Sri Lanka Law Reports
(2003] 3 Sri L.R
RAMACHANDRAN AND ANOTHERCOURT OF APPEALDISSANAYAKA, J.
A. 672/2000 (AF)
C.COLOMBO 16322/MRJULY 8, 2003
■Accident – damages – Computation – Proof of patrimonial loss – Computation onthe basis of future support – Apportionment of the deceased’s income – Principlesapplicable?
The plaintiff-respondent instituted action for the recovery of Rs. 1.2. million onaccount of the death of her husband as a result of the negligence of the 2nd defen-dant-respondent while driving a vehicle belonging to the 1st defendant-appellant inthe course of his employment.
After trial Rs. 1 Million was awarded as damages.
It was contended that the amount ordered is excessive.
The plaintiff must show that she has suffered patrimonial loss throughbeing deprived of benefits whether in the form of maintenance of ser-vices, rendered by the deceased under a legal duty to do so …. thedependents are entitled to compensation only for the actual pecuniaryloss which they have suffered. by reason of the death.”
In the ordinary way, when the head of household is killed his wife andchildren are dependent on him to the extent of his earnings or otherincome less a deduction for money spent on the maintenance of thehusband and his other personal needs.
(iiij The award of Rs. 1 Million as damages is not excessive but just andreasonable.
APPEAL from the Judgment of the District Court of Colombo.
Cases referred to:
Ceylon Transport Board and another v Nandawathie and others – 3 Srikantha
Law Reports 14.
Sirisena v Ramachandran and another
Siriwardena and another v Lokuge and another 1995 – 2 Sri LR 115:(CA)
Davis v Powell Druffryn Associated Collieries Ltd., 1942 AIIER 657 at 665
Lokuge and another v Siriwardena – 1995 2 Sri LR 150 (SC)
I.S.de Silva with D.Perera for 1st defendant-appellant.
S. Sinnathamby with Ms. Jayanthy Ganeshamoorthy for plaintiff-respondent.
November 7, 2003SOMAWANSA, J.
The plaintiff-respondent instituted the instant action in the District 01Court of Colombo for the recovery of a sum of Rs.1,200,000 onaccount of the death of her husband caused as a result of the negli-gence of the 2nd defendant-respondent while driving a vehicle belong-ing to the 1st defendant-appellant in the course of his employment.
The 2nd defendant-respondent did not file answer. The 1st defen-dant-appellant filed answer pleading that the accident occurred due tocontributory negligence of the deceased. At the trial paragraphs 3 and4 of the plaint were admitted and 07 issues were raised by the parties.
At the conclusion of the trial the learned District Judge by his judgment 10dated 24.07.2000 held with the plaintiff-respondent and proceeded toaward a sum of Rupees Orie Million as damages. It is from the saidjudgment that the 1st defendant-appellant has lodged this appeal.
At the hearing of this appeal, the only matter canvassed was thequantum of damages. Counsel for the 1st defendant-appellant con-tended that the learned District Judge has failed to consider the factthat the major part of the income of the deceased went to maintain him-self and that in assessing damages the learned District Judge hasfailed to consider that the plaintiff-respondent was in receipt of a salarymuch larger than that of the deceased. He also contended that the 20learned District Judge failed to address his mind as to the basis ofcomputation of damages, but merely proceeded to state he assessescompensation at Rupees One Million without setting out how hearrived at that figure. In support of the above submissions counsel hascited the case of Ceylon Transport Board and another v Nandawathieand others 0) and the case of Siriwardena and another v Lokuge andanother (2l
Sri Lanka Law Reports
[2003J 3 Sri L.R
On an examination of the judgment, it is to be seen that the learnedDistrict Judge in awarding Rupees One Million as damages has not
considered the money spent on the maintenance of the deceased him-self nor has he considered the fact that the plaintiff-respondent herselfwas employed and was drawing a salary much larger than that of thedeceased. In the case of Ceylon Transport Board and another vNandawathie and another (supra) cited by the counsel for the 1stdefendant-appellant, Court of Appeal cited with approval the case of■Davis v Powell Druffryn Associated Collieries3) wherein Lord Wrightstated a passage which is frequently quoted.
“There is no question here of what may be called senti-mental damage, bereavement or pain and suffering. It is a
hard matter of pounds, shillings and pence, subject to theelement of reasonable future probabilities. The starting pointis the amount of wages which the deceased was earning,the ascertainment of which to some extent may depend onthe regularity of his employment. Then there is an estimateof how much was required or expended for his own person-al and living expenses. The balance will give a datum orbasis figure which will generally be turned into a lump sumby taking a certain number of years’ purchase. That sum,however, has to be taxed down by having due regard touncertainties, for instance, that the widow might have againmarried and thus ceased to be dependent, or other like mat-ters of speculation and doubt.
In the ordinary way, when the head of a household iskilled, his wife and children are dependent on him to theextent of his earnings or other income, less a deduction for. money spent on the maintenance of the husband and hisother personal needs."
Mckerron in “ The Law of Delict” 1965 6th edition at pages 140 and141 states as follows:
“In every case the plaintiff must show that he has sufferedpatrimonial loss through being deprived of benefits, whetherin the form of maintenance of sen/ices, rendered by thedeceased under a legal duty to do so … The defendants areentitled to compensation only for the actual pecuniary losswhich they have suffered by reason of the death.”
Sirisena v Ramachandran and another
On an examination of the evidence led in this case, it is to be seenthat at the time of death on 19.02.1994 the deceased was 42 yearsand was in receipt of salary of Rs.4359 per month. The relevant salaryscale applicable at the time of his death being 30,720 – 7×660 – 15
x780 – 47,040. With the salary revision in 1994 at the age of 55 yearshe would have been entitled to a salary of Rs. 1,11,600/- per annum,the salary scale applicable being 67,320/18 x 2460 – 1,11,600/-. It isevident that as there is no adverse comments on his service thedeceased would have been granted the extension and therefore hewould have received as salary for the period from 55 years to 60 yearsa sum of Rs.1,11,600 x 5 and as transpired in the evidence of the wit-ness Wijethilaka in terms of Administration Circular No.93/22 thedeceased would have received a pension of 88%. Thus if he .lived upto 70 years of age he would have received a pension of Rupees98,208 x 10. As relief duty allowance from the date of death to 60 yearshe would have received 2500 x 6 x 18. He has also passed theEfficiency Bar Examination on 18.05.1983 and another examination on31.10.1992. As such was due for promotion to Unified Postal ServiceGrade B (1) the salary scale of which was 74,140 -18 x 2460 -. 118,440 per year. In addition to the basic salary the deceased wouldalso be entitled to allowances.
Accordingly from the date of death on 1994.02.19 till the end of1994 he would have received Rs.4359 x 9 = Rs.39,231. As per salaryrevision in 1994 by Circular No.2/97 new salary scale being 67,320 -18 x 2460 – 111,600 from the 43rd year to his 55th year the. deceasedif he had lived would have earned with increments a sum ofRs.1,073,520/-. From 55 years to 60 years the deceased would haveearned 111,600 x 5 = Rs.558,000. From 60 to 70 years of age a pen-sion of Rs. 98,208 x 10 and for relief duty from date of death to 60years of age Rs.270,000 in the circumstances without taking intoaccount the promotion the deceased would have earned during theperiod from the date of death to his 70th year a total amount roundRs.2,922,831 and out of this amount he would have spent half for him-self and the plaintiff-respondent would thus be entitled to the balancewhich would be round Rs.14,614,155. On the other hand in the year 12000 had he been alive he would have been earning a salary aroundRs.6650 per month. He was 43 years old at the time of his death andwas a government servant. Therefore he could have gone on workingtill he would have retired at the age of 60 years, that would be 17 years.
348Sri Lanka Law Reports(2003] 3 Sri L.R
Therefore Rs. 6650 x 12 x 17 would be Rs. 1,356,600, taking intoaccount the fact that the deceased’s life expectancy was 70 years fromhis 60th year to 70th year he would have received as a pension of Rs.98,208 x 10. The total being Rs. 2,338,680 half of which would beRs.1,169,340/-.
In the case of Siriwardena v Lokuge (supra) the widowed motherof the plaintiff died in an accident. On an appeal preferred against theaward of damages by the learned District Judge the Court of Appealproceeded to compute damages and in this respect took into accountthe fact that the deceased’s life expectancy was 70 years; hence hadthe deceased lived, the 1st plaintiff would have received support for 14years. In regard to the quantum of damages the Court of Appeal com-puted it on the basis that the deceased’s income was Rs.1134/- permonth; and the court was of the view that she had spent about Rs.300/- per month on the 1st plaintiff. On that basis, the Court of Appealawarded damages to the 1 st plaintiff in a sum of Rs.3600/- per year forthe period of 14 years, aggregating to Rs. 50,400/- with legal interestfrom the date of plaint till payment in full.
Against this judgment of the Court of Appeal an appeal was pre-ferred to the Supreme Court and the Supreme Court held;
“After the exclusion of the claim of the 2nd plaintiff, thecomputation of damages on the basis of loss of future sup-port should be on the basis of an apportionment of thedeceased’s income between the deceased and the 1stplaintiff only”.
Per Kulatunga, J.
“We are of the view that the computation of damages infavour of the 1 st plaintiff on the basis of an apportionment ofRs.300/ out of the income of Rs.1134/- which was thedeceased’s pension, cannot be supported. It is our view thatafter the exclusion of the claim of the 2nd plaintiff, the com-putation of damages on the basis of loss of future supportshould have been, in the circumstances of this case, on thebasis of an apportionment between the deceased and the1st plaintiff only. In this view of the matter, we hold that prop-er apportionment should be in a sum of Rs.600/- a month, in
Government Registered Medical Officers Association and another
v John Seneviratne, Minister of Health and others (Sripavan, J.)
favour of the 1st plaintiff. The calculation of damages on thisbasis for a period of 14 years at the rate of Rs.7200/- peryear would amount to Rs. 100,800/-”.
Applying the principles laid down in the above cases to facts of theinstant action, it would appear that the award of Rs.One Million asdamages is not excessive but is just and reasonable.
For the foregoing reasons, I see no reason to interfere with the judg-ment of the learned District Judge. Accordingly the appeal of the 1stdefendant-appellant will stand dismissed with costs fixed at Rs. 5000/.
The Registrar is directed to send the case record to the appropriate isoDistrict Court forthwith.
DISSANAYAKE , J. – I agree.