Alladi Kuppuswami, J.:— The plaintiffs in O.S No. 21/73 on the file of the Additional Chief Judge, City Civil Court, Hyderabad have preferred this appeal against the Judgment and decree of that Court dismissing their suit. The first plaintiff is the widow of Sri P.S Naidu, plaintiffs 2 to 4 are his children and plaintiff 5 is his mother.
2. Sri P.S Naidu was the Superintending Engineer in the Atomic Energy Department of the Central Government. He was working in the Nuclear Fuel Complex at Moula All, Hyderabad in 1971. The work of Air-Conditioning, ventilation and fumehood exhaust for the Buildings of the Nuclear Fuel Coplex was entrusted to the defendant American Refrigeration Co. Ltd. The work of constructing the building had been entrusted earlier to another contractor and had been completed by him. The defendant had to instal a roof extractor in the pellestising bay of the Ceremicfuel fabrication plant building. For erecting the roof extractor, a portion of the roof which was of asbestos sheets had to be dismantled and the roof extractor placed in position. After it was installed, Mr. Naidu who was the Superintending Engineer had to satisfy himself about the safety of the structure and see that the roof extractor did not damage the roof by its vibrations. On the 31st August, 1971, he was asked by the defendant to inspect the work. It is the plaintiff's case that as the defendant had unbolted the asbestos sheets and failed to refix the same with J. bolts they were not firmly fixed, with the result Sri P.S Naidu who stepped on one of the sheets fell down along with the sheet which has been unbolted by the staff, and received serious injuries. He was taken to the hospital, but he died on the way. A committee consisting of three members with Sri C.M Goveas as Chairman was constituted by the Director. Bhabha Atomic Research Centre to find out the cause of the accident and to indicate safety measures to be taken in future to prevent recurrence of the accident. The committee took statements from persons who were on the spot at the time of the accident and others and investigated into the matter. They ultimately submitted a report on 13-7-1972 in which they stated that the responsibility for the accident lay entirely with the defendant-Company who were assigned the task of installing the roof extractor. They stated that one of the asbestos sheets on which Sri Naidu stepped was not bolted. Sri Naidu was not warned of the fact when he went up on the roof. The most important contributory cause of the accident was the insecure way in which the sheet was placed as it was fixed either with little or no bearing on purlin No. 6. It must have moved downward little by tittle during the erection operation with the result that with the stepping of Sri Naidu on the sheet, it had reached a critical stage and gave way. They therefore stated that the responsibility lay with the defendant.
3. The Central Government directed that the 1st plaintiff may be given a monthly pension of Rs. 300/- for seven years and thereafter at Rs. 252/- per month. They also directed that the children should be paid Rs. 25/- per month each till they attained the majority. The plaintiff gave a notice to the defendant on 2-11-1971 stating that these sums were inadequate and in addition to those sums, the defendant may pay a compensation of Rs. 1,00,000/-. She stated in the notice that the death of her husband was due to the negligence on the part of the defendant. The defendant replied on 2-3-1972 that the matter was receiving attention, but failed to take further action on the notice. Thereafter the plaintiff caused a lawyer's notice to be issued on 16th August 1972, which was followed by the institution of the suit. In the suit, however, the plaintiffs claimed a sum of Rs. 1,95,000/- made up of a sum of Rs. 91,200/- payable to the first plaintiff, Rs. 55,800/- payable to plaintiffs 2 to 4 for their education, medical expenses and other amenities till they attain majority and Rs. 30,000/- for the marriage expenses of plaintiffs 2 and 3; and Rs. 18,000/- for the maintenance of plaintiff No. 5, the mother of the deceased.
4. The defendants contended that there was no negligence on their part and that the accident was due to the negligence of Mr. Naidu. If he had observed the elementary precaution and taken normal care of a man of ordinary prudence, the accident would not have happened and the blame for the accident cannot be laid at the door of the defendant. In the circumstances, the plaintiffs were not entitled to claim any damages. In any event, the damages claimed were excessive.
5. The Court below after considering the evidence, oral and documentary, held that there was absolutely no negligence on the part of the defendants. The roof extractor had been fixed firmly and safely. The failure to fasten the J. bolts and nuts at the time of trial test cannot by itself constitute negligence. The deceased did not observe the elementary safeguard of using cat ladders or roof boards while walking on the inclined plane of the asbestos sheets. He did not listen to the caution tendered by his colleague engineer and yet he ventured to go to the south west corner of the extractor while others stood at the north eastern corner. Therefore the deceased himself was responsible for his own calamity. It was therefore an inevitable accident for which the defendant company cannot be held liable. Though, in view of this finding, the plaintiffs would not be entitled to any compensation, the court below proceeded to determine the amount of compensation if the defendant was to be made liable. It held that the plaintiff's would at the most be entitled to a compensation of Rs. 25,000/-. In the result, the learned Judge dismissed the suit but directed each party to bear its own costs.
6. In this appeal by the plaintiffs, the learned counsel for the appellants has contended that the accident was due to the negligence of the defendant and the plaintiffs were therefore entitled to claim damages. He submitted that there was no contributory negligence on the part of Sri P.S Naidu. Regarding the quantum of compensation, he submitted that the plaintiffs would be entitled to much more than what they claimed in the plaint, but ls they had limited the claim to Rs. 1,95,000/- a decree should have been passed for that amount.
7. The learned counsel for the defendant argued that there was no negligence on the part of the defendant. At any rate, as there was also negligence on the part of Sri P.S Naidu, his legal representatives could not claim any damages. He further submitted that in any event the amount fixed by the court below is proper and if the defendants are held liable, the plaintiffs must be awarded only the sum of Rs. 25,000/- as damages.
8. The first question that, arises for consideration is whether there was any negligence on the part of the defendant?
9. The Committee appointed by the Director, Bhabha Atomic Research Centre, submitted a report Ex. A.1 stating that the defendant was solely responsible for the accident. But this Committee did not have any legal sanction as it was appointed by the employer for their own sake to satisfy whether the defendant was responsible for the accident and whether any safety measures would be taken in future. Even when the defendant applied for a copy of the report (Ex. B.6) on 18th September, 1973, the Department of Atomic Energy gave a reply Ex. B.7 stating that the findings of the Committee were only for the information of the Department and therefore a copy cannot be made available to the defendant. There cannot therefore be any doubt that the report of the Committee is not binding upon the defendants and cannot be used against them in the suit.
10. But apart from this report, there is other evidence which has been adduced in this suit by the plaintiffs. It has to be considered whether this evidence which is produced in this suit is sufficient to establish negligence on the part of the defendants.
11. We have been taken through the entire evidence in the case. It is clear from the evidence that for the purpose of installing the roof extractor, some asbestos sheets had to be removed, in particular, one of the sheets on which ultimately it was found Mr. Naidu stepped and which gave way, was not fixed with J. Bolts. The sheets were not resting on the purlins. The Employees of the defendant company were working on the roof with the sheets not properly fixed with bolts and it was probable that the sheet would have also slided from its original position and at the time when the accident was occurred, was not resting properly on the purlin (steal rafter,) with the result when Mr. Naidu stepped on the edge of the sheet, the sheet broke in the middle and he fell down. This is spoken to by P.W 4 who was also one of the members of the Committee who enquired into the accident. He is the General Manager of the Electronic Corporation of India Limited. He stated that at the time of enquiry the committee also conducted an experiment in which they tested with the asbestos sheets not resting on the upper purlin. A sand bag of the weight of a normal man was hung over the sheet and allowed to be dropped at a height of two inches which would have the same effect of a man stepping on the sheet. The sheet cracked and fell down. Afterwards they put another sheet resting on all three purlins and repeated the experiment. The sheet remained in tact. P.W 4 therefore stated that the Committee was of the opinion that the sheets were not bolted properly and were not resting on the upper purlin. D.W 1 is the Project Officer of the defendant Company. He stated that on 31st August 1971 it was decided that he Mr. Naidu and D.W 2 (Mr. Gurneni) should go over the roof to test the vibrations of the roof extractor. He stated that he was at the north-east corner of the roof and D.W 2 was beside him. Mr. Naidu went towards the South Western corner. The witness suddenly heard a thud like a person falling on the AC. sheet. It was followed by cracking and splintering sound. He saw Naidu falling through the trusses. To his mind, Mr. Naidu must have slipped as it had rained the previous days and that day also in the morning or it could be that he lost his balance and fell down on the AC. sheet with an impact so that it broke. He admitted that it was a trial installation and that the bloth and nuts were not fixed. Though AC. sheets were unbolted earlier, they had not been rebolted at the time of the test. Sheet No. 1 was put underneath the adjoining sheets resting on the purlin but it was not bolted to the purlin. Still he stated that it is not true that the sheet was not fastened properly. D.W 2 Gurneni, is the Assistant Project Engineer who also went up the roof along with Mr. Naidu, and D.W.I He stated in the Chief Examination that on the 30th August, he conducted a test trial as Sri. Naidu had apprehension of vibration being transmitted to the structure. He sent his people to the roof to check up if the bolts and nuts were tight. But in cross-examination he admitted that sheet No. 1 was not bolted. He was incharge of the work and it was his duty to see that the sheets were properly bolted and the cracked sheets were replaced. He told the committee that it was his mistake in not ensuring the bolting of the sheets. The sheets had been removed earlier to take the roof extractor on to the top. Half of the portion of sheet No. 2 had been slided down to fix the roof extractor to the purlins. He did not notice if sheet No. 1 was bolted or not. Again in the cross-examination he stated that there was no necessity for him to ensure that the sheets were resting on the three purlins. He however, maintained that the accident did not happen due to the negligence of the Staff D.W 3 is the Chief Engineer of the defendant-company. He stated as his opinion, that if a person walks on corrugated asbestos sheet, it will not break because of his weight. He however admitted that removal of bolts and nuts may weaken the fixing of the sheet though it would in no way weaken the sheet itself. He also admitted that if the J. bolts were not used, the sheets may slide down.
12. On a careful reading of the evidence of these witnesses it is clear that the asbestos sheets were not refixed with J. bolts which had been removed earlier. This is practically admitted by all the defendant's witnesses. The employees of the defendant were working on the top of the roof after the bolts had been removed. It is therefore quite probable that the asbestos sheet had slided down from the original position. From the experiment conducted by the Committee which was again stated in the evidence of P.W 4, it is clear that the asbestos sheet was not resting on the purlin and when Mr. Naidu stepped on one corner of the sheet by a cantilever action, the sheet broke in the middle and gave way and Sri Naidu fell along with the sheet. We are, therefore, of the view that the accident was the result of the asbestos sheet not being fixed with J. Bolts and not resting on the purlin probably due to the fact that it had slided down as the employees were working on the roof on the previous day.
13. It is further in evidence that Sri Naidu was not warned of the fact that the asbestos sheet had not been secured properly by J. Bolts. The learned counsel for the respondent referred to the evidence of D.W 2 who stated that as D.W 1 and Mr. Naidu were nearing the roof, he called them and asked them to be careful. But he admitted in cross-examination that before the Committee when answering the questionnaire, he stated that it did nor occur to him to caution Mr. Naidu to be careful. D.W 1 admitted that he did not caution Mr. Naidu before going on the top. We are therefore not prepared to believe D.W 2 when he stated that he cautioned Mr. Naidu to be careful. Even assuming that he cautioned Mr. Naidu to be careful, it appears to us that it was a general caution which one would normally give when people go on the roof top. What is required is drawing the attention of Mr. Naidu to the fact that the asbestos sheets were not properly secured by J. Bolts and therefore he should exercise special caution if he decided to go on the roof. If he was apprised of the fact that the asbestos sheets were not secured by J. Bolts it is doubtful whether Mr. Naidu would have gone over the roof at all. Even if he decided to do so he would have taken appropriate precautions. There would have been a valid defence for the defendant if in spite of such a caution Mr. Naidu had gone up the roof and without taking proper precautions had fallen down. It was also argued on behalf of the respondents that all the J. bolts which were removed were lying on the ground and Mr. Naidu would therefore have been aware of the fact that the J. bolts had been removed and had not been refixed. But there is no evidence to show that either Mr. Naidu saw the bolts lying on the ground or his attention was specifically drawn and he was informed that the J. bolts had been removed and had not been refixed. We cannot, from the mere circumstance that the J bolts were lying on the ground, draw an inference that Mr. Naidu was aware of the fact that the asbestos sheets were not secured properly by J. bolts and still volunteered to go up the roof.
14. It was also argued that the defendants were conducting only a trial test and in such case, normally, the asbestos sheets would not be fixed with J. bolts and they will be secured properly only after the trial test was conducted. It was submitted that Mr. Naidu being an experienced engineer should have been aware that in the case of a trial test, the asbestos sheets would not be usually secured by J. bolts and should have taken proper care. We are unable to agree with this submission. There is no evidence that in all cases of trial test the practice is that the asbestos sheets would not be secured by J. bolts and there is also no evidence that Sri Naidu know that such was the practice.
15. Another contention that was raised was that it was not necessary for Sri Naidu to go up to the roof at all to test the vibrations and he could have done so by placing the hand on the trusses which were below the roof. In this connection reference was made to the evidence of P.W 7, the Chief Engineer, who stated that the initial test for vibration is by placing the hand on trusses which are below the roof. But P.W 4 deposed that though the vibrations could have been tested standing on the scaffold, that is not a normal place of test and the deceased had to go to the roof to test the vibrations. We cannot therefore accept the argument that it was not necessary for the deceased to have gone to the roof for testing the vibrations. Even assuming that he could have tested the vibrations without going on the roof, it cannot be said that he was guilty of negligence, if he chose to satisfy himself by going on the roof and testing the vibrations instead of contending himself by testing the vibrations by placing his hand on the trusses.
16. It was further contended that Sri Naidu was guilty of negligence in that he did not use a cat ladder or a roof board which is normally used while walking on the asbestos roof. Our attention was drawn to a manual containing instructions. But the manual says that the use of a cat ladder is a ‘must’ when it is wet and rainy. Evidence was let in to show that it had rained during the previous day and on that day also. Apart from the oral evidence, the Meteorological report was also produced to show that there was rain on the previous night. Though Sri Jagannadha Rao argued that this report refers only to Hyderabad and not Moulali, we are prepared to proceed on the footing, having regard to the nearness of Moulali to Hyderabad air-port, that there was rain in Moulali also. Though there was rain at Moulali during the previous night, there is no evidence to show that at the time when Mr. Naidu and others got up on the roof, the roof was wet or slippery. D.Ws 1 and 2 who accompanied him also did not say that the roof was wet or slippery, it is also admitted by D.W 3 the Chief Engineer that it is difficult to say if a man would slip on a wet asbestos sheet. Even before the Committee it was not mentioned by any of the witnesses that bacause of the rain the roof was wet and slippery and that might have been the cause of Mr. Naidu slipping and falling on this sheet. D.W 1 and D.W 2 themselves did not use any cat ladder or roof board while going over the roof top. The contention therefore that Sri Naidu was negligent in not using the cat ladder is without substance.
17. Lastly it was argued that Sri. Naidu himself might have slipped and fallen down and the accident must have been due to his negligence and the fact that the asbestos sheets were not secured with J. bolts was merely taken advantage of by the plaintiffs. In other words; the submission was that even if the asbestos sheets were secured properly it was quite probable that Mr. Naidu would have slipped and fallen on the asbestos sheet which would have resulted in the breaking of the asbestos sheet. It is not possible to accept this contention in view of the evidence of P.W 4. He stated that while conducting an experiment, at first the sheets were placed by making them rest on the purlins without bolts and a sand bag of the weight of a normal man was dropped from a height of two inches which would have the effect of a man stepping on the sheet. The sheet cracked and came down. Thereafter another sheet was put resting on the purlins by the three bolts. When the experiment was repeated the sheet remained in tact. This experiment would clearly show that if the sheets were resting on all the purlins if a man slipped and fell on the roof, the sheet would not break. It is therefore reasonable to infer that the breaking of the asbestos sheet was not because Mr. Naidu slipped and fell but because the asbestos sheet was not resting on the purlins and was not fixed with J bolts.
18. It is well settled that when negligence is established the burden is upon the defendant to prove contributory negligence on the part of the plaintiffs. We are of the view that the defendant has not satisfactorily discharged the burden of proving contributory negligence on the part of the plaintiffs.
19. We may now refer to the decisions cited at the bar. In Smith v. Austin Lifts Ltd., (1) 1959-1 All Eng. Law Reports, 81, the liability of the occupiers to the invitee was considered by the House of Lords. The appellant had been injured due to the jamming of a door. It was held that the occupiers were liable for the damages to the employee who was an invitee as the jamming of the door had created an unusual danger for the appellant which he did not fully appreciate. Dealing with the argument that the appellant knew about the defect, Lord Denning observed that though he knew about the defect, he did not know all about the danger arising from it. It is not enough that he should know of the defective conditions of the premises, it was not enough that he should realise that there was same risk. He must know and appreciate the full extent of the danger. If he was in any way mistaken about the danger, so that the state of affairs was in fact more dangerous than he thought it was, then he can recover. Applying this test in this case, even assuming that on that day Mr. Naidu knew that the asbestos sheets had not been fixed up with bolts or that there was rain the previous day and the roof might be slippery, it cannot be said that he fully appreciated the extent of the danger caused by not fixing the bolts. As we have pointed but earlier, even the officers of the defendant company were not alive to the danger and had gone along with Mr. Naidu to inspect the roof extractor.
20. In Stowell v. Railway Executive (2) 1949-2 All Eng. L.R 193, the plaintiff went to a railway station to meet his daughter and her family who were arriving there by train. As he walked along the platform looking into each compartment for his daughter, he slipped on an oily patch which he had not seen, and fell, sustaining injury. It was found that the oily patch ought not to have been there and if the railway company's servants had taken proper care, it could have been removed. It was held that the oily patch was an unusual danger and the defendants were liable for damages for the negligence. The plaintiff could not be expected to be looking on the ground at every step and he was entitled to expect that platform would be free from obstruction. The duty of the occupier was to prevent damage to the invitee to any unusual danger of which the occupier knew or ought to have known.
21. In Johnson v. Rea Ltd. (3) 1963-3 All Eng. L.R 816 Stevedores was employed by shipowners for the loading of a ship at a dock. A substantial part of the cargo consisted of soda ash contained in hessian bags through which some of the soda ash had seeped on the floor of the shed and became wet, making the floor very slippery. The plaintiff who came to the shed in a lorry to deliver kegs of chemicals for loading into the ship, slipped on the floor while carrying a keg on his shoulder. It was held that the stevedores created the slippery condition of the floor and knew of the danger, they owed a duty to the plaintiff not merely to warn him of the danger but to take such reasonable steps as could be taken to protect him from danger, which they had created. As the stevedores had not taken such steps they were liable for damages. In the present case, far from taking any steps to protect Mr. Naidu from injury, the defendants had not even warned him of the danger.
22. It was sought to be argued by the learned counsel for the respondent that the defendants are not in the position of an occupier as the site did not belong to them and they were only contractors for doing airconditioning etc. But it is not necessary for a person to be in actual ownership or possession of the premises to be an occupier. It is enough if he has sufficient control over the premises. A person who has immediate supervision and control and the power of preventing and prohibiting the entry of other persons would be liable as an occupier. In this case, it is in evidence that the contractors who had been entrusted with the construction of the building had completed their work and the defendants were then asked to do the work of airconditioning etc. At the time when the accident occurred, they were in control and had either to permit or invite persons to go into the premises. Mr. Naidu who was a Superintending Engineer, had business with them in that he had to supervise the proper installation of the roof extractor. He was also invited by the defendants to go up the roof and do the inspection. Thus, there can be, no doubt that the defendants were in the position of an ‘invitor’ and Sri Naidu in the position of an ‘invitee’. Having regard to the principles in the decisions referred to above, there can be no doubt that the defendants were liable to the legal representatives of Sri Naidu, for damages for the death of Sri Naidu caused by their negligence.
23. The next question for consideration as what is the amount to which the plaintiffs are entitled? The principles on which the damage has to be assessed in such cases have been stated by Lord Wright in Davies v. Powell Dufferyn Associated Collieries Ltd. (4) 1942 AC 601 as follows:
“The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered. The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand the loss and on the other, any pecuniary advantage which from whatever source comes to him by reason of the death”.
24. In Nance v. British Columbia Electric Railway Co Ltd. (5) 1951 AC 601 Viscount Simon, stating that the damages have to be ascertained by asking the question, “if the deceased had not been killed but had eked out the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would be probably have applied out of his income to the maintenance of his wife and family?” After referring to these two decisions, the Supreme Court in Gobald Motor Service v. Veluswamy (6) AIR 1962 SC 1 observed that many imponderables enter into the calculations. The deceased man's expectation of life, the amount required for the future provision of his wife having regard to the amounts he used to spend on her during her life time and deductions to be made due to the acceleration of her interest and for the possibility of the wife dying earlier, are some of the circumstances to be taken into account. The actual extent of the pecuniary loss may depend upon data which cannot be ascertained accurately; but must necessarily be an estimate, or even partly a conjecture.
25. Bearing these principles in mind, it has to be seen what would be the proper amount of compensation that has to be awarded to the plaintiffs.
26. In the plaint, the plaintiffs claimed Rs. 91,200/- for the first plaintiff at the rate of Rs. 400/- per month for nineteen years which is the period during which Sri Naidu would have been in service. Rs. 55,800/- was claimed for the children at Rs. 150/- per month for the varying periods until each of them attained majority. Rs. 30,000/- was claimed for marriage expenses of plaintiffs 2 and 3 and Rs. 18,000/- for the mother at Rs. 150/- per month for a period of ten years.
27. The Chief Engineer under whom Mr. Naidu was the Superintending Engineer stated in his evidence that Sri Naidu was the Superintending Engineer in the scale of Rs. 1100-1500/-. He also stated that had he survived, he would have become Chief Engineer on the scale of Rs. 2500 to Rs. 2,750/-. Sri Naidu was aged only 39 years on the date of the accident. From the evidence it appears he had very good qualifications and the very fact that he became a Superintending Engineer even by the age of 39 is prima facie proof of his ability. It was argued that the post of a Chief Engineer is a selection post and it cannot be taken for granted that Sri Naidu would have become the Chief Engineer. Though it is a selection post, having regard to Sri Naidu's qualifications, it can be reasonably assumed that he would have become Chief Engineer in the normal course especially, when his superior, the Chief Engineer himself stated that Mr. Naidu would have become the Chief Engineer had he not met with the accident. If so, as he had nineteen more years of service it can be taken that he would have been earning on an average of Rs. 2,000/- a month. The first plaintiff has given evidence that Sri Naidu was giving her Rs. 1000/- for household expenses and for the use of the car. We can therefore take it roughly that the amount which Mr. Naidu would have spent on the first (as there were also other members of his family, children and mother) would be Rs. 700/- per month bearing in mind that after his retirement much less would be spent on her. It is admitted that the sum of Rs. 300/- per month for seven years and Rs. 250/- thereafter being paid by the Government of India would have to be deducted. Making this deduction, the benefit that would have accrued to the first plaintiff could be worked roughly on the basis of Rs. 400/- per month (excluding the sum paid by the Government of India) or Rs. 4,800/- per year. Capitalising this amount, we are of the view it would be reasonable to award a compensation of Rs. 60,000/- to the first plaintiff. In this connection, reference may also be made to the decision of the Supreme Court in Subramonia lyer v. Kunni Kuttam lyer (8) (1969) 3 SCC 64 : AIR 1970 SC 376 in which it is stated that a multiple of 12 to 15 would be a proper multiple for the purpose of capitalisation. In Gobald Motor Service v. Velluswami (6) AIR 1962 SC 1 already referred to above, it has also been observed that some amount may be deducted for lumpsum payment. Taking all these circumstances into consideration, we would consider Rs. 60,000/- a reasonable amount paid to the first plaintiff as damages. Looking it from another point of view, the said amount at the present rate of interest of 10% if invested in fixed deposit for five years or more in a nationalized bank would fetch her Rs. 500/- a month which taken along with Rs. 300/- or Rs. 250/- as the case may be, paid by the Government of India would give her roughly Rs. 700/- a month which, according to us, would have been the amount spent on her by her husband if he had been alive.
28. As far as the children are concerned, they would be entitled to compensation till they attain majority. We would consider a sum of Rs. 30,000/- to the children would be a proper amount of compensation in addition to the sum of Rs. 25/- each awarded by the Government of India. However, as the children are under the care of the mother who has been spending for them also, this amount will also be paid to the first plaintiff on their behalf. According to us, the reasonable compensation to be awarded to the mother, the 5th plaintiff, is Rs. 10,000/- as she was stated to be aged 70 years on the date of death of her son and a sum of Rs. 100/- per month would be a reasonable sum Mr. Naidu would have spent on her. The learned counsel for the appellants rightly did not press separately the claim for marriage expenses of plaintiffs 2 and 3.
29. In this connection it may be mentioned that in her notice dated 2-11-1971 the plaintiff claimed, that in addition to the payments made by the Government the defendant should pay a compensatory grant of one lakh of rupees to help her. Similarly in the notice issued by her advocate on her behalf on 16-8-1972 the defendant was reminded that the plaintiff had claimed a sum of one lakh of rupees and if it was not paid she would be constrained to take legal proceedings. It is true that the plaintiff is not bound by the amount mentioned in these notices nor is she estopped from claiming more. But the court is entitled to take these notices into account in coming to the conclusion that the plaintiff herself had estimated the fair compensation at one lakh of rupees. Sri Jagannadharao learned counsel argued that in these notices the compensation claimed was for the plaintiff only and did not include the compensation for her children. This explanation is not acceptable as in the notices she has clearly mentioned that she had to support three children and bring them up. Sri Anjaneyulu, the learned counsel for the respondent argued that a sum of Rs. 45,000/- has been received by way of insurance by the plaintiffs and this has to be deducted from the amount payable to the plaintiffs. He relied upon the decision of the Supreme Court in Gobald Motor Service v. Veluswami (6) AIR. 1962 S.C p. 1 where it was observed that (in awarding compensation) any pecuniary advantage which, from whatever source, comes to the plaintiffs by reason of the death has to be deducted from the compensation awarded. He therefore argued that as the insurance amount is a pecuniary advantage derived to the plaintiffs by reason of the death of Mr. Naidu, that amount has to be deducted. We are unable to agree. The insurance amount is not an advantage derived by the plaintiffs on account of the death. It is only a sum which was payable on the death of the deceased. In Parry v. Clever (9) 1969-1 All. E.R 555 at 558 where it was observed as follows by the House of Lords:
“As regards moneys coming to the plaintiff under a contract of insurance, I think that the real and substantial reason for disregarding them is that the plaintiff has brought them and that it would be unjust and unreasonable to hold that the money which he prudently spent on premiums and the benefits from it should enure to the benefit of the tort-feasor……… Why should the plaintiff be left worse off than if he had never insured? In that case he would have got the benefit of the premium money; if he had not spent it he would have had it in his possession at the time of accident grossed up at compound interest.”
30. In Bhagwati Devi v. Ish Kumar (10) 1975 A.C.J p. 56 it was observed that there was 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, in determining the amount of compensation. These benefits are in the nature of quid pro quo and have relation to the savings effected by the deceased besides having their genisis 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 benefits of these payments to the wrong doer who, by his negligent act, has caused the death of a person. 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 independent of death but are payable on death. The insurance amount paid cannot therefore be considered as any pecuniary advantage coming to the plaintiffs by reason of the death within the meaning of the “observations of the Supreme Court in Gobald Motor Service v. Veluswami (6) supra. We are therefore clearly of the opinion that the insurance amount received by the plaintiffs cannot be deducted while computing the compensation to be awarded to them.
31. In the result, the appeal is allowed and there will be a decree in favour of the plaintiffs 1 to 4 for Rs. 90,000/- with interest at 6 percent per annum from the date of decree and Rs. 10,000/- in favour of the fifth plaintiff with interest at the same rate from the date of the decree. As the plaintiffs have succeeded only in part, each party will bear their own costs.