Ali v Murthi [1979] FJSC 79; Action 167 of 1978 (16 July 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 167 of 1978

BETWEEN

MURAD ALI s/o Asgar Ali
& ANOTHER
Plaintiffs

AND

KRISHNA MURTHI s/o Veda Jalam
1st Defendant
AND
PONAMALLAM PILLAY s/o Sidabaram Pillay
2nd Defendant

Mr. Mohammed Iqbal, Counsel for the Plaintiffs
Mr. M. Tappoo for C. Gordon, Counsel for the 1st Defendant.

JUDGMENT

The plaintiffs, as administrators of the estate of Mehtab Ali s/o Murad Ali bring this action for damages against the two defendants in respect of an accident in which a vehicle AP 266 driven by the 2nd defendant and owned by the 1st defendant knocked down and killed the said Mehtab Ali.

The liability of the defendants is admitted and these proceedings were limited only to the question of quantum of damages. Special damages of $200 in respect of funeral expenses is claimed and there was really no dispute that the funeral expenses were at least $200. It was argued on behalf of the defendants that relatives paid this amount and that the plaintiffs did not have to meet these expenses. Relatives may have contributed on a family basis, the deceased's own immediate family being in no position at the time to pay for the funeral, but I do not consider that to be a valid defence to the claim. No doubt the relatives will expect to be repaid in full, or to receive reciprocal treatment and therefore judgment will be given for the plaintiffs for $200 special damages.

The plaintiffs also claim damages under the provisions of the Compensation to Relatives Ordinance and the Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance and evidence was given by the father of the deceased as to his own and his family's dependence on the wages earned by the deceased which were about $125 per month take home pay.

The deceased was 21 years of age when he died. There was no evidence of pain and suffering before death, and it would appear that death was almost instantaneous.

There cannot therefore be an award for pain and suffering, but the estate is entitled to an award for loss of expectation of life. In accordance with the principles laid down by the Court of Appeal in Shri Mati v. Attorney-General and Isimeli Cina, Civil Appeal No. 40 of 1977 and Krishna Tandraiya v Dharam Singh Civil Appeal No. 17 of 1978, taking into account the different circumstances and ages of the deceased, and the depreciation of the value of money I consider that in this case an award of $1500 for loss of expectation of life would be appropriate.

With regard to the claim under the Compensation to Relatives Ordinance the father and mother of the deceased claim for the loss they have suffered as a result of the death of the deceased. The deceased, his younger brothers and sister lived together with their mother and father in joint Indian style. At the time of his death the deceased was the only child who worked, and his pay of about $125 a month went towards the upkeep of the family. Indeed the father says that he was main stay of the family, handing over his wages each month to the mother.

The father has had a stroke, one side of his body is paralysed and he is no longer able to work at his previous occupations of truck driver and tailor. He shares a cane farm of 11 acres with his brother which produces about $150-$200 per year nett. He cannot run it himself and needs help from his family and relatives.

According to him his relatives were helping the family out with financial assistance of about $150-200 per month after the death of the deceased, but now he receives little help from them. In any case the second son in now working doing the same job as the deceased and receiving more or less the same wages, with some increase due to the increase in wages.

The third son is now 18 years of age and should soon be working also and helping the family. So to that extent the parents can hardly be said to be now dependant on what they would have expected to get from the deceased. How long the deceased would have continued to support them is almost impossible to guess, no doubt he would have soon married and needed to support a family of his own. He would have wanted to keep increasing amounts for himself, particularly as his other brothers began to share the burden. But according to Indian custom the father and mother could have expected to receive some support for as long as they require it.

The position is not the same as in Shri Mati's case where the Court was considering the position of a father leaving a widow and children without support.

It is more along the lines of Krishna Tandraiya's case where the court was considering the pecuniary benefits parents might expect from a son. But the deceased in that case was a youth of 10 years at the time, and there were 3 other sons and 6 other daughters in the family. The pecuniary benefits were clearly speculative and thus the court awarded only a sum of $1500 damages under this heading.

In this case the deceased was 21 years of age at the time of his death and his contributions to the parents' - indeed the family's - welfare was actual and speculative. He was contributing about $1500 a year and whilst some of that would undoubtedly have gone to the upkeep of his other brothers and handicapped sister who would not be entitled to damages under the Ordinance a substantial portion would have gone to the benefit of the parents.

As his other brothers themselves became old enough to work and contribute to the family welfare and when he himself married no doubt his contributions would have decreased, but I accept that he would have continued to assist his parents in their old age to some extent.

I would assess his annual contributions to his parents at the sum of $750 a year and I would consider that in all the circumstances a multiplier of 5 would be appropriate.

I would therefore assess damages under this heading at $750 × 5 i.e. $3750 of which $1000 should go to the mother Ayesha Bibi and the remainder $2750 to the father Murad Ali.

Judgment is therefore given to the plaintiffs for the following sums:-

Special damages General damage - Loss of expectation of life Compensation to relatives (Divided as indicated above) Total

$200 $1500 $3750 $5450

The plaintiffs will also have the costs of this action.

(Sgd.) G.O.L. Dyke

JUDGE

At LAUTOKA,
16th July, 1979.