Nani Bala Sen Vs. Auckland Jute Co., Ltd. - Court Judgment

Page, J.

1. In this suit I have arrived at a clear conclusion as to what my decision should be.

2. The claim is brought under the Fatal Accidents Act (VIII of 1855). The deceased, one Sashi Kanta Sen, was killed by impact with a motor car on the 1st of August 1922, and he left behind him a young widow, two daughters, one six and the other four years of age, and two sons, one of whom was born after his death.

3. The issue which I have to determine is whether Sashi's death was caused by the wrongful act, neglect, or default of the defendant's chauffeur who, admittedly, was driving the car at the time when Sashi was stricken down.

4. In all suits in which issues of fact are involved regard ought to be had to the manner in which the witnesses on the one side and on the other give their evidence, and, in my opinion, in no class of case is it more important that attention should be paid to the bearing of the witnesses than in cases such as the one which has just been tried. If I accept the evidence of the witnesses who gave oral testimony in support of the claim, there can be no doubt that my judgment ought to be in favour of the plaintiff. I have carefully considered the evidence of the witnesses who have been called on the one side and on the other, and the manner in which it was given, and I have no hesitation in accepting the evidence of the eye-witnesses who have been called on behalf of the plaintiff.

5. The material facts as I find them are as follows : About 6-30 P.M. on 1st August 1922 Sashi was driving from business in a closed gharry in company with one Harendra Nath Mitter. Both of them were employed in the Public Vehicles Department of the Calcutta Corporation. Harendra Nath Mitter lived at a house in Corporation Street situated a short distance to the east of Newgipukur Lane, which runs out of Corporation Street to the south. When the gharry in which Sashi and Harendra were driving had arrived opposite Newgipukur Lane Sashi got out in order to cross Corporation Street, and pass into Newgipukur Lane where the house in which he lived was situated. The gharry was closed, and the purdah was drawn down and covered the door. When the gharry arrived at a point in Corporation Street opposite Newgipukur Lane Sashi got out on the roadside, i.e., from the right door of the gharry, and proceeded to walk across Corporation Street towards Newgipukur Lane. While Sashi was alighting Harendra, who had remained in the gharry, looked through the window at the back to see whether the road was clear. It was growing dusk, but it was possible to see vehicles at a distance of 100 yards, and about 75 cubits behind the gharry Harendra saw a motor-car approaching from the west. Apparently, at that time he did not notice the pace at which the motorcar was moving. Corporation Street at this point is 25 feet 8 inches from kerb to kerb, and, inasmuch as the gharry was 5 feet wide and was standing a foot or two away from the northern kerb, Sashi would have to traverse about 18 feet of the road before he reached the southern kerb, or Newgipukur Lane. Harendra saw him take 2 or 3 paces ; then hold up his hand, and start hurrying towards the southern pavement. Harendra then looked out from the right side of the gharry, and saw the defendant's motor car almost alongside the gharry travelling at a high speed, which he estimated to be about 20 to 25 miles an hour. He then realised the danger in which Sashi was placed put one foot on the foot-board and one on the road held out his hand, and shouted 'rokho rokho.' The driver immediately afterwards turned to the right, and the motorcar struck Sashi at a point just to the east of Newgipukur Lane about 2 or 3 cubits from the southern pavement. Evidence was adduced on behalf of the plaintiffs to prove that Sashi was struck by the front off wheel. It may be so, but in the excitement of such an occasion it is not always easy to notice the exact part of the vehicle Which makes the impact. Be that as it may, Sashi was knocked down, and the motorcar proceeded upon its way without stopping. Immediately afterwards Bepin Behari Das, Sashi's father-in-law, who had been standing on the northern pavement about 100 yards to the west of the scene of the accident, ran up, and Sashi was taken in the gharry to the Medical College. He remained at the hospital as an in-patient from the 1st of August until the 21st of September, when he died of septicaemia.

6. Dr. Banerji, at that time Senior House Surgeon at the Medical College, who attended Sashi throughout his illness after the accident, gave evidence at the hearing. He stated that Sashi was suffering from a number of injuries which were hardly more than superficial abrasions, and in addition had received a deep cut on the right knee about 3' x 2' x 1'. It was an open wound, and Dr. Banerji, hearing that it had been caused in a street accident, became anxious as to what the event might be. He stated that street accidents in Calcutta, resulting in an open cut, always give cause for anxiety owing to the danger of impregnation by poisonous germs to be found in the streets. He said that after his first examination he did not anticipate that death would ensue, but that it was impossible to say what eventually might happen. Sashi from the time of his admission was running an intermittent high temperature, and after a few days symptoms of sepsis were observed. Sepsis once developed in the blood is difficult to eradicate, and in this instance the poison rapidly spread throughout the system. On the 29th or 30th of August Sashi's right leg was amputated below the thigh, but unfortunately the impregnation of the poison was too deep-seated eruptions broke out in several parts of the body, and on the 21st September Sashi died. Dr. Banerji's evidence was not rebutted, and the only reasonable inference to be drawn from it is that Sashi's death was caused by the accident which befell him on the night of 1st August 1922.

7. A further issue, therefore, arises for consideration. Was the accident which caused the death brought about by the negligence of the defendant's chauffeur? The case as presented on behalf of the plaintiff upon this issue was that Sashi after leaving the gharry had ample time to cross the road before the defendant's motor came up to him, provided that the motor was being driven at a proper pace and in a proper manner Bepin Behari Das, who was walking along the northern pavement of Corporation Street about 100 yards to the west of the place where the gharry was standing opposite Newgipukur Lane, stated that there was no traffic at the time of the accident in Corporation Street, and that he was walking towards the west when he became aware of the defendant's motor coming from behind him and passing from west to east. He further stated that his attention was attracted to the motor car by the high speed at which it was being driven The motorcar, according to this witness whose evidence I accept, proceeded at a high rate of speed until he saw it suddenly turning to the right and striking a man upon the road. That man he found to be his son-in-law, Sashi. Other witnesses on behalf of the plaintiff also gave evidence of the excessive speed at which the defendant's motorcar was travelling, and I find as a fact that the defendant's motorcar at the material time was being driven at an improper and excessive speed.

8. On behalf of the defendant two witnesses were called. The first was the bearer of a partner of the firm which employed the driver. He was at the time of the accident in the car. This witness, admittedly, saw nothing of what took place until after the impact. He stated, however, that the speed of the car was not very fast, and that Sashi 'came up and fell in front of the motor car.'

Left wheel or right wheel?---To the left.

That is to say, near the northern pavement?---Yes.

How far off the northern pavement?---I cannot remember and give details.

You are sure that he was not 2 or 3 cubits from the northern pavement?---That I remember.

8. The evidence of this witness, except as to these two matters, therefore, was not material, for he saw nothing until after the accident had taken place.

9. The other witness called on behalf of the defendant was the driver of the motorcar. His evidence as to the occurrence was that he was driving a No. 90 Model Overland car along Corporation Street at a pace of 11 to 12 miles an hour; that when he was 30 to 35 cubits away from the gharry he saw that the gharry was about to stop too far away from the northern kerb; that he sounded his horn, but that when he was 5 or 6 cubits away from the gharry he saw Sashi suddenly lifting up the flap of the door, getting out of the car, and running across the road in front of him; that in order to avoid striking Sashi he turned to the right and endeavoured to pass between Sashi and the southern pavement. Sashi, however, ran on, and was struck by the lefthand front wheel of the motorcar which was brought to a standstill 1 1/2 cubits away from the northern kerb of Corporation Street. Having regard to the evidence I find it impossible to hold that the driver's conduct was not negligent. Mr. Finlay, a witness called on behalf of the defendant, stated that an Overland car normally could be stopped within 6 to 8 feet. If, therefore, the chauffeur had been driving the car at a pace of 10 to 11 miles, and had applied his brakes at once he could have pulled up the car before he reached Sashi. Again, it was wholly unreasonable conduct on the part of the driver, if he saw Sashi spring out of the gharry and run across the road, to turn to the righthand and so run into him, and his story is the more incredible inasmuch as the chauffeur insisted that the accident occurred not near the southern pavement, but a cubit and a half from the northern pavement. He made this statement as to the place where the accident occurred in answer to three successive questions put by his own counsel in examination-in-chief. I have no doubt that the reason why he persisted in making it was because he desired to convey the impression to the Court that he was on his right side of the road. I cannot accept the evidence of this witness when weighed in the balance against the witnesses adduced on behalf of the plaintiff.

10. Counsel for the defendant urged that merely to drive at a high speed is not a negligent act. It may or may not amount to negligence according to the circumstances in which a car is being driven. But to drive it at a high speed is some evidence of negligence. In the circumstances of this case, to pass along Corporation Street, which is a street normally covered with traffic, at the high speed at which this car was travelling, was such conduct as, in my opinion, amounted to negligence on the part of the driver.

11. The main defence to the claim was that the plaintiff was guilty of negligence in alighting from the right or road-side of the gharry, and in endeavouring to cross the road without previously having ascertained what traffic was approaching, and that the plaintiff's negligence caused or contributed to the accident. Now, the doctrine of contributory negligence is well settled, although the meaning of the term not infrequently is clouded by the language, in which the doctrine is couched. Where the negligence of the plaintiff or that of the defendant is the sole cause of the accident the matter is free from doubt. But difficulty may arise where the accident is caused partly by the negligence of the plaintiff, and partly by that of the defendant. In such circumstances it becomes the duty of the Court to endeavour to ascertain whether the negligent act or omission of the plaintiff, or that of the defendant, was the cause of the accident. If the Court finds itself unable to discover to what extent the negligence of the plaintiff or that of that defendant contributed to bring about the accident, the defendant is entitled to succeed for impari delicto potior est conditio defendentis. On the other hand, 'though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff's negligence will not excuse him.' (per Lord Penzance, Radley v. L. & N. W. Railway Co. (1876) L. R. 1 A. C. 754, 759.In.like manner, ' although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover: if by ordinary care he might have avoided them, he is the author of his own wrong.' (per Baron Parke in Bridge v. The Grand Junction Railway Co. (1838) 3 M. & W. 244, 248. In every case the issue which the Court is called upon to determine is whether the negligence of the defendant was the cause of the accident. In my opinion, the investigating tribunal is well-advised to view the circumstances of the particular case broadly in the light of the principles which I have restated, and not to indulge in verbal refinements which are not only unprofitable, but tend to befog the clear issue to be decided. As Lord Sumner has observed in British Columbia Electric Railway Co., Ld. v. Loach[1916] 1 A. C. 719, 727:

It is surprising how many epithets eminent Judges have applied to the cause, which has to be ascertained for this judicial purpose of determining liability, and how many more to other acts and incidents, which for this purpose are not the cause at all. 'Efficient or effective cause', 'real cause', 'proximate cause', 'direct cause', 'decisive cause', 'immediate cause', 'causa causans', on the one hand, as against, on the other, 'causa sine qua non', 'occasional cause', 'remote cause', 'contributory cause', 'inducing cause', 'condition', and so on. No doubt in the particular cases in which they occur they were thought to be useful or they would not have been used, but the repetition of terms without examination in other cases has often led to confusion, and it might be better, after pointing out that the inquiry is an investigation into responsibility, to be content with speaking of the cause of the injury simply and without qualification.

12. Now, applying these principles to the circumstances of the present case, I have no hesitation in holding that the cause of the accident which resulted in Sashi's death was the negligence of the defendant's driver. Assuming that it was imprudent and negligent conduct on the part of Sashi to step out of the gharry on the roadside and straightway to proceed to cross Corporation Street, I find upon the evidence that there was ample time for him to reach the southern pavement before the car, if it was being driven in a proper manner, would reach the opening into Newgipukur Lane. Why did Sashi not succeed in crossing the road in safety? The evidence, in my opinion, leads to the irresistible conclusion that his failure to do so was due to the excessive speed at which the car was travelling. I hold, therefore, that the death of Sashi was caused by the negligence of the defendant's driver.

13. I must refer in passing to one other matter. Counsel for the defendant urged that this accident was caused by reason of the fact that Harendra partially left the carriage, and held up his hand when he saw the motorcar close up to the gharry. Harendra was asked if he could give any reason why the driver should have turned to the right. He said that he could not, but that, perhaps, the driver thought that Harendra was going to cross the road. Upon that slender basis was built up a defence that the cause of the accident was the intervention of Harendra. No such case had been suggested in the letter of the 29th August 1922, written on behalf of the defendants to the plaintiff's solicitor; no such suggestion is found in the written statement; and when the driver was giving his evidence he stated that he turned to the right because he wished to cut in between the running Sashi and the southern pavement, and that Harendra did not leave the gharry until after he had turned to the right, and the accident had occurred. There is no substance whatever in this contention, and I need say no more about it.

14. There will be, therefore, a decree in favour of the plaintiff.

15. The question of the amount for which the decree is to be passed remains to be considered. Under Section 1 of the Fatal Accidents Act, 1855, 'the Court' may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought.' Such an investigation must always be more or less guess work, for it is impossible accurately to estimate the loss which has been sustained by the death of a husband or of a father. It is certain, however, that the Court ought not to give sympathetic damages, or damages by way of consolation. In my opinion, in estimating the amount of the decree to be passed in a case of this nature the Court must take into account all the circumstances which are material for considering the pecuniary loss which has been sustained. The Court must view the matter broadly. No doubt, it must take into account the chances of life, the chances of any improved conditions in which the family of the deceased might have passed their days; it must take into account the standard of living of the family which was dependent upon the deceased, and, having regard to all the material circumstances, it must do the best it can to estimate what is a fair and reasonable sum to be awarded. Sashi was a graduate of the Calcutta University; he was employed in the Public Vehicles Department of the Corporation; he was 26 years of age; he was a young man with four children; he was earning Rs. 50 a month as salary, and if he had continued in the grade of service in which he was then being employed he might have hoped to reach a salary of Rs. 125 a month. It was possible also that he would have been moved into a higher grade, in which event he might have risen to a position commanding a salary of Rs. 400 a month. At the time of his death he was able to add to his monthly salary of Rs. 50 an additional Rs. 30 by teaching pupils. I have anxiously and carefully endeavoured to look at the position of this family as a whole, and have tried to arrive at a sum which is fair and reasonable to the plaintiff and to the defendants in all the circumstances of the case. I award a sum of Rs. 16,000 to those for whose benefit this action has been brought, and I apportion such sum, as I am entitled to do under the provisions of the Act, as to Rs. 4,000 to the widow, and as to Rs. 3,000 to each of the children. There will be, therefore, a decree in favour of the plaintiff for that amount with costs on scale No. 2. I should add, in accordance with precedents set both in this Court and in Bombay, that I desire that the dependants of Sashi should receive, as I think they ought to receive, the sum of Rs. 16,000. If I were to direct that the defendants do pay the plaintiff's costs merely as between party and party, it would inevitably follow that a considerable sum would have to be deducted from the amount awarded for the costs which have been incurred, and following the decisions in Kally Dass Mookerjee v. The East Indian Railway Company (1898) 2 C. W. N. 609. and Vinayak Raghunath v. The Great Indian Peninsula Railway Company (1870) 7 Bom. H. C. R. 113. I decree that the plaintiff's costs on scale No. 2 be taxed as between attorney and client.