MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION, BAIRAGARH, BHOPAL v. SUDHAKAR & ORS.

627 MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION, BAIRAGARH, BHOPAL _v._ SUDHAKAR & ORS. ETC. _April_ !5, 1977 [V. R. KRISHNA !YER AND A. C. GUPTA, JJ.] _Reasonable prophecy, principle_ _of-Motor_ _Vehicles Act,_ 1939, _Section_ 1 lOB _-Award_ _of_ _conzpensation-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_ _011_ _the principles_ _of_ _rec.jonable prophecy Fatal Accidents_ _Act_ 1855, _Section_ _IA._ _Bus accident-Victinz boy aged about four years coming_ _fro1n_ _a_ _well-to-do_ _fa1nily-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_ _lligh Court by way_ _of_ _damages_ _is_ _proper-Motor_ _Vehicles Act,_ 1939, _Section_ llOR. In a bus accident on June 23, 1961, one Mrs. Usha Kotasthane 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 Kotasthane, the huiband of the deceased and respondent No. I 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 conditions 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 WREi 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 cla·im of Rs. _75,0001-_ computed on the deceased's earnings. 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 a_.ppellant 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 dismissing t.he appeal in C.A. No. 2255 of 1968, the Court. HELD : (I) 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 aw~ .. rd 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 consideration the imponderable factors in fixing either the multiplier or the multiplicand. The hu~band may not be dependant on the wife's income, the ba.sis of assessing the dam~ges payable to the husband for the death of his wife would be similar. [631 AB] _Rule in Mallet_ v. _Mc Monga/e_ 1970 (A.C.) H. L. 166 at 174 quoted with approval. _P._ _B._ _Kadar_ v. _Thatchamma_ AIR 1970 Kerala 241, a·pproved. A B # c D E F G In assessing damages certain other factors have to be taken note of such a~. the uncertainties of life and the fact of accelerated payment-th~t the H husband would be getting a lump sum payment "'hich but for his wife's death would have been available to him in driblets over a number of years. Allow· ance must be made for the uncertainties and the total figure sCaled down accordingly. The deceased might not have been able to earn t!ll the age of retirement A **B** ## c **D** E **F** G **H** 628 SUPREME COURT REPORTS [1977] 3 S.C.R. **for** **some** **reason** **or** **other, like illness** **or** **for** **having** **to** **spend** **more** **tin1e** **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 service before** **her** **when** **she** **died.** **The** **claimant's loss reasonably** **works** **out to ·Rs. 50/- a month** _**i.e.,**_ **Rs.** **600/- a** **year.** **Keeping** **in** **mind all the relevant factors** **and** **conungenc1es** **and** **taking 20** **as** **the** **suitable** **n1ultiplier,** **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.A._ 2255 _of_ 1968 : **Though** **the** **possibility** \\'a~ **there,** **in** **the** **instant** **case,** **of** **the** **defornuty being** **removed** **by** **surgical operation** **v.·hen** **the** **boy** **grew** **up** **to** **be** **16** **years, the other** **possibility** **of** **"likelihood to develop a permanent** **]imp"** **cannot** **be** **altogether** **ruled** **out.** **That being** **the** **position,** **the increase** **of** **general** **damages** **to** **Rs.** **20,00Q/ .,** **in** **the** **instant case,** **in** **addition** **to** **Rs.** **890 /·** **as** **special damages** **is** proper. [631 D·Fl 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 appel!ant in both the appeals . . _A._ G. _Rat11aparkhi,_ 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 Kotasthane, 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 ot about four years. Claims for compensation were filed before the Motor Accident Claims Tribunal at Gwalior. The application for compensation 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 Bhandari 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 ot Kotasthane's dead child. The two appeals before us at the instance of the Madhya Pradesh State Road Transport 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 Kotasthane and the injury sustained by Sai!esh Kumar. C.A. 2254 of 1968 relates to the award in Mrs. Kot•asthane's case and C.A. 2255 of 1968 to that in the case of Sailesh Kumar. A B. _.I_ M.P. TRANSPORT CORP. _v._ SUDHAKAR _(Gupta,_ J.) 629 As regards the death of Mrs. Usha Kotasthane, the claims tribunal awarded Rs. 15000/- as damages to her husband 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 tribunal 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 applicant C was educated, healthy, employed, and earning. As far as, the Joos 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-examilfaiion has been led by tlie non-applicant on the point that the second wife is as accomplished, educated, and healthy as the former one was. The death of the wife of the applicant. must have D caused him mental shock, pain and inconvenient in his house hold. The work in the house. which he could take from bis 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 E 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 inconvenience, suffering shock derangement in house and the life, for a period of nearly 11 months." F Both :>udhakar 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 G 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 an~ also taking into account the promotions and consequently the mcreased 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 H in round figures, at Rs. 50,000/-. The High Court enhanced the compensation accordingly. Regarding Sudhakar's second marriage the High Court observed : A **B** ### c D F G H 630 SUPREME COURT REPORTS [1977] 3 S.C.R. "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 financially. 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 earnings. 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 esti .. mating 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 hicller salary would have contributed his share to the common pool wbich 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 overlooked, 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 tor the uncertainties and the total figure scaled down accordingly. Tile 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; Lord Pearce in _Mallet_ v. _Mc_ _Monagle,_ 1970 (A.C.) (H.L.) 166 (17 4), calls it "reasonable prophecy". Taking note of all the relevant factors, the sum, of Rs. 15000/- awarded by the tribunal appears to be a reasonable figure which we do not find any reason to disturb. M.P. TRANSPORT CORP. _v._ SUDHAKAR _(Gupta,_ J.) 631 A method of assessing damages, usually followed in England, as A 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 by multiplying the fignre assessed as the amount of the annual "depen dency" by a nuinber of "year's purchase"", (p. 178) that is, the number of years the benefit was expected to last, taking into consideration the imponderable factors in fixing either the multiplier or the multiplicand. The husband may not be dependant on the wife's income, the basis ot B 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 contingencies and taking 20 as the smtable multiplier, the figure come to Rs. 12,000/-. The tribunal's award # cannot therefore be challenged as too low though it was not based on c proper grounds. In a decision of the Kerala High Court relied on by the appellant (P. _B. Kader_ v. _Thatchamma_ : AIR 1970 Kerala 241 J, 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 suffered compound D fracture of his right tibia and fabula lower third hear 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 E 'another operation might remove it. The tribunal 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 possibility was there of the deformity being removed by surgical operation when he grew up to be 16 years, the other possibility cannot be altogether ruled out. That being the position, we are not inclined F . to interfere with the sum awarded by the High Court. In. the result., appeal '."o. 2254 of 1968 is allowe~, the judgment of the High Court 1s 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. S.R. C.A. 2254 of 1968 _allowed._ C.A. 2255 of 1968 _dismissed._ G H