Company v. Jenkins 1913 A.C. 1, which case has been referred to by Hegde, J., who delivered the judgment of the court in G.K.S. Iyer v. T.K. Nair A.I.R. 1970 S.C. 876, case supra..but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence, and the necessary inference can I think be drawn from circumstances other than and different from them.
It is available in the judgment in G.K.S. Iyer v. T.K. Nair A.I.R. 1970 S. C. 876, as to how the quantum of compulsory damages under Section 1-A of Fatal Accidents case should be worked out. The Supreme Court has said,
The law on the point arising for decision may be summed up thus; Compulsory damages under Section 1-A of the Act for wrongful death must be limited strictly to the pecuniary loss to the beneficiaries and that under Section 2, the measure of damages is the economic loss sustained by the estate. There can be no exact uniform rule for measuring the value of the human life and the measure of damage cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case. The life expectancy of the deceased or of the beneficiaries whichever is shorter is an important factor. Since the elements which go to make up the value of the life of the deceased to the designated beneficiaries are necessarily personal to each case, in the very nature of things, there can be no exact or uniform rule for measuring the value of human life. In assessing damages, the court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable. As a general rule parents are entitled to recover the present cash value of the prospective service of the deceased minor child. In addition they may receive compensation for loss of pecuniary benefits reasonably to be expected after the child attains majority. In the matter of ascertainment of damages, the appellate court should be slow in disturbing the findings reached by the courts below, if they have taken all the relevant facts into consideration.
We have applied the above rule rather as conservatives in reaching the figures to award compensation to the plaintiffs rather than liberals, who would have granted more in terms of the law on the point as stated by the Supreme Court.
15. The plaintiffs, in our opinion, thus are entitled to compensation of Rs. 1,55,694 with interest at the rate of 6 per cent per annum from the date of the application to sue in forma pauperis. (Since in the instant case, the suit was instituted in forma pauperis) until realised.
16. In the result, O.S.A. No. 180 of 1981 is allowed. The judgment and decree of the trial court are set aside. The suit is decreed for a sum of Rs. 1,55,694 with interest at the rate of 6 per cent per annum from the date of the application to sue in forma pauperis until realisation with costs throughout. Court-fee payable on the plaint and the memorandum of appeal shall be realised from the first defendant.
17. O.S.A. No. 84 of 1981 is disposed of in terms of our order in O.S.A. No. 180 of 1981. There will be no order as to costs.