Smt. Rajabi And Another v. The Oriental Fire An...

1. This appeal by the claimants is directed against the Award dated 4-3-1977 made by the Motor Accidents Claims Tribunal at Dharwar in M. V. C. No. 10 of 1975 on its file awarding Rs. 11,5001- respecting a fatal accident involving lorry No. MYA 5595, that occurred on 94-1974 near the bus stop at Amargol village on the Hubli-Dharwar High Road. Moulasaheb, aged 25 years died as a refused of the injuries sustained in the accident Claimants are the wife and daughter of the deceased.

2. On evidence, the Tribunal held that the accident was the result of rash and negligent driving of the lorry MYA 5595. On the question of damages, the Tribunal quantified the loss of dependency at Rs. 7201m per annum out of which Rs. 360/- allocable to the share of the first appellant, the wife, was capitalised at five years' purchase value and the other Rs. 360/- allocable to the share of the second appellant at twelve years purchase value. A further sum of Rs. 5,0001and Rs. 400/- respectively were awarded on account of loss to the estate and medical expenses. The total works out to Rs. 11,520/-; but by an error -calculi the Tribunal has awarded Rs. 10,520/-. The finding either as to negligence or as to quantum has not been appealed against by the insurer or the insured. The finding, therefore, of negligence on the part of the driver has assumed finality. Ibis appeal by the claimants is directed against inadequacy of the quantum of compensation. Appellants seek a higher award.

3. Enhancement is sought principally on two grounds: The first is, that the, determination of the annual dependency at Rs. 720/- is on the low side; the second is that the capitalisation of the annual dependency so far as the first appellant is concerned at oak five years' purchase value is not justified. It is relevant to note here that in so limiting the multiple to 5 the Tribunal was principally guided by the circumstance that the first appellant was then 21 years of age and had prospects of a remarriage.

4. Let as consider the first contention. The earning capacity of the deceased at the time of his death is spoken to by P, W. I the first appellant and P. W. 4 the father of the deceased. The evidence is to the effect that the deceased was working as a was baseman or launderer earning Rs. 8 to R& 10 per day. It was however elicited in cross-examination that the said income was earned by the joint efforts of P. W. 1, P. W. 4 and the deceased. The Tribunal estimated the income attributable to the work and labour of the deceased at Rs. 4/- per day and ducting Rs. 2/- per day towards his personal expenditure held Rs. 2/- as his possible, contribution to the maintenance of the appellants. This was how the figure Rs. 720/- wag arrived at. It appears to us that the estimation of the value of the dependency made by the Tribunal in this case is, somewhat on the lower side. In the circumstances of the case only a third of the income of Rs. 4/- per day may be taken to represent and is deductible towards personal expenditure. We think would not be in error in assessing the values of the dependency in this case at Rs. 1,000/per year. The finding of the Tribunal in this behalf is modified accordingly.

5. Now the second question was t1w Tribunal justified in limiting the compensation to the widow top five years' purchase, value of dependency? This is what the Tribunal has had to say:

"It was argued, before me that Rajabi being young is likely to remarry. The fact remains that she is not remarried, as the accident happened in 1975 and we are now in 1977 and it is unlikely that the may remarry in a couple of years. In the circumstances, I hold that petitioners Rajabi is entitled to loss a period of five years."

The Tribunal thought it fit to so limit the compensation as, according it, Rajabi was not unlikely to remarry.

It is relevant to note here that in the course of cross-examination of Rajabi (P. W. 1) a specific question was put to her about her intentions to remarry. She stoutly denied that she intended to marry again. One of the aspects to be considered is whether, in view of this denial and in, the absence of any other material placed before the Tribunal bearing on the question, the Tribunal was justified in limiting the compensation in the manner it did.

6. The task of assessing compensation in a fatal accidents action bristles with many intricacies. It calls for an evaluation of diverse criteria some of which, at least, border on the imponderable. There is an element of guess work - an educated guess work in the process. In the very nature of things, the infinite variety of human situations in context of which the question arises and the wide diversity and range of the economic factors that go into the ultimate decision render the task an impalpable congeries of many hopes and fears.

In 'Nance v. British Columbia Electric Railway Co. Ltd., 1951 AC 601, Viscount Simon described the process thus:

"The deceased man's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents; secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man's estimated span of life. and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if the husband had lived the 611 span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation that many imponderables enter into the calculation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Shortly stated, the general principle is that the pecuniary loss can be ascertained -only by balancing on the one hand the. Loss to the claimants of the future pecuniary been fit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained."

(Underlining supplied) Conventionally, the circumstances relevant to the case of a widow included the prospect of re-marriage and the consequent improvement of her financial position. This criterion was considered in the context of the deductions permissible in quantifying compensation. The law in England, as it stood prior to the Law Reform (Miscellaneous Provisions) Act, 1971, was that the prospects of the defendant-widow remarrying was a ground for allowance of substantially lower damages than what would otherwise have been awarded. But in actuality she might never remarry in which case, by virtue of the application of this Rule, she would remain unfortunately, under-compensated. The unenviability of the judicial task in the matter was picturesquely presented by Phillimore, J. in Buckley v. John Allen and Ford (Oxford) Limited, 1967 Acc CJ 280 at p. 283, para 7. The learned Judge posted the question thus:

"Secondly, it is said that I must take into account the prospects of the plaintiff's re-marrying, and must make a suitable deduction on the basis that she would be supported by her new husband. Counsel for the defendants did not ask her any question on this subject, an example which was naturally followed by her Counsel. Having however, abstained from asking her anything about it - and I can well understand his not doing so - Counsel for the defendants now says, and it is the convention ' al argument, that any woman with the sum she is likely to receive is likely to remarry.

He says that she is an attractive woman. In this state of affairs I am wondering what is the evidence on which I must act."

Adverting to what the Court mi.-ht be driven to do if the exercise is pushed to its logical or illogical conclusions the learned Judge observed:

"Am I to ask her to put on a bathing dress-, because the witness box is calculated to disguise the figure? Equally, I know nothing of her temperament. I know nothing of her attitude to marriage. She may have some very good reason, perhaps a religious reason for saying that she never will remarry. She has had no chance to express 'her -views. Has her marriage been an entirely happy experience? I do not know. On the other hand-she may already be ensured to be married. On what do I assess the balances and fix the sum to be deducted from her compensation? After all, whatever men may like to think, women do not always want to remarry. ..... .... Is a Judge fitted to assess the chance or chances or wishes of a lady about whom he known so little and whom he has only encountered for "twenty minutes when she was in the witness box, especially when no one has broached the topic with her? It seems to me that this particular exercise is not only unattractive but also is not one for which Judges are equipped. Am I to 14bel the plaintiff to her face as attractive or unattractive? If I have the temerity to apply the label, am I likely to be right? Supposing I say she is unattractive, it may well be that she has a friend who disagrees and has looked below the surface and found a charming character. The fact is that this is a mistake. If there are statistics as to the likelihood of a widow remarrying based -on her age and the amount of her compensation, just as there are statistics on the expectancy of life, they might provide a yardstick for deduction in the absence of evidence of some special factor in the individual case. In the absence of some such yardstick I question whether, having decided what she has lost by the death of the deceased, any Judge is qualified to assess whether of when she is likely- to remarry."

(Underlining supplied) The, learned Judge ten proceeded to refer to the econ6mics - of a remarriage. He asked "Supposing she marries a man who is only concerned to spend her money? Is he to be treated as her new support in place of her former husband?

And summed up:

"I venture to suggest it is time Judges were relieved of the need to enter into this particular guessing game. In this particular ca se I make no deduction for this lady's chances of remarrying."

7. Fortunately for English Judge7, Parliament stepped in to relieve them of the need to enter into this guessing game. The Law Reform (Miscellaneous Provisions) Act, 1971 provides, inter alia, that in assessing damages payable to a widow in respect of the death of her husband there shall not be taken into account the remarriage of a widow or prospects of her re-marriage.

8. It is no doubt true that ' an India there is no legislative prescription on the above lines. But then, the traditional ways of the Indian family life and social mores, which, as experience has shown, die hard and the extreme uncertainties besetting this problem in the peculiar social conditions in our country require that the principle of sounding prospects of remarriage in terms of money for purposes of deduction in the quantum of compensation otherwise awardable be applied with caution and circumspection. It is true that the claimants are muslims whose personal laws treat marriage as a civil contract and the remarriage of a widow does not attract any ostracism. Even so, in our opinion a higher standard of reassurance as to the reality of the prospects of such remarriage and of its beneficial economic repercussions on the dependent necessary.

We think that in the state of the evidence, the Tribunal went wrong in thinking that there were real and imminent prospects of remarriage so far as first appellant was concerned. We think that the present case is a much stronger one than the one considered by Phillimore, J. On evidence it cannot be considered that prospects of a beneficial remarriage in this case are anything but remote. The Tribunal, in our opinion, was not justified in employing only five years' purchase value in quantifying the compensation so far as the first appellant was concerned. No deduction on this account was, in our opinion, permissible.

9. There was also a claim under the head 'loss of consortium'. Generally a sum of Rs. 3,000/- is allowed on this account. We allow this claim.

10. In the result, we allow this appeal in part; and determine the compensation payable uniformly at 10 years' purchase value on the annual dependency of Rupees 1,000/-. The amount works out to Rupees 10,000/-. In addition, the claimants shall be entitled to a sum of Rs. 5,0001- and Rs. 3,000/- under the heads 'loss to the estate' and 'loss of consortium' respectively. The award of Rs. 4001- by way of special damages made by the Tribunal is maintained, the total compensation awarded in this case to both the dependants, thus works out to Rs, 18,400,t-. Appellants shall be entitled to interest at 6% per annum, from the date of petition till the date of realisation. As the and appellant is yet a minor, the Tribunal shall invest one-half of the amount of compensation inclusive of the accrued interest in any branch of a Nationalised Bank of the choice of the I st appellant for a period co-extensive with the period of minority of the 2nd appellant. The deposit shall be made in -the name of the 2nd appellant with the Ist appellant as her guardian. The l st appellant shall not be entitled to withdraw any part of the corpus of the fund during the period of minority of the second appellant. However, interest periodically accruing on the deposit shall be paid to the Ist appellant to be spent for the welfare and maintenance of the 2nd appellant.

11.The Award is modified accordingly. No costs.

12. Appeal partly allowed.