PETITIONER:
MADHYA PRADESH STATE ROAD TRANSPORTCORPORATION, BAIRAGARH, B
Vs.
RESPONDENT:
SUDHAKAR & ORS. ETC.
DATE OF JUDGMENT15/04/1977
BENCH:
GUPTA, A.C.
KRISHNAIYER, V.R.
CITATION:
1977 AIR 1189 1977 SCR (3) 627
1977 SCC (3) 64
ACT
Reasonable prophecy, principle of--Motor Vehicles Act,
1939, Section 110B --Award of compensation--Death of a child
and also of earning wife in an accident--Claimant husband
not dependant on wife’s income and remarrying within 11
months--Assessment of damages should be based on the princi-
ples of reasonable prophecy Fatal Accidents Act 1855, Sec-
tion 1A.
Bus accident--Victim boy aged about four years coming
from a well-to-do family--Disabled by a compound fracture of
right tibia and fabula lower third near ankle joint--Award
of compensation of Rs. 20,000 as enhanced by the High Court
by way of damages is proper--Motor Vehicles Act, 1939,
Section 110B.
HEADNOTE
In a bus accident on June 23, 1961, one Mrs. Usha Kotas-
thane and her one year old son died. One Sailesh Kumar. a
boy of about four years coming from a well-to-do family was
disabled due to a compound fracture of his right tibia and
fabula lower third near the ankle joint._ Sudhakar Kotas-
thane, the husband of the deceased and respondent No. 1 in
C.A. 2254 of 1968 and Smt. Indu Bala Bhandari. mother of
Sailesh Kumar and respondent No. 1 in C.A. 2255 of 1968
applied to the Motor Accident Claims Tribunal, Gwalior for
compensation. The Tribunal took into consideration (i) the
loss of life of Sudhakar’s wife which resulted into condi-
tions of inconvenience, suffering, shock, derangement in
house and the life for a period of nearly 11 months i.e.,
till he remarried and (ii) The fact that Mrs. Usha was
working as Physical Instructress in a school getting a
salary of Rs. 190/- p,m. in the scale of Rs. 150--10--250
and awarded a sum of Rs. 15,000/- as compensation as against
the claim of Rs. 75,000/- computed on the deceased’s earn-
ings. The Tribunal also awarded a sum of Rs. 10,000/- as
damages and Rs. 890/--as special damages to Smt. Indubala.
Both the respondents and the appellant preferred appeals to
the High Court from the decision of the Tribunal. The High
Court enhanced the compensation to Rs. 50,000/- in the case
of Sudhakar and to Rs. 20,000/- in the case of Indubala.
Allowing the appeal in C.A. No. 2254 of 1968 and dis-
missing the appeal in C.A. No. 2255 of 1968, the Court.
HELD: (1) A method of assessing damages usually followed
in England is to calculate the net pecuniary loss upon an
annual basis and "to arrive at a total award by multiplying
the figure assessed as the amount of the annual ’dependency’
by a number of year’s purchase", that is, the number of
years that benefit was expected to last taking into consid-
eration the imponderable factors in fixing either the multi-
plier or the multiplicand. The husband may not be dependant
on the wife’s income. the basis of assessing the damages
payable to the husband for the death of his wife would be
similar. [631 AB]
Rule in Mallet v. Mc Mongale 1970 (A.C.) H.L. 166 at 174
quoted with approval.
P.B. Kaclar v. Thatchamma AIR 1970 Kerala 241, approved.
In assessing damages certain other factors have to be
taken note of, such as, the uncertainties of life and the
fact of accelerated payment that the husband would be
getting a lump sum payment which but for his wife’s death
would have been available to him in driblets over a number
of years. Allowance must be made for the uncertainties and
the total figure sealed down accordingly. The deceased
might not have been able to earn till the age of retirement
628
for some reason or other, like illness or for having to
spend more time to look after the family which was expected
to grow. Thus, the amount assessed has to be reduced taking
into account these imponderable factors. [630 G-H]
In the instant case, the deceased had 35 years of serv-
ice before her when she died. The claimant’s loss reasona-
bly works out to Rs. 50/- a month i.e., Rs. 600/- a year.
Keeping in mind all the relevant factors and contingencies
and taking 20 as the suitable multiplier, the figure comes
to Rs. 12,000. The Tribunal’s award cannot, therefore, be
challenged as too low though it was not based on proper
grounds. The High Court was also not right in estimating
the damages at Rs. 50,000/- in the manner it did. [631 BC]
C.,4. 2255 of 1968:
Though the possibility was there, in the instant case,
of the deformity being removed by surgical operation when
the boy grew up to be 16 years, the other possibility of
"likelihood to develop a permanent limp" cannot be altogeth-
er ruled out. That being the position, the increase of
general damages to Rs. 20,000/-, in the instant case, in
addition to Rs. 890/- as special damages is proper. [631
D-F]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2254 &
2255 of 1968.
(From the Judgment and Order dated the 10-1-1967 of the
Madhya Pradesh High Court in Misc. First Appeal No. 12/64)
Ram Panjwani, Rameshwar Nath, for the appellant in
both the appeals.
A. G. Ratnaparkhi, for respondent No. 1 in CA 2254/68.
S.K. Gambhir, for respondent No. 1 in CA No. 2255/68.
The Judgment of the Court was delivered by
GUPTA, J. On June 23, 1961 a bus owned by the appellant
which was going from Gwalior to Indore met with an accident
as a result of which two of the passengers, Mrs. Usha Kotas-
thane, aged about 23 years, and her one year old son, died
and several others received serious injuries. Among the
injured was one Sailesh Kumar, a boy of about four years.
Claims for compensation were filed before the Motor Acci-
dent Claims Tribunal at Gwalior.. The application for com-
pensation for the death of Mrs. Usha Kotasthane and her
child was made by her husband Shri Sudhakar Kotasthane, and
the claim in respect of the injury to minor Sailesh Kumar
was made on his behalf by his guardian mother Shrimati
Indubala Bhandari. Sudhakar Kotasthane and Indubala Bhand-
ari were also travelling in the same bus and both sustained
injuries and were awarded compensation by the tribunal, but
these appeals do not concern their cases or the claim in
respect of Kotasthane’s dead child. The two appeals before
us at the instance of the Madhya Pradesh State Road Trans-
port Corporation, on certificate granted by the Madhya
Pradesh High Court, are against the common judgment of the
High Court enhancing the quantum of damages awarded by the
claims tribunal in respect of the death of Mrs. Usha Kotas-
thane and the injury sustained by Sailesh Kumar. C.A. 2254
of 1968 relates to the award in Mrs. Kotasthane’s case and
C.A. 2255 of 1968 to that in the case of Sailesh Kumar.
629
As regards the death of Mrs. Usha Kotasthane, the
claims tribunal awarded Rs. 15000/- as damages to her hus-
band Sudhakar. At the time of her death she was employed as
a Physical Instructress in a school at Indore, getting a
salary of Rs. 190/- per month, in the grade of
Rs.150--10--250. Admittedly Sudhakar remarried within a
year of the death of his first wife. This is how the tribu-
nal dealt with the claim:
"In the present case, it is a case of
the death of the wife. The husband was not
dependent on the earning of his wife. He was
himself earning independently. The applicant
has no where stated that on account of the
death of his former wife, he has been deprived
of her income, nor that he was dependant upon
her. It is true; that ’the wife of the appli-
cant was educated, healthy, employed, and
earning. As far as, the loss of companionship
is concerned, it is again true that he faced
this loss for nearly, 11 months, after which,
he married for the second time. No cross-
examination has been led by the non-applicant
on the point that the second wife is as accom-
plished, educated, and healthy as the former
one was. The death of the wife of the appli-
cant must have caused him mental shock, pain
and inconvenient in his house hold. The work
in the house, which he could take from his
wife in looking to the household was also not
available to the applicant during this period
of 11 month. The advantage of established
married life with a child in the lap, was also
lossed to the applicant during this time.
Taking into consideration all these facts, in
favour of the applicant, and the fact, against
him that he was married again after 11 months,
of the death of his wife, I think, it will be
proper to award damages amounting to Rs.
15000/- for the loss of life of his wife,
which resulted into conditions of inconven-
ience, suffering shock derangement in house
and the life, for a period of nearly 11
months."
Both sudhakar Kotasthane and Madhya Pradesh State Road
Transport Corporation preferred appeals to the High Court
from the decision of the tribunal.. The High Court proceeded
as follows. The "span of her earning life" was counted as
35 years taking 58 years as the age of superannuation. For
the first six years from the date of accident, the High
Court took Rs. 200/- as the average monthly income, and for
the remaining twenty-nine years of service the average
income per month was fixed at Rs. 250/-. On this basis the
High Court computed her total earning to be Rs. 96,000/-.
Giving allowance for her own expenses and also taking into
account the promotions and consequently the increased
salary she might have earned, the High Court thought that
she could have "easily spread" half of this amount for the
household and estimated the loss of income on account of her
death in round figures, at Rs. 50,000/-.The High Court
enhanced the compensation accordingly. Regarding Sudhakar’s
second, marriage the High Court observed:
630
"But even so the second marriage cannot be
said to be a
substitute for the’ first one. The second
wife is not an earning member of the family
nor is it shown that Sudhakar has in any way
benefitted from the second marriage financial-
ly. Therefore the financial loss would be
there despite the second marriage."
On these findings the High Court allowed the appeal filed by
Sudhakar Kotasthane and dismissed that preferred by the
Madhya Pradesh State Road Transport Corporation.
The extract from the tribunal’s order quoted above
suggests that in fixing the quantum of compensation the
tribunal was under the impression that the applicant had
made no claim on the ground of’ pecuniary loss resulting
from his wife’s death. In this the tribunal was clearly in
error. In paragraph 11 of the claim petition, Rs. 75,000/is
claimed as compensation and the paragraph makes it clear,
that the sum is computed on the deceased’s expected earn-
ings. If there were no such claim the tribunal would have
been hardly justified in awarding Rs. 15000/- as damages for
the mental shock and inconvenience suffered by the applicant
for a period of 11 months only, after which he remarried.
The High Court also does not seem to be right in estimating
the damages at Rs. 50,000/- in the manner it did. Whether
the deceased’s average monthly salary is taken to be Rs.
200/- or Rs. 250/we find it difficult to agree that only
half of that amount would have been sufficient for her
monthly expenses till she retired from service, so that the
remaining half may be taken as the measure of her husband’s
monthly loss. It is not impossible that she would have
contributed half of her salary to the household but then it
is reasonable to suppose that the husband who was employed
at a slightly higher salary would have contributed his share
to the common pool which would have been utilised for the
lodging and board of both of them. We do not therefore think
it is correct to assume that the husband’s loss amounted to
half the monthly salary the deceased was likely to draw
until she retired. If on an average she contributed Rs.
100/every month to the common pool, then his loss would be
roughly not more than Rs. 50/- a month and, assuming she
worked till she was 58 years, the total loss would not
exceed Rs. 19,000/-. But in assessing damages certain other
factors have to be taken note of which the High Court over-
looked, such as the uncertainties of life and the fact of
accelerated payment that the husband would be getting a
lump sum payment which but for his wife’s death would have
been available to him in driblets over a number of years
Allowance must be made for the uncertainties and the total
figure scaled down accordingly. The deceased might not have
been able to earn till the age of retirement for some reason
or other, like illness or for having. to spend more time
to look after the family which was expected to grow. Thus
the amount assessed has to be reduced taking into account
these imponderable factors. Some element of conjecture is
inevitable in assessing damages Pearce in Mallet v Mc
Monagle, 1970 (A.C.) (H.L.) 166 Lord( 174)calls it "reson-
able prophecy"sTaking note of all the relevant factors, the
sum of Rs.15000/- awarded by the tribunal appears to be a
reasonable figure which h we do not find any reason to
disturb.
631
A method of assessing damages, usually followed in
England, as appears from Mallet v. Mc Monagle (supra), is to
calculate the net pecuniary loss upon an annual basis and to
"arrive at the total award b multiplying the figure as-
sessed as the amount of the annual "dependency" by a number
of "year’s purchase" ", (p. 178) that is, the number of
years the benefit was expected to last, taking into consid-
eration the imponderable factors in fixing either the multi-
plier or the multiplicand, The husband may not be dependant
on the wife’s income, the basis of assessing the damages
payable to the husband for the death of his wife would be
similar. Here, the lady had 35 years of service before her
when she died. We have found that the claimant’s loss
reasonably works out to Rs. 50/- a month i.e. Rs. 600/-a
year. Keeping in mind all the relevant facts and contingen-
cies and taking 20 as the suitable multiplier, the figure
come to Rs. 12,000/-. The tribunal’s award cannot there-
fore’ be challenged as too low though it was not based on
proper grounds. In a decision of the Kerala. High Court
relied on by the appellant (P. B. Kader v. Thatchamma: AIR
1970 Kerala 241 ), to which one of us was a party, the same
method of assessing compensation was adopted.
The other appeal (C.A. No. 2255 of 1968) relates to the
injury sustained by a boy aged about four years. He suf-
fered compound fracture of his right tibia and fabula lower
third near the ankle joint with infection of the wound.
Skin-grafting had to be done and the boy had to remain in
hospital from June 25, to August 4, 1961. AccOrding to the
doctor who examined him, the child was likely to develop a
permanent limp which might require another operation at the
age of 16 years or so. In any case, in the opinion of the
doctor the deformity was certain to persist till the boy was
16 years when another operation might remove it. The tribu-
nal awarded Rs. 10,000/as general damages and Rs. 890/- as
special damages. The High Court increased the general
damages to Rs. 20,000/-. It appears from the evidence that
the boy comes from a well-to-do family. Though the possibil-
ity was there of the deformity being removed by surgical
operation when he grew up to be 16 years, the other possi-
bility cannot be altogether ruled out. That being the
position, we are not inclined to interfere with the sum
awarded by the High Court.
In the result, appeal No. 2254 of 1968 is allowed, the
judgment of the High Court is set aside and the award of the
tribunal is restored; appeal No. 2255 of 1968 is dismissed.
There will be no order as to costs in either appeal.
C.A. 2254 of 1968 allowed.
S.R. C.A. 2255 of 1968 dismissed.
632