023-SLLR-SLLR-1995-2-SIRIWARDENA-AND-ANOTHER-V.-LOKUGE-AND-ANOTHER.pdf
Siriwardena and Another v. Lokuge and Another
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CA
SIRIWARDENA AND ANOTHERv.
LOKUGE AND ANOTHER
COURT OF APPEALANANDA COOMARASWAMY, J.,
EDUSSURIYA, J.
A. 499/92(F)
C. COLOMBO 8113/M.
SEPTEMBER 01 AND 29, 1994.
Roman Dutch Law – Accident – Damages – Quantum – Right to Support – Lossof Support – Minor male child – Unmarried daughter – Legal Right/Duty – Filialaffection.
Plaintiffs-Respondents – daughter and son of H (mother) claiming to bedependents of H instituted action for damages arising out of loss of support whenH died in a bus Accident. H was a Pensioner.
Held:
The 2nd plaintiff respondent who was 18 years of age at the date of hismother’s death would have continued to receive an allowance as an Orphan up tothe age of 21 years from the Pension fund.
Since there is no evidence of a disability which would have made him dependenton his mother, he is expected to earn a living after the age of twenty-one.
The basis of his action is a legal right to support from the deceased and a legalduty on the part of the deceased to support the claimant. However, there is nolegal duty to support a son over 21 years, unless he is incapacitated and unableto earn a living.
Support must be rendered in consequence of a legal duty to support and notfrom mere filial affection. The 2nd plaintiff respondent is therefore not entitled todamages.
However in the case of the unmarried daughter the 1st plaintiff-respondent,under Roman Dutch Law, has a right to support from a Parent.
116
Sri Lanka Law Reports
[1995] 2 Sri LR.
Case referred to:
1. Young v. Hurton W.L.D. 90.
APPLICATION in Revision from the Order of the District Court ofColombo
K. Paul, State Counsellor the Appellant.
Bimal Rajapakse for Respondent.
November 11, 1994.
EDUSSURIYA, J.
The Plaintiff-Respondents who claim to be the daughter and son ofone Migel Gamage Harriet, claiming to be dependents of the saidHarriet instituted this action to recover Rs. 150,000/- as damagesarising out of loss of support, when the said Harriet died when a busin which she was travelling met with an accident.
The owner of the bus and the driver are the 1st and 2nddefendants/Appellants.
The counsel for the respondents submitted that the State counselappearing for the Appellants informed Court that there was no meritin this appeal.
Although, State Counsel said so, when the Court questioned thelegality of the award he made submissions contesting the award, butnot negligence.
Respondents Counsel has also submitted that nothing has beenurged in the petition of appeal on the quantum of damages. On thecontrary in the Petition of Appeal the Appellants have prayed that thejudgment be set aside.
Although, the plaintiffs/respondents have stated in their plaint thatthey were dependent on the pension drawn by the deceased, not aword was mentioned about the pension in the evidence in chief given
Siriwardena and Another v. Lokuge and Another (Edussuriya, J.)
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by the 1st plaintiff/respondent. In evidence in chief the 1stPlaintiff/Respondent stated that they were maintained on a sum ofabout Rs. 2000/- made by the deceased as a seamstress. However,in cross-examination she admitted that the deceased drew a pensionof Rs. 1134/- per month. Then in re-examination in answer to aleading question “you said your mother received an income ofRs. 2000/- as a seamstress in addition to the pension?” she replied“Yes”. In fact the 1st plaintiff/respondent had not said prior to that hermother earned Rs. 2000/- in addition to the pension. On the contraryin cross-examination the 1st plaintiff/respondent admitted that in theirclaim for compensation to the Insurance Corporation they mentionedthe pension as her mother's only income.
The 1 st plaintiff/respondent produced marked P5 a letter from aGrama Sevaka which stated that the deceased earned aboutRs. 1500/- as a seamstress.
The Grama Sevaka has not given evidence and further the 1stPlaintiff/Respondent admitted that she did not know the GramaSevaka and that she gave letter D8 to the Grama Sevaka andrequested the Grama Sevaka to give the letter to the effect that herdeceased mother made Rs. 2000/- per month as a seamstress. Theletter D8 states that such a certificate is required for the purpose ofmaking a claim from the insurance. It also states that a member of alocal authority has also given such a certificate.
There is no evidence which shows how the Grama Sevaka knewthe deceased’s income as a seamstress. After all, the Grama Sevakais not an officer of the Inland Revenue Department, nor is thereevidence to show that the Grama Sevaka received reports from thedeceased regarding her income. Therefore, P5 cannot be actedupon. Besides, if the deceased made any money as a seamstress,would not the plaintiffs/respondents have stated so in their plaint. Inparagraph 8 of the plaint the plaintiffs/respondents have stated thatthe deceased was a relation of theirs and that the deceased was inreceipt of a pension from the Government and that thePlaintiffs/Respondents were totally dependent on such pension.
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Sri Lanka Law Reports
[1995] 2 Sri L.R.
Besides, as mentioned earlier the 1st plaintiff/respondent admittedthat in their claim to the Insurance Corporation they have stated thatthe deceased's income was the Government Pension of Rs. 1134/- (p.48 of Brief) in the column relating to the deceased's occupation orbusiness. The 1st plaintiff/respondent also admitted that they had notmentioned in the column relating to other income in D1 that thedeceased earned Rs. 2000/- (p. 49 of Brief). The 1stplaintiff/respondent also admitted that in D1 it is stated that theincome from occupation or business was a sum of Rs. 40844/- beingthe pension for three (3) years. So that even in D1 there was nomention of an income as a seamstress. It therefore appears that the1st plaintiff/respondent in the examination in chief made no mentionof their claim based on the pension (1) because the 2ndPlaintiff/Respondent as an orphan would receive an orphan'sallowance up to the age of twenty-one (21) years and (2) becausethey had decided to make a claim based on an alleged income ofRs. 2000/- for the first time with a view to enhancing their claim.
Hence, it would be preposterous to accept the evidence that thedeceased made Rs. 2000/- per month as a seamstress.
The 2nd plaintiff/respondent who was eighteen years of age at thedate of his mother's death would have continued to receive anallowance as an orphan up to the age of twenty-one (21) from thepension fund.
Since there is no evidence of a disability which would have madehim dependent on his mother there after or that he would havebecome dependent on his mother in the future due to some illness orotherwise he is expected to earn a living after the age of twenty-one.
The basis of the action is a legal right to support from thedeceased and a legal duty on the part of the deceased to supportthe claimant. There is no legal duty to support a son over the age oftwenty-one years, unless he is incapacitated and unable to earn aliving.
Learned counsel for the respondents has himself stated inhis written submissions that in the case of a major child it will nodoubt be essential to aver that he was dependent on the deceased
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Siriwardena and Another v. Lokuge and Another (Edussuriya, J.)
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and was unable, without the deceased’s assistance to supporthimself. (Macintosh and Scoble – Negligence in Delict 4th Edition1958. p. 21 and p. 212). Macintosh and Scoble (p. 214) there refer tothe case of Young v. Hurton <” and states that, that was a case wherea major son who had been incapacitated, sought damages. Supportmust be rendered in consequence of a legal duty to support and notfrom mere filial affection. Needless to say that a mother is under nolegal duty to support a son over the age of twenty-one years in theabsence of any disability.
We therefore hold that the 2nd plaintiff/respondent is not entitled toany damages.
However, it is different in the case of an unmarried daughter eventhough she is over the age of twenty-one. Under the Roman-DutchLaw an unmarried daughter has a right to support from a parent.
Taking into consideration the level of society to which she belongsand her age we are of the view that her prospects of marriage withouta dowry are bleak. Her mother could not have saved any money forher since they were dependent on the pension of Rs. 1134/- permonth.
The deceased was fifty-six (56) years of age at the time of herdeath. We are of the view that the deceased life expectancy wasseventy (70) years.
In the absence of evidence regarding how much of the pensionshe spent on herself, or how much was spent on the 1st and 2ndRespondents. We are of the view that the deceased spent aboutRs. 300/- per month on the 1st Plaintiff/Respondent.
We therefore, award damages in sum of Rs. 3600/- per year for theperiod of fourteen (14) years aggregating to Rs. 50,400/- with legalinterest from date of plaint till payment in full. Subject to the abovevariation the appeal is dismissed. No costs
ANANDA COOMARASWAMY, J. -1 agree.
Award Varied.
Appeal dismissed.