116-NLR-NLR-V-69-J.-M.-A.-PETER-and-others-Appellants-and-PARAPATI-Respondent.pdf
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MANICAVASAGAK, 3.—Peter v. Parapali
Present :Manieavasagar, J„ and Samerawickrame, J.
J. M. A. PETER and others, Appellants, and PARAPATI,Respondent
S. 0*299/65—D. C. Colombo, 05784jM
Delict—Death caused by-negligent driving—Damages claimed by deceased person'swidow—Assessment of damages.
Where a -widow claimed damages for the loss sustained by her in consequenceof the doath of her husband caused by the negligence of the defendant—
Held, that the quantum of damages should be determined by the pecuniaryloss which the widow sustained by her husband’s death.
/_PPEAL from a judgment of the District Court, Colombo.
C. Thiagalingam, A.C., with N. C.J. Rustomjee, for the defendant-appellant.
J. A. L. Cooray, with L. W. Athulathmudali, for the plaintiff-respondent.
Cur. adv. vult.
February 25, 1967. Manicavasagar, J.—
This is an appeal from the decree of the District Court of Colomboawarding Rs. 30,000 as damages to the plaintiff against the twodefendants-appellants jointly and severally, for the loss of supportsustained by her as widow, and dependant of Jhamatmal ChandiramHathiramani who died as a result of a taxi-car colliding with him.
The 1st defendant was the owner, and the 2nd defendant the driver ofthe car at the time of the collision which occurred at Bambalapitiya, onthe Galle Road shortly after dark on the night of April 12th, 1961. Theplaintiff attributed the collision to the negligence of the 2nd defendantand the Additional District Judge held that this was established by theevidence.
626MANICAVASAGAR, J.—Peter v. Parapati
Mr. Thiagalingam for the appellants contended that the evidence didnot prove that the plaintiff was the wife of the deceased. He submittedthat the marriage certificate was not in evidence and invited the pro-duction of it even at that stage. A certificate of marriage no doubt isthe best evidence of a marriage, but it is not the sole evidence and may beestablished by other evidence. However, Mr. Cooray for the respondentaccepted the invitation and tendered in evidence the marriage certificate(exhibit X) which we admitted. Mr. Thiagalingam argued that thiscertificate does not relate to the marriage of the deceased as (1) the maleparty in XI is Jhamatmal Chandiram and not Jhamatmal ChandiramHathiramani, the husband of the plaintiff, (2) the oral evidence is thatthe marriage took place at the Sindhi Community Centre, while thecertificate states that the marriage was at the Registrar-General’s officein Colombo, and (3) the widow’s evidence is that it took place on 5.8.60whereas the date on XI is 1.9.60. The testamentary proceedings of theestate of the deceased reveal that the deceased was known bv severalnames, and two of them were Jhamatmal Chandiram Hathiramani andJhamatmal Chandiram ; in regard to the remaining submissions it is notunusual to have a religious ceremony, as well as a registration in accord-ance with the provisions of the Marriage Ordinance, and this may be ondifferent days ; so that the religious ceremony being on 5.8.60 at theSindhi Community Centre, whilst the registration being on another date,and at a different place does in no way assist the submission of Mr. Thiaga -lingam. But even if XI had not been produced, the uncontradictedoral evidence in my view is sufficient proof of the marriage between thedeceased and the plaintiff.
I am satisfied that the status of the plaintiff as widow has beenestablished.
The evidence of the deceased’s brother is that the deceased and he didnot use the pedestrian crossing which was a little distance away, butthey crossed from the land side of the Galle Road towards the sea sideto take bus to the Fort. He said there was no traffic to impede theircrossing over to the centre of the road, that he saw lights of vehicles 200to 300 yards away. He reached the centre line, whilst the deceased whofollowed him was just behind him ; he stopped looking to the leftto make sure that it was safe for him to proceed towards the sea side,when he heard a noise and saw the deceased flung on to the road about15 or 20 feet away from him. The defence did not offer any oral evidencebut relied on the statement (Dl) made by the deceased’s brother to thePolice, and D2 to D6 being excerpts from his evidence in the criminalcase 'against the two defendants in the District Court; Mr. Thiagalingamsubmitted that the contents of these documents were in such conflictwith the evidence of the witness on material points that his evidencemust be rejected as unreliable. The issue then is whether the Judgewas right in accepting the witness’s evidence. I think he was ; true,there is a certain degree of conflict but I do not think it affects the credi-bility of the witness. In the situation in which the witness found himself
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MANICAVASAGAR, J.—Peter v. Parapati
at the time of collision, it is unreasonable to expect him to be precise andexact in regard to distance and minute details. It was submitted that,his story of there being no traffic at the time is preposterous and there-fore untrue. I have examined the witness’s evidence and what he meantby that was that there were no vehicles in sufficient proximity to make itunsafe to cross over to the centre of the road. There are moments onGalle Road when there is a gap in the flow of traffic. When the witnesssays in evidence that he saw lights of vehicles, at night. 200 or 400 yardsaway, and in the criminal case that the lights were 300 or 400 yards away,surely no person can give anything more than a very approximateestimate ; the witness’s answer “actually we did not know how far itwas ” conveys the idea that the lights were at such a distance that it wassafe to cross the road. However, the main argument was that the witnessdid not in fact know where the deceased was when the car struck him,and his evidence in regard to this was a mere guess and that accountedfor the different versions he had given. I have examined the evidenceof the witness in the light of the documents D1 to D6 and I am satisfiedthat he was aware that the deceased had followed him and was justbehind him at the time that the witness was on the centre line lookingfor oncoming traffic from Dehiwela before crossing over to the sea side.This appears to be a reasonable inference, on a consideration of theentirety of the evidence, and in my view the material on which Mr. Thia-galingam relies does not controvert this or render the evidence improbableor unreliable. The Judge was right in accepting the evidence of thewitness, and on the facts which have been proved negligence has beenestablished.
Mr. Thiagalingam contends that the damages awarded by the trialJudge is excessive, and he asks for a re-assessment. I would be slow toreverse the Judge’s finding unless I am quite satisfied that he has made anerroneous estimate due either to misapprehension of the facts, or adopteda wrong principle of law.
Damages are awarded for the benefit of the dependants of a deceasedfor the loss of prospective pecuniary advantage suffered by his death.A good general guide in estimating damages, which I propose to follow',is to be found in the speech of Lord Wright in Davies v. Powell DuffrynAssociated Colliers, Ltd.1. He said “ There is no question here of w'hatmay be called sentimental damage, bereavement or pain and suffering.It is a hard matter of pounds, shillings, and pence, subject to the elementof reasonable future probabilities. The starting point is the amount ofwages which the deceased was earning, the ascertainment of which to someextent may depend on the regularity of his employment. Then there isan estimate of how much was required or expended for his own personaland living expenses. The balance will give a datum or basic figure whichwill generally be turned into a lump sum by taking a certain number ofyears’ purchase. That sum, however, has to be taxed down by havingdue regard to uncertainties, for instance, that the widow might haveagain married and thus ceased to be dependant, and other like matters ofspeculation and doubt ”
‘ (1942) 1 A. E. B. 667 U. L.
52MANICAVASAGAR, J.—Peter v. Parapati
The widow was 25 years old, and the deceased 31 years and in goodhealth at the time of his death ; they are Indian nationals. They lived inthe same house along with the deceased’s brothers—there are 3 of them—and their wives ; the widow continues to live |with the rest of the familyand is supported by them, though there is no certainty that this state ofaffairs will continue. throughout her life. She may not, according tocustom, marry again, though the law does not prohibit the marriage of aHindu widow. There is a child of the marriage and it must be borne inmind that a part of the income of the deceased would have gone to supportit. The deceased was in business at the time of his death : by a deed ofpartnership (D7) his 3 brothers and he began in 1958 a business known asthe Beauty Silk Store in Bambalapitiya; he was one of the two partnerswho directed and controlled the business, and was given an allowance ofRs. 250 each month, inclusive of board : he was also entitled to a Jshare of the nett profits, and was liable for an equal share of the loss.This business began with a loss in the first year, the deceased’s sharebeing Rs. 384/80, but the profits have grown since then, and has continuedto do so after his death.
The question is what is the pecuniary loss which the widow hassustained by her husband’s death ? She has lost the pecuniary benefitswhich would have been hers through her husband if he was alive, havingregard to the normal expectation of life. Some of the data, relevant to theassessment of damages, to which I have referred, cannot be ascertainedwith definiteness, and any reckoning of damages, though necessarily amatter of estimate must also be influenced by conjecture. Bearingthis in mind, and the principle so clearly stated by Lord Wright, theaward of the trial Judge on the data stated by me, must stand.
The appeal is dismissed with costs.
Samebawickrame, J.—I agree.
Appeal dismissed.