Pushpa Rani Chopra And Others v. Anokha Singh And Others

B.C Misra, J.:— This first appeal has been filed under section 110-D of the Motor Vehicles Act, 4 of 1939 (hereinafter referred to as ‘the Act’), by legal representatives of the deceased against the order of the Motor Accident Claims Tribunal, dated 18th April, 1967, by which it has awarded a sum of Rs. 4393.13 in favour of petitioner No. 1 and 4 to 6 and a further award of Rs. 1833.32 in favour of petitioner No. 1 alone.

2. The material facts of the case are that a truck, bearing registration No. DLG 5392, belonging to respondent No. 2, Amarjit Singh, was parked on the road opposite bunglow No. 33 and 12 A of Air Command Quarters on Delhi Palam Sardar Patel Road. The driver of the truck was Anokha Singh, respondent No. 1. At the time of the accident, the truck was stationery, as it is alleged that its axle had broken down and the truck was parked with its left front wheel on the kachha road and the rear of the truck covered about nine feet of one side of the road, leaving a space of three feet on that side, besides 12 feet for the traffic from the opposite direction, while the width of the whole road was 30 feet including three feet kachha road on either side. The deceased, Onkar Nath Chopra, was riding a motor cycle bearing registration No. DLN 310 with his daughter Medhu at the pillion seat and his son Tikku on the front. It was a dark night on 1st July, 1963 at about 10.45 p.m and there was no street lights on the road. The motor cycle of the deceased deshed against the rear of the stationary truck and got under the truck, with the result Onkar Nath Chopra, deceased, along with the two children died at the spot. The truck was insured against third party risk with the Insurance Company, respondent No. 3. The driver of the truck did not appear either in the court below or in this court and the proceedings against him have been exparte throughout. The claim for compensation was lodged by the claimants before me, (namely, the widow and three minor children of the deceased), besides his father and mother. The claim was resisted by the owner of the truck, respondent No. 2, as well as the Insurance Company, respondent No. 3. The Motor Accidents Claims Tribunal framed the following issues:

“1. Whether the accident resulting into the death of Shri Onkar Nath Chopra, Madhu and Tikku was on account of any negligence on the part of Mr. Anokha Singh driver of the truck as alleged in para 22?

2. Whether the respondent No. 2 was the owner of vehicle and was vicariously liable for the amount claimed?

3. Whether the petitioners are legal representatives of the deceased and competent to file the application?

4. Whether the truck was insured with respondent No. 3 by respondent No. 2. If not its effect?

5. To what amount, if any, are the petitioners entitled and from whom?

6. Whether the deceased was guilty of contributory negligence?

7. Whether the petition discloses any cause of action against respondent No. 4?

8. Relief.”

3. Besides, an additional issue was framed as issue No. 9 to the following effect:

“9. Whether application against present respondent No. 2 is within time?”

4. Issue No. 7 was tried as a preliminary issue and the claimants gave up their claim against the Northern India Transporters Insurance Company (which is no longer before me) and that claim was dismissed by an earlier order dated 10th February, 1964, which has not been challenged in the appeal. In answer to issues Nos. 1 and 6, the court below found that the driver was negligent in leaving the truck at night without any rear lights and without any indication about its presence and so the owner of the vehicle, respondent No. 2 as well as the Insurance Company were liable. The court further found that the deceased was guilty of contributory negligence in driving the motor cycle negligently or he was not keeping a good lookout and so contributed to the damage. The court, however, repelled the allegation of the respondents that the deceased was drunk at the time of driving. As a result, the court below apportioned the blame at ⅔rd for the deceased and ⅓rd for the respondents and awarded damages in the said proportion. In respect of the other issues, the court found issues 2, 3, 4 and 9 in favour of the claimants. In answer to issues 5 and 8 the court determined the amount of damages at Rs. 13,680/- and awarded ⅓rd of it to the claimants in the proportion indicated above. The claim for compensation by the father and mother was rejected.

5. Feeling aggrieved, the claimants, namely, the widow and three minor children have filed the appeal, in which they have claimed enhancement of the amount of compensation to a sum of Rs. 75,000/- while the respondents have filed cross-objections claiming that the award be set aside. Two other points were urged on behalf of the respondents before the court below, namely that the claim petition was barred by time and the court had no jurisdiction to entertain the claim, since the vehicle in dispute was at the time of accident not in use. Both these pleas were repelled by the court below and they have been reiterated before me on behalf of the respondents.

6. The finding of fact that the driver of the offending truck was negligent has not been seriously challenged before me. It is even otherwise based on good reliable evidence, which has been believed by the court below. The truck was parked at a distance of about 17½ in the right edge of the road and the width of the entire road was about 30 feet. In this way, the rear wheel was about two feet away from the central line of the road, or about nine feet covering the road out of 12 feet. This is clear from the statement of the investigating Police Officer, Jaswant Singh, who reached the place of accident soon after and has proved the width of the road and position of the truck. It is also supported by the statement of Wing Commander, D.A Lefantane, who was examined on interrogatories. From this evidence the court below found that the width of the road was 30 feet, of which three feet on each side was kachha and 12 feet pucca road was on either side of the central line and the truck was parked at a distance of two or three feet towards the left central line, that is to say covering nine feet of the half of the road leaving the other half of the road for the opposite traffic. The Wing Commander also stated that there were no red light placed at the rear of the truck. This lack of red lights has also been proved from the statements of Muni Lal, J.L Kaura, and Jaswant Singh, investigating officer, supported by Wing commander Lefantane. All these witnesses stated that there were no rear red lights and that the respondents had not placed any lantern or red cloth or any other device warning the passers by about this obstacle. The driver has not been produced. The solitary statement to the contrary was made by the respondent owner that the red lights were on and that the stones had been kept around the truck, but he has rightly not been believed by the Tribunal below. Section 81 of the Act provides that no person in charge of a motor vehicle shall cause or allow the vehicle or any trailer to remain at rest on any road in such a condition or in such circumstances as to cause or to be likely to cause danger, obstruction or undue inconvenience to other users of the road. The motor vehicle in question had been allowed to remain at the road in such a position and in such a condition as it was bound to cause danger and obstruction to other users of the road. As a result, I agree with the finding of the Tribunal that the driver of the truck was negligent for which the respondents before me are liable to pay damages.

7. The question that arises for consideration is whether the finding of the court below that the deceased contributed to the negligence is correct. The Tribunal has repelled the contention of the respondents before me that the deceased was drunk at the time of accident. The Tribunal has found that there was not an iota of evidence on the record before it to support this contention. The learned counsel for the parties have failed to bring to my notice any evidence which has been ignored by the Tribunal below, as such I endorse the finding that the deceased was at the time of the accident not drunk. The Tribunal below has discussed the contributory negligence of the deceased on two grounds, one is that the deceased was carrying two children on the motor cycle, which was not permissible under section 85, but the Tribunal has held that this has not in any way contributed to the causing of the accident. It is true that the deceased could carry only one person on the pillion seat and taking another child on the front seat was not permissible. But, this breach of the law did not contribute to the accident, since it has not been suggested or proved that the deceased had lost balance of the motor cycle or was unable to control it on account of the excessive number of passengers. The view of the Tribunal below on this point is correct.

8. The other ground, which found favour with the Tribunal below was that a person driving a motor cycle at night should drive it at such a speed that he can pull it up within the limits of the vision; and if he collided with the truck, either he was driving negligently fast or he was not keeping good look out and in either event he was also negligent. The tribunal has rejected the statement of the Wing Commander, Lefantane to the effect that the motor cycle of the deceased was being driven at the speed of 15 miles per hour. On this basis the Tribunal has found the contributory negligence of the deceased proved.

9. Contributory negligence was defined by the House of Lords Swadling v. Cooper . 1931 A.C 1. as the rule that although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he was entitled to recover, but if by ordinary care he might have avoided them, he was the author of his own wrong. Again in Caswell v. Powell Duffrun Associated Collieries Limited . 1940 A.C 152. the Judicial Committee observed that strictly speaking the phrase ‘contributory negligence’ was not a very happy method of expressing an act of the employee which might relieve the employer from liability. Probably the phrase ‘negligence’ materially contributing to the injury would be more accurate, but if the word ‘contributory’ be regarded as expressing something which was a direct cause of the accident, either phrase was accurate enough and the less accurate phrase was sanctioned by the long usage. In Nance v. British Columbia Electric Railway Company . 1951 A.C 601. the Judicial Committee observed that when negligence was alleged on the basis of an actionable wrong, a necessary ingredient in the conception was the existence of a duty owed by the defendant to the plaintiff to take due care, was of course, indoubtabily correct, but when contributoy negligence was set up as a defence, its existence did not depend on any duty owed by the injured party to the party sued, and all that was necessary to establish such a defence was to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed by this want of care, to his own injury, for when contributory negligence was set up as a shield against the obligation to satisfy the whole of the plaintiff's claim, the principle involved was that, where a man was part author of his own injury, he could not call on the other party to compensate him full.

10. In Halsbury's Laws of England, third edition, Volume 28, paragraph 92, on pages 87 to 89, the rule has been laid down thus:

“In an action for injuries arising from negligence, it was a defence at common law if the defendant proved that the plaintiff, by some negligence on his part, directly contributed to the injury in the sense that his negligence formed a material part of the effective cause thereof. When this is proved the plaintiff's negligence is said to be contributory. It is now enacted by the Law Reform (Contributory Negligence) Act, 1945 that where any person suffers damage the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage is not to be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof are to be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage”.

11. With regard to the application of the plea of contributory negligence the statement of law in paragraph 93 is that where the defendant is negligent and the plaintiff is alleged to have been guilty of contributory negligence, the test to be applied is whether the defendant's negligence was nevertheless a direct and effective cause of the misfortune. The existence of contributory negligence does not depend on any duty owed by the injured party to the party sued and all that is necessary to establish a plea of contributory negligence is to prove that the injured party did not in his own interest take reasonable care of himself and contributed by his want of care to his own injury. The principle involved is that where a man is part author of his own wrong, he cannot call on the other party to compensate him in full. The standard of care depends upon foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man, he might hurt himself. The plaintiff is not usually bound to foresee that another person may be negligent unless experience shows a particular form of negligence to be common in the circumstances. If negligence on the part of the defendant is proved and contributory negligence by the plaintiff is at best a matter of doubt, the defendant alone is liable.

12. The rule of law has succinctly been summed up in Halsbury's Laws of England and I shall apply it to the facts of the instant case. There is no doubt that if it were found that the deceased had not taken reasonable care of himself in the circumstances of the case, he would be guilty of contributory negligence causing the accident and his estate would have to share the damages. The court below has, however, entered upon the realm of conjectures in the case. The Tribunal has observed that it was the duty of the deceased to stop his motor cycle within the distance of his vision. This is not correct. In Morris v. Luton Corporation the Court of Appeal observed that there was no rule of law that a person riding or driving in the dark must be held to be negligent if he was driving at such a speed that he was not able to pull up within the limit of his vision. The excessiveness of the speed has to be determined as a question of fact in the circumstances of each case on the evidence on the record. The only evidence in the instant case consists of the statement of Wing Commander, Lefantane, who in answer to question No. 18 stated that the motor cycle was travelling at about 15 m.p.h The court below has rejected it as being an estimate. But, in a matter like this, nothing except an estimate could reasonably be expected. This witness has generally been believed by the Tribunal below. He has stated that he did not see the collision, but he was standing outside his house and heard the motor cycle approaching and striking into something and he reached the spot soon thereafter. There is no other evidence of any witness or circumstances to the contrary to indicate that the deceased was driving the motor cycle very fast. The permissible speed for driving the motor vehicles within the Municipal limits is 30 miles per hour and had the vehicle been moving at the speed of 30 m.p.h when brakes were applied to it, thinking time would cover a distance of 30 feet and breaking distance 45 feet, so it would at least need 75 feet before the vehicle is brought to a stoppage. This is so in the case of good weather, broad day light and a four wheeled vehicle. But if the vehicle is two wheeled, it needs double the distance and in bad weather still more (see Bingham's Motor Claims Cases, 7th Edn. at pages 106 and 107). So the overall stopping distance for two wheeled motor cycle in bad weather and dark night would be at least double of 75 feet, viz. about 150 feet. Should the speed be 20 miles per hour, then in case of motor car the stopping distance would be 40 feet and for motor cycle 80 feet. It is, therefore, clear that the motor cycle of the deceased could not be said to have been driven at an excessive speed because had it been driven at a speed of about 20 miles per hour, it would in any case need a distance of about 100 feet to come to a halt. Hence, the mere fact that the motor cycle of the deceased struck the rear of the offending truck would not lead to the conclusion that the motor cycle was being driven recklessly or negligently.

13. Moreover, in the claim petition the claimants stated that the night was dark, the road leading from Palam to Delhi (Sardar Patel Marg) was without any lights, the sky was overcast with clouds and it was very dark, and the deceased had to lead his way with the help of his motor cycle light only, that the deceased was confronted on his way with the blazing lights of the oncoming cars and lorries which paled the light of his motor cycle and that in order to avoid any collision, the deceased kept well towards the left of the middle of the road. In reply, respondents 2 and 3 stated in paragraph 22 that it was admitted that the night was dark and the road at the relevant time was without any lights and the sky was overcast with clouds, it was also admitted that “the deceased must be confronted on his way with blazing lights of the oncoming cars and lorries and the same must have paled the light of the motorcycle of the deceased.” They also admitted that the offending truck was standing parked in an unworkable condition. This admission on the part of the respondents 2 and 3 in the written statement finds support from the statement of Wing Commander, Lafantane. In reply to question No. 20, he stated that there were some cars passing on both directions, but he could not say whether any passed immediately before the accident. He further stated in cross interrogatories in question No. 17 that it was a busy road and there was considerable traffic by day as well as by night. He also stated that he had seen the light of the motor cycle moving through the hedge surrounding his house and that the road was busy and there was considerable traffic and some cars were passing on both the directions. It is, therefore, established that in the circumstances of the case, the light of the motor cycle was not enough to warn the deceased that obstacle of the offending truck existed on the road before him. Again in a dark night with the sky overcast with clouds with no street lighting, it was certainly the duty and prudent act on the part of the deceased to leave his right half of the road for the oncoming traffic and he had to keep himself on the extreme left half of the road, but nine feet out of the total 12 feet width of the said road was covered by the offending truck, which was parked without any rear light or warning. There were oncoming cars and as admitted by the respondents (and in the absence of any evidence to the contrary, we are entitled to rely on the admission of the parties), the deceased was confronted with their blazing lights which paled the motor cycle light. In this situation, the deceased could, by any reasonable care short of miracle, not avoid the accident. Therefore, I hold that the deceased was not guilty of any eontributory negligence.

14. Further, assuming contributory negligence for the sake of arguments, the Tribunal has erred in apportionment. The House of Lords in Miraflores and the Abadesa Owners of the Steam Tanker Mireflores v. Owners of the Steam Tanker George Livanos observed that if the problem were merely a question of causation……… but the investigation was concerned with ‘fault’ which included blameworthiness as well so causation, and no true apportionment could be reached unless both those factors were borne in mind. The noble Lord thereafter proceeded to give instructive illustrations of the working of the rule. However, a case very near to the facts of the case in hand before me came up before the Court of Appeal in Brown v. Thompsona. The facts of that case were that the plaintiffs, consisting of the husband and wife, were injured when the car in which they were travelling struck a stationary lorry which was wholly unlighted at the rear and which had no reflectors; the accident occurred at 2.45 or 3.00 a.m on a stretch of road which ran along the fringes of Epping Forest; at the time there was a thin coating of snow on the road, but snow was not falling heavily. The plaintiff husband was driving the car with dipped headlights; the last street lamp was some 280 feet away before the place of accident, the husband had seen something looming up in front of him just before the accident occurred, and his car had begun to turn out from the nearside kerb before it struck the back of the lorry. The plaintiffs brought an action for damages against the owner of the lorry and the trial Judge awarded to the plaintiff wife £2500 general damages and the court apportioned 20% of the responsibility for the accident to her husband. The defendant appealed against the apportionment of damages and contended that 50% of responsibility for the accident should have been apportioned to the husband. The court of appeal dismissed the appeal. Lord Justice Winn observed at page 709 that it was essential to compare the fault of each with the fault of the other two and the emphasis is on fault, not solely on causation of damage. There was no doubt whatever that the act of driving into the back of stationary vehicle, the act of driving in such a manner that for one reason or another the driver in this case failed to turn out (since there was no real need for him to stop in order to avoid this lorry) was a high degree potently causative of the collision and of the injuries suffered by the husband and the wife, equally, of course, it was potently causative of the collision that the lorry should have been left there in the position with no lights on it, which went very much further than saying that if either of the vehicles had not been there, there would have been no collision. Each of them potently contributed to the causation of the accident, but when one looks at the question of blameworthiness, then it seemed quite plain that the fault of the defendant was very much greater than the fault of the plaintiff husband having regard to the element of blameworthiness was relatively realy quite small. The Court of Appeal, however, declined to interfere with the apportionment of the damages made by the court of first instance.

15. In the instant case, in view of the discussion made above, I have found that there was no contributory negligence on the part of the deceased. But, if mere failure to pull up the motor cycle in time and avoid the collision be assumed to be contributory negligence, I would, relying on the aforesaid authority, call it a relatively quite small blameworthiness and could not apportion the responsibility for the damages against the deceased at more than 20%. The finding of the Tribunal placing it at ⅔rd is clearly not sustainable in any event. As a result, I find that the finding of the court below that the deceased was guilty of contributory negligence is not sustainable and is reversed. Consequently, the respondents are liable to pay the whole of the damages that may be determined against them and no amount of damages is to be reduced on account of any contributory negligence.

16. Before proceeding to discuss the quantum of damages, I wish to consider the objections of Mr. Seth, counsel for the respondents. His first contention is that the claim application was barred by time. The grounds on which he has based his contention is that the claim petition as originally framed had arrayed Amarjit Singh only as respondent No. 2. Later on, it was found that the truck belonged to a partnership firm known as Amarjit Singh Bhagat Singh, of which Amarjit Singh was one of the partners. The claim petition was, therefore, amended and the firm was impleaded as respondent No. 2. The counsel submits that the amendment had been allowed after the period of limitation prescribed by section 110-A of the Act had been expired. This has been discussed by the Tribunal below in answer to issue No. 9. It has held that Amarjit Singh had been impleaded earlier and later the firm Amarjit Singh Bhagat Singh had been impleaded and this was only a case of misdescription and so the petition was within time. Further, following a decision of the Punjab High Court reported as Mehta Goods Carrier (P) Ltd., Delhi v. Darshan Devi, the Tribunal condoned the delay against respondent No. 2 and held that the application was within time. It further found that even if the applications were found to be barred by time, it would not make any material difference, since the claim petition against the insurance company and the driver was undisputably within time and the insurance company had insured the vehicle not only against the insured owner, but also against the negligence of the driver, as was clear from clause (3) of section 2 of the insurance, policy and so the insurance company was liable to indemnify the claim of the claimants against the driver in any event, even without impleading the owner. Mr. Seth has contended that the firm Amarjit Singh Bhagat Singh, which has now been arrayed as respondent No. 2 was a separate legal entity from Amarjit Singh personally, who had been impleaded earlier. I am unable to accept the submission. The partnership firm is not a separate legal entity. It is the only compendious name for the individual partners (see Murli Dhar v. Chuni Lal Amarjit Singh, therefore, remained liable in his individual capacity as well as in his capacity as partner of the firm and the amendment in the description of the firm did not introduce any separate legal entity (See Purushottam Umedbhai and Co. v. Manilai and Sons and Jai Jai Ram Manoharlal v. National Building Material Supply . 1969 1 SCC 869 Moreover, I agree with the court below that the substitution of the name was a correction of misdescription, as the claimants had really intended to implead the owner of the vehicle, and Amarjit Singh was one of the owners, while his partners in the firm were co-owners. Under section 21 of the Limitation Act, if a suit or application has been filed against a defendant and subsequently another defendant is added, it is open to the court to order that the proceedings against the newly added defendant would be deemed to have been commenced on the date of the original petition. Further, the Tribunal below had the power to condone the delay under the proviso to sub-section (3) of section 110-A of the Act and it has exercised its discretion in the instant case according to the well established principles and no grievance can be made against the same. Mr. Seth, however, has contended that the Tribunal has condoned the delay without any written application of the claimants. Neither section 5 of the Limitation Act, nor the proviso to section 110-A (3) of the Act really requires a written application for the purpose see Sanwal Das v. Kanya Lal, and Firm Kaura Mal Bishan Dass v. Firm Mathura Dass Atma Ram. Though written applications are normally filed to move the court to exercise its power to condone the delay, still, it does not debar the court from condoning the delay without any such written application. The matter rested in the discretion of the court, which has been exercised according to law. I do not find any legal infirmity in this part of the order and reject the objection of the counsel for the respondent. I also agree with the Tribunal below when it has held that the delay in correcting the name of respondent No. 2 has not caused any prejudice, since the liability of the insurance company was in terms of the policy still subsisting upon mere proof of negligence of the driver even when only Amarjit Singh had been impleaded as owner in place of the firm.

17. The other objection raised by Mr. Seth is ingenious, but not sound. The submission of the counsel is this: Under section 110-A it is provided that an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 110 may be made by the persons mentioned there in and sub-section (1) of section 110 provides that a State Government may……constitute…… Motor Accidents Claims Tribunals for such area as may be specified in the notification ……for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles (emphasis supplied). The learned counsel's argument is that at the time of the accident, the offending motor vehicle had broken down and was standing in an unworkable condition and the same was not in use. The accident had, according to the counsel, therefore, not taken place arising out of the use of the vehicle and as such the claim preferred by the appellants was not covered by section 110 and section 110-A of the Act and so its determination would be beyond the jurisdiction of the Tribunal.

18. The contention of the learned counsel has been repelled by the court below and in my opinion rightly. The word ‘use’ occurring in section 110 of the Act has been used in a wide sense. It covers all employments of the motor vehicle on the public places including its driving, parking, keeping stationary, repairing, leaving unattended on the road or for any other purpose. The driver of the offending vehicle had certainly taken out the vehicle and had driven it on the public road and had parked it, as its axle had broken down and then left it without reasonable precautions. If a vehicle is being driven and is stopped or parked for being repaired or otherwise, then it cannot be said that the vehicle is not being used. Supposing some driver thinks fit to stop a vehicle in the middle of a busy road and to start repairing it or decides to rest in the seat, it cannot be said that he can cscape the liability by pleading that at that time the vehicle was not being used.

19. The counsel has taken me through the various provisions of the Act, where the Act has used diverse expressions like, driving, parking using, stopping, remaining stationary, etc., etc., etc. But, these expressions are employed when the legislature intended to direct the attention to any particular use, but the expression ‘use’ occurring in section 110 is similar to the expression occurring in section 94 and 95 where a mandate is laid down that no person will use a motor vehicle in public place without a prescribed policy of insurance. Section 110 again employs the same expression “arising out of the use of the vehicle”. The expression is, therefore, employed in a wide sense and is practically synonymous with bringing out a motor vehicle in a public place, and using the public place for the motor vehicle. The condition in which the motor vehicle arrives or is kept and the purpose for which it is being driven or is being kept stationary is not a jurisdictional fact to determine the jurisdiction of the Tribunal to decide the claim, although these questions may or may not have any bearing on the merits of the case.

20. The word ‘use’ of the motor vehicles occurring in chapter VIII under the heading ‘Insurance of Motor Vehicle Against Third Party Risks’, has a wider meaning of plying and not actually plying it for profit. The expression is used in section 110-A in the same sense as it occurs in sections 94 and 95 of the Act under chapter VIII. The use of the expression ‘use’ in other sections 123, etc., in Chapter VI relating to Control of Traffic and at other places derive their meaning in the restricted or wider sense, as the case may be, according to the context in which it is used and they do not control or limit the connotation of the expression occurring in section 110 and 110-A of the Act Mr. Seth has cited the State of Mysore v. Syed Ibrahim, State of Uttar Pradesh v. Ramagya Sharma Vaidya, E.S Ramakrishna Setty v. State of Andhra Pradesh, In re T.V Naidu, and State of U.P v. Bansarai,5 on the construction of the expression ‘use’. I have gone through the said authorities. They deal with the expression occurring in the particular context and do not throw any light on the construction of the word occurring in section 110-A or 110 of the Act. I have no hesitation in rejecting the contention of the learned counsel and affirming the view of the Tribunal below.

21. With regard to quantum of damages, I endorse the finding of the court below that the parents of the deceased were not dependent on the deceased and they were not entitled to any damages. With regard to the damages payable to the other claimants, I accept the evidence on behalf of the claimants as was accepted by the Tribunal below on the basis of income-tax assessment orders that the income of the deceased from the Tin Printing Factory was Rs. 6000/- per annum. The Tribunal below has reduced it by Rs. 3000/- on the ground that after the death, the widow continued to get the said income. In my opinion, the Tribunal has fallen into an error. It was open to the court to find out the value of the assets left by the deceased and deduct it from the dependency. But the income of that claimants after the death of the deceased is due not only to the assets of the deceased, but also due to the management of the business by the deceased's wife with the help of Inderjit Chopra, younger brother of the deceased, who stated that the factory was running at a loss. The value of the capital, labour and risk employed by the legal representatives on the work must be excluded before proposing to reduce the dependency. Income from the business of the factory cannot be equated with the rental income from the reality nor with the fruits from the trees which may be readily available without much labour and risk on the part of the legal representatives. The court below in arriving at the dependency ought to have given credit for the personal contribution and efforts of the legal representatives in running the business and earning income out of it. In the absence of any other material on record, I would consider it fit to allow a sum of Rs. 1,000/- per annum on account of labour, skill and risk of the business incurred by the legal representatives themselves and would, therefore, arrive at the dependency at Rs. 4,000/- per annum (instead of Rs. 3,000/-). As against this, in agreement with the Tribunal below. I would exclude the amount of Rs. 75 and Rs. 80/- per month (or Rs. 1,860/- per annum) on account of expenditure by the deceased on himself and the deceased children, thus yielding a total of Rs. 2,140/- per annum as dependency. The deceased at the time of his death was 45 years of age and the court below has applied the multiplier of 12. The learned counsel for the appellants has submitted that the deceased had a history of longevity and his parents are still alive and he should, therefore, be expected to live till the age of 65 years and the computation should have been made for 20 years. But unfortunately, no evidence has been produced at the trial with regard to the family history and so I am unable to differ from the finding of the Tribunal below and thus the multiplier must remain at 12. The dependency of Rs. 2,140/- per annum multiplied by 12 gives the amount of compensation at Rs. 25,680/-.

22. The court below has allowed compensation on account of expectation of life at Rs. 2000/- on account of husband, Rs. 2,000/- for the deceased daughter and Rs. 3,500/- for the deceased son. In my opinion, in the instant case the claimants are not entitied to the aforesaid amounts. Moreover, the amount that is being allowed by me on appeal and is being paid as lump-sum covers all heads of compensation to which the claimants are entitled. The said items are, therefore, disallowed. The Tribunal below awarded compensation for the death of two children. I do not award it separately and it will be covered by the amount awarded. The appellants have received a sum of Rs. 2,500/- from the insurance company as claim on the life insurance policy of the deceased. The court below has deducted whole of the said amount as accretion of estate. This could not be deducted as the amount of insurance was payable to the representatives of the deceased in any event and it does not constitute a benefit on account of his death. Therefore, what is to be deducted on account of insurance as the acceleration of the payment of the claim and not the whole claim. See Bhagwanti Devi v. Ish Kumar, I value the acceleration at ten per cent. The deduction on account of acceleration of insurance claim works out Rs. 250/-. This makes out a net compensation of Rs. 25,430/-, which will be payable to the wife and the two children, appellants herein, in equal shares. The award of the Tribunal below is enhanced to the aforesaid figure of Rs. 25,430/- The liability of the insurance company will be limited to Rs. 20,000/- and the balance will be payable by the remaining respondents.

23. The appeal is consequently allowed with proportionate costs. As a result, the cross-objections are dismissed with no order as to costs.