The principles for assessing damages for loss of expectation of life in a fatal accident case, particularly in the case of a child of tender years.

JUDGMENT :- This is an appeal against the judgment and decree in O.S. No.103 of 1957, on the file of the Court of the Subordinate Judge, Cuddalore, awarding the second plaintiff a decree for damages in a sum of Rs.6,000/- against defendants 1 and 2, on the ground that the 2nd defendant drove the lorry of the first defendant negligently and ran over and killed the second plaintiffs infant son. The first defendant is the appellant.

2. The first plaintiff is the husband of the second plaintiff and their son Dakshinamoorthi was run over and killed on 17-11-1955 by the lorry of the first defendant MDF. 802 driven by the second defendant. The third defendant in the suit was the insurer who was impleaded as a party on the plea of the first defendant that the third defendant company was a necessary party.

3. The plaintiiff alleged that the second defendant was employed to drive the lorry that he had no licence for driving a heavy transport vehicle, that the second defendant drove the lorry rashly and negligently and caused the death of the boy Dakshinamoorthi, They claimed damages under the Fatal Accidents Act to the extent of Rs.12000/- which consisted of (1) Rs.2000/-pecuniary loss to the estate of the deceased; (2) Rs.5000/- for physical suffering and mental agony of the deceased; (3) Rs.5000/- for loss of expectation of life of the deceased.

4. The defendants resisted the suit contending that the lorry was not driven negligently or rashly, that there was contributory negligence on the part of the deceased Dahskhinamoorthi, and that the quantum of damages claimed was excessive.

5. The learned Subordinate Judge of Cuddalore, who tried the suit found that the lorry was driven by the second defendant without a licence requisite for driving a heavy type vehicle, that the second defendant was guilty of negligence in running over the boy and estimated the amount of damages as Rs.6000/-. The second plaintiff was however awarded full costs on the amount sued for in the plaint on the ground that she could not have made a precise estimate of the damages. The costs of the third defendant, the insurance company, were directed to be paid by the first defendant. Defendants 1 and 2 were also directed to pay the court-fee due to the Government as the suit was filed in forma pauperis.

6. The liability of defendants 1 and 2 to the second plaintiff, who is now held to be the representative of the estate of the deceased Dakshinamoorthy, to pay damages for the death of her son caused by the running over of the lorry has been established fully and completely by the evidence on record.

(After discussion of evidence His Lordship proceeded as follows:) The net result of the evidence unmistakably shows that the second defendant, who was not competent to drive the vehicle. was entrusted with the vehicle and he drove it negligently and rashly and thereby ran over the second plaintiffs son.

7. It was the contention of the first defendant that the second defendant was not his driver. In his evidence before the court he stated that he did not know who drove the lorry at the time of the occurrence. The second defendant however did not plead that he was not employed under the first defendant to drive the vehicle. The first defendant would have it that one Perumal was the driver employed to drive the lorry. This Perumal has not been examined. The evidence of the first plaintiff as P.W.4 is that the second defendant was in the employment of the first defendant and that he has seen him drive the lorry on several occasions. On the side of the defendants the trip sheets relating to the lorry were deliberately suppressed. If the trip sheets had been produced they might have disclosed the fact that the second defendant has been operating the vehicle. I have no hesitation in disbelieving the first defendant and holding that the second defendant was a servant employed under him to drive the lorry.

8. Mr. T.V. Balakrishnan, learned counsel for the appellant, contended that