Gupta, J. - (1.) 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 compenations were filed before the Motor Accident Claims Tribunal at Gwalior. The application for compensation for the death of Ms. Usha Kotasthena 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 Kotastharne'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 Kotesthane and the injury sustained by Sailesh Kumar, C. A. 2254 of 1968 relates to the award in Mrs. Kotasthane's case (supra) and C. A. 2255 of 1968 to that in the case of Sailesh Kumar.
(2.) As regards the death of Mrs. Usha Kotasthane, the claim tribunal awarded Rs. 15,000/- as damages to her husband Sudhakar. At the time of her death she was employed as 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 death 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 nowhere 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 cross-examination 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 inconvenience in his household. 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 months. The advantages of established married life with a child in the lap, was also lost 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. 15,000/-, 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. 300/- 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 earnings 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 spared" 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. "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 benefited 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.
(3.) The extract from the tribunal's order quoted above sugests 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 claims, the tribunal would have been hardly justified in awarding Rs. 15,000/- 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 argue 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 been 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; Lord Pearce in mallet v. McMonagle, (1970) AC 166 (174), call it "reasonable prophecy". Taking note of all the relevant factors, the sum of Rupees 15,000/- awarded by the tribunal appears to be a reasonable figure which we do not find any reason to disturb.;