L. Manoharan, J.:— Both these appeals arise from the judgment and decree passed by the Civil Judge, Senior Division, Nagpur, in Special Civil Suit No. 47 of 1976. The plaintiffs in the said suit are the appellants in First Appeal No. 174/83 whereas the third defendant in the aforesaid suit is the appellant in First Appeal No. 207/83. These appeals are being disposed of by this common judgment.

2. The suit was instituted for realisation of compensation on account of the death of Bhupendrasingh, son of plaintiffs 1 and 2. Plaintiffs 3 and 5 are the sisters of the deceased and 6th plaintiff is the brother of the deceased. The said suit was instituted under the Fatal Accidents Act, 1855 (Act No. 13 of 1855). On 22-3-1975, while Bhupendrasingh was travelling in an autorikshaw, truck No. MHV-1232, which was driven by the second defendant knocked against the autorikshaw by which Bhupendrasingh was thrown out and the truck ran over him; ultimately Bhupendrasingh succumbed to the injuries on account of the said accident. The said truck belongs to the first respondent. It was insured with the third respondent-insurance company. The suit was launched on the allegation that the accident was the result of the culpable negligence of the second defendant, the driver.

3. Though defendants 1 and 3 in their joint written statement contested the claim contending that the accident was not due to the negligence of the driver, that contention was not accepted by the trial Court. The defendants 1 and 3 also contested the quantum of compensation; the claim was for an amount of Rs. 1 lakh on account of the death of Bhupendrasingh. The trial Court, as indicated above, found that the accident was due to the negligence of the second defendant and awarded a total compensation of Rs. 39,124/- in favour of plaintiffs 1 and 2; the decree directed the third defendant to pay the amount. The decree also provided for interest at the rate of 6 per cent per annum from the date of the suit till recovery if the third defendant does not deposit the said amount within a period of one month from the date of decree. The suit was dismissed with respect of plaintiffs 3 to 6. The learned Judge directed the third defendants to pay proportionate costs to the plaintiffs.

4. Plaintiffs challenged the said decree on the ground that the deductions made by the trial Judge are not supported by law, the finding that plaintiffs 3 to 6 are not entitled to compensation is also not correct, and that the rate of interest awarded is not consistent with the facts and circumstances of the case - at any rate, the interest ought to have been awarded as is claimed in the plaint. In the connected appeal by the third defendant, First Appeal No. 207 of 1983, the main ground urged is that without a joint and several decree third defendant could not have been made liable. It is pertinent in this connection to note that second defendant, the driver, remained ex parte.

5. There is no specific challenge at the time of argument as to the total quantum of compensation fixed by the trial Court; the total compensation fixed by the trial Court was Rs. 1,28,000/-. The thrust of the argument of Shri V.V Bhangade was that from the said amount of compensation, various deductions were made, which deductions are not permissible under law. In short, according to the learned counsel, 2/3rd of the whole amount ought to have been awarded as compensation and the decree should have been joint and several.

6. Shri R.K Thakur, learned counsel on behalf of the first defendant-respondent, contended that the suit itself is not maintainable as the widow of the deceased was not made a party to the suit. He also did not question the quantum of compensation fixed by the trial Court at Rs. 1,28,000/-. The learned counsel for the third defendant, who as indicated has filed First Appeal No. 207 of 1983, Shri S.R Pathak, maintained, no decree against the third defendant could have been passed without there being a decree against defendants 1 and 2. Both the learned counsel for the respondents maintained that there is no reason for interfering with the rate of interest fixed by the trial Court.

7. With due regard to the nature of the contest in these appeals, the questions that would arise for consideration are — whether the deductions made by the trial Court from the total quantum of compensation on account of service fund contribution, bank account, contributory provident fund and the amount received by the first plaintiff from the employer of the deceased, are proper or not; whether the decree ought to have been joint and several against all the defendants; and whether plaintiffs 1 and 2 are entitled to the interest at the rate claimed in the plaint itself.

8. We proceed to consider the first question. As regards the first point, Shri V.V Bhangade relied on the decision in the case of Malan Hanumant Meher v. Balkrishna Vishnu Jadhav, 1985 ACJ 141 wherein Division Bench of this Court held that deductions on account of family pension, provident fund and gratuity are not permissible as the said amounts would have been received by the deceased in the normal course upon completion of service and are not dependent upon premature death. To the same effect is the decision in the case of Dharam Singh v. Smt. Parveen Sehgal, AIR 1992 Del 347 wherein it is held that amounts received on account of gratuity, P.F, leave encashment, proceeds of L.I.C, etc. cannot be deducted from compensation. Again in the decision in the case of The Branch Manager, The Oriental Fire and General Insurance Co. Ltd. v. Laxmi Patra, AIR 1991 Ori 310 the Court held that deductions on account of Gratuity, provident fund and income of deceased widow which she was getting because of her employment on compassionate grounds are impermissible.

9. On the other hand, Shri R.K Thakur, learned counsel for respondent No. 1, tried to distinguish these decisions on the ground that whereas these decisions were rendered under the provisions of the Motor Vehicles Act, 1939, the present case arose under the Fatal Accidents Act, 1855 and, hence, according to the learned counsel, the principles laid down in those decisions cannot have any application in deciding the said question in this case. The learned counsel in support of this argument relied on the decision in the case of C.K Subramonia Iyer v. T. Kunhikuttan Nair, (1969) 3 SCC 64 : AIR 1970 SC 376 — in particular paragraphs 13 and 14 of the said decision. The Supreme Court in the said decision observed that the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources comes to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained. What is significant to be noted in this decision is — the balancing must be done on the loss and gain to the defendant by reason of death. If the gain is not by the reason of the death in question, the amount derived by the dependent independently of the death cannot be deducted from the compensation. Incidentally, the stress of Mr. R.K Thakur was that the decision reported in (1969) 3 SCC 64 : AIR 1970 SC 376 (referred early) arose under the Fatal Accidents Act, 1855 itself. The endeavour of the learned counsel as noticed was to show that the plaintiffs 1 and 2, the dependants, got the advantage of collecting the gratuity, service funds and savings account after the death of their son. Consequently, it was urged by the learned counsel that these amounts, on account of the aforesaid principle laid down by the Supreme Court, must be deducted from the quantum of compensation fixed by the trial Court. The learned counsel, as indicated, urged that the principles laid down in cases that arose under the Motor Vehicles Act cannot be applied in deciding the compensation under the Fatal Accidents Act. Reliance was also placed by the learned counsel on the decision in the case of New India Insurance Co. Ltd v. Smt Shanti Misra, Adult, (1975) 2 SCC 840 : AIR 1976 SC 237. A careful reading of the said decision would show that the said decision does not state that the principles governing the fixation of compensation under the Motor Vehicles Act are not applicable to the case arising under the Fatal Accidents Act. All that is stated by the Supreme Court is — “Suits which had been instituted prior to the constitution of the Claims Tribunal remained unaffected and had to proceed to disposal in Civil Courts.” Admittedly in this case when the accident took place no Tribunal was constituted and that was the reason why the suit was instituted under the Fatal Accidents Act, 1855. This decision is relevant only for the purpose of showing that though the Tribunal was later constituted under the Motor Vehicles Act, the pending suit has to be adjudicated by the Civil Court where the suit was already pending. As to what are the matters to be taken into account by the Civil Court in fixing the amount of compensation are not stated in this decision.

10. Now the crucial question that would arise for consideration is whether there exists any difference in the principles governing the fixation of compensation under the Motor Vehicles Act, 1939 and under the Fatal Accidents Act, 1855. In this regard reliance was made by Shri Thakur on the decision in Polavarapu Somarajyam v. Andhra Pradesh Road Transport Corporation, Hyderabad, AIR 1983 AP 407. In paragraph 19 of the said decision the effect of section 110-A to section 110-F of the Motor Vehicles Act, which were incorporated by the Amending Act 100 of 1956, is considered and Their Lordships held that these sections have only provided for special remedy taking away the jurisdiction of the Civil Court and conferring exclusive jurisdiction in the Claims Tribunal, and what section 110-B directed was to determine the just compensation. In the said decision Their Lordships with approval quoted the decision in Kamla Devi v. Kishanchand reported in AIR 1970 MP 168, which reads as under:

“….The power of section 110-B to make an award ‘determining the amount of compensation which appears to it to be just’ conferred on the Tribunal does not create any new basis or extent of liability. The tribunal must determine the amount of compensation according to the substantive law of liability already in force. section 110-B is in no way intended to give a go-by to the basis and limit of liability fixed by the substantive law. In case of fatal accidents, whether arising out of the use of motor vehicles or otherwise, the basis and extent of liability are determined by the substantive law contained in sections 1-A and 2, Fatal Accidents Act.”

11. It is pertinent in this connection to note that observations in paragraph 5 of the decision in (1975) 2 SCC 840 : AIR 1976 SC 237 (referred to early) would show that sections 110-A and 110-F of the Motor Vehicles Act create only the new forum, i.e a change of procedural law and not of substantive law. The decision in AIR 1983 AP 407 (referred to early) is in tune with what is laid down by the Supreme Court in (1975) 2 SCC 840 : AIR 1976 SC 237, already adverted to.

12. In this connection it is necessary to refer to the Full Bench decision of the Punjab and Haryana Bench in the case of Bhagat Singh Sohan Singh v. Smt. Om Sharma reported in AIR 1983 Punjab & Haryana 94 (Full Bench). After pointing out as to how an employee contributes to the provident fund and as to how he earns gratuity, pension, etc. the High Court concluded that the same cannot go in mitigation of damages payable by tort feasor and are, therefore, not deductible.

13. It must be noted here that the Motor Vehicles Act, 1939, does not lay down any specific provision as to how the compensation has to be calculated. The principles governing the calculation of the compensation have been laid down by judicial precedents and those principles are equally applicable to a case arising under the Fatal Accidents Act, 1855; because in both what is to be decided is the pecuniary loss suffered by the beneficiaries by the accident and that pecuniary loss suffered by the beneficiaries is awarded as compensation to them. Therefore, it may not be correct to say that the principles evolved in the decision arising under the Motor Vehicles Act will have no application in a matter arising under the Fatal Accidents Act. When the law is so understood, we see no difficulty in holding that the deductions made by the trial Court on account of service fund contribution, contributory provident fund, and bank account are not permissible deductions from the total amount of compensation. But the deduction of the amount of Rs. 5,000/-, which the father of the deceased received from the employer on account of the death of his son naturally has to be deducted; and hence that amount is validly deducted. Therefore, the permissible deduction from the total amount of compensation to be awarded to the plaintiffs 1 and 2 was only the aforesaid amount of Rs. 5,000/- received by the first plaintiff from the employer of the deceased.

14. The learned trial Judge made a deduction of Rs. 10,000/- towards lump sum payment. Learned counsel Shri V.V Bhangade contended that too was not permissible under law. He relied on the decision of the Supreme Court in the case of Hardeo Kaur v. Rajasthan State Transport Corporation, (1992) 2 SCC 567 : AIR 1992 Supreme Court 1261, in which the Supreme Court pointed out that whereas the accident in that case took place in July 1977 when it reached the Supreme Court 15 years were over. Referring the decision in Motor Owners Insurance Company Ltd. v. J.K Modi reported in (1981) 4 SCC 660 : AIR 1981 SC 2059, the Supreme Court held that:

“….the delay in the final disposal of motor accident compensation cases, as in all other classes of litigation, takes a sting out of the laws of compensation and added to that the monstrous inflation and the consequent fall in the value of rupee makes the compensation demanded years ago less than quarter of its value when it received after such a long time……….With the value of rupee dwindling due to high rate of inflation, there is no justification for making deduction due to lump sum payment. We, therefore, hold that the courts below were not justified in making lump sum deduction in this case.”

15. Clearly therefore, the trial Court was wrong when it deducted Rs. 10,000/- from the total amount of compensation on account of lump sum payment.

16. Thus, having found that only available deduction under law is the aforesaid sum of Rs. 5,000/- which was received by the first plaintiff from the employer of the deceased, we have now to arrive at the amount of compensation payable to plaintiffs 1 and 2. In this regard we have to notice that section 1-A of the Fatal Accidents Act, 1855 enjoins that action under the said Act has to be for the benefit of the wife, husband, parent and child, if any, of the person whose death have been caused. One of the contentions of the learned counsel Shri Thakur was that the wife of the deceased was not even impleaded in the suit. In fact, it is contended by the learned counsel that the suit was bad for non-joinder of necessary parties. We consider that the said argument has to be dealt with at this juncture. It is true, though Order 1, Rule 9, Civil Procedure Code enjoins that no suit shall be defeated by reason of misjoinder or non-joinder of parties, the proviso thereto added by 1977 amendment stipulates, nothing in the said rule shall apply to non-joinder of necessary parties. It might be possible, in a given case to contend, in terms of section 1-A of the Fatal Accidents Act, failure to bring the suit for the benefit of the wife also, is fatal to the suit. Yet, the first respondent cannot take advantage of the same at this stage. The appeal memo of the appellant in First Appeal No. 207 of 1983 does not contain a specific challenge regarding maintainability of the suit or non-joinder of necessary parties. Further the joint written statement filed by the first and third defendants does not contain a specific contention as to maintainability of the suit or non-joinder of necessary parties. Of course, the judgment shows that the claim of the widow was otherwise settled. Paragraph-28 of the judgment shows that the widow has already received Rs. 15,000/- with interest on account of life insurance. The decree directs the third defendant-insurer to pay the amount, and it is silent so far as other defendants are concerned. If the suit is to be dismissed on the question of non-joinder of necessary parties or maintainability of the suit, that will amount to reversal of the decree. If the effect of the said contention by the first defendant-first respondent is that; he can maintain that ground of non-joinder or maintainability of the suit only by filing a cross-objection under Order 41, Rule 22, Civil Procedure Code. Of course, he can support the decree without filing cross-objection; but when the effect of the said contention is to reverse the decree or modify it, a cross-objection becomes necessary; and in the facts and circumstance of the case we are not inclined to exercise our discretion under Order 41, Rule 33, Civil Procedure Code in favour of the first respondent for reasons already assigned in the earlier part of this judgment. The nature of the just claim, viz., compensation on account of the premature death of son on account of negligence cannot be defeated by exercising the discretion in favour of the tort feasor.

17. The trial Court has arrived at the conclusion that the total quantum of compensation is Rs. 1,28,000/-. This has to be divided amongst the three beneficiaries under the Fatal Accidents Act, 1855 - the father, the mother and widow and child, if any. There is no case that deceased left any child. Widow's claim has been otherwise settled and her ⅓rd claim has already been deducted from the total compensation. In view of section 1-A of the Fatal Accidents Act, 1855, plaintiffs 3 to 6 who are the sisters and brother of the deceased are not beneficiaries of the deceased; therefore the finding of the lower Court that they are not entitled to compensation cannot be called in question. The plaintiffs did not make out a case in the pleading that, they or any one of them is entitled to collect the ⅓rd share of the widow also. The said item of deduction has to be upheld, as on the facts of this case, the plaintiffs are not entitled to receive her share also. Added to that, the cause of action now subsists by the passage of time is only for the ⅔rd claim of plaintiffs 1 and 2. Deducting ⅓rd of the claim from the total compensation, the compensation due to plaintiffs 1 and 2 is Rs. 85,334/-. From the said amount, sum of Rs. 5,000/- received by the first plaintiffs from the employer of the deceased had to be deducted and the net compensation due to plaintiffs 1 and 2 is Rs. 80,334/-, and interest thereon.

18. It was urged by the learned counsel Shri V.V Bhangade that the rate of interest awarded by the trial Court on the amount of compensation is low and he also pointed out that the trial Court ought not have withheld the interest for one month from the date of decree. On the other hand, learned counsel Shri Thakur, urged that the powers of the Court under section 34, Civil Procedure Code are discretionary and since the trial Court has exercised that discretion properly there is no justification for this Court to interfere in the said decision of the trial Court. Learned counsel Shri V.V Bhangade, in support of his argument relied on the decision in the case of Jagbir Singh v. General Manager, Punjab Roadways, (1986) 4 SCC 431 : AIR 1987 SC 70 in which Supreme Court held that the rate of interest on compensation which arose under the Motor Vehicles Act is 12 per cent per annum from the date of application. This has been reiterated in the decision in Urmilla Pandey v. Khalil Ahmad, (1994) 4 SCC 207 : AIR 1994 SC 2405. Since the Supreme Court has already fixed the rate of interest at 12 per cent in similar circumstance, the aforesaid amount of compensation of Rs. 80,334/- will carry interest at the rate of 12 per cent from the date of the plaint till the date of decree and, therefore, the principal amount will carry interest at the rate of 6 per cent.

19. The only other question now remains for consideration is whether the decree for the said amount should be joint and several against all the defendants. The accident was the result of the negligence of the second defendant, who remained ex parte. The Finding that the accident was due to the negligence of the driver was not challenged before us. The accident took place during the course of employment of the second defendant under the first defendant. Therefore, the first defendant is vicariously liable. The third defendant, being the insurance company, too is liable, but the liability is limited to the insured amount, which is admittedly Rs. 50,000/-. Therefore, all the defendants are jointly and severally liable for the decree amount; but as indicated above, the third defendant's liability is limited to Rs. 50,000/-.

20. In the result, both the appeals are partly allowed. We modify the decree of the trial Court and decree the suit in favour of plaintiffs 1 and 2 for an amount of Rs. 80,334/- with interest at the rate of 12 per cent from the date of the suit till the date of decree and future interest from the date of decree till recovery or payment at 6 per cent on the principal amount. Whatever amount paid by the 3rd defendant shall be given credit. All the defendants are joint and severally liable for the decree amount; but the liability of the third defendant is limited to Rs. 50,000/-. It goes without saying that from the date of withdrawal of the amount paid by the third defendant, the interest as indicated above will run only on the balance amount. In the facts and circumstances of the case, in this Court there would be no order as to costs.

Appeals partly allowed.