(1) Four points arise for consideration.
(1) what are the principles of law applicable for computing the damages in favour of the parents of deceased children and should a multiplier relevant to the age of the child be selected or relevant to the age of the parents be selected ? (2) should there be or can there be separate multiplier tables for fatal accident cases and for injury cases ? (examples worked out) (3) whether the dependency would have ceased on the date by which the child, if alive, would have reached the age of marriage ? (4) whether the full bench in narsavva's case' rejected use of multipliers tables ?
(2) Parents, claims can be divided into five broad categories, as arisingout of the death of
(a) married children, (b) unmarried adult children above 18 years; (c) grown - up children over 10 years and below 18 years; (d) children between 5 to 10 years; and (e) children below 5 years. I shall consider the english as well as indian cases and the relevant mathematical principles.
(3) The respondent's son aged 10 years who was in the 2nd class at school, died in the accident that occurred on24 - 7 - 1978 at guttupalli village on the cuddapah - chittoor road at 4. 30 p. M. The respondent who is the father of the deceased claimed rs. 35,000/ - as compensation. After holding that the accident occurred on account of the negligence of the appellant - corporation's driver, the tribunal awarded rs. 12,000/ -. The corporation has preferred this appeal. Though some argument was advanced on the question of negligence of the driver, there is abundant evidence in support of the finding and there are no grounds for interfering with the finding regarding negligence.
(4) Coming to the question of compensation, it is argued by the appellant's counsel that the award is excessive. It is argued that the father was not a dependent of the son at the time of the son's death. The boy had failed in the first class and was detained for one year and then promoted to the 2nd class. It is argued that multiplier tables should not be applied and even if applied, should be evolved separately for fatal accident cases and for injury cases.
(5) On the other hand, the learned counsel for the respondent, sri m. N. Narasimhna reddi, has contended that, in fact, the award is on the low side. It is argued that the boy was joined in the 1st class in the middle of the year and that therefore his failure in the first class should not be given much importance. The father of the child is an agriculturist and could have given good education to his children and, even otherwise, would have helped his father in the agriculture. Point nos. 1 and 3 :
(6) The question of estimation of damages consequent on the death of young children is difficult and it will be necessary and useful to take note of certain general principles laid down both in english cases as well as indian. There is quite a good amount of difference in the method of estimation of damages upon the death of married children; unmarried adult children; adolescent children; infant children as detailed in mc gregor on damages, 13th ed. (para 1233 to 1236) and kemp and kemp (the quantum of damages, 1982) in chapter 30 (claims for death of adult child) and in chapter 31 (claims for death of infant child) and munkman on damages (pages 50, 66, 67, 128, 129) and these aspects are considered below.
(7) I shall point out that in the case of death of children, the parents' age is relevant for selecting the multiplier and not the age of the child and that, having regard to indian conditions, the dependency cannot altogether cease as from the date on which the child might have got married,though the dependency may get reduced.
(8) (a) married children :when a deceased son is already well established in life, himself with his wife and probably children, it will be found that the parents would have been receiving something from the son towards the dependency voluntarily or by some self - imposed legal obligation by covenant or annuity as in rowley vs, l and n. W. Rly. #1 a. In that case, the deceased was paying an annuity to his mother under a covenant contained in a partnership deed. The court held that it would be wrong to assess the mother's loss at the sum required to purchase an annuity of the same amount. The court has to note that the annuity would have ceased if the son had died from natural causes (or some other accident) in his mother's life time. Similarly, the chances of the mother dying earlier, (due to natural causes) has also to be considered while selecting the multiplier. If the dependency is to last only during the period of the mother's life - time, the multiplier suitable to the age of the mother has to be selected, keeping in view the mortality of the son earlier than that also in mind. It is not permissible to take a multiplier suitable for the age of the deceased child nor to pay to the parent on the basis that the parent would have survived the child.
(9) In grzelak vs. H and n hospital management committee #2 the deceased was aged 37 years and married for seven and half years. The accident occurred as a swab was left inside after an operation. The deceased had been a school teacher for 16 years, earning at time of her death 1000 to 1100. The claim was by her husband, a tailor, aged 43 for himself and wife's parents, aged 80 and 76 respectively, who, it was claimed, were receiving 4 per week from the deceased. The dependency of the husband was arrived at separately at 3000 and a multiplier of 16 applied but so far as the parents of the lady were concerned, the annual dependency was assessed at 75 and as the parents were old, an amount of 225 was awarded to them separately.
(10) (b) unmarried adult children :these children are generally above 18 years. In franklin vs. S. E. Rly #3 the father recovered for the gratuitous services valued at 3s 6d. A week by his son aged 21 years, which were deprived to the father for the rest of the father's life. A sum of 75 was awarded. Again, in dalton vs. S. E. Riy. #4, the presents of food and money by the 27 year old son to his parents were estimated for the rest of the par s' life and 80 to the father and 40 to the mother paid. Again, the fact mat no contributions are being paid at the time of the child's death does not rule out all loss, as the parents may not have attained a sufficient age to require assistance and where the past conduct of the deceased and his general attitude and assurances towards his parents would have been probable, claims have succeeded as in hetheringlon vs. N. E. Rly5. , even though no payments were made factually fqr 4 or 5 years before the death of the son. In appleby vs. Canard white star6, there were contributions and assurances by the son who died at 19 years.
(11) One important circumstance in the case of unmarried children is a possibility that they will marry and that consequently their contributions to their parents will be reduced or cease altogether, in the case of a son by reason of his new obligation to support his wife or in the case of a daughter by reason either of her ceasing work and starting to render gratuitous services for her husband (me. Gregor para 1234). In dolbey vs. Goodwin1, the son, who was 29 years was living with his mother aged 53 years, giving her a net contribution of 4 a week for her support. While the trial judge awarded to the mother 3,100 on the basis of a multiplier of 15, the court of appeal said that such a multiplier would have been proper for assessing damages for a wife but that in the case of the mother, it was on the high side, having regard to the possibility of the son's marriage, and a multiplier of 7 was applied resulting in 1,500. In brennan vs richard johnson*, the plaintiff was the mother of the deceased son aged 23 years and had regularly sent her money for her maintenance, the plaintiff having been deserted by her husband. Oliver, j. Assessed the value* of the dependency at 75 per annum and the total damages at 250 (applying a multiplier of 3. 50) but the court of appeal observed that the dependency and the multiplier as assessed were low and awarded 750 to the mother.
(12) The rajasthan high court considered the impact of the marriage of a son in new india assurance co. Ltd. , vs. Ram dayal fl. There, the deceased was a student aged 18 years and the parents were 51 and 47 years respectively. The learned judge g. M. Lodha, j. Thought that one cannot proceed to judge the effect of marriage of the son on the basis of conditions in england where the possibility of supporting the pa'rent may 'cease'. (this assumption is not fully correct as per para 1234 of me gregor above referred to). Conditions in india are generally different and there is no question of the dependency totally ceasing. After referring to our social conditions, lodha, j. Observed:
"in view of the social conditions of our country, the loss of bread earner for parents is not to be considered on the principles laid down by english courts or american courts where there are old age homes, the old age social security schemes and lodges. Undoubtedly we are living under a constitution given to ourselves by the people where the preamble, itself, ensures and promises 'social justice'. The accident claims should be treated as belonging to the discipline and branch of social welfare legislation of this country and should be interpreted liberally in favour of the sufferers so that they gain damages or compensation and are relieved of the anxiety of their old age which had been caused to them on account of the unfortunate accident. Such being the condition of the deceased, i am surprised, how and why the age of marriage has been treated as the age when a full - stop is to be put to the dependency of the income of the parents."
But, the multiplier of 20 adopted in the above case appears to be on the high side having regard to the age of the parents as stated above and, therefore, the award of rs. 48,000/ - , the annual depency being rs. 2400/ - , appears to be high. The case, however, contains a review of awards made by various high courts. Whatever, it be, i agree that marriage of a young son will not, according to our social conditions, generally put a 'full stop' to the dependency, though the dependency may get reduced to some extent. That is why, in the gujarat high court in patel hirabhai chhaganlal vs. Gujarat srtc p. D. Desai, j. (as he then was) and majmudar, j. Considered that the deceased aged 16 years would have, no doubt, married later but that would not put an end to the dependency as per social customs and law in our country, though it might reduce the dependency. They observed :
"it was apparent that claims of his new family would reduce his contribution towards maintenance of the parents even where, as in our country, there is a statutory recognition of the application of a son to provide maintenance to his aged parents."
(emphasis supplied).
(13) In another case in ranchodbhai somabhai vs. Babubhai bhailal bhai (10 - a) , p. D. Desai, j. (as he then was) and majmudar j. Considered that the deceased aged 20 years would have given 2/3rd income (out of rs. 3900/ - p. A.) to his parents before his marriage, and 1/3rd after his marriage. Taking it that he would have soon got married, a multiplier of 16 was applied again rs. 1300/ - p. A. And rs. 20,800/ - arrived at. In addition, rs. 12,800/ - towards the loss to the estate, rs. 5,000/ - towards loss of expectation of life, rs. 3,000/ - for medical expenses before death and rs. 3,400/ - towards wages upto date of death were awarded making a total of rs. 45,000/ -. This was apportioned in the ratio of 2:1 between the father and the mother. In shiv prasad vs. Sabir zaidi the allahabad high court was dealing with the death of a boy aged 18 years and, in my view, considered that he would start earning only at his 25th year.
(14) The multipliers applied in fatal cases by the indian courts in the cases of unmarried adult boys, aged 18 and above are as follows:in my view, in the above cases, (except items 8 and 12) , the courts have not considered the age of the parents nor noticed that the dependency would have to be computed on the basis of the parent's age. Further, the above cases (except item 3) did not consider the extent of diminution in the multiplicand from the date when the son would have got married. Again they have not considered (except item 1) whether the deceased would have started earning only after a few years. These factors, in my view, have to be taken into consideration before fixing the dependency (multiplicand) as well as the multiplier,particularly, the old age of the parents is a very important censideration and the multiplier suitable for the parents' age has to be selected instead of selecting a high multiplier suitable for the age of the adult boy.
(15) This is also made clear by the division bench of sheth and jeevan reddi, jj. In united india e and g i co. Vs. S. Saraswathi bai. Therein sheth, j. Observed: "ordinarily in such cases, we try to find out the appropriate multiplier by estimating how long would the deceased have lived ? that question does not arise in this case because the parents alone can claim compensation. And the parents, in the normal course, would not have survived the deceased. " (emphasis supplied) the supreme court also observed in c. K. Subrahmania iyer vs. T. Kunhi kattan nair : "the life expectancy of the deceased or of the beneficiaries, whichever is shorter, is an important factor. " (emphasis supplied)
(16) It will be noticed that the english courts take these factors into consideration, particularly the age of the parents as can be seen from the following:
(17) It will be clear that, in principle, the multipliers applied by the indian courts are higher than the law justifies. Instead of basing the multiplier on the age of the parents as the law requires, they are basing the same, on the age of the adult child without noticing that the dependency will stop as soon as the parents reach the end of their life expectancy and that it will not last till the end of the life expectancy of the deceased child. The correct method is to select a multiplier appropriate to the age of the parents.
(18) (c) grown up children over 10 years and below 18 years :under this class fall children roughly above 10 years and below 18 years. This class consists of children who are likely or close to reach the year when the parents can expect to reap the result of their labour and expense in bringing up the children, though at the moment they are, of course, not receiving any benefit. In taff vale rly vs. Jenkins (14) , the daughter was aged 16 years and was living with her parents. Her apprenticeship as a dress - maker had two more months to run, after which she would have started earning. The defence that she would never have earned or never contributed was rejected. Lord shaw of dunferline said :
"a son or daughter may be educated. In a trade or a profession in which the training or apprenticeship is not one which yields any profit at all, but in which the reward afterwards is much greater, probably in consequence of the exclusion of competition by reason of the period of unpaid probation. In such a case the parents stand the charge during the whole apprenticeship or training of the child, and just as that education is about to close, the life is cut off. I have asked counsel in vain in the course of the case to distinguish an expectation in such a situation in principle from the ordinary expectation in the case of wages being earned at the time, but i have not been able to obtain an answer, and in principle, my lords, there is no answer."
It was also observed by lord moulton that:
"the fact of past contribution may be important in strengthening the probability of future pecuniary advantage, but it cannot be a condition precedent to the existence of such a probability."
These passages have been approved by the supreme court as will be seen lower down. The remarks in the above case will to - day equally apply to much older children particularly those pursuing collegiate education. Again in buckland vs. Guildford gas light and loke co. (15) the girl was aged 13 years ard she was not only assisting the parents at home and looking after another child aged 8 years but
"it was anticipated that her gifts would later have enabled her to contribute financially as well as by services to the household"
. An award of 500 was made under the fatal accidents act by morris, j. And reduced to 200 because 300 was awarded as loss to the estate. In wathen vs. Vernon (16) the deceased was aged 17 years employed and living with his parents and paying them the cost of his keep out of his wages. The court of appeal held itself bound to award damages for loss of potential support even though no support was being rendered at the date of death and the possibility of support being required in the future was remote. A special feature of the case was that in the past, the deceased' father had been off - work through ill - health, and though no support would have been required from the son if his father's health had remained good, the court had to take into account the possibility of his death or disablement during the 5 year period during which it was estimated that the son, before marriage, could have afforded to give support. The deceased was an apprentice earning 6. 5 a week and likely to earn 12 per week by his 20th year and 26 per week by his 25th year. He also gave 2 per week to his mother. The father was aged 56 years at the time of the appeal and had suffered a stroke. Accordingly 500 was awarded to the mother. In duckworth vs. Johnson (17) the deceased was a boy aged 14 years who was earning 4 $ a week tor a year or two but was unemployed at his death and the father, a working mason, was awarded 20. Again in ellis vs. Ocean steamship co. Ltd. (18) , the deceased was a seaman aged 17 years and the claim was made by the mother, she having been separated from the father. The deceased had, at one time, given his mother 5 a month, but jones, j. Held that at the time of his death, the utmost that his mother could have expected was 3 a month, and on the basis that he would not have been able to pay after marriage, the award was limited for 3 years only at 3 a month.
(19) Coming now to the indian cases, i shall take up rulings where the age of the deceased child was between 10 and 18 years.
(20) It will again be seen from the two tables of indian cases that the multipliers applied are generally high. The courts did not choose to appjy a multiplier suitable for the age of the parents. As per the table given in bhagvandas vs. Mohd. Arif, the multiplier for persons aged 40 or 50 years will respectively be 12. 79 and 7. 68 and it is necessary to apply these multipliers referable to the age of parents rather than those referable to the age of the deceased child. For a parent aged 30 years, the multiplier will be 16. 51.
(21) : (d) children between 5 to 10 years :under the class, there do not appear to be any decided english cases. But, there are a few cases decided by our courts and, in fact, one of the cases decided by the supreme court.
(22) In c. K. Subramania iyer vs. Kunhikuttan nair the deceased was aged 8 years and the claimants were the parents. The claim was for rs. 30,000/ - but the district judge awarded rs. 5,000/ - towards the pecuniary loss to the dependents as also towards the loss to the estate. But the high court determined the loss to the dependency at rs. 5,000/ - and the loss to the estate at rs. 1,000/ -. On appeal by the parents to the supreme court, the judgment of the high court was confirmed. Their lordships stated that even though at the time of fatal accident, the parents were not dependent on the child, still they had a 'reasonable expectation of pecuniary benefit'. Their lordships quoted with approval franklin vs. The s. E. Rly. Co. 8 and toff vale railway co. Vs. Jenkins; burnett vs. Cohen; dalton vs. S. E. Rly. Co. 4 ; and price vs. Glynea and castle coal and brick co. (most of these cases have been already referred to above by me.) their lordships also referred to davies vs. Powell duferyn associated collieries ltd. (no. 2) (23) and nance vs. British columbia electric rly. Co. And to winfield on torts.
(23) The indian cases in this age group can be tabulated as follows :
(24) The supreme court (item 1 in table) awarded rs. 5,000/ - towards loss to the dependency end rs. 1,000/ - towards less to the estate. In that case, the death in the accident occurred on 28 - 2 - 1955. Their lordships considered the assessment of the loss to the dependency in the following manner.
". It is seen that the deceased was only 8 years old at the time of his dealh. How he would have turned out in life later is a mere guess. But there was a reasonable probability of his becoming a successful man in life as he was a bright boy in the school and his parents could have afforded him a good education. It is not likely that he would have given any financial assistance to his parents till he was atleast 20 years old. As seen from the evidence on record, his father was a substantial person. He was in business and his business was a prosperous one. As things stood he needed no assistance from his son. There is no material on record to find out as to how old were the parents of the deceased at the time of his death, nor is there any evidence about their health. On the basis of the evidence on record, we are unable to come to the conclusion that the damages ordered by the high court are inadequate."
And their lordships refused to enhance the damages. Thus, it appears to me that if the age of the deceased child is between 5 and 9 years, (i. E. , below 10 yrs) there is not much scope for evaluating the multiplicand exactly. But, at the same time, the reasonable expectation of pecuniary benefit in trie future is not totally ruled out. It is doubtful whether the exact computation of the multiplicand is. Possible. It is true certain high courts have computed the dependency for these young children also but as pointed out by the supreme court, this is a mere guess. In my view, it may not be very much correct to proceed to compute methematically the future damages when the "annual dependency" is likely to be a pure guess, even though, on such cases, a multiplier suitable to the age of the parents can still be selected. Perhaps taking rs. 5,000/ - of 1956 as a 'conventional figure' as in the supreme court case the same can be upgraded on the basis of inflation. Even on that basis, atleast rs. 15,000/ - will, in my opinion, be payable, for an accident in the late seventies, having regard to the inflation between 1956 and 1976.
(25) I shall now deal with cases of children below 5 years.
(26) (e) children below 5 years :the situation here is the reverse of the last. On the one hand, there is no clear evidence of the desire or the ability of the child to assist the parents in later years ; on the other hand, the parents have all the expenses of bringing up the children ahead of them. Thus in barnett vs. Cohen the claim of a father, earning a good income but with poor health, for loss through the death of his 4 year old son was dismissed, there was no reasonable probability of pecuniary benefit, only a speculative possibility. The claim was thrown into extinction by the weight of multiplied contingencies. M. C. Cardie, j. Said :
"the boy was subject to all the risks of ill - ness, disease, accident and death. His education and upkeep would have been a substantial burden to the plaintiff for many years if he bad lived. He might or might not have turned out a useful young man. He would have earned nothing till about 10 years of age. He might never have aided his father at all. He might never have proved a mere expense. I cannot adequately speculate one way or the other."
(27) In india too, there do not appear to be any decided cases where damages are claimed or allowed in respect cf a child aged 5 years or below.
(28) From the aforesaid discussion, the following principles can be stated :
(a) in the case of death of children, the parents can claim the present value of the future contributions which the deceased would have made to them. The dependency can be estimated by computing the annual contribution which the child would have made from the date of his probable earning. The question as to when a child would have reached such an earning capacity and as to what he could have contributed would depend on the facts of each case, the relevant factors being the child's general level of intelligence or health, the family background, the father's or family profession, if any, the capacity of the parents to educate the child etc.
(b) after arriving at the annual contribution (or annual dependency) to the family, the multiplier that has to be applied is not the one appropriate to the age of the child at its death but to the age of the parents. This is because of the fact that the dependency to the parents will last only for the life - time of the parents, who are likely to predecease the child (if the latter had not died in the accident). Of course, if the child is a grown - up person and married, the multiplier to be applied for arriving at the present value of the future loss to the wife, is the one appropriate to the age of the deceased because, the wife, being younger is normally likely to live upto or beyond the life of her husband.
(c) if the child is unmarried at the time of accident but likely to be married in course of time, the court cannot proceed on the basis that the contribuiion to the parents will be altogether stopped after such marriage. It may only be partially reduced. This is because of the statutory obligation in our country upon children to maintain their aged parents. In such cases, it is permissible to assess the contribution upto the possible date of marriage and later, separately.
(d) in the case of children above 5 years and below 10 years, it will not be possible to ascertain a suitable multiplier because of the fairly higher mortality rates in that period. But, it is permissible to arrive at conventional amounts, which may range upto rs. 15,000/ - for accidents in the late seventies.
(e) in the case of children below 5 years (there are no decided cases of award of damages to the parents, but) a nominal amount upto rs. 5,000/ - may perhaps be granted.
(29) This is in addition to the grant of other conventional amounts towards pain and suffering and loss of ameneties for the short period between the time of accident and the time of death and for long expectation of life and this will be the award towards the loss to the estate.
(30) Before leaving this part of the discussion, i have to emphasise a certaip differerce between claims by parents in cases of death of children and cases of claims by injured children. It will be noticed that [in cases of death of children, because the parents are older and the dependency will not last till the total expected period of life of the child, the multiplier is to be selected on the basis of the age of the parents. But, in the case of injured children, the claim being not by the parents but by the child himself, there is no question of selecting the multiplier appropriate to the parent's age. The multiplier appropriate to the age of the injured child, at the date of trial will have to be selected. ]
(31) Point no. 2 : it is argued for the appellant that multiplier tables have to be prepared separately for fatal accident cases and separately for injury cafes and that there cannot be a single table for both fatal and non - fatal cases.
(32) Obviously, the doubt here is as to why, in cases of injuries, the multiplier suitable to the age of the injured person at the time of accident, is not selected. Now, in the case of a fatal accident, the uncertainties of the future are to be 'estimated' with the aid of the mortality rates, right from the date of death. There is, in fact, no dispute on this score. However, in the case of an injured person, if the matter could, perhaps be brought up before tribunal on that very day of accident, the tribunal could say, 'well, the future of the injured person from tomorrow is uncertain' and, having regard to the general average mortality, take a multiplier suitable to the date of accident, unfortunately, on account of the lengthy legal procedures involved in adjudication, there is considerable time - lag between the date of accident and the date of adjudication. Jh such cases, the future (which was uncertain on the date of accident) would have unfolded itself upto the date of evidence and if the injured person, is still alive on the date of evidence, there is no need to go back to the mortality rate or chances of death of the injured person for the past period upto the date of evidence. The evidence of the injured person or someone on his behalf proves that he is very much alive on that date. Hence the mortality rates become relevant only for the period after the date of trial. Once the trial is over, the future of the injured person is the subject of uncertainty depending on the future mortality rates, such mortality rates being identifiable with reference to the age of the injured at the trial or rather soon after the trial. This is what is meant by saying that the future earnings in the case of dead person, have to be 'estimated', and they are 'estimated' on the basis of a multiplier based on the age at the time of death in the accident. Likewise, the estimation in the case of an injured person starts only for the period after the trial. Upto that date, the injured being alive no question of uncertainty of life or estimation arises. The loss of salary or wages from date of accident to date of trial can be computed on an 'actual basis'). If the period between date of accident and date of trial is (say) 2 years the actual loss in wages for 2 years can be worked out. But if at the date of trial, he is say (20 years) , the future earnings (from date of trial) have to be computed with reference to mortality rates and converted to present value this is to be done by applying a multiplier suitable to his age at the trial,
(ii) (in fact) , (it is logically and mathematically unthinkable (may, impossible) to have separate multiplier tables for fatal and non - fatal cases because for each age (at death or at trial in accident case) the basic material namely, the mortality rates and the conversion rates will be the same, there is no change in basic data so far as the period from which the 'estimate' for future is to be made). If still, one wants separate tables, they have to be only specified as follows :
(iii) actuaries or mathematicians will be surprised if somebody seeks different tables of multipliers for fatal and non - fatal cases. In england also, multiplier tables have been prepared since 1967 and again now in 1984 by the british government and there is always one tablewhich is used in fatal cases and non - fatal cases as well. It is clear that the multiplier in cases of death are to be chosen, from the same table, with reference to the age of the deceased at his death or with reference to the age of the injured at the trial, (the loss upto trial being computed on actuals without the need to take future uncertainties into account because, the injured is alive till the trial in flesh and blood and there is no uncertainty about it till the trial) , if one looks into 'kemp and kemp on damages (1967) ' at the mltiplier tables (then prepared by mr. Prevett) pages 40. To. 51) it will be seen that the multipliers are given for 'age at trial' for injured persons. So is the case of the multiplier tables prepared by the british government in 1984 (in its hm so) see munkman (1985) damages - pages 224 to 236) where the multipliers are for 'age at trial'. There is only one table. One will not find any separate tables for fatal cases. If one looks into these tables in any standard text - book one will understood the basic fallacy in this argument. Likewise, in pension commutation tables prepared by government of india for commuting future pensions, the same table given in the central civil services (pension) rules, 1971 are 1981 has to be used for selecting the multiplier, be it for superannuation or for voluntary retirement (they are prepared at real interest rate of 51/2 % p. A.).
(iv). Such a question as the one raised here arose before the house of lords also in graham vs. Dodds and was cleared. Lord bridge of harwich, extracted the dictum of lord eraser in cookson vs. Knowles as follows :
"in a personal injury case, if the injured person has survived until the date of trial, that is a known fact, and the multiplier appropriate to the length of his future working life has to be ascertained as at the date of trial. But in a fatal accident case, the multiplier must be selected once and for all as at the date of death, because everything that might have happened to the deceased ajter that date remains uncertain"
There, there was fortunately no doubt that only one set of multiplier tables are available and the question was whether in the case of fatal accident, the age of the deceased at the time of his death was relevant or whether (as in an accident case) the age at the trial (if the deceased had lived) should be applied. It was clarified by lord fraser that in fatal cases, it was the multiplier suitable to the age of the deceased at the accident that was relevant and in accident cases, the age at the trial.
(v) in munkman (1985) damages for personal injuries and death) (p. 139) , it is observed :
"at this point, there is a difference from the living plaintiff, whose expectation of life is calculated at the trial because he is still alive. Under a death claim, the expectation is fixed once for all at death."
(vi) in jain s. Goldrein and margaret r. De haas's 'personal injury to litigation (practice and procedure) (1985) , it is stated (at p. 35) , dealing with injury cases, it is stated :
"the multiplier : (1) the starting point : the starting point is the number of year's it is anticipated that the plaintiff's disability will last, assessed. Close to the date of trial"
And (at p. 123) , dealing with fatal cases, it is stated :
"what is the multiplier ? (1) from which date to assess : the relevant date for the assessment of the multiplier is that of death. (2) why is that date chosen 1 the justification for such date is best explained by the following passage of lord fraser in cookson vs. Knowles (27) (already extracted above). (3) starting point : when calculating a multiplier, the starting point is the number of years that the dependency may be expected to have lasted had the deceased continued to live, taking into account the particular age of the deceased."
(vii) in the gujarat high court, a division bench consisting of p. D. Desai, j. (as he then was) and m. K. Shah, j. In bharat premji bhai vs. Municipal corparation, ahmedabad accepted that in injury cases, the loss upto date of trial (evidence) can be exactly computed on actuals while the question of estimation arises only for the uncertainties after the date of trial and that for injury cases, the multiplier is to be selected on the basis of the age of the victim at the trial. Dealing with injury cases,
P. D. Desai, j. (as he then was) observed (at p. 272) :
"where the plaintiff is paid wages or a salary, it is usually possible to calculate this loss exactly, in which the loss is treated as special damages. It thus appears to be well - settled practice of english courts to award damages for loss of earning under two distinct heads - special damages for the loss of past earning and general damages for the loss of prospective earning, the dividing line between the two kinds of damages is the time that the case comes on for hearing and not the date of presentation of the claim petition. There is no reason why the same practice should not be followed in our tribunals. Of course, once this practice is adopted, the years purchase factor or maltiplier for awarding damages wilt have to be selected bearing in mind inter alia that the loss of earning for the period between the date of the presentation of the petition and the date of trial having been provided for as special damages, the period of prospective loss would pro rata stand reduced."
It was held that the date of trial should be the date of the deposition of the victim or of his witness who speaks to his earnings (and to the fact that he is alive). In all gujrat reported cases, it will be seen that in injury cases, the special damages upto date of trial are computed as actuals and the multiplier is selected only for the future uncertain period, with reference to the age at the trial. (viii) in fact, rule 533 (and explanation thereto) of the a. P. Motor vehicle rules also contemplates that in injury cases, the computation of actual loss of earnings has to be made upto date of trial separately and future losses of earnings separately from date of trial. Explanation to rule 533 reads as follows :
"rule 533. Explanation :for the purposes of the above sub - rule ; (i) 'special damages' is one which has to be specially pleaded and proved. It consists of out of pocket expenses and loss of earnings down to the date of trial and is generally capable of exact, substantial calculations; and
(ii) 'general damages' is one which the law implies and which is not specially pleaded. It includes compensation for pain and suffering and the like and if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power".
(ix) the age with reference to which a multiplier is chosen may vary from one situation to another. It may be (a) the age at death in fatal cases ; (b) age at the time of trial in injury cases ; (c) age of a person at his super - annuation for commuting pensions ; (d) age of a person at the time of voluntary retirement for commuting pensions ; (e) age of parents, at the time of death of a child because the dependency will last only for the remaining period of life of the parents etc. (i shall work out certain examples after completing point no. 4).
(33) Point no. 4 :the question is whether in narsavva's case (1) the full bench of this court rejected altogether the use of acturial multiplier tables ?
(34) That the full bench did not do so but on the other hand, accepted the method of applying acturial multiplier table (called them as annuity tables or a. T.) is quite clear on a reading of the judgment of the majority i. E, raghuvir and ramanujulu naidu, jj. In fact raghuvir, j. Clearly observed (para 5) :
"in motor accident cases in the past few years, a. T. Tables are used in many advanced countries. Annuity tables are prepared with the assistance of mortality tables. In some countries mortality tables are prepared for males and females separately. Annuity tables thus have reference to compound interest and the tables are prepared with reference to stable periods of economy of the relevant country. The annuity tables do not claim accuracy as their fine point. But a. Ts. Do achieve a certain degree of accuracy is not doubted."
(emphasis supplied) and again (in para 6)
"the a. Ts. Are current now in all advanced countries in ascertaining damages. In india in motor accident cases a. Ts. Are not used because a. Ts. Are not prepared in this country."
And then referred to the judgment of the privy council in lal wee lian vs. Singapore bus service and concluded (para 8)
"we hold it s not improper, illegal or objectionable to use annuity tables in motor accident cases."
Then, adverting to chairman a. P. S. R. T. C. Vs. Shafiya khatoon and to the english table of 1967 adopted for india in that case, the majority observed (para 10) that kemp and kemp.
"have not prepared the table for the use in india, so we cannot use the table which was prepared on the basis of mortality tables of other countries."
(emphasis supplied) and again pointed out (para 11) that the interest rate must relate to a stable period of "our country" and not that of other countries obviously, they thought that if the 1967 english multiplier table was based on 51/ 2% rate of interest, that may be the interest for a stable period in england but that rate cannot be applied for india, we have to find out the interest rate applicable to a stable period of indian currency. Again the majority observed (para 12) :
"since we accept annuity tables strike a greater degree of accuracy in estimation of damages. "
(emphasis supplied) and in (para 18)
"if in future a. Ts. Are prepared in india, we may revive the discussion. "
(emphasis supplied). The whole - thread of reasoning in the full bench is, if i may say so with respect, that tables give more accuracy and are used in other countries, that we cannot adopt a table prepared in other countries to our conditions because (a) our mortality tables and mortality rates are different and (b) our interest rate (for conversion of future payments to present values) has to be picked up from non - inflationary or stable priod of our currency and not that of another country.
(35) In bhagwandas vs mohd. Arif the guidelines given by the majority qf the full bench have been strictly followed and i have based the table on the mortality table for india (1980) published by the registrar - general of india only and the first directive of the full bench is complied with. Coming to the rate of interest for india referable to a stable period or non - inflationary period, i have stated that that is called the 'real rate' of interest, and referred to fisher's effect on which it is based. I arrived at a stable rate of 4% after referring to the rates adopted by government of india for pension commutation from 1957 to 1981, as well as the whole sale price index and the retail price index. I observed that this rate of 4% is in between the higher rates of 51/2% of england and 31/2% in australia. I pointed out that 4% is more advantageous to the claimants and gives higher multipliers than if 51/2% (as in england and shafiya khatoon's case) is applied.
(36) Thus, it is clear that the full bench accepted the tables in principle and as being scientific and more accurate but objected only to the adoption of the 1967 english table. It said clearly that as and when tables were prepared for india, the discussion might be revieved. The argument that the full bench has "prohibited" the use of tables even if they are prepared by using indian mortality tables and a stable rate of interest applicable for indian/conditions, is, in my view, based on a misconception about the opinion of the full bench. I decide point no. 4 accordingly. Examples :
(37) In order to show the simplicity of the techniques and also to make lawyers and the courts understand the method of computation without any difficulty, i shall work out a few examples,with reference to fatal cases or also injury cases : fatal accident cases
(a) married adult children : (i) a dies leaving behind him his wife w and one minor son b and minor daughter c. His age at death is 25 years and salary rs. 500/ - p. M. He was employed and would have retired at 60 years. His contribution to the family is assumed at rs. 250/ - p. M. (in this case, the'chances of promotion etc. Are not taken into account). Loss to the dependency : =multiplicant x multiplier. == (rs. 250 x 12) x (17. 95) (from table in bhagwandas's case) =3,0090 x 17. 95 = rs. 53,850/ -. Loss to the estate : =conventional amount payable towards pain and suffering and loss of amenities between time of accident and time of death and loss of expectation of life. =rs. 7,500/ -. Note : (as per practice in indian courts, i am not deducting the loss to the estate from the loss to the dependency on the assumption that that is correct). Total compensation : rs. 53,850 + 7,500 rs. 61, 350. This has to be apportioned between the wife and the two children.
(ii) in the same case, a has a scale of pay and promotional avenues. As on his date of death, it cannot be said with certainty that, in his service, he would have surely reached the higher positions. He might have gone up or stopped at a middle place or gone up. After all employees do not reach the top, because of the fewer posts at the top. In that context, the average pay present and futurecan be taken as say rs. 750/ - p. M. The contribution to the family taken as rs. 375/ - p. M. (see k. Sapana's case) loss to the dependency : (rs. 375 x 12) x (17. 95) 4500 x 17. 95 rs. 80. 775. Loss to the estate : rs. 7,500/ - total compensation: rs. 88,275/ -
(iii) a dies at his 25th year, leaving behind him his mother (aged 45 years) , wife, a minor son and minor daughter. At the time of his death he is earning rs. 500/ - p. M. With promotional chances, liable to retire at 60 years. The contribution to the family is rs. 300/ - p. M. Considering the promotional avenues etc, the contribution to the family is rs. 375/ - p. M. On an average.
(38) So far as the multiplier applicable to the family members (other than the mother) is concerned, it will be 17. 95. But so far as the mother aged 45 years is concerned the contribution to her would have been only for the remaining period of her expected life and not for the entire expected life of the deceased. Therefore the multiplier applicable, so far as the contribution to the mother is concerned, will be a multiplier suitable for her age i. E. , 45 years. A multiplier for a person whose future at 45 years remains uncertain and subject to her chances of living, will be 10. 45.
(39) Out of the average future contribution to the family, the contribution to all (except mother) will be rs. 300/ - and for the mother rs. 75/ - p. M.
(a) loss to the dependency : = rs. 300 x 12 x 17. 95 (except mother) rs. 64, 620/ - (b) loss to dependency (to the rs. 75 x 12 x 10. 45 mother) rs. 9, 405/ - loss to the estate : rs. 7,500/ - (to be apportioned according to law of succession,
(b) (i) unmarried adult children : (above 18 years) a died at his 18th year, leaving behind him his mother aged 40 years. At the time of his death, he was earning as a labourer getting rs. 7. 50 per day. His monthly income was rs. 225/ -. His contribution to his mother was rs. 100/ - p m. Annual contribution is rs. 1200/ -. The multiplier from bhagwandas' case should be selected on the basis of the mother's age and not on the basis of the child's age because the mother could expect the contribution to last for her remaining expected life but not on the basis of the child's deathi. E. , the multiplier will be 12. 79. Loss to the dependency : = rs. 1200 x 12. 79 = 15,388/ - loss to the estate : rs. 7,500/ - total loss: rs. 22,888/ - average for each year for period between 15 years and 20 years = 20. 16 19. 14 = 1. 02 = 0,204 points. For 3 years 0. 204 x 3 0. 612. 5 5 for 15 years it is 20. 16 and for 18 years it will be 20. 16 0. 612 19. 548 = 19. 55 the loss to the dependency : rs. 1200 x 19. 55 23, 460 loss to the estate : 7,500/ - total: rs. 30,960/ -.
(c) boy aged above 10 and below 18 years :boy aged 15 years dies leaving behind him his mother aged 35 years. At the time of his death he is not earning. He is expected to earn only after reaching 20 years, and not immediately. Therefore the contribution would have started only after mother reaches 40 years. The multiplier to be applied is for the age 40 i. E. , 12. 79. If the annual contribution to the mother, on an average, (even after the child's marriage) could have been rs. 100/ - p. M. , or rs. 1200/ - p. A. The loss to the dependency will be. Rs. 1200 x 12. 79 rs. 15, 348/ - loss to the estate : (pain, suffering and loss of amenities and loss of expectation of life) rs. 7, 590/ - total : rs. 22,848/ -.
(40) Injury cases :
(i) a is aged 23 years at the time of accident and earning rs. 500/ - p. M. He loses both eyes and becomes a mental wreck. The trial has taken place after 2 years, i. E. , at his 25th year. It is a case of 100% disability. The injured is entitled to compensation for pecuniary losses such as (a) loss of earnings, from date of accident; (b) medical and travel expenses and special diet; (c) expenses for attendant upto trial and in future and for non - peunciary losses for pain, suffering and loss of expectation of life. Past pecuniary losses :
(a) loss of earnings for 2 years from date of accident to date of trial : rs. 500 x 12 x 2 = 12,000 (b) medical and travel expenses and special diet (as per evidence) (say) 10,000 (c) expenses for attendant upto - date of trial at rs. 100/ - p. M. (say) rs. 100 x 12 x 2 2,400 rs. 24,400/ - future pecuniary losses : (present value) (a) loss of wages upto 60 years (17. 95 =500x12x17. 95 being multiplier at date of trial, when injured is 25 years) = 1,07,700/ - (b) expense for attendant for future: rs. 100 x 12 x 17. 95 = 21,540/ - non - pecuniary losses : pain, suffering, loss of amenities and loss o f expectation of life (total wreck case). Rs 50,000/ - total compensation : rs. 2,03,640/ -
(ii) in the accident a loses one leg. He is aged 23 at the accident and 25 at the trial. He is proved to have incurred a 50% disability. While estimating the past pecuniary loss, future pecuniary loss, 50% of the losses alone should be awarded. Of course, the award for medical, travel, diet need not be cut down by 50%. Coming to non - pecuniary losses, they are computed as per conventional amounts and periodically reviewed.
(iii) it is not necessary to give more examples as i have already given details in other cases (since reported).
(41) On facts :coming to the facts of the case, here the boy is aged 10 years and falls in category (d). If he had fallen in other categories (a) , (b) or (c) , and the claim is by parents, the multiplier suitable to the age of parents could be applied. If he fell in category (a) and his wife and children were claimants, a multiplier suitable to the age of the deceased would have been applied. But as he falls in category (d) , we have to give an award of a conventional sum as done by the supreme court in c. K. Subramania iyer's case (20 supra). As pointed out earlier in the discussion under class (d) , the conventional amount can be said to have increased, due to past inflation from 1956 to 1980 from rs. 5,000/ - to rs. 15,000/ -. This is the loss to the dependency.
(42) So far as the award for pain, suffering and loss to the amenities between the short span of the time of accident and the time of death, a conventional figure of rs. 7,500/ - can be adopted. This is the loss to the estate.
(43) Following the practice of indian courts, i am not deducting the loss to the estate from the loss to dependency, even though the claimants are the sameon the ground that there is no overlapping in the components, of these two awards.
(44) In the result, the award comes to rs. 22,500/ -. The tribunal awarded rs. 12,000/ - only and there being no cross - appeal, there is no warrant for reducing sic the figure of rs. 12,000/ -. The appeal is accordingly dismissed. There will be no order as to costs.