Avadh Behari, J.
(1) One Thakur Das aged 23, who was going an a cycle was Struck by a truck, regligently driven by Hira Singh. He fell down by the impact and died soon after. He left behind a young widow (21), a son (8 months) and a mother (70). They filed claim for Rs. 40,000.00, but were awarded Rs. 12,952.00 only. The tribunal took the view that the window is young and she may re-marry and her dependency was considered for 5 years. Both parties appealed to High Court. (After giving above facts and discussing evidence about regligence, judgment proceeds).
(2) Mr. Arun Kumar on behalf of claimants has argued that award made by the Tribunal is inordinately low. He has submitted that the tribunal was in error in granting compensation to the widow only for a period of five years. The finding that there are fair chances of remarriage, he says, is without any basis.
(3) The accident happened in 1955, The tribunal made the award in 1967. After the award of the tribunal another 8 years have passed. I enquired from the counsel if the widow had remarried. He said that she has not remarried till today. She has now filed an affidavit saying that she has not remarried and that she is maintaining her only child. Furthermore it is stated in the affidavit that the mother Phulan Devi is still alive and is getting on in years. On the basis of this affidavit it is contended by the counsel that the amounts awarded to the three representatives are a pittance. It was also said that this court will now be entitled to take into account the inflationary trend of prices and the steadily declining value of the rupee.
(4) First of all I take up the question of widow's remarriage. On the ground that there were prospects of remarriage the tribunal calculated her dependency for five years. It awarded her in all a sum of Rs. 3,430.00. 1 am in agreement with the counsel that this is a scanty sum and does not fully compensate her for the loss of the husband. The question is ; was the tribunal right in taking into account the chances of widow's remarriage in the circumstances of this case
(5) One problem which has been mh discussed in recent years in England has been the requirement of assessing the likelihood of remarriage of a widow who is claiming damages for the death of her husband. Since these damages are primarily awarded for the loss of financial support the amount to be awarded may be very much less if the widow is likely to remarry in the near future-for she will then have made good her lost support. Consequently a judge is expected, and indeed required, to assess the likelihood that a widow will remarry, this he can only do by listening to what she has to say and by making some assessment of how attractive she appears to be (See Goodburn v. Thomas Cotton Ltd. (1968) 1 Q.B. 845. Judges have not concealed their distaste at being required to preform this exercise. Delicate problems were posed for the judge who had to determine the issue of widow's remarriage potential. He had to decide whether the widow was attractive or unattractive. In Bucklev v. John Allen and Ford (Oxford) (F967) 2 Q.B. 637 Philllmore J. said :
''AMI to ask her to put on a bathing- dress ; because the witness-box is calculated to disguise the figure? .........Ami to label the lady to her face as attractive or unattractive If I have the temerity to apply the label, am I likely to be right Supposing I say she is unattractive ; it may well be that she has a friend who disagrees and has looked below the surface and found a charming character.'
(6) The Winn Committee on Personal Injury Litigation recommended that judges should be relieved from the task. But they could not agree on what to put in place of this requirement : if the possibility of remarriage is simply ignored the widow may be compensated for a 'loss' which she does not suffer : as a result she may be enabled to live at a much higher standard of living than she is used to do.
(7) Now section 4(1) of Law Reform (Misc. Provisions) Act 1971 provides :
'in assessing damages payable to widow .........there shall not be taken into account the remarriage of the widow or prospects of her remarriage.'
(8) The passionate controversy on this subject which was raging in ngland till recently has now been brought to as close by one stroke of the legislature, at least on this point. In many American States the remarriage of the widow is wholly ignored.
(9) Broadly speaking there are two views on the subject. One is that the prospect of remarriage must be taken into account. This means that the judge has to make prediction at the date of trial in order to calculate the appropriate sum. Damages in a tort action are awarded in a lumpsum. The award is made once for all, and there is no possibility of increasing it or decreasing it later because of changes in the situation. The judge has to peep into the future. He has to put the question to himself-Will the widow remarry
(10) Obviously this is a difficult question to answer and nobody can blame the judges if they often go wrong in their predictions- though nobody knows how accurate their predictions are because no research has ever been done into this problem. But what is somewhat unsatisfactory is that, given the extreme difficulty of the questions, there is hardly ever any opportunity for making a correction subsequently, supposing the widow does not remarry. This is precisely what has happened in this case.
(11) On the other hand it is said that if a widow's payments will cease on remarriage, she will be encouraged to 'live in sin'. One suggestion to get out of the difficulty which has been made is that the court should make periodical payment. If she does not remarry she can get compensation from time to time. If she remarries compensation ought to cease. The defendant can be compelled to pay a lump sum into the court which would then administer the periodical payments. On balance there seems to be a strong case for periodical payment system if suitable machinery for assessment and payment is devised. (See Ogus-The Law of Damages 1973 Edition page 13).
(12) So long as there is no legislative reform the possibility of the remarriage of the widow claimant must continue to hold the centre of the stage in India. The judges will continue to be engaged in the guessing game of sizing up the claimant's chances of finding a new husband and bringing the dependency to an end.
(13) Happily in the present case my task is much easier. Now ten years have passed since the death of the husband. Such chances of remarriage as there were have now receded far into the background. They are very remote now. Her son has grown up. He is now ten years of age. She is devoted to him. A step father will have no legal obligation to look after him if she remarries,
(14) It seems that there is longevity in the family of the deceased. Her mother is now 80 years of age. If this is any indication it can be surmised that the deceased would have lived at least three scores and then. But this is a mere probability. There is no certainty. One's life remains as uncertain as ever. Our (times) are in his hands, as Robert Browning said.
(15) Inflation and increased wages are irreversible phenomenon in the modern world. In assessing damages in fatal accident cases compensation should be calculated so as to allow for the increasing cost in a depreciating currency of equivalent material benefits which the deceased would have provided for his dependants out of his rising wages. A judge cannot shut his eyes to the inflationary trend and the fact that the rupee has gone down considerably in value. An award of Rs. 12,000.00 or so for the loss of the bread winner of the family in these day does not mean much. Is that the value of the human life As I was hearing these appeals I was wondering whether in some cases it was not more profitable for a tort feasorcr a wrongdoer to kill the victim of the accident rather than to maim him for life.
(16) In Taylor v. 0' Connor (1971) A.C 115 the House of Lords dealt with the question of inflation as an element affecting the amount of damages in a fatal accident claim. It has rightly been regarded as a decision of great importance on this topic. Lord Reid said, at p. 129 :-
'ITwill be observed that I have more than once taken note of present day conditions-in particular rising prices, rising remuneration and high rates of interest. I am well aware that there is a school of thought which holds that the law should refuse to have any regard to inflation but that calculations should be based on stable prices, steady or slowly increasing rates of remuneration and low rates of interest. That must, I think, be based either on an expectation of an early return to a period of stability or on a nostalgic reluctance to recognise 'change. It appears to me that some people fear that inflation will get worse, some think that it will go on much as at present, some hope that it will be slowed down, but comparatively few believe that a return to the old financial stability is likely in the foreseeable future. To take any account of future inflation will no doubt cause complications and make estimates even more uncertain. No doubt we should not assume the worst but it would, I think, be quite unrealistic to refuse to take into account at all'.
(17) The tribunal, I think, was right in assessing the monthly income of the deceased at Rs. 1,151.00 per month. After excluding Rs. 60.00 which the deceased spent on himself we are left with a sum of Rs. 115.00 which he was spending on the three dependants.
(18) The question then arises as to the multiplier to be used in respect of that figure. It is to be remembered that the sum which is awarded will be a once-for-all or final amount which the widow must deploy so that to the extent reasonably possible she gets the equivalent of what she has lost. Taking a reasonable and realistic and common sense view of all aspect of the matter the judge must try to fix a figure which is neither unfair to the recipient nor to the one who has to pay. I think the right multiplier will be 16. At this figure the amount comes to Rs. 22,086.00. Add to this the sum of Rs. 2,000.00 awarded by the tribunal on account of loss of estate. The total comes to Rs. 24086, say Rs. 24,100.00. This amount I would apportion as 10,104 to widow; 10,000 to son and 4000 to mother.
(19) This figure seems to be about right in all the circumstances. There are many imponderable factors and uncertainties. It is to be kept in mind that the deceased did not have a permanent employment. He did not enjoy any security of tenure. He might have remained unemployed for some time in life. one does not know. He might not have proved a successful tailor. All these are conjectural factors. But in an assessment of damages one cannot lose sight of them. The judge's anxiety in these cases has always been to see that the dependants are not under compensated nor over compensated. The sum awarded by me is neither over generous nor mean. It is a modest sum. '
(20) The principal argument of the counsel for the insurance company and truck owner is that since lump sum is being awarded it should be reduced at least by 30 per cent if not more. In support of his submission he has referred me to Major Jagjit Singh v. Kartar Singh 1973 A.C.J. 147 and Mohinder Kaur v Manphool Singh, 1973 A.C.J 515.
(21) I am afraid I cannot accede to this request. I will certainly not reduce the amount. I will leave it at Rs. 24,1000.00. My reasons are these. Firstly, compensation has been computed at the rate of Rs. 115.00 per month as found by the tribunal. Secondly in this calculation the increase of income in future years has not been taken into account. Nor has the amount been enhanced on account of rising prices. Calculation has been made on the basis of the amount that was being contributed by the deceased towards the maintenance of the dependents at the date of his death.
(22) Another reason for not. making any reduction is that the claimants have been deprived of the enhanced compensation now for nearly ten years. No interest for this period has been allowed.
(23) The needs of the son will also increase as he enters the portals of life. Provision for his marriage, training for business etc., will also have to be made. No special allowance has been made on this account in the award. It will be unfair to limit the award to 18 years on the ground that the liability ceases on child becoming sui juris. The right consideration ought to be-what is is the financial benefit of which the family can be reasonably said to have been deprived by the span of life of the deceased having been cut short on account of the fatal accident (See Kuldip Lal Bhandari v. Umed Singh, 1966 A.C.J. 110 and Sood & Company v. Surjit Kaur, 1973 A.C.J. 414. The deceased was the hub around which the whole family revolved. He was their mainstay.
(24) On similar considerations judges in case after case have refused to reduce the amount. (See Damyanti Devi v Sita Devi, 1972 A.C.J. 334 ; S.iod & Company v. Surjit Kaur 1973 A.C.J. 414 ; Jaswint Kaur v. Ratti Ram 1971 A C.J. 31 and Kailashwati v. Haryana State, 1974 A.CJ. 514).
(25) It was argued that the award of Rs. 24,100.00 will be too high. Reliance was placed on Sharda Devi v. Mahalaxmi Stone Mills, 1973 A.C J. 371 and Harathi Adirajaiah v Savandamma, 1973 A.CJ. 203. I should perhaps say this. In each case the proper computation is a question of fact. 'No one knows what is the right sum of damage in any particular case, and no two cases are alike' Waldon v. War Office 1056 I1 W L R. 51 per Singleton L.J.. There is no omnipotent criterion, capable of solving all problems arising in the law of damages. I would hesitate to particularise the rules governing quantification. As recently as 1963 Upjohn L.J. was moved to remark that 'the assessment of damages has never been an exact science ; it is essentially practical.' Charter House Credit v. Tolly (1963) 2 Q.B. 683. The right figure to be awarded has to be found empirically One's practical judgment, robust commonsense and instinct enable one to reach a sound conclusion.
'At the end of the day arithmatic may have to be mitigated by commonsense'
(Daniel v Jones, (1961) 1 W L.R. 1103.
(26) The distinguishing features of the present case are that the widow has not remarried. The aged mother has survived beyond the expectation of the tribunal and continues to live in the twilight of her existence. After the judgment in this case in 1967 prices have risen to such an extent that I cannot blame the tribunal for not taking them into account. The tribunal could not have gazed into the future and predict that some date the value of the rupee will go down to 37 paise as is shown in the official index. In making the assessment this court can look at events since the accident to see whether contingencies have become certainties.
(27) In Philips v. Ward (1956) 1 W.L.R. 471 Denning Lj said.
'THEgeneral principle of English law is that damages must be assessed as at the date when the damage occurs.'
(28) This is, with respect, misleading. The true principle is that damages are assessed on the basis of the plaintiff's loss at the date of judgment-trial as well as appellate (See Bwllfa and Merthyr Dare Steam Collieries Ltd. v. Pon-typridd Waterworks Co. (1903) A C. 426 per Lord Macnaghten). In this case the tribunal thought the widow will remarry. She has not. The tribunal thought that the aged mother will not live long. But here age is yet living to greater age. I cannot disregard these vital facts.
(29) For these reasons I would allow F.A.O. 171 of 1967 with costs by substituting for the tribunal's figure of Rs. 12,952.00 the sum of Rs. 24,100.00. The appellants in this appeal have already been paid Rs 12,952.00. Now they will be entitled to recover a sum of Rs. 11,148.00 more from the respondents. Jawla Devi will get Rs. 6,670.00, Prem Singh will get Rs 2,396.00 and Phulan Devi will get Rs. 2,082.00 in addition to what they have already received. The liability of the insurance company will, however, be limited to Rs. 20,000.00.