1942 Present: de Kretser and Cannon JJ.

AGIDAHAMY v. FONSEKA.

196-D. C. Colombo, 12,158.

Compensation-Claim for damages by mother-Death of son-Negligence of defendant.

A mother, who is maintained by  her son, is entitled to claim damages for Joss sustained by the death of the son through the negligence of another.

APPEAL from a judgment of the District Judge of Colombo.

J. E. M. Obeyesekere, for defendant, appellant.

R. C. Fonseka, for plaintiffs, respondents.

Cur. adv. vult.

June 23, 1942. DE KRETSER J.

One Peter Perera was killed as a result of the negligence of the driver of an omnibus belonging to the defendant. His mother sued defendant for damages for compensation and the District Judge awarded her Rs. 600. The defendant appeals and maintains that she has not proved that she has suffered material loss.

It would appear that the plaintiff's husband owned and managed a boutique. We have no evidence as to the nature of the business or the date of his death. At his death plaintiff, assisted by her mother and some of her daughters, carried on business in the same place. Thereafter the deceased son took over the management of the boutique. We are told that he bought coconuts and firewood and sold it there and that there was good profit from the business. He must have had a flair for business, for the evidence is that his brother-in-law, who had a boutique at Hulftsdorp, employed him to supervise that boutique and paid him Rs. 13 to Rs. 20 a month. That money was devoted by the deceased to the maintenance of his mother and other members of the household, to whom he also gave all his other earnings. The plaintiff, whom the District Judge describes as an ignorant village woman, and who seems to have impressed him as being truthful, described the deceased as the bread-winner of the family. Along with her lived her aged mother, two unmarried daughters, a schoolboy about 15 years old and another youngster, who obtained employment as a messenger but did not contribute to the family expenses. Her evidence is that her eldest son, who lives elsewhere, used to contribute a rupee or two a month.

After the death of the deceased her eldest son paid the rent of the house, out there is no evidence that he continued to make the original contribution nor is there evidence as to what the rent of the house is. It cannot be much, seeing that it is in a village, and it may be that he has merely given his contribution in one form rather than another. It was urged that as plaintiff's rent is being paid she has suffered no loss and that as the boutique is being carried on again she has suffered no loss. There is no evidence that the boutique is being carried on. Plaintiff's evidence clearly refers to the past, and in particular her reference to her mother helping - her makes it obvious that she is not referring to the present time because her mother must have passed the stage of rendering assistance, plaintiff herself being sixty years of age

It seems to me, therefore, that plaintiff' may well have been given some compensation for the loss she has sustained by the death of her son. who was such a capable manager. But she has given no figures and the District Judge has confined himself merely to the loss of Rs. 18 to Rs. 20 a month, which the brother-in-law used to give the deceased for the management of his business. That was clearly loss which the plaintiff did sustain. The District Judge has remembered that this money went to maintain a number of persons and has worked out what he thinks might have been plaintiff's proportionate share and, taking into consideration her expectation of lite, has awarded her Rs. 600. This seems to he a reasonable way of awarding damages.

Counsel for the appellant referred us to certain authorities which I do nor think it necessary to examine in detail. I hope I shall be doing justice to the extremely able judgments of the South African