http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: MADHYA PRADESH STATE ROAD TRANSPORTCORPORATION, BAIRAGARH, B

       Vs.

RESPONDENT: SUDHAKAR & ORS. ETC.

DATE OF JUDGMENT15/04/1977

BENCH: GUPTA, A.C. 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

           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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

       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