JUDGMENT

1. The Visakhapatnam Ex-Servicemen Co-operative Motor Transport Society and the Co-operative General Insurance Company have filed this appeal against the order of the 1st Additional District and Sessions Judge, Visakhapatnam in O.P. No. 9/69.

2. S. Gurumurty was working as a crane driver in the Port Trust, Visakhapatnam. At about 10-45 P.M. on 8-11-1968 while he was returning home from his office the City Bus A.P.V. 933, owned by the lst appellant-Society dashed against him. He was admitted in the hospital and he died at 2 P.M. on the net day. So his legal representatives filled a petition under Section 110 of the Motor Vehicles Act claiming compensation of Rs.40,000. their case was that the driver was rash and negligent in driving the bus and thereby the accident has happened. The appellants herein contended that the driver was not rash or negligent and even otherwise the deceased was guilty of contributory negligence.

3. The learned Additional Sessions Judge on an appreciation of the evidence came to the conclusion that the accident had happened as a result of the negligent driving of the driver. He has also found that the deceased was guilty of contributory negligence. He held that the claimants were entitled to a compensation of Rs. 27,859-00 but in view of the contributory negligence of the deceased, he awarded half of the sum i.e. Rs. 13,930 as compensation by his order dated 11th May, 1973.

4. The learned counsel for the appellants has contended before me that first, the driver was not guilty of rash and negligent driving, secondly the gratuity of Rs. 6,000 granted by the employees of the deceased should have been deducted out of the compensation payable and thirdly, some deduction should have been made out of the total amount of compensation awarded by the Tribunal in view of the uncertainties of the future, and since the amount is paid in a lump sum.

5. I have perused the evidence and I am satisfied with the finding of the Tribunal that the driver was rash and negligent in driving the his vehicle and therefore, the accident has happened and the deceased died. On the second question, whether the gratuity is liable to be deducted or not the learned counsel has relied upon Ram Saran v. Shakuntala Rai, ; and Jogindernath v. Santi Devi, 1967 ACJ 550. In those two cases the Provident Fund contribution was disallowed. The learned counsel for the claimants have referred me to the decisions in Life Insurance Corporation v. Kasturban, and Jaswant Kaur v. Ratti Ram, 1971 ACJ 31 (Punj) and Bhagwan Devi v. Ish Kumar, 1975 ACJ 56 (Delhi). In Life Insurance Corporation v. Kasturben it was held that collateral benefits like insurance money and the amount of death-cum-retirement gratuity could not be deducted from the compensation amounts the reason being that the deceased had bought with his own money. It was a benefit derived byway of prudent savings effected for his own benefit under a contract by the injured party whose benefit could never go to the tort-feasor. It is only a like which can be deducted from the like and, therefore, intrinsic nature of the payment must be considered before any such deductions can be made. That is why any pension amount or retirement-cum-gratuity benefit which had the insurance element could never be deducted. It was only that pension which was earned after the contributions had ceased that it assumed the character of wages and which alone could be deducted, when computing the economic loss of future earnings or loss of wages. In Bhagavanti Devi v. Ish Kumar a decision of the High Court of Delhi Mr. Justice H.L. Anand has reviewed the case law on the subject and held as follows:

"It thus appears that there is considerable judicial authority both in England and in this country in favour of exclusion of benefits received by the legal representatives on account of life insurance policy, pension, gratuity, provident fund and other such benefits from consideration in determining the amount of compensation which appeared to the tribunal to be just on account of loss pecuniary benefit arising out of death and this exclusion would appear to be just and reasonable because these are benefits for which the deceased had paid. These benefits are in the nature of Qud Pro Quo and have relation to the earnings effected by the deceased besides having their genesis either in the contract or in the past service and good conduct and these benefits could not be said to be benefits arising out of the death of a person in the sense in which the action for damages or inheritance could be related to such an event there would be no justification, therefore, to give the benefit of these payments to the wrong doer who, by his negligent act, has caused the death of a person. Such a conclusion would be justified even if the principles enunciated by the Supreme Court in the case of Gobald Motor Service Ltd., v. Veluswami were to regulate the determination of compensation under the Act because even on the application of the aforesaid principles, it appears to me that there is a clear distinction between benefits received on account of death and those that are merely payable on the death of a person. The former arise out of death and would not have been available without it, while the latter are benefits which are available independently of death but are payable on death. The deduction made by the Tribunal on these counts must, therefore, be ignored in computing the compensation to which the dependent would be entitled."

I agree with the reasoning of both these decisions and I hold that the appellants cannot contend that the gratuity of Rs. 6,000 paid by the employers of the deceased should be deducted from out of the compensation amount. On the third question, it is true that in State of Mysore v. Gowri Vithal, AIR 1964 Mys 113 the total compensation amount was reduced by 10 to 15% having regard to uncertainties of life and the fact that the amount was payable in a lump sum on the death of the deceased. That case arose under Fatal Accidents Act (1855). The learned counsel for the respondents has placed before me Khidni v. Dayal Singh , (1969 ACJ 444) (Delhi); Jaswant Kaur v. Ratti Ram, (1971 ACJ 31) (Punj) in order to show that there is no absolute rule that in every case a deduction should be made because a lump sum amount is paid. In Khidni v. Dayal Singh the Delhi High Court held that though as a rule a deduction is made when the payment of the whole claims is accelerated and made in a lump sum, still in that case since the deceased was killed on 7-5-1959 and ten years had elapsed by the time the payment of the claim was made to his dependents, the learned Judge did not make any deduction from the total claim on account of the accelerated payment. In Jaswant Kaur v. Ratti Ram a decision of Punjab and Haryana High Court the learned Judge held that there was no absolute rule that in every case, deduction must be made on account of uncertainties of life or the fact that the amount is to be paid in lump sum. In his opinion, the circumstances of each case have to be taken into consideration. In that case the accident took place on 6th October, 1966, compensation of Rs. 94,400 was awarded on 8th March, 1968. The payment of compensation to the extent of one-half was stayed by the High Court on 8th August, 1968. Holding that if the full amount of compensation was made available to the claimants on 8-3-1968 they could have deposited the same in some bank, and secured interest at the rate of 6% per annum. The learned Judge in the circumstances of that case refused to make any deduction. Similarly in Bhagwati Devi v. Ish Kumar, a decision of the Delhi High Court was held as follows:

"The only other question that remains to be considered is the deduction of Rs. 6,500 made on account of the fact that instead of periodic benefits, the dependents would be getting the amount of compensation in lump sum thereby obviating various uncertainties and is a deduction which is supported by considerable authority, but, though based on sound principle, is not a rule universally applicable and has to be applied in the context of such counter balancing factor as may be present in a particular case, such an increasing cost of living and proportional devolution of the rupees, the time lag between the death and the award as well as between the award and the actual payment."

I agree that it cannot be laid down as on absolute rule that in every case some deduction should be made on the ground of uncertainties of future and also on the ground that the entire compensation amount is paid in a lump sum.

6. In this case the accident happened on 8-11-1968. The judgment in the original petition was pronounced on 11-5-1973. No interest was awarded on the compensation amount by the Tribunal. In this appeal this court granted an interim stay and it was made absolute on 29-11-1974, on condition that the appellants should deposit Rs. 7,000 which is nearly half of the compensation amount. Thus till to-date the claimants have not only lost interest on the compensation amount but received only half of that amount. In these circumstances I do not find any justification to make a deduction out of the compensation amount payable to the claimants.

7. Before I conclude I should refer to one submission made by the learned counsel for the respondents. As stated already, the learned counsel for the appellants has relied upon State of Mysore v. Gowri Vithal and contended that the compensation amount should be reduced by 20% having regard to the certainties of life and the fact that the amount was payable in a lump sum. That was a case decided under the Fatal Accidents Act (1855). The learned counsel for the respondents has contended before me that the provisions governing the determination of compensation under the Fatal Accidents Act do not apply to the cases arising under the Motor Vehicles Act 1939. I find some force in this contention. Under Section 110-B of the Motor Vehicles Act, the Claims Tribunal may make an award determining the amount of compensation which appears to it to be just. Thus it has a wider ambit than the words used in Sections 1 and 2 of the Fatal Accidents Act. In Sheikhupura Transport Co., v. N.I.T. Ins Co. Ltd., a case arising under the Motor Vehicles Act, a similar question was raised and the Supreme Court observed as follows :---

"Under Section 110-B of the Motor Vehicles Act, 1939, the Tribunal is required to fix such compensation which appears to it to be just. The power given to the Tribunal in the matter of fixing compensation under that provision is wide. Even if we assume (We do not propose to decide the question in this case) that compensation under that provision has to be fixed on the same basis as is required to be under Fatal Accidents Act (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately or even partly a conjecture the general principle is that the pecuniary loss can be ascertained only be 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 sources come to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascertained."

Thus the question was left open. The Madras High Court in Chinnaponnu Ammal v. T.N. Moona Pillai, (1968 ACJ 24) (Mad) and the Delhi High Court in Iswari Devi v. Union of India, have also taken the view that the considerations in determining the compensation under the Fatal Accidents Act are different from the Motor Vehicles Act. In W.S. Bhagsingh & Sons v. Omprakash Kaith (1971 ACJ 324) (Delhi) the Delhi High Court held that the Claims Tribunal may apply the principles laid down in the decisions under the Fatal Accidents Act if they, in the opinion of the Tribunal, would serve as a proper measure of what is 'just' compensation in the facts and circumstances of the case in hand. I agree with the reasoning of that decision.

8. In the result this appeal fails and is dismissed with costs.

9. Appeal dismissed.