1. This judgment shall also govern the disposal of Miscellaneous (First) Appeal No. 10 of 1984 (Sudhaker v. State of M. P. and others); Miscellaneous (First) Appeal No. 16 of 1964 (M. P. State Road Transport Corporation v. Sudhakar and another); Miscellaneous (First) Appeal No. 17 of 1964 (M. P. State Road Transport Corporation v. Sudhakar and another); Miscellaneous (First) Appeal No. 13 of 1964 (M. P. State Road Transport Corporation v. Shaileshkumar and another); Miscellaneous (First) Appeal No. 14 of 1964 (M. P. State Road Transport Corporation v. Smt. Indubala Bhandari and another) and Miscellaneous (First) Appeal No. 15 of 1964 (M. P. State Road Transport Corporation v. Vasudeo s/o Keshavrao Vyas and another). One of the connected appeals, namely, Miscellaneous (First) Appeal No. 60 of 1963 (M. P. State Road Transport Corporation and another v. Smt. Munnabai and others), which arose out of another Bus accident, has been disposed of by us by a separate judgment.
These appeals arise out of a Bus accident that took place on 23-6-1961 at 1-15 P.M. between Guna and Indore, about 26 miles from Guna, when Bus No. MPG 4788, belonging to the M. P. State Road Transport Corporation went off the road, dashed against a tree uprooting it and struck against another tree, as a result of which the Bus toppled down on the left side below the road, Sudhakar received serious burn injuries from the boiling water of the radiator, which burst His wife Smt. Usha and her young child aged about one year were killed on the spot. Shrimati Indubala Bhandari and her young son Shaileshkumar, aged about 21/2 years, received severe injuries, Similarly, Vasudeo Vyas also received severe Injuries on account of the boiling water from the radiator which burst.
As a result, these injured persons made claims before the Claims Tribunal. Sudhakar claimed compensation for the injuries caused to him as also for the death of his wife and young son. It will be convenient to deal with these appeals in different lots. We propose to deal with them as follows:
I-A. -- Miscellaneous (First) Appeal No. 16 of 1964 -- relating to bodily injuries to Sudhakar, in which he was awarded Rs. 10,630 as against the claim of Rs. 25,000;
I-B. -- Miscellaneous (First) Appeal No, 15 of 1964 -- relating to the injuries caused to Vasudeo Vyas, in which his claim for Rs. 15,000 was allowed, as against the claim of Rs. 95,000; These two cases are similar. On the other hand, Sudhakar received more severe injuries.
II-A -- Miscellaneous (First) Appeal No. 17 of 1964 -- relating to the death of Smt. Usha Kotasthane, in which Sudhakar's claim for Rs. 15,000 as against Rs. 75,000 was allowed;
II-B -- Miscellaneous (First) Appeal No. 10 of 1964 -- filed by Sudhakar as a counter appeal of Miscellaneous (First) Appeal No. 17 of 1964, in which he has claimed enhancement of the compensation by Rs. 60,000;
II-C -- Miscellaneous (First) Appeal No. 12 of 1964 -- relating to the death of the child of Sudhakar, in which compensation amounting to Rs. 7,500 was awarded against the claim of Rs. 40,000;
III-A -- Miscellaneous (First) Appeal No. 14 of 1964 -- relating to the injuries caused to Smt, Indubala Bhandari resulting in permanent physical incapacity;
III-B -- Miscellaneous (First) Appeal No. 13 of 1964 -- relating to the injuries caused to Shaileshkumar son of Smt. Indubala Bhandari, resulting in permanent physical disabilities;
2. These appeals arise out of the award dated 30-7-1963, passed by the Claims Tribunal Gwalior (Additional District Judge) in different claim cases filed by the injured persons for the injuries caused to them as also for the death of some close relations. The Tribunal invoked the principle of res ipsa loquitur and held that in the absence of any rational and plausible explanation to be adduced by the defendants, an Inference of negligence on the part of the Bus driver could be drawn. As the accident took place for no apparent reason, whatsoever, the same could be attributed to the rash and negligent driving on the part of the Bus driver. For this reason, the M. P. State Road Transport Corporation was liable to pay damages to the injured persona for the bodily injuries caused to them and for the death of their close relations. Common evi-dence was recorded on the general questions affecting all cases. However, further evidence was also recorded with respect to each claim case. Out of these questions, the main questions that arise for consideration in the present appeals are:
(i) Whether the accident took place on account of the rash and negligent driving on the part of the Bus driver so as to make the State Road Transport Corporation liable in damages;
(ii) What should be the principles for fixing the quantum of damages with respect to the death or bodily injuries caused to an individual;
Before considering the individual cases, we propose to consider the first question relating to negligence, which is common to all the appeals.
3. We may first refer to the appellant's witnesses. Kailashnath Wahi (D. W. 1), who was the Works Manager of the M. B. Roadways at Indore at the relevant time, stated that, on the next day of the accident, he had been to the spot and had inspected the Bus. According to him the front spring of the right-hand side had broken. He had sent a report Ex. D.-1 to the General Manager. According to that report, the right front main spring had broken and the vehicle had been mainly damaged on the left-hand side. The report stated that a detailed report of the accident would be submitted by Mr. Khare of the Central Workshop. However, that detailed report has not been filed on record, although Shri H. N. Khare was examined as D. W. 12,
Shri H. N. Khare (D. W. 12) stated that at the relevant time, he was Works Supervisor and on the next day he had reached some time in the noon. As he needed some instruments, he went back to Guna and went to the spot at about 5 in the evening. He learnt that Mr. Wahi had inspected the spot and gone away. The witness stated that the main front spring of the Bus had broken. He did not find any other defect. He was unable to give the cause of breaking of the spring. Madanlal Sharma (D. W. 2), Booking agent of the Corporation at Guna, stated that the Bus had reached Guna at 11 A. M. It left Guna at 12 in the noon. He filed Ex. D-2 the time-table of the Bus, which had been filled in by the conductor, which he had counter-signed. This witness was examined mainly to prove that the Bus left Guna at about 12 in the noon. The accident was said to have taken place at 1-15 P.M. at a distance of 26 miles from Guna. Therefore, it was the defence contention that if the Bus required an hour and a quarter for covering 26 miles, the speed of the Bus at the relevant time could not have been very high.
As against this, we have the evidence of intelligent educated persons who know driving motor vehicles, stating that at the relevant time, the speed was very high between 50 to 55 miles per hour. We shall examine that evidence a little later. But the mere fact that the Bus left Guna at 12 will not be of any avail to the defence. It may be that the Bus might have travelled only about 26 miles in an hour, but that will not indicate the speed of the Bus at the time of the accident.
4. Salim (D. W. 3), a mechanic of the M. B. Roadways posted at Guna, stated that he had examined the Bus at Guna and it was in perfect order when it left Guna. The witness required about 15 minutes for checking the Bus. Bhimsingh (D. W. 4), another mechanic, stated that he had examined the Bus at Gwalior before it started for Guna. After examining the Bus and ascertaining that everything was all right, he had handed over the Bus to the Bus driver. According to him, there was absolutely no defect of any sort.
5. Shankarsingh (D. W. 5), Booking agent of the M. B. Roadways stationed at Gwalior, stated that the Bus had left Gwalior at 6 A. M. The other witnesses have stated that it reached Guna at 11 A. M. Thus, according to these witnesses, the Bus took five hours to reach Guna, thereby covering the distance of 135 miles, thus maintaining an average of 27 miles per hour. In order to maintain this average, the Bus must certainly keep up the maximum speed 40 to 45 miles per hour which may vary according to the exigencies of the situation.
6. Gopal Mudgal (D. W. 7), Conductor of the unfortunate Bus, stated that the Bus left Gwalior at 6 A.M. It reached Shivpuri at 8-45 A. M., leaving Shivpuri at 9 A. M. it reached Guna at, 11-15 A. M. It left Guna at 12. The witness was asked other questions whether leaving his seat, he had occupied a seat near the engine bonnet and whether he was talking with the driver, Panchamlal. The witness denied that he did anything of this sort. The witness also denied that the Bus had grazingly dashed against another vehicle between Gwalior and Shivpuri. The witness also denied that the Bus was going at a high speed or that the driver, Panchamlal was intoxicated.
This witness further stated that another truck was crossing the Bus just before the accident. This story of another truck crossing the Bus was introduced with a view to show that the speed of the Bus could not be very high. As we propose to show a little later, this story of another truck crossing just before the accident is altogether a myth. This witness further stated that after the truck had crossed the Bus there was some noise and as a result, the Bus took a turn towards the right side off the main road and the Bus overturned towards the left side. After crossing the truck, the Bus might have travelled a distance of about two furlongs when the accident took place. We may observe that this is hardly an explanation for the cause of the accident. The witness was confronted with the photographs which had been taken on the spot soon after the accident. We feel that the circumstances and the photographs speak for themselves clearly establishing the negligence on the part of the Bus driver, Panchamlal.
7. Ramsingh (D. W. 8) was a Panch witness, who had signed the Panchnama Ex. D-5. However, this witness had not been on the spot, but he had merely seen the broken spring in the Depot of the M. 3. Roadways at Gwalior. This evidence will not help the appellants in any manner. Sirni-larly, Buddhiram (D. W. 9), a mechanic, at Gwalior, stated about the breaking of the spring.
8. Ditia (D. W. 10), head-constable, who was travelling in the Bus was unable to throw any more light on the cause of the accident with reference to the attendant circumstances. Prabhagchand (D. W. 11), a constable, who was also travelling in the Bus, stated that at the time the accident took place, the speed of the Bus was very moderate, the road was quite clear and straight. According to him about three furlongs prior to the scene of the accident, some truck or motor vehicle had crossed the Bus. The witness stated that he heard some noise of breaking and thereafter the Bus turned towards the right, went off the road and dashed against trees. This was all the evidence examined on behalf of the appellants.
9. On behalf of the claimants, Shuyeb Bahadur, (P. W. 1), an artist in the Information and Publicity department at Bhopal, was examined. He was one of the passengers in the Bus. According to him, the Bus reached Guna at 11-30 A. M. and had left Guna at about 12-30 P. M. The accident took place when the Bus had gone a distance of 26 miles. The road was straight and there was no traffic at the place of the accident. The witness knew Mr. Vyas, who was in the Bus and who was injured in the accident. After the accident, the witness tried to know the names of the injured persons. At the time of the accident, the speed of the Bus was over 50 miles per hour as the road was clear, the driver immediately increased the speed. Suddenly the Bus turned towards the left side.
The driver tried to turn it towards right, but the Bus instead of going straight took a turn towards right, went off the road and dashed against a tree. As a result the tree was up-rooted Thereafter the Bus dashed against another tree and over-turned on the left side. Two women had been caught in the main door towards the left side. Thereafter Mrs. Bhandari and her child were taken out. Mrs. Kotasthane and her child were found dead. The witness took photographs Exs. P-1 to P-6. The photograph Ex. P-6 clearly shows that the tyrerod had not broken and the right main spring also was intact. The left main spring of course appeared to have been broken. Mr. Kotasthane and Mr. Vyas had burn injuries on account of the hot water gushing out from the radiator which had burst. These photographs speak a lot so as to negative the defence allegation that the right main spring of the Bus broke down, which was the cause of the accident. Evidently the Bus had been damaged on the left side and the left main spring must have been broken as the left side of the Bus dashed against the first tree, and when it dashed against the second tree, it must have over-turned towards the left side. That is the only explanation that appears to be plausible and rational under the circumstances.
10. The next witness, Durgaprasad Varma (P.W. 2), an employee in the Municipal Corporation, Gwalior, stated about the earlier incident between Shivpuri and Guna when the Bus grazingly dashed against a crossing truck. Even at that time the speed of the Bus was above 50 miles per hour. After the dash, the truck driver had stopped his truck, but the Bus driver, Panchamsingh did not stop the Bus. At that time, the witness and the other witnesses told the driver not to drive so rashly. The witness further stated that the Bus left Guna at about 12-30 P.M. The accident took place at about 1-10 P. M. on the 26th mile from Guna. At the place of the accident, the road was straight and clear. The speed was above 50 miles per hour. The witness gave other details of the accident as also the persons who suffered injuries
11. Shri Vasudeo Vyas (P. W. 3), Shri Biddhilal (P.W. 4) and Anandrao Chouhan (P.W. 5) all have given a similar version stating that the speed of the Bus was high, that is above 50 miles per hour. The road was clear. There was no traffic, the road was visible and the accident did not take place on account of any mechanical failure in the machine or the body of the Bus. Suddenly the Bus turned towards the left side. The driver turned it towards the right. Instead of going straight, the Bus went off the road, dashed against the first tree, which was up-rooted, then it dashed against the second tree and was over-turned towards the left, causing two deaths and many injuries. It is not necessary to advert to their depositions in great details, which will merely amount to repetition. But the main points in their depositions are made out as stated.
12. Shankar Ghode (P. W. 6), Regional Transport Inspector, who was in charge of inspecting the mechanical side of all the Buses, positively stated that the left side spring of the Bus had been damaged. The right side spring was intact. Thus, this evidence led on behalf of the claimants positively establishes the fact that at the time of the accident, the speed of the Bus was high, that is, above 50 miles per hour. The road was clear and visible. There was no traffic near the place of accident. For no apparent cause the Bus took a turn towards the left. The driver made an attempt to take it on the main road. Instead of going straight the Bus took a turn towards the right, went off the road and dashed against the two trees. As such, there was no apparent reason for the accident to take place, At any rate the reason was not extraneous or was not patent.
It was for that reason that the Claims Tribunal invoked the principle of res ipsa loquitur. The learned counsel for the appellants urged that the principle could not be invoked and the cause of the accident should be held to be the breaking down of the main spring. We may observe that the defence suggestion was that the right main spring broke down, as a result of which the Bus took a turn towards the right, went off the road and dashed against the trees. This explanation has been found to be incorrect. On the other hand, the Bus had not suffered any breakage when it took turn towards left and when the driver made an attempt to bring it on the road, but instead of going straight, it again took a turn towards right, went off the road and dashed against the trees. The breaking of the left main spring could only be the result of a dash against the first tree, which on account of the impact, was wholly up-rooted. Thus, the defence explanation having been established to be incorrect, the circumstances and the apparent facts relating to the accident are only consistent with the theory of rash and negligent driving on the part of the Bus driver. Under these circumstances, the doctrine of res ipsa loquitur will be applicable; and we do not think that the Claims Tribunal was in error in applying the same.
13. As stated by the learned author, Charlesworth on 'Negligence' (Fourth Edition) at page 110, there may be cases where the plaintiff proves the happening of the accident and nothing more. It may be that he cannot prove more, but whether he can or not he does not prove any specific act or omission on the part of the defendant. The mere happening of the accident itself may be more consistent with negligence on the part of the defendant than with other causes and, if that is so, the Court may find negligence on the part of the defendant un-less he gives a reasonable explanation to show how the accident may have occurred without negligence on his part. The maxim is not a rule of law. It is no more than a rule of evidence affecting onus. It is based on common sense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant. The doctrine does not apply when the cause, of the accident is known.
Citing the case of Halliwell v. Venables (1930) 99 LJ KB 353, the learned author propounds the proposition that if a motor vehicle under the control of the defendant or his servant over-turned for no apparent cause while being driven along with the highway, that fact alone is evidence of negligence against the defendant and so is the fact that it leaves the road and falls down an embankment. The case of Hunter v. Wright 1938-2 All ER 621 was a case of a vehicle knocking down a pedestrian. In that case the defendant succeeded in rebutting the presumption of negligence. For that reason it was held that the defendant was not liable for the damages. But where no particular cause can be assigned for the accident and the circumstances are consistent with the negligence of the defendant the plaintiff can invoke the doctrine; and in that event the burden lies on the defendant to rebut the presumption arising on account of the application of the doctrine.
14. In this connection, we might advert to the statement of the law as propounded in Cole v. De Trafford, (No 2) 1918-2 KB 523, wherein it is stated that the doctrine only means that an accident by its nature be more consistent with its being caused by negligence for which the defendant is responsible than by other causes, and in such a case the mere fact of the accident would be prima facie evidence of such negligence. The burden of proof would be on tbe defendant to explain and to show that the accident occurred without any fault on his part. Thus, the applicability of the doctrine to such cases is merely a rule of evidence relating to burden of proof, and nothing more. In the absence of any explanation on the part of the defendant, the Court can infer negligence on his part.
15. This disposes of the first general question, that the accident took place on account of the rash and negligent driving on the part of the second respondent.
16. Before discussing the individual cases we propose to state the principles governing the awarding of compensation. The cases may be divided into two groups:
(i) Resulting in fatal accidents, which may be divided into two sub-groups;
(A) Death of an adult earning member of the family, and
(B) Death of a non-earning member of the family;
(ii) (A) Bodily injuries which have resulted in permanent physical disabilities;
B) Bodily injuries which have not resulted in permanent physical disabilities;
17. We may advert to the pronouncement of their Lordships of the Supreme Court in Gobald Motor Service Ltd. v. R. M. K. Veluswami, AIR 1962 SC 1, wherein their Lordships have laid down that the maxim of res ipsa loquitur would be applicable where the cause of the accident cannot be ascertained and the circumstances are consistent with the rash and negligent driving on the part of the driver. Their Lordships relied on the case of Barkway v. South Wales Transport Co. Ltd., 1948-2 All ER 460. In the case before their Lordships the accident did not take place on the main road, but on the off-side uprooting a stone and breaking it and dashing against a tamarind tree 25' away from the said stone with such a velocity that its dark was peeled of and the bus could stop only after travelling some more distance from the said tree. Their Lordships held that the events that took place told their own story and, therefore, the presumption was attracted that the accident was caused by the negligence of the driver.
Regarding the damages for fatal accident, their Lordships laid down that where the deceased be an earning member of the family, on whom other members might be dependent, the basis for calculating the pecuniary loss to the dependents may be the result of many imponderables. The actual extent of the pecuniary loss to the dependents may depend upon data which may not be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture. Their Lordships stated the general principle that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefits and on the other any pecuniary advantage which from whatever source comes to them by reason of the death. Thus, the loss and the gain have to be ascertained and to be adjusted against each other. The burden would certainly be on the plaintiff to establish the extent of the loss.
18. However, where merely bodily injury is caused resulting in permanent physical disability, the pecuniary loss might be assessed on the disadvantage suffered by the person for the rest of the life. Where a non-earning member of the family is killed, the trend in English decisions has been to award only nominal damages. For instance we might advert to the case of Barnett v. Cohen, 1921 All ER 528, which was a case of death of a child aged about four years. McCardie, J. laid down that in an action under the Fatal Accidents Act, 1846, it would not be sufficient for the plain-tiff to prove that by the death of the deceased he lost a mere speculative possibility of pecuniary benefit. To succeed he must prove a reasonable probability of pecuniary advantage. In that case the plaintiff claimed damages under the Fatal Accidents Act, 1846, for the loss of his son, who was living with him and was killed while walking along the pavement by being crushed by a pole which fell while being unloaded from a van owing to the negligence of the defendant's servants.
The plaintiff used to earn about 1,000 per year from his business. At that time, he was 40 years of age and his wife was aged 33 years. Neither of them was in good health. The plaintiff intended to educate his child up to University level and he claimed damages on the basis of anticipation of the services and help or pecuniary aid that the child might be able to give after his education. The learned Judge held that the plaintiff's claim was; based on contingencies and uncertainties which, owing to the extreme youth of the deceased child, combined with the ill-health of the plaintiff and his wife, it could not be asserted that there was any reasonable certainty of the plaintiff deriving any benefit from the child. The child himself was of a poor health.
The contention of the learned counsel for the appellants is that no damages whatsoever should be awarded in the case of death of a child, as the probable benefit would be merely speculative. We are unable to accept this contention. It is true that there may be many ifs and buts in the case of a child giving pecuniary benefits to its parents after completing its own education. But we are unable to accept the contention that no damages whatsoever should be awarded in the case of death of a child. The loss is undoubtedly there. In the present case, as is clear from the evidence on record, Mrs. Kotasthane was a healthy woman, aged 23 years. Even from the photograph Ex. P-6, it is clear that the child was very healthy. Even Sudhakar is a healthy young man. He has suffered not only the physical injuries, but also mental agonies regarding the death of his wife and his only child.
Of course the loss of probable benefit that the child might have been able to render, may be in the region of conjecture which before achievement would be qualified by many ifs and buts. But we are of opinion that some nominal damages ought to be awarded even in the case of death of a young child. The trend of English decisions has been to award such nominal damages ranging anywhere between 100 to 500. As regards the non-earning members of the family, the damages to be awarded in the case of injuries resulting in permanent physical disabilities, ought to be based on the consideration so as to set off the disability suffered for the rest of the life. As regards the other injuries not resulting in permanent physical disability, we are of the opinion that lesser damages commen-surate with injuries and suffering might be awarded in suitable cases. Having thus stated the general principles relating to assessment of compensation applicable to different sets of cases in the present appeals, we proceed to consider each individual case according to its grouping, as suggested by us earlier in paragraph 1 of this judgment.
19. Group I-A & B -- Miscellaneous (First) Appeal No. 1.6 of 1964, relating to bodily injuries caused to Sudhakar, and Miscellaneous (First) Appeal No. 15 of 1964 relating to the injuries caused to Vasudeo Vyas.
Sudhakar had claimed Rs. 25,000. The Tribunal awarded him Rs. 10,630. Vasudeo Vyas had claimed Rs. 95,000. The Tribunal awarded him Rs. 15,000. It is necessary to examine as to what bodily injuries these two claimants suffered. As is clear from the testimony of Dr. Chitranjansingh Rana (P. W. 2) he had examined Vasudeo Vyas on 24-6-1961 at 6 P. M. He had a simple fracture on the right hurnerus bone in the middle and infected burns on the left thigh, buttock and part of the abdomen. His condition on the 25th and 26th was serious. He had temperature. His general condition deteriorated on the 27th June, 1961. The case was transferred from the general ward to special ward for isolation and better treatment. He was in precarious condition for 63 days. He was given blood transfusion twice. He was in the hospital till 5-10-1961. Skin grafting was done on 12-9-1961.
His condition at the time of discharge from the hospital was that he had limitation of the movement of the right shoulder joint and the left knee joint. This stiffness gradually cleared off within a period of about 3 months. The witness examined him about 3 or 4 months back before his deposition, that means, in May, 1962, The general condition of Vasudeo Vyas had considerably improved. The burn injuries had left scars on the burnt portion and deep pigmentation. Vasudeo Vyas is the Secretary of the Mandal Panchayat Shajapur and he would be entitled to be reimbursed for the expenses of the medical treatment. Thus, this respondent Vasudeo Vyas did not suffer any permanent physical disability except burn injuries, which made his condition precarious almost for two months and he escaped death narrowly. However, on account of the good treatment, he has been cured and the only injuries are the permanent scars on the left thigh, buttock and abdomen.
20. As regards Sudhakar Kotasthane, the discharge certificate Ex. P-7, shows that he got burn injuries over his trunk and left lower thigh. Skin was grafted. He was an indoor patient in the hospital from 24-6-1961 to 15-8-1961. From 16-8-1961, he was an out-door patient at the Jayajirao Hospital Lashkar. A clearer idea about his injuries can be gathered from his own deposition as P. W. 1, recorded in Miscellaneous (First) Appeal No. 10 of 1964. He stated that his entire body, including the chest, stomach and back were burnt due to the boiling water of the radiator, which burst. His legs also had been burnt. The burn marks were still present at the time of his examination. There was grafting of the skin. The Member of the Tribunal noted the burn marks on the chest, stomach, legs and back, which were in existence in abundance. However, this respondent did not suffer any permanent physical disability, except permanent scars. Thus, the cases of Sudhakar Kotasthane and Vasudeo Vyas are more or less similar. The only difference is that Sudhakar Kotasthane received more injuries, while Vasudeo Vyas was in precarious condition for about two months. The question is whether this fact should make a difference in the compensation to be awarded to them. The trial Judge awarded Rs. 10,630 to Sudhakar Kotasthane and Rs. 15,000 to Vasudeo Vyas. We may examine the reasoning of the learned Judge in this behalf.
21. The learned Judge observed that Sudhakar Kotasthane had claimed Rs. 1,200 for nourishment, diet and fruits at the rate of Rs. 10 per day; Rs. 150 were claimed as conveyance charges for the family members going to the hospital, Rs. 20,000 had been claimed for physical discomfort and mental shock suffered by him due to the burn injuries and the deaths of his wife and son; Rs. 3,500 were claimed for permanent disfiguration of his body. This Sudhakar is a young man aged 27 years, who is employed as a Lecturer in Plant Pathology in Agricultural College at Sehore. At the time of the accident, he was drawing a salary of Rs. 255 per month, inclusive of dearness allowance. Therefore, the learned Judge allowed him Rs. 480 on account of nourishment expenses from 23-6-1961 to 28-9-1961 at the rate of Rs 5 per day. He was not allowed any medical expenses amounting to Rs. 150.
It was further observed that the injuries sustained by him were of a serious nature as grafting of skin had to be done and he was an indoor patient nearly for 3 months. The injuries had caused disfiguration at many places on the body. Therefore, a round figure of Rs. 10,000 was thought proper to be the damages. This amount was fixed looking to the status of Sudhakar in the society. At the relevant time, his father was a District and Sessions Judge, his wife Mrs. Usha Kotasthane was a graduate of the Vikram University and she was Physical Instructress at Indore, drawing a salary of Rs. 190 per month. At the time of her death, Mrs. Usha Kotasthane was aged about 23 years. Looking to all these circumstances, the learned Judge awarded an amount of Rs. 10,630. We see no reason to interfere with the assessment of damages made by the trial Judge in view of the serious injuries caused to him as also the mental shock suffered on account of the death of his wife and the only child.
22. As regards Vasudeo Vyas, it is true that his condition in the hospital was serious for about two months, but in comparison with Sudhakar Kotasthane, he received less severe injuries. Mprever, there was no loss of any near relation due to death in the accident. The learned Judge awarded him a round figure of Rs. 15000. We may observe that the period of his illness was certainly longer, namely, six months. The learned Judge also observed that his life has not been shortened, nor he in any way suffered in Ms service condition, nor has any physical disability been caused to him. In fact, there being little difference between the case of Vasudeo Vyas and Sudhakar Kotas-thane so far as the bodily injuries are concerned, we are unable to subscribe to the view that Vasudeo Vyas was entitled to more damages than Sudhakar Kotasthane. On the other hand, Sudhakar has had to suffer more physically and mentally. Under these circumstances, we are of opinion that the damages to be awarded to Vasudeo Vyas should be Rs. 10,000/- in round figures.
23. Group II-A Miscellaneous (First) Appeal No. 17 of 1964, relating to the death of Mrs. Usha Kotasthane. Sudhakar had claimed Rs. 75,000. His claim for Rs. 15.000 was awarded.
Group II-B Miscellaneous (First) Appeal No. 10 of 1964, in which Sudhakar has made a counter claim for enhancement of the compensation by Rs. 60,000.
Group II-C -- Miscellaneous (First) Appeal No. 12 of 1964, relating to the death of the child of Sudhakar. Rupees 40,000/-had been claimed, while Rs. 7,500/- were awarded
24. Relating to the death of Mrs. Usha Kotasthane, she at the relevant time was aged 23 years. She was a graduate of the Vikram University and was a Physical Instructress at Indore, drawing Rs. 190/-per month, inclusive of dearness allowance, in the grade of Rs. 150-10-250. She might have reached the maximum in six years time. She could have been an earning member at least till the age of retirement, which normally could have been up to 55 years; and under the present Rules, it could have been up to 58 years. As such, she could have been an earning member of the family at least for 35 years. Her further promotions might be speculative. She was quite healthy and was actually working as a Physical Instructress. Thus, the span of her earning life could easily be placed the time of her normal retirement on superannuation.
For six years, she might have earned less than the maximum. Therefore, for those six years, we might put her income at Rs. 200/- per month. But regarding the remaining period of her service, namely. 29 years, she could as well be expected to earn at the maximum of Rs 250/- per month Thus, the loss of the earning to the family would be Rs. 200/- per month for six years and Rs. 250/- per month for 29 years. Thus, normally, she could have earned Rs 96,600/-. Giving allowance for her own expenses and also taking into consideration the probable promotions or Mgher salary that she might have been able to earn, we might state that she could easily have spread half of this amount for her child and her husband. Thus, in round figures, the family has been deprived of an income of Rs. 50,000/- on account of the death of Mrs. Usha Kotasthane.
25. It is true that as admitted by Sudhakar in his deposition, he has married a second wife. As such, a family life and comforts on account of such family life would be there on account of the second marriage. 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. Sudhakar would be entitled to be reimbursed for the said financial loss and at the most any financial gain that might have been made on account of the death of his first wife and on account of his second marriage might be adjusted towards such losses. But the same not having been established, this appellant is entitled to claim compensation on the basis of the loss of the earning to the family, which normally would have been available, but for the unfortunate death of his first wife.
26. The trial Judge awarded Rs. 15,000 only, which, in our opinion, is wholly inadequate, looking to the fact that the learned Judge did not apply the tests correctly, as laid down by their Lordships of the Supreme Court in AIR 1962 SC 1 (supra). In a case of fatal accident, it is the loss of benefit to be balanced by the loss of gain that has to be assessed as damages. There is nothing to show that Sudhakar has gained anything due to the death of his wife. It is not the defendant's case that Sudhakar received any Insurance amount or got any property. Under these circumstances, we would fix the compensation awardable to Sudhakar Kotasthane on account of the death of his wife at Rs. 50,000/-.
Consequently, Miscellaneous (First) Appeal No. 17 of 1964, fails and is accordingly dismissed with costs. Miscellaneous (First) Appeal No. 10 of 1964, partly succeeds and is accordingly allowed by enhancing the damages to Rs. 50,000/- with proportionate costs.
27. Miscellaneous (First) Appeal No. 12 of 1964 --
As regards the death of the child of Sudhakar, the learned Judge, on general principles, awarded an amount of Rs. 7,500 on the premises that the trend of the English decisions has been to award anywhere between 100 to pound 500 for the death of a child of tender years. Earlier, we have already expressed our opinion that the contention that no damages whatsoever should be awarded would be incorrect. But the loss of pecuniary benefit would in such cases be speculative one, which cannot be awarded. But we feel that in such cases the plaintiff ought to be awarded some nominal damages on account of the death of a prospective member of the family, who according to Hindu notion, would continue the tradition of the family and would offer oblation to his ancestors. What the learned Judge did was to convert the equivalent value of 500 to rupees, and from that point of view, Rs. 7,500/- were awarded. We may observe that the trend of the English decisions has been to award the maximum of 500, while in some cases the compensation has been much lower. Looking to the fact that the deceased child was healthy child and a child of healthy parents, who was the only child at that time, we might be inclined to award the general damages of Rs. 5,000/-, which in the present case, might be sufficient consolation to the bereaved father, looking to the fact that the child belonged to an upper middle class well-to-do family.
As a result, this appeal partly succeeds and is accordingly allowed, by reducing the figure of damages from Rs. 7,500/- to Rupees 5,000/-.
28. Then we come to the third group of cases, namely. Miscellaneous (First) Appeal No. 14 of 1964, relating to the injuries caused to Smt. Indubala Bhandari, resulting in permanent physical incapacity; and Miscellaneous (First) Appeal No. 13 of 1964, relating to the injuries caused to Shailesh-kumar Bhandari, resulting in permanent physical disabilities.
29. Regarding the injuries to Smt. Indubala Bhandari, it is to be noted that she is an educated woman belonging to respectable well-to-do family. Dr. Chitranjan-singh Rana (P. W. 2), in his deposition stated that he found the following injuries on her
1--Compound fracture of the right tibia and fibula bones;
2-- She had pain in the chest. X-ray confirmed fracture in the first rib;
3--She had pain in the spina. X-ray did not reveal any injury;
Dr. Rana issued certificate Ex. P-A-1, She was admitted as an indoor patient in private ward of the M. Y. Government Hospital, Indore. She was put in plaster up to 15-6-1962. She was also operated upon after removing the plaster.
As such, she had to be a patient almost for one year. She was asked to have rest in bed and to have exercise of the toe. She was unable to perform her daily routine. She was actually discharged from the hospital on 3-8-1961. But again she was admitted on 12-2-1962 and was discharged on 4-3-1962. On her second stay in the hospital, Dr. V. S. Pooran and Dr. V. K. Paha-ria had treated her. She was X-rayed. Dr. Rana had last examined her on 14-9-1962. She was allowed to walk without plaster with the help of crutches. Before that she was in the condition of total disablement. In September, 1962, there was swelling in the whole leg and below the knee due to the late effect of plaster, stiffness of the ankle joint, dorsification of the ankle. Dr. Rana also stated that at the moment she could walk with the help of a stick. She could never be restored to her normal health as she enjoyed before the accident. The disability would permanently affect her gait of walking. The defect of the clawing of the toes and the stiffness of the joint might be removed in due course of time, but she would never be able to walk briskly. Thus, the medical evidence discloses a permanent physical disability caused to her on account of the accident.
30. The trial Judge awarded her Rs. 200/- as nourishment expenses; Rupees 400/- as medical charges and Rs. 96/- for X-ray examination regarding her first admission in the hospital. Regarding her admission in the hospital at the second time, he awarded Rs. 380/-. She was allowed Rs. 1,785/- as medical expenses and nourishment charges; Rs. 200/- as examination-fee by experts and servant's salary at Rs. 50/-per month for a period of nearly one year, who used to attend on her. Thus, she was awarded Rs. 4,421/- as special damages; Rs. 500/- on account of the loss of business of her husband due to his attendance at the hospital. Thus, a claim of Rs. 4,921/-was awarded. As regards general damages, the trial Judge awarded her Rs. 30,000/-, as against her claim of Rs. 51,000/-. We may observe that the amount of Rs 500/- said to be the loss of business of her husband is a remote one, not directly connected with the accident. Moreover, it is not proved. Therefore, we would disallow that item altogether. As regards the special damages, we may observe that an award of Rs. 4,421/-would be justified.
31. As is clear from the deposition of the claimant herself as P. W. 2, and her witnesses, Sajjansingh Bhandari (P. W. 3) and Bhanwarilal Bhandari (P. W. 4), she is an educated lady, who belongs to a respectable well-to-do family and she would have to suffer this physical handicap for the rest of her life. She may require attendance of a maid servant for the rest of her life Taking this factor into consideration, we are of opinion that she might be allowed compensation at double the amount awarded to Sudhakar and Vasudeo Vyas, who did not suffer any permanent physical disability. Under these circumstances, we reduce the figure of Rs. 30,000/- to Rs. 20,000/-. In addition, she well be entitled to special damages of Rs. 4,421/-. Thus, the total amount comes to Rs. 24,421/-.
As a result Miscellaneous (First) Appeal No. 14 of 1964 partly succeeds and is allowed to the extent indicated.
32. Group III-B -- Miscellaneous (First) Appeal No. 13 of 1964 relating to the iniuries caused to Shaileshkumar. Rupees 1,16,000/- were claimed as damages, while Rs. 10,890/- were awarded by the trial Judge. On behalf of Shaileshkumar, a cross-objection has been filed claiming enhancement to Rs. 1,05,109.21 ps, We propose to deal with the appeal and the cross-objection together.
33. Dr. Chitranjansingh Rana (P. W. 2) stated about the injuries received by this child. At the time of the accident, the child was aged about 4 or 5 years. Dr. Rana had examined him on 25-6-61. The child had compound fracture of right tibia and fibula lower third near the ankle joint with Infection of the wound. He had pain in the hip joint X-ray examination did not reveal any injury over the knee. Skin grafting was done on 22-7-1961 on the wound involved in compound fracture. The patient remained in the hospital from 25-6-1961 to 4-8-1961 in a Delux room along with his mother, for which charges were Rs. 6/- per day for staying and light and water charges were to be paid separately.
Dr. Rana stated that although the child was walking without any support, but it was a case of total disablement. The child would have a permanent limp developed due to the injuries because of kalgus deformity at the fracture site. In such type of deformity, there might be a chance that it may either go away or may increase because of epiphysis, which is the growing part of the bone, is close to the site of fracture which was infected due to the accident. Dr. Rana had again examined him on 14-2-62. In his opinion, if the limp due to deformity increased, the child may require another operation at the age of 16 years or so; and if he did not improve by that time, this deformity would in any case persist up to the age of 16 years when there might be a chance of it being removed by another operation.
Thus, there is no doubt that this child has received an injury which has caused a permanent physical disability. The trial Judge awarded Rs. 10,000/- as general damages and Rs. 890/- as special damages. In this connection, we might observe that the permanent disability suffered by this child is more or less of the same kind and severity as his mother has suffered. Under these circumstances, we feel that the basis of compensation to be awarded to him should be the same as the one regarding his mother. Of course, an exaggerated claim has been made on his behalf claiming more than a lac of rupees. We may observe that the same is speculative. No doubt the child might be unhappy till the deformity exists, but there is also probability of the deformity being removed by another operation. Under these circumstances, we increase the amount of general damages to Rs. 20,000/-.
As regards the special damages of Rupees 890.70 paise, we uphold the same. Therefore, the appeal fails and is accordingly dismissed with costs; while the cross-objection partly succeeds and is allowed to the extent indicated with corresponding costs.
34. As a result of the discussion aforesaid, the resultant position would be as follows:
Miscellaneous (First) Appeal No. 12 of 1964 about the death of Sudhakar's child is partly allowed. In view of the divided success, the parties shall be entitled to costs in proportion to success and failure. The interest on the amount of award shall be at 6 p.c. per annum from the date of institution of the claim till realisation. Counsel's fee according to schedule or certificate, whichever be less.
Miscellaneous (First) Appeal No. 16 of 1964 relating to bodily injuries caused to Sudhakar Kotasthane, the appeal fails and is dismissed with costs. The interest on the amount of award shall be at 6 p.c. per annum from the date of institution of the claim till realisation. Counsel's fee according to schedule or certificate, whichever be less.
Miscellaneous (First) Appeal No. 17 of 1964 relating to the death of Mrs. Usha Kotasthane. The appeal fails and is accordingly dismissed with costs. The interest on the amount of award shall be at 6 p.c. per annum from the date of institution of claim till realisation. Counsel's fee according to schedule or certificate, whichever be less.
Miscellaneous (First) Appeal No. 10 of 1964. which is a counter appeal relating to the death of Mrs. Usha Kotasthane. The appeal is partly allowed by increasing the figure to Rs. 50,000/- with corresponding costs. Interest on the amount of award shall be at Rs. 6 p.c. per annum from the date of institution of claim till realisation. Counsel's fee according to schedule or certificate, whichever be less.
Miscellaneous (First) Appeal No. 15 of 1964 relating to bodily injuries caused to Vasudeo Vvas. The appeal partly succeeds and is allowed by reducing the figure of Rs. 10,000/- Interest on the amount of award shall be at Rs. 6 p.c. per annum from the date of institution of claim till realisation. The parties shall be entitled to costs in proportion to success and failure. Counsel's fee according to schedule or certificate, whichever be less. The cross-objection fails and is accordingly dismissed.
Miscellaneous (First) Appeal No. 14 of 1964 relating to bodily injuries to Smt. Indubala Bhandari. The appeal is partly allowed and the damages are reduced to Rs. 24,421/-. The interest on the amount of award shall be at Rs. 6 p.c. per annum from the date of institution of claim till realisation. The parties shall be entitled to costs in proportion to success and failure. Counsel's fee according to schedule or certificate, whichever be less. The cross-objection falls and is accordingly dismissed.
Miscellaneous (First) Appeal No. 13 of 1964 relating to bodily injuries to Shailesh-kumar. The appeal falls and is accordingly dismissed with costs. Counsel's fee according to schedule or certificate, whichever be less. The cross-objection partly succeeds and is allowed by enhancing the amount of damages to Rs. 20,890/- with proportionate costs and interest at 6 p.c. per annum from the date of institution of claim till realisation.