030-SLLR-SLLR-2004-V-1-NANDAKEERTHI-v.-KARUNAWATHIE.pdf
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Nandakeerthi v Karunawathie (Wijayaratne, J.)
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NANDAKEERTHIv
KARUNAWATHIECOURT OF APPEALDISSANAYAKE, J. ANDWIJAYARATNE, J.
A. 1000/95
C.MONERAGALA 1524/MMARCH 11, JULY 30 ANDAUGUST 27, 2003
Action under lex acquilia – Motor car accident – Husband killed – Claim byputative wife – Dependant on deceased. – Is she entitled to compensation?
The plaintiff-respondent sought compensation on the premise that her hus-band who maintained her and their six children was killed as a result of a roadaccident, caused by the defendant-appellant driving his vehicle negligently.
The trial court awarded compensation.
On appeal it was contended that the plaintiff-respondent was not the law-ful widow and hence she had no nexus as a dependent to sue the defendant-appellant.
Held
The present action is one under lex acquilia, where the right to sue for com-pensation depends on the fact of the plaintiff-respondent being entitled toseek compensation for the wrong done and not for loss of any inheritance;such right depends on the fact of the plaintiff being a dependant of thedeceased where death deprived her of such dependence, and is not a rightacquired by reason of inheritance or deprivation of the right to depend asan heir of the deceased.
The evidence has adequately established the fact that the plaintiff as theputative wife of the deceased and as the mother of the six children, and thedeath resulting from the accident caused by the defendant-appellantdeprived her of the support she got from the deceased for her sustenance.
APPEAL from the judgment of the District Court of Moneragala.
Cases referred to :
Gunaratne v Punchihamy – 15 NLR 501
Punchi Nona v Charles Appuhamy- 33 NLR 227
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Navin Marapana for defendant-appellant.
N.R.M. Daluwatte, P.C., with Gayanthi de Silva for plaintiff-respondent.
Cur.adv.vult.
January 23, 2004WIJAYARATNE, J.
This is an appeal preferred by the defendant-appellant from the 01judgment of the District Judge of Moneragala dated 11.08.1995whereby the learned Trial Judge has awarded the plaintiff compen-sation in a sum of Rs.150,000/- together with interest thereon andthe costs of the suit.
The award of compensation was sought by the plaintiff on thepremise that her husband who maintained her and their six chil-dren was killed as a result of a road accident caused by the defen-dant negligently driving his vehicle on 08.03.1988. Deceased’sdeath certificate marked P1 was read in evidence. The defendant 10answering the plaint challenged the plaintiff to prove all factsaverred and denied any cause of action accrued to the plaintiff tosue him. He further pleaded that the plaintiff had failed to follow theprocedure in filing an action of this nature and prayed that plaint bedismissed with costs.
However, at the commencement of the trial the defendant raisedseveral issues outside his pleadings putting in issue whether,
the plaintiff has the right to claim compensation as a lawful
. defendantof the deceased.
is the cause of action prescribed in law.20
was the death of the deceased caused as a result of the con-tributory negligence on the part of the deceased.
was the death caused as a result of negligence of thedeceased.
At the trial evidence had been led to the effect that the plaintiffwas not legally married to the deceased but lived as husband andwife since 1960 to date of death, producing seven children (page 7to page 12). The plaintiff in her evidence has answered that she
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was not married (SSto eDcoz>>ziz>z;) to the deceased but ever sinceher cohabitation in 1960 they were living together in harmony, wereaccepted by the relatives and the rest of the society as husbandand wife for all purposes they were husband and wife and theirseven children were born through her cohabitation with thedeceased.
The learned trial Judge in his judgment answered the 1-6 issuessuggested by the plaintiff in the affirmative, answered issue nos. 7and 11 suggested by the defendant in the affirmative and issuesnos. 8,9 &10 were answered in the negative. The learned DistrictJudge having concluded that the plaintiff and the deceased weremarried by habit and repute, determined that she had the right tosue for compensation and on a computation of average income ofthe deceased for the balance period of life expectancy, decided thatthe plaintiff is entitled to recover the amount of Rs.150,000/- by wayof compensation.
The defendant-appellant appealed from the said judgment onthe grounds,
that the learned trial Judge has failed to consider the fact of thedefendant being acquitted of the charge of negligence undersection 298 of the Penal Code.
that the plaintiff not being the lawful widow of the deceasedhad no right to sue for compensation.
that the learned trial Judge failed to appreciate the deficienciesof plaintiff’s case.
At the hearing of the appeal the learned counsel for the defen-dant-appellant in his argument as well as in his written submis-sions only relied on the fact that the plaintiff was not the lawfulwidow and hence she had no nexus as a dependant to sue thedefendant. He even argued that there was no marriage by habitand repute as concluded by the learned trial Judge in the light ofthe plaintiff’s own admission that she was not married to thedeceased. Even the presumption of a marriage by habit andrepute was effectively rebutted by her own testimony that she wasnot married to the deceased. In support of his argument thelearned counsel for appellant relied on the case of Gunaratne v
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Punchihamy<1>, Punchinona v Charles Appuhamy (2>.
In both these decisions it was held that the admission by thewidow that she was not married to the deceased, with whom shecohabited the presumption of marriage from the evidence of cohab-itation, habit and repute was rebutted.
Be that as it may, in my view the question of the plaintiffs mar- 70riage to the deceased is not material in the determination of thecore issue in this case. The facts of the present case are somewhatdifferent to the cases referred to above, because in the first case ofGunaratne v Punchihamy, she had her children using her ge nameand not that of her husband by habit and repute establishing thather children were not considered legitimate. In the second case ofPunchinona v Charles Appuhamy, she had her associate husbandsand after death of one she claimed marriage to the other by habitand repute. Quite contrary to such facts, the plaintiff in the presentcase has since her cohabitation with the deceased in 1960, lived as 80his wife up to the time of his death, all their children were registeredas their children, their relatives friends and others in the societyaccepted and treated them as husband and wife. Her answer thatshe was not married, in my view is not material in the determinationof the question of her marriage whether it constitute putative mar-riage because she is not competent to determine whether the sur-rounding circumstances and facts established such a marriage.However, whether the plaintiff had a legally valid marriage to thedeceased is totally immaterial in the determination of the issue inthe present case under review.so
The present action is one under lexAcquilia or commonly knownas an acquilion action, where the right to sue for compensationdepend on the fact of the plaintiff being entitled to seek compensa-tion for the wrong done and not for loss of any inheritance. Suchright depends on the fact of the plaintiff being a dependant of thedeceased where death deprived her of such dependence, it is nota right acquired by reason of inheritance or deprivation of the rightto depend as an heir of the deceased.
In this regard the following passage from Lex Acquilia – Book IX
– Title 2 page 565 is very relevant. It states,
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“ If perchance wife, parents and children join in such a matter,the one is not to be put before the other. Rather should theaction be granted to each singly for the damages which he orshe proves that he or she sustained. This is firstly because theyare each striving not for a penalty, but for the making good ofdamage caused to them. Secondly it is because this action isgranted to wife, children and the like not as heirs of the personkilled and thus by right of inheritance, but as persons who havebeen hurt by the act of the killer. The result is that it falls to beapplied even to those who could not be heirs of the deceased in 110intestacy or who refused to enter upon the inheritance to theperson killed as being a suspected inheritance. ”
In the instant case, the evidence before the trial Judge has ade-quately established the fact that the plaintiff as the putative wife ofthe deceased, and as the mother of the seven children of thedeceased, was fully dependant on the deceased for her suste-nance, and the death resulting from the accident caused by thedefendant deprived her of the support she got from the deceasedfor her sustenance.
The question with regard to the negligence of the defendant as 120determined by the learned trial Judge was not canvassed by thelearned counsel for the appellant. It is trite law that the acquittal ofa criminal charge where the standard of proof is beyond reasonabledoubt will not' affect the civil liability based on negligence deter-mined on a balance of probability.
Even the learned counsel for the appellant did not argue that theplaintiff was not a dependant on the deceased; his argument wasthat even though she was a dependant, she had no legal nexus toclaim compensation from the defendant. This being an acquilianaction where the plaintiff who as a person fully dependant on the 130deceased for her support, being hurt by the wrongful act of thedefendant, the same is maintainable by her against the defendantfor the recovery of compensation.
Accordingly, the appeal of the defendant-appellant is dismissedwith costs.
DISSANAYAKE, J. – I agreeAppeal dismissed.