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

MADHYA PRADESH STATE ROAD TRANSPORT CORPORATION, BAIRAGARH, BHOPAL

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, 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 well-to-do fa1nily-Disabled by 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 bus accident on June 23, 1961, one Mrs. Usha Kotasthane and her one year old son died. One Sailesh Kumar, boy of about four years coming from well-to-do family was disabled due to 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 period of nearly 11 months i.e., till he remarried and (ii) The fact that Mrs. Usha WREi working as Physical Instructress in school getting salary of Rs. 190/- p.m. in the scale of Rs. 150-10-250 and awarded 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 sum of Rs. 10,000/~ as damages and Rs. 890/- as special damages to Smt. Indubala. Both the respondents and the a_.ppellant pre-ferred 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) method of assessing damages usually followed in England is to calculate the net pecuniary loss upon an annual basis and "to arrive at total aw~ .. rd by multiplying the figure assessed as the amount of the annual 'dependency' by 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.

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 husband would be getting lump sum payment "'hich but for his wife's death would have been available to him in driblets over number of years. Allow· ance must be made for the uncertainties and the total figure sCaled down accord-ingly. The deceased might not have been able to earn t!ll the age of retirement

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/- month i.e., Rs. 600/- 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 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 bus owned by the appellant which was going from Gwalior to Indore met with an accident as 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 seri-ous injuries. Among the injured was one Sailesh Kumar, boy ot about four years. Claims for compensation were filed before the Motor Accident 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 res-pect of the injury to minor Sailesh Kumar was made on his behalf by his guardian mother Shrimati Indubala Bhandari. Sudhakar Kotas-thane 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 certi-ficate granted by the Madhya Pradesh High Court, are against the common judgment of the High Court enhancing the quantum of dam-ages 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.

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 Physical Instructress in school at Indore, getting salary of Rs. 190/- per month, in the grade of Rs. 150-10-250. Admittedly Sudhakar remarried within year of the death of his first wife. This is how the tribunal dealt with the claim :

"In the present case, it is 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 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 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 child in the lap, was also lossed to the applicant during this time. Taking into consi-deration 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 inconvenience, suffering shock derangement in house and the life, for period of nearly 11 months."

Both :>udhakar Kotasthane and Madhya Pradesh State Road Trans-port 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 an~ also taking into account the promotions and conse-quently 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 in round figures, at Rs. 50,000/-. The High Court enhanced the com-pensation accordingly. Regarding Sudhakar's second marriage the High Court observed :

"But even so, the second marriage cannot be said to be substitute for the first one. The second wife is not an earn-ing 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 im-pression that the applicant had made no claim on the ground of pecu-c niary 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 award-ing Rs. 15000/- as damages for the mental shock and inconvenience suffered by the applicant for 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 hus-band's monthly loss. It is not impossible that she would have con-tributed half of her salary to the household but then it is reasonable to suppose that the husband who was employed at 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/-F every month to the common pool, then his loss would be roughly not more than Rs. 50/- month and, assuming she worked till she was 58 years, the total loss would not exceed Rs. 19.000/-. But in assess-ing 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 lump sum payment which but for his wife's death would have been available to him in driblets over 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 reasonable figure which we do not find any reason to disturb.

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 by multiplying the fignre assessed as the amount of the annual "depen-dency" by 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 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/- month i.e. Rs. 600/- year. Keeping in mind all the relevant facts and contingencies and taking 20 as the smt-able 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 proper grounds. In 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 party, the same method of assessing compen-sation was adopted.

The other appeal (C.A. No. 2255 of 1968) relates to the injury sustained by boy aged about four years. He suffered compound 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 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 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 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 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.

C.A. 2254 of 1968 allowed.

C.A. 2255 of 1968 dismissed.