Madhya Pradesh State Road Transport
Corporation, Bairagarh, Vs. Sudhakar & Ors  INSC 123 (15 April 1977)
CITATION: 1977 AIR 1189 1977 SCR (3) 627 1977
SCC (3) 64
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 principles of reasonable prophecy Fatal Accidents Act 1855, Section 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.
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 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 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
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 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 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 dismissing 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 consideration the imponderable factors in fixing either the multiplier
or the multiplicand. The husband may not be dependent 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
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 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
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
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 altogether 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]
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
S.K. Gambhir, for respondent No. 1 in CA No.
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 of 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
of 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 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 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 dependent upon her. It is true; that 'the wife of the
applicant 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 crossexamination
has been led by the 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 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 inconvenience, 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 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 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
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 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 "resonable
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 assessed 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
consideration the imponderable factors in fixing either the multiplier or the
multiplicand, The husband may not be dependent 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 contingencies and
taking 20 as the suitable 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 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 suffered
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 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 to interfere with the sum awarded by the High
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
C.A. 2254 of 1968 allowed.
S.R. C.A. 2255 of 1968 dismissed.