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 1264 Ram Panjwani Rameshwar Nath for the appellant in both the appeals
A G Ratnaparkhi for respondent No 1 in CA 225468
SK Gambhir for respondent No 1 in CA No 225568
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
CA 2254 of 1968 relates to the award in Mrs Kotasthane s case and CA 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 Rs150 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 96000 
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 50000 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 75000is 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 50000 in the manner it did
Whether the deceased s average monthly salary is taken to be Rs 200 or Rs 250we 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 100every 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 19000 
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 AC HL 166 Lord 174calls it reson able prophecysTaking note of all the relevant factors the sum of Rs15000 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 vs 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 ie 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 12000 
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 vs Thatchamma AIR 1970 Kerala 241  to which one of us was a party the same method of assessing compensation was adopted
The other appeal CA 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 10000as general damages and Rs 890 as special damages
The High Court increased the general damages to Rs 20000 
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
CA 2254 of 1968 allowed
SR CA 2255 of 1968 dismissed


Summary:
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 CA 2254 of 1968 and Smt
Indu Bala Bhandari
mother of Sailesh Kumar and respondent No 1 in CA 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 ie till he remarried and ii The fact that Mrs Usha was working as Physical Instructress in a school getting a salary of Rs 190 pm
in the scale of Rs 150 10 250 and awarded a sum of Rs 15000 as compensation as against the claim of Rs 75000 computed on the deceased s earn ings
The Tribunal also awarded a sum of Rs 10000 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 50000 in the case of Sudhakar and to Rs 20000 in the case of Indubala
Allowing the appeal in CA No 2254 of 1968 and dis missing the appeal in CA 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 vs Mc Mongale 1970 AC HL 166 at 174 quoted with approval
PB Kaclar vs 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 ie 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 12000
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 50000 in the manner it did
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 20000  in the instant case in addition to Rs 890 as special damages is proper
631 D F